author: ANSTEAD, Judge.

text:
    OJUS INDUSTRIES and Robert Thomas, Appellants, v. Grady H. BRANNAM, Appellee. OJUS INDUSTRIES and Robert Thomas, Appellants, v. Dorothy J. VIENNE, as Administratrix of the Estate of Albert Sidney Vienne, Deceased, Appellee.
    Nos. 75-776, 75-777.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Larry A. Klein and Adams, Coogler, Sullivan & Watson, West Palm Beach, for appellants.
    Thomas A. Hoadley, West Palm Beach, for appellee Brannam.
    William H. Pruitt, West Palm Beach, for appellee Dorothy J. Vienne.
   ANSTEAD, Judge.

This is an appeal from an award of punitive damages entered against the appellants, Ojus Industries and Robert Thomas, as a result of a motor vehicle accident, We reverse.

Shortly after 11:00 p. m. on May 11,1973, several Florida highway patrolmen stopped a station wagon on the Florida turnpike. The station wagon parked in an emergency parking lane, about three feet from the edge of the southbound, righthand lane of traffic. One police car parked immediately behind the station wagon; another to the west of the station wagon; and still another to the west and south of the station wagon. Shortly thereafter, several other police officers arrived at the scene, two in unmarked cars, and parked to the west of the station wagon, some in front and some in back. All of the marked police vehicles had blue dome lights operating, and the vehicle parked immediately behind the station wagon also had its emergency rear lights flashing on and off.

The left front door of the station wagon was standing open; and as two police officers, Grady H. Brannam and Albert Sidney Vienne, started to enter the station wagon to search it, a truck, owned by Ojus and operated by Thomas, struck the left front door. Vienne was knocked over the hood of the vehicle, and Brannam attempted to jump on top of the station wagon. The truck stopped several hundred feet to the south and off to the right of the highway. Both Vienne and Brannam sustained personal injuries.

Thomas had earlier delivered a boat from Ft. Lauderdale to Jupiter and was returning to Ft. Lauderdale when the accident happened. At 6:00 p. m. Thomas consumed two 16 ounce cans of beer with a meal. Before leaving Jupiter he bought two small cans of beer and consumed them in his truck before the accident happened. He was given a breathalyzer test after the accident which registered .03 percent.

Thomas saw the group of police cars with lights flashing when he was six-tenths of a mile away and traveling 55 miles per hour in the righthand lane. He did not slow down or change lanes. The speed limit on the turnpike at the time was 70 miles per hour. Thomas testified that he never saw the station wagon and that his attention was focused on the police cars off the road. When his truck reached the scene it went into the emergency lane and struck the door of the station wagón with the right front edge of the truck’s bumper. The door was completely bent back with the impact, but the truck received minor damage according to the police officer who investigated the accident.

The issue is whether these facts are sufficient to sustain an award of punitive damages.

The evolution of the law regarding punitive damages in motor vehicle accident cases has been marked with difficulty in defining the line between negligence and culpable negligence. At one point the Florida Supreme Court defined culpable negligence as follows:

The elements of culpable negligence have been repeatedly defined as the omission to do something which a reasonable, prudent and cautious man would do, or the doing of something which such a man would not do under the circumstances surrounding the particular case.

This definition today, of course, is applied only to “simple” negligence; and the above quote is virtually the identical language used in the Florida Standard Jury Instructions to define negligence.

Culpable negligence is obviously something more than negligence. A more recent Supreme Court opinion on punitive damages states:

The intentional infliction of harm, or a recklessness which is the result of an intentional act, authorize punishment which may deter future harm to the public by the particular party involved and by others acting similarly. Cases in this category may be likened, in general terms, to culpable negligence in criminal proceedings.

And culpable negligence as a basis for punitive damages has been defined by the Supreme Court:

The character of negligence necessary to sustain an award of punitive damages must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.”

This definition, boiled down to its simplest elements, is described in the Florida Standard Jury Instructions as involving:

. malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of others. . . .

For intoxication alone to justify an award of punitive damages the drinking driver must be shown to be “drunk.” A legal presumption of drunkenness arises when a breathalyzer test shows a person’s blood alcohol content to be .10 percent or above. And with a reading of .05 percent or below there is a presumption created that the driver was not intoxicated. The facts of this case, including the showing that Thomas had a breathalyzer reading far below the legal presumption, clearly do not support an award of punitive damages on the basis of intoxication.

The appellees contend that the conduct of Thomas, in failing to reduce his speed or change lanes, is sufficient to support punitive damages. But under the facts, which showed Thomas’ lane of traffic to be clear of obstructions and his speed to be well under the limit, we do not feel such conduct crosses the line from simple to culpable negligence. Had Thomas continued in his lane at that rate of speed then no accident would have occurred. Instead, it appears that the accident was caused when Thomas, passing the scene, allowed his vehicle to cross into the emergency lane enough to strike the open door of the station wagon. This conduct clearly fell into the category of negligence but does not contain the elements of culpable negligence set out above. Rather, it would appear that the “collision was the result of momentary lapse or inattention or a mistake of judgment on the part of defendant.”

Those portions of the judgments awarding punitive damages are stricken, and the judgments in all other respects are affirmed.

CROSS, J., and DRIVER, B. J., Associate Judge, concur.

      . Fort v. State, 91 So.2d 637 (Fla.1956) at 638.

      . Florida Standard Jury Instructions 4.1.

        . Ingram v. Pettit, 340 So.2d 922 (Fla.1976) at 924.

      . Carraway v. Revell, 116 So.2d 16 (Fla.1959) at 20.

      . Florida Standard Jury Instructions 6.12.

      . Ingram v. Pettit, supra note 3.

      . § 322.262(2)(c), Fla.Stat. (1975).

      . § 322.262(2)(a), Fla.Stat. (1975).

      . Grimley v. State, 114 So.2d 630 (Fla. 1st DCA 1959) at 632-633.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION of the State of Florida, Respondent.
    No. 76-1606.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Arthur M. Wolff of Wolff, Gora & Panza, Fort Lauderdale, for petitioner.
    Jane Rigler, Staff Atty. for Jack L. McLean, Jr., Acting Gen. Counsel, Tallahassee, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is denied.

CROSS, DAUKSCH and LETTS, JJ., concur.


text:
    Richard BIRNBAUM, Appellant, v. Elsie AARONS, Appellee.
    No. 76-1097.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.
    Richard Michael Birnbaum, in pro per.
    No appearance for appellee.
   PER CURIAM.

Reversed. See State v. Taylor, 145 So.2d 751 (Fla.2d DCA 1962). The cause is remanded with directions to transfer the case to the County Court of Broward County for further proceedings.

DOWNEY and ANSTEAD, JJ., concur.

MAGER, C. J., concurs in conclusion only.


text:
    John Raymond KISHEL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1668.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.
    Louis Vernell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no reversible error as to any of the issues presented for appellate review. However, from a review of the record it is clearly apparent that the sentence imposed exceeds the lawful maximum sentence for the crime charged. The maximum sentence for a third degree felony is 5 years (section 775.082(3)(d), Florida Statutes). The trial court sentenced the defendant to 3 years in prison followed by 4 years probation thereby exceeding the maximum allowable sentence by 2 years. See Heatherly v. State, 343 So.2d 54, Fourth District Court of Appeal Case No. 76-304 opinion filed February 25, 1977; Holmes v. State, 343 So.2d 632, Fourth District Court of Appeal Case No. 76-78 opinion filed February 11, 1977. Although a trial judge is permitted to enter a split sentence, the combined period may not exceed the maximum period of time provided for that particular crime. Holmes, supra.

Accordingly, the sentence is modified by reducing the term of probation from 4 years to 2 years. In all other respects the judgment and sentence are affirmed.

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


author: PER CURIAM. PER CURIAM.

text:
    Clark COLLINS, Appellant, v. Jon E. KRUPNICK et al., Appellees.
    No. 76-380.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Rehearing Denied July 15, 1977.
    Eugene E. Stearns of Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellant.
    Paul R. Regensdorf and William D. Rick-er, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

Plaintiff appeals an order dismissing with prejudice his second amended complaint. We have reviewed the dismissed complaint and considered the arguments of counsel. We conclude that plaintiff’s allegations state a cause of action for libel and slander (per se and per quod). Of course, we do not at this time determine the merits of plaintiff’s allegations, or whether there are affirmative defenses available to the defendants which might defeat plaintiff’s claim.

REVERSED and REMANDED for further proceedings consistent with this opinion.

DOWNEY and ALDERMAN, JJ., and PARHAM, HARRY C., Associate Judge, concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellees point out that, although the trial court at one time granted appellant permission to file a second amended complaint, it subsequently granted appellees’ motion for reconsideration, which asked the trial court to withdraw that permission and to dismiss the first amended complaint. Technically, what the trial court did was to dismiss the first amended complaint with prejudice, without leave to amend. Upon remand the second amended complaint should be reinstated.

Rehearing denied.

DOWNEY and ALDERMAN, JJ., and PARHAM, HARRY C., Associate Judge, concur.


author: LETTS, Judge.

text:
    Milton B. KAST, Appellant, v. Alyce B. KAST, Appellee.
    No. 76-576.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Lionel H. Silberman, Orlando, for appellant.
    Alyce B. Kast, in pro. per.
   ON PETITION FOR REHEARING

LETTS, Judge.

The opinion in this case filed March 18, 1977, is vacated and withdrawn.

The order of the trial court is affirmed.

The parties, married for little more than a year before separating, and each having been married before, engaged in a bitter struggle over the division of their property, culminating in the award of $13,000 lump sum alimony to the wife. This cash award constitutes the principal ground for appeal by the husband, and the only one to which we accord merit.

The wife has filed no briefs in this court, claiming lack of funds to hire counsel.

An examination of the transcript reveals testimony that, to say the least, is conflicting. For example, the wife claimed to have put up the funds to purchase a property subsequently sold which yielded net proceeds of approximately $13,900. The husband admitted that the funds to purchase same did come from her bank account, and that title to said property had originally been placed in her name alone; however, he insisted that he, not his wife, was the source of most of those funds. The wife denied this. The foregoing is but one of the many irreconcilable conflicts in testimony permeating 126 pages of transcript, full of bizarre claims and counterclaims, including the admitted continued involvement of the husband’s previous wife in many of his business and emotional affairs. As an example of that, she, the first wife, signed the mortgage and note to the current residence, still representing herself as his wife, although their divorce was final, and the marriage now at issue about to take place. This current residence was bought, according to the wife, in part, with her money, which included the proceeds from the sale of the property first above described, and title placed in the husband’s name, as trustee. The wife alleges that the trusteeship was for her benefit, while the husband denies this and explained it as being for the benefit of their one child born out of wedlock about two years before the marriage. The court below awarded this currently owned residence to the husband.

At the trial, the husband (a practicing C.P.A.) produced a financial statement to reflect virtually no assets, and little income, but omitted from it were obligations owed to him by his family and previous wife for the stated reason that same were “bad debts.” Also, his statement omitted any equity in the current residence, which the husband claimed was being foreclosed on by his own brother, for nonpayment of a small second mortgage.

It is obvious that the trier of the fact largely preferred to believe the wife’s testimony, for at the conclusion of the proceedings, while announcing his findings, he said, in part, as follows:

There are many cases which come in front of the court that are financially confusing like this one. But usually we have people of very limited education. The affidavits [in this case] are inaccurate, some of the poorest affidavits for educated people I’ve ever had — just terrible.
Also, I’d like to observe that listening to the testimony of both sides, I’m not impressed with the testimony of Mr. East. I think that he has been general. I think that he has been bombastic in his testimony. I think that it’s hard to sit here and say whether or not the person is telling the truth or not because nobody can look and tell. God didn’t give me the power to look at them and tell whether they’re telling the truth or not.
But the vagueness and the idea that his testimony should be believed because it comes out of his mouth without supporting evidence. I do hope by the time he comes back on the custody question, he has a better presentation and a better demeanor and a better attitude concerning his testimony . . . Furniture, I’d like to go ahead and award to the wife in the home. I believe her testimony on the furniture. And I believe she’s entitled to the furniture. There may be some specific things that the husband wants to document that are in fact his. I will honor these in the event that you get the documentation out, make the presentation.

The principal point raised by the husband on appeal, concerns the award of $13,000 in lump sum alimony, the husband arguing that since his financial affidavit submitted indicates that he does not have it, the court cannot award it. The basic criteria for the award of any kind of alimony are (1) the husband’s ability to pay, (2) the needs of the wife, and (3) the wife’s standard of living during the marriage. Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2nd DCA 1976). In the case now before us, it is obvious from the judge’s quoted language that he largely did not believe either the husband’s testimony or his financial affidavit. Moreover, the record reflects testimony to the effect that the husband, a practicing C.P.A., had income, in the year prior to the divorce proceedings, in excess of $32,000.

As to the wife’s needs and standard of living, she is able bodied and employable; however, there is ample testimony to support a finding that she owned intangible personal property in her own right when she first entered into her relationship with the husband. There is testimony that she later bought and paid for a residential property, and that money from the sale of that residential property was used in the purchase of the present home. There is also testimony that all of her assets have been dissipated by her husband, and much of it given to the first wife, and the court certainly awarded the present home to him. Under such circumstances, if believed by the court below, her need now is obvious. Her former standard of living, both before and during the marriage, was superior, and her present plight, without assets or a home, pathetic.

For all of the foregoing reasons, we cannot say that it would be an abuse of discretion for the trial judge to conclude that the husband had the ability to pay the sum of $13,000 to the wife, even if he did not have the ready cash, available, especially where no periodic alimony, whatever, accompanied the award.

Affirmed.

CROSS and ANSTEAD, JJ„ concur.


author: SMITH, Judge.

text:
    CROSS KEY WATERWAYS et al., Petitioners, v. Reubin O’D. ASKEW et al., Respondents. The CITY OF KEY WEST et al., Petitioners, v. Reubin O’D. ASKEW et al., Respondents. The CITY OF KEY WEST et al., Petitioners, v. Reubin O’D. ASKEW et al., Respondents.
    Nos. Y-362, Y-363 and Y-430.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.

      Murray H. Dubbin, Dubbin, Sehiff, Berk-man & Dubbin, Charles H. Netter, Miami, Richard W. Ervin, Joseph C. Jacobs and Robert J. Angerer, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Tittle & Tittle, Tavernier, for petitioners.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, and Richard M. Goldstein, Asst. Attys. Gen., Tallahassee, for respondents.

      . Art. IV, § 4, Fla.Const.; §§ 20.03(1), 20.31(2), Fla.Stat. (1975).

   SMITH, Judge.

These petitions for review challenge Rule 22F-8 of the Governor and Cabinet, acting as the Administration Commission, Department of Administration, and underlying provisions of the Florida Environmental and Water Management Act of 1972, Chapter 72-317, Laws of Florida, as amended, Sections 380.05(1)(a), and (2)(a) and (b), Florida Statutes (1975). Rule 22F-8 designates virtually all the Florida Keys as an area of “critical state concern” and prescribes principles for guiding development of the area’s “earth, water, and air.” Section 380.031(6). The designation subjects development there to regulation in the regional and state interests by the Administration Commission. We previously endorsed the standing of these citizens, municipalities and others affected by the rule or whose participation as parties in the proceeding was recognized by the Administration Commission. Sections 120.52(10), 54, Florida Statutes (Supp.1976); City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1976).

Section 380.05 delegates power to the Administration Commission to establish government of land development by the Administration Commission superseding constituted local government — here, that of Monroe County and the municipalities of Key West, Key Colony Beach, and Layton. The fundamental constitutional issue, which we reach after resolving all other issues adversely to petitioners, is whether that delegation of legislative power was attended by adequate standards for its exercise. We hold the Section 380.05(2)(a) and (b) standards for exercise of the Section 380.-05(1) power are inadequate, that the delegation consequently offends Article II, Section 3, Florida Constitution, and that Rule 22F-8 must be quashed.

To “conserve and protect” Florida’s natural resources and scenic beauty, the Constitution requires “adequate provision” by law “for the abatement of air and water pollution and of excessive and unnecessary noise.” Article II, Section 7, Florida Constitution. The Act here drawn in question was the 1972 Legislature’s response to that constitutional requirement and the Governor’s urgent recommendation. Chapter 380 provides for Administration Commission supervision and, where deemed necessary, supersession of local government regulation of development, by designation and regulation of areas of critical state concern, Section 380.05, and by similar control of developments of regional impact, Section 380.06.

Geographic areas of critical state concern designated by the Commission are subject to “principles for guiding the development of the area” promulgated by Commission rule. Section 380.05(l)(b). Those principles are carried into effect either by approval of local government’s “existing land development regulations for the area,” Section 380.05(5), (6), or by superseding regulations of the Commission, adopted on recommendation of the Division of State Planning when local regulations “do not comply with the principles for guiding development.” Section 380.05(8). Once established, regulations for land development may be changed by local government only by consent of the Division of State Planning or the Administration Commission. Sections 380.05(10), (11). Local governments retain authority to administer the regulations but “proper enforcement” may be judicially enforced at the instance of the Division of State Planning. Section 380.05(9). Local orders authorizing or denying development under the regulations may be appealed by affected persons, including state and regional planning agencies, to the Governor and Cabinet acting as the Florida Land and Water Adjudicatory Commission. Section 380.07. All such agency action is finally reviewable by a district court of appeal, in the manner we now review Rule 22F-8 itself, under the Administrative Procedure Act, Chapter 120.

The Act affects regulation of virtually all development in areas of critical state concern: all building, mining, and changes in the use or appearance of land, water and air and appurtenant structures; material increases in the density of its use; alteration of shores and banks; drilling; structural demolition; clearing adjunct to construction; and deposit of waste or fill. Excepted are work by road agencies and other utilities; structural maintenance affecting only the interior or the color or exterior decoration of a structure; the use of structures for customary dwelling purposes; changes of usage within the same regulated class of use; changes in ownership; and changes in rights of access, riparian rights, easements and covenants affecting rights in land. Section 380.04. Such regulation has by law heretofore been committed to county and municipal governments, subject to general law regulating the use and development of particular resources. Sections 163.-160 et seq.; 163.205, .210, .215; 163.360; 163.567; 163.611; 163.622; 161.25; 161.35; 125.01(g) — (j); 177.071; 166.021, Florida Statutes (1975).

Section 380.05 does not purport to disturb conventional tests of whether governmental land use regulations unlawfully impinge private property rights. The Act imposes on the Administration Commission and subordinate agencies commonly understood restraints on state control at any level. The Administration Commission’s land development regulations “may include any type of regulation that could have been adopted by the local government,” and by implication they extend no further. Section 380.05(8). The Commission “is not authorized to adopt any rule that would provide for a moratorium on development in any area of critical state concern.” Section 380.05(l)(b). Certain vested rights to develop are protected. Section 380.05(15). The Act preserves “all the existing rights of private property ... in accord with the constitutions of this state and of the United States,” Section 380.021, and prohibits a rule or order which is “unduly restrictive or constitutes a taking of property without the payment of full compensation.” Section 380.08(1). Thus invoking well-established standards which limit governmental regulation of the use of private property, the Act does not unconstitutionally take private property without compensation, deprive persons of property without due process of law, or abridge the basic right to acquire, possess and protect property. Article I, Sections 2, 9, Article X, Section 6(a), Florida Constitution. See D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977).

While the Act thus assures government shall exercise no unconstitutional powers in the regulation of private property, it shifts ultimate regulatory authority from the county courthouse and city hall to the Capitol. The Act thus touches sensibilities as old as the Revolution itself, because it affects the right of access to government — the right of the people effectively “to instruct their representatives, and to petition for redress of grievances” — on which other cherished rights ultimately depend. The primacy of local government jurisdiction in land development, regulation has traditionally been, in this country, a corollary of the people’s right of access to government. In a sense, therefore, the jurisdictional claim of local governments in these matters is based on historical preferences stronger than law. Yet it is clear that counties and municipalities, supported by those who have enjoyed fruitful access to those governments, have no constitutionally vested jurisdiction in the regulation of the “earth, water, and air” within their confines. The power exercised or withheld by those governments is the state’s power, appropriately delegated. By law all but a few charter counties may be changed or entirely abolished. Article VIII, Section 1(a), Florida Constitution. The jurisdiction of every county, charter or non-charter, is subject to qualification by law. Municipalities “may be established or abolished and their charters amended pursuant to general or special law,” and they may exercise municipal powers “except as otherwise provided by law.” Article VIII, Section 2.

The Florida Constitution does not forbid State reclamation of regulatory power from local government and it? reassignment to State agencies. The same Constitution which permitted the state’s- delegation of power to local governments in the first instance also provides the means for reclamation to vindicate paramount state or regional interests. The means, of course, is legislation. Statutes which indirectly subordinate local government autonomy, through regulatory agencies having independent and concurrent jurisdiction in matters of state or regional interests, are commonplace. Though of more recent lineage, statutes providing for direct agency supervision and supersession of local government regulation are no less legitimate under the Constitution. In 1973, one year after enacting Section 380.05, the Florida Legislature asserted overriding state and regional interests in a specific area designated the Big Cypress area of critical state concern, and reallocated to the Administration Commission the ultimate regulatory power previously exercised by local governments in that area. Chapter 73-131, Laws of Florida; Section 380.055, Florida Statutes (1975).

The judicial doctrine that legislative delegation of regulatory power must be attended by meaningful standards for its exercise is derived from Article II, Section 3 of the Constitution, which provides:

“No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

Except for the Big Cypress, Chapter 380 does not specify geographic areas where, because of critical state concerns, the regulatory jurisdiction of local governments is to be supervised or superseded by the Administration Commission. By Section 380.-05, the power to select the sites of desirable regulation, as well as the power to regulate, is delegated to the Commission. The Act is not entirely without standards for exercise of the Commission’s jurisdiction. A certain continuity is assured in “the reasons why the particular area proposed is of critical concern,” the advantages of designation, the principles for guiding development in the area and the resulting development regulations. Yet the source of all of those considerations is the Commission itself or the Bureau of Land Planning, the Commission’s subordinate agency. The principal statutory guidance for the Commission’s designation power is found in Section 380.-05(2), which provides:

“An area of critical state concern may be designated only for:
“(a) An area containing, or having a significant impact upon, environmental, historical, natural, or archaeological resources of regional or statewide importance.
“(b) An area significantly affected by, or having a significant effect upon, an existing or proposed major public facility or other area of major public investment.
“(c) A proposed area of major development potential, which may include a proposed site of a new community, designated in a state land development plan.”

The Administration Commission’s designation power is also subject to a statutory limit of 500,000 acres in the first year after the 1972 enactment and an overall limit of five percent, roughly 1.8 million acres, of Florida land. Section 380.05(17). An inventory of state-owned lands was required before designation of any area of critical state concern. Section 380.05(l)(a). Section 380.10 requires continuing legislative approval of the Administration Commission’s “standards and guidelines” for identifying developments of regional impact, and the legislature approved the initial standards in 1973. HCR 1039, Laws of Florida (1973). There is no comparable provision for legislative supervision of the Administration Commission’s designation of areas of critical state concern. The Act also provided that no area of critical state concern should be designated “until a favorable vote at a referendum on a state bond program for the acquisition of lands of environmental importance to the state or region.” Chapter 72-317, Section 13, Laws of Florida. That condition was fulfilled. Chapter 72-300, Laws of Florida authorized, subject to referendum in November 1972, $240,000,-000 of general obligation bonds to fund capital projects for “environmentally endangered lands” and “outdoor recreation lands.” The electorate approved.

Adequate guidance for the Commission’s power to supersede local government must be found, if at all, in the five percent limitation and the Section 380.05(2) criteria for designation. Neither the Act’s provision for an inventory of state-owned lands nor its requirement of a public referendum on peripheral issues guides Administration Commission discretion in the designation of areas of critical state concern. The Administration Commission has evidently been sensitive and sparing in the imposition of its regulatory power under the Act, but administrative self-restraint cannot supply legislative standards which are otherwise absent.

We are concerned here with the adequacy of two of the three alternative statutory criteria for designation of areas of critical state concern: areas found to contain or have a “significant impact” on environmental, historical, natural or archaeological resources of regional or statewide importance and areas found to be “significantly affected by” or as “having a significant effect upon” major public facilities and areas of major public investment. Section 380.-05(2)(a), (b). We need not deal with the subsection (c) criteria for designation of “a proposed area of major development potential . . . designated in a state land development plan.” That classification, not invoked in designating the Florida Keys area of critical state concern, refers to a comprehensive plan which must meet independent statutory standards and be approved by the legislature. Section 23.011 et seq., Florida Statutes (1975).

The subsection (a) and (b) standards must be judged by the principles repeatedly stated by our Supreme Court in construing Article II, Section 3 of the Constitution:

“The legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion applying a law; but it may enact a law complete in itself designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.” State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 636-37, 47 So. 969, 976 (1908).
“When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be.” Conner v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968) (emphasis in original).

In Sarasota County v. Barg, 302 So.2d 737 (Fla.1974) the Supreme Court invalidated, as violative of Article II, Section 3, an act creating the Manasota Key Conservation District within Sarasota County, designating it as a wildlife and marine life sanctuary, and proscribing “undue or unreasonable” dredging, filling and disturbance of submerged bottoms and “unreasonable destruction” of natural vegetation resulting in “harmful” or “significant” air and water pollution. Concerning the operative phrases, the Court held:

“The Act does not contain any standards or guidelines to aid any court or administrative body in interpreting these terms. The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.” 302 So.2d at 742.

See also Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1977).

The statutory limitations on exercise of the Commission’s designation power are unconstitutionally vague by the standards expressed by our Supreme Court in Atlantic Coast Line, Conner and Barg. Subsections (a) and (b) of Section 380.05(2) inadequately control the Commission’s determination of what the law shall be concerning the choice of areas to be designated of critical state concern. More precisely, the statute delegates to the Commission the power to say who in Florida the lawgiver shall be, whether local government or the Commission itself, and it does so virtually without statutory discipline. What is at stake here is not the extent of government regulation of private property but the structure of Florida’s government. Power to reorder that structure in selected areas is left to the discretion, as determined by majority vote, of the Governor, Secretary of State, Attorney General, Comptroller, Treasurer, Commissioner of Agriculture, and Commissioner of Education. Constitutionally, that will not do.

The terms critical state concern, significant impact, and significant effect, as used in the Act, are quantitative approximations of the point where the detriment to or influence of a valued resource evokes a state or regional concern for its preservation and development. Although those terms are much like the terms undue or unreasonable dredging or filling and harmful or significant pollution, condemned as qualifying standards in Barg, we do not consider the, use of those terms, standing alone, as fatal to the designation criteria. Such approximations of the threshold of legislative concern are meaningful in common parlance; they are a practical necessity in legislation regulating complex subjects; and, above all, they are now susceptible to refinement by policy statements adopted as rules under the 1974 Administrative Procedure Act, Chapter 120, and as so refined are judicially ascertainable and enforceable. See Straughn v. O’Riordan, 338 So.2d 832 (Fla.1976); McDonald v. Dep’t of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The 1974 APA was not effective when Barg was decided.

The greater deficiency of Section 380.-05(2), subsection (a), is that it does not establish or provide for establishing priorities or other means for identifying and choosing among the resources the Act is intended to preserve. That subsection lacks the specificity of the Big Cypress designation, the predictability of a legislatively approved comprehensive plan which confines subsection (c) criteria, the rule standards required for Section 380.10 identification of developments of regional impact, and any other standards for the necessary choice. The Act treats alike, as fungible goods, disparate categories of environmental, historical, natural and archaeological resources of regional or statewide importance and all of Florida’s manifold resources within those vast categories. Up to the acreage limit, the Commission is empowered to supersede as it chooses the local governments regulating development in historic Pensacola or St. Augustine, or at the shores of the Atlantic and Gulf of Mexico to a depth of a thousand feet, or in all acreage on the Suwan-nee and St. Johns and their tributaries or, indeed, in all the Florida Keys. If Cedar Key, Ybor City, Palm Beach and the path of the King’s Road are found to be historic resources of satisfactory importance, they too may be designated. Subsection (a) reaches beyond those areas to include, as similarly eligible for designation, areas which for unstated reasons “impact” valued resources elsewhere. Subsection (b) expands the choice to include areas which in unstated ways affect or are affected by any “major public facility,” which is defined in Section 380.031(10), or any “major public investment,” which is not.

The Act also lacks suitable standards for identification of local governments whose stewardship of valued resources is to be deemed inadequate to protect state and regional interests. Section 380.05’s endpoint of supervision and supersession of local regulation implies a major premise that some local governments are unresponsive to regional and statewide interests in the regulation of local land developments. That implication is underscored by the foremost principle for guiding development adopted by the Commission for the Keys. Supra, n. 12. The legislature is perfectly competent to decide that all local governments, or some particularly, have inadequately protected state and regional interests. Or the legislature may eschew such judgments and predicate designation entirely on the intrinsic value, as measured on some ascertainable scale, of resources of critical state concern. But if the unresponsiveness of local governments to larger interests is to be a substantial factor in the designation of critical areas, standards for that assessment must attend delegation of the power to choose. Changing the seats of political power is a function of Florida’s Constitution and laws, for which “the political sensitivity of the final administrative decision-makers” is an unacceptable substitute. The people have little need for protection against political sensitivity at its best. Their constitutional safeguards against coalescence of the powers to make and to execute laws protect against political sensitivity at its worst, by which the interests of the least powerful are the first, but not the last, to be subordinated. We are mindful that the required particularity of statutory limitations on administrative discretion may be greater or less, depending on the subject and the difficulty of the task. E. g., State, Dep’t of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). We have scoured the text and legislative history of Chapter 380 for evidence that the legislature considered formulation of standards for the political judgments required by Section 380.05 to be beyond its competence. Our search was in vain.

Absent standards undergirding the administrative decisions authorized by Section 380.05(2)(a) and (b), the judiciary is impotent to check the unwarranted exercise of the delegated power. The converse is also true. Without ascertainable standards, the judiciary cannot enforce the legislature’s purpose by requiring action of an apathetic Commission which, though it has the power, duty and opportunity to designate areas of critical state concern, will not do so. Section 120.68(13)(a)1, Florida Statutes (Supp. 1976). State ex rel. Siegendorf v. Stone, 266 So.2d 345 (Fla.1972); Met. Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976); Sauls v. De Loach, 182 So.2d 304 (Fla. 1st DCA 1966), cert. den., 188 So.2d 823 (Fla.1966).

In reaching the constitutional question, we have considered petitioners’ other points and have found them unavailing. The designating rule was not rendered invalid by its filing with the Department of State eight days after expiration of the 45-day statutory period for Commission adoption of a designating rule recommended by the planning agency. Section 380.05(l)(b). The tardiness of the filing was not, in these circumstances, “a material error in procedure.” Section 120.68(8). Contrast Postal Colony Co., Inc. v. Askew, supra n. 16, in which we were concerned with the explicit statutory consequences of tardy adoption of land development regulations for a designated area of critical state concern. The rulemaking procedures of Section 120.54 adequately protected any “substantial interests” of the persons affected, and the Commission did not err in failing to provide them a formal proceeding under Sections 120.54(16) and 120.57. The Commission did not otherwise procedurally err.

Our decision therefore invalidates, as vio-lative of Article II, Section 3, Florida Constitution, the Act’s delegation of power to designate areas of critical state concern by criteria expressed in Section 380.05(2)(a) and (b). Our decision does not affect other aspects of the Act. The prayer of the petition for review is GRANTED. Rule 22F-8, designating the Florida Keys area of critical state concern and promulgating principles for guiding development in that area, is QUASHED.

MILLS, Acting C. J., and MELVIN, WOODROW M., Associate Judge, concur.

      . “All lands in Monroe County, except: (1) that portion . included within the Everglades National Park and areas north of said Park; [and] (2) all lands seaward of mean high water that are owned by local, state, or federal governments.”

      . Sec. 380.021, Fla.Stat. (1975); Jour.H.R. Feb. 1, 1972, pp. 5-6 (Reg.Sess.1972).

      . The Division of State Planning, Department of Administration, is the “state land planning agency” having responsibilities under Chapter 380. Postal Colony Co., Inc. v. Askew, 348 So.2d 338 n.1 (Fla. 1st DCA 1977), rehearing denied this date.

      . Art. I, § 5, Fla.Const.

      . Nash v. Vaughn, 133 Fla. 499, 182 So. 827 (1938). See also State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114 (1931); State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541 (1931).

      . “Counties operating under a charter are presumptively considered to have the broad powers of self-government (with the exception of precedence over municipal ordinances which must be provided in the charter) unless provided otherwise by general law or by the special law adopting the charter. Thus, charter counties and non-charter counties apparently start from different poles in their relationships with legislative enactments. Both could, conceivably, be the same depending on the legislation adopted.” D’Alemberte, commentary on Art. VIII, § 1, Fla.Const., 26A Fla.Stat.Ann. 271 (1970).

      .Overlapping regulations at both local and state levels tend to produce baffling complexity. See F. Bosselman and D. Callies, The Quiet Revolution in Land Use Control 27 (1971): “A common failing of most of the new state land regulatory systems is that they do not relate in a logical manner to the continuing need for local participation. Most of them tend to bypass the existing system of local regulation and set up completely independent and unrelated systems. This requires the developer who is subject to both systems to go through two separate and distinct administrative processes, often doubling the time required and substantially increasing the costs required to obtain approval of the development proposal.”

      . Under § 380.05(1), recommendations for the designation of specific areas of critical state concern emanate from the Division of State Planning, Bureau of Land Planning, citing “the reasons why the particular area proposed is of critical concern to the state or region, the dangers that would result from uncontrolled or inadequate development of the area, and the advantages that would be achieved” by designation. The Bureau also recommends “specific principles for guiding the development of the area.” The Administration Commission is then authorized to adopt or reject the recommendation “and by rule designate the area of critical state concern and the principles for guiding the development of the area.” Land development regulations are then approved by the Division or promulgated by rule of the Commission.

      . “[Cjonditioning the exercise of ELA § 380.-05(2)(a) upon the state’s having financial resources to purchase lands, if necessary, was a crucial compromise that prevented the Bill, (except for the section nine study committee) from being defeated. The bond referendum passed on November 7, 1972, by a vote of 1,131,718 for and 482,584 against. Tallahassee Democrat, Nov. 8, 1972, at 12, col. 1.” Finnell, Saving Paradise: The Florida Environmental Land and Water Management Act of 1972, 1973 Urb.L. Ann. 103, 121 n. 91.

      . The Administration Commission conducted public hearings in Monroe County on the question of the proposed designation. Full opportunity was given for the expression of opposing points of view. Ordinances of the Monroe County board of county commissioners and the city commissions of Key West, Key Colony Beach, and Layton were approved as Administration Commission regulations, apparently without drastic change. Superseding regulations were adopted for administration by the City of North Key Largo Beach. Fla.Admin. Code Rules 22F-9, 22F-10, 22F-11, 22F-12, 22F-13.

      . The Commission’s “principles for guiding development” reflect in summary form the regional and state interests in the Florida Keys which are stated at greater length in the Bureau’s recommendations. The objectives for the area are strengthening local government capabilities for land development regulation to the end that local governments may achieve other objectives without continuation of the designation; protection of tidal mangroves and associated wildlife and other resources; minimizing the adverse impact of development on water quality in the Keys; protection of scenic resources and promotion of the management of unique vegetation; protection of the Keys’ historical heritage; protection of major public investments, including facilities for water supply, sewage and solid waste disposition, the Key West Naval Air Station and the Overseas Highway; minimizing the adverse impact of proposed public investment on the Keys’ natural and environmental resources; protection of the public health, safety, welfare and economy; and the maintenance of the Keys “as a unique Florida resource.” Fla.Admin.Code R. 22F-8.-03A.

      . We have not overlooked the Supreme Court’s recent decision in State v. Dye, 346 So.2d 538 (Fla.1977), in which a divided Supreme Court upheld, against a charge of over-breadth offending the due process clause, § 810.09, Fla.Stat. (1975). That statute punishes for trespass one remaining on property despite notice to leave. The Court held the statute was not deficient for failure to specify “who may make such a demand” to depart school property. A school custodian was held authorized to issue such a demand because
      “he is statutorily mandated to manage school property ‘to the best interests of education,’ Section 230.23(2), Florida Statutes (1975). It seems clear that a school custodian must on occasion determine whether the presence of certain individuals on school property is ‘in the best interests of education.’ The Legislature cannot statutorily adopt elucidatory standards to substitute for individual judgment. If that discretionary judgment is unsound, the alleged trespasser can defend on those grounds. If that discretionary judgment is applied arbitrarily or capriciously to the defendant, then he is protected by the due process and equal protection guaranties of the Florida and United States Constitutions.”
      The applicability in some cases of Florida’s constitutional provision for separation of powers, Art. II, Section 3, Fla.Const., and the applicability in others of the United States Supreme Court’s due process standards may account for an apparent disparity in the reasoning of those cases, as criticized by Mr. Justice Ervin’s dissent in Sarasota County v. Barg, supra, 302 So.2d at 745.

      . Rule 22F-8 passed by a vote of five to two after a substitute resolution to reconsider the designation after six months failed, four to three.

      . Professor Davis offers this sardonic evaluation of Barg: “If the Florida test were used, approximately one hundred percent of federal legislation conferring rulemaking authority on federal agencies would be unconstitutional.” K. Davis, Administrative Law of the Seventies, ch. 2 “Delegation of Power” at 33 (1976). One need not entirely join Professor Davis’ lament to appreciate his point that agency rulemaking should increasingly be used to provide particular standards which would otherwise be required of the legislature.

      . The model act from which §§ 380.05 and .06 were drawn does not require a comprehensive state plan for designation but recognizes that selection of all areas of critical state concern “would logically require a comprehensive study of the state’s development patterns and natural resources.” The ALI reporters state that requiring formulation and legislative approval of a comprehensive state plan before designating problem areas of “immediate and critical importance” would conceivably place their effective regulation beyond reach. ALI Model Land Development Code § 7-201, note at 259-60 (1975) (emphasis added). If the immediacy or emergency nature of a critical state concern is thought to require designation power independent of priorities in a state plan otherwise required, standards for the exercise of emergency powers may be legislated. Cf. § 120.54(9), Fla. Stat. (Supp.1976); Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977). The emergency rulemaking powers authorized by the APA, effective for only 90 days, would not appear adequate for the purposes of § 380.-05.

      . ALI Model Land Development Code, supra n. 16, at 251, 257 et seq. See also Bosselman and Callies, supra n. 8, at 1: “The anden regime being overthrown is the feudal system under which the entire pattern of land development has been controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less what happens to all the others.”

      . The full implication of the delegated political power to establish a system of regulatory government is suggested in Professor Finnell’s article, supra n. 10, at 122: “In summary, then, the areas of most critical concern to the State will likely be designated Critical Areas. But contrariwise, the legislative safeguards combined with the political sensitivity of the final administrative decision-makers — the state’s highest elected executive officers, the Governor and Cabinet, sitting as an Administration Commission — should assure that the increased state role in land development regulation by means of the Critical Area technique will occur only when there is a compelling state interest backed by a strong public consensus." (Emphasis added.)

      . A reviewing court may “[o]rder agency action required by law” and “order agency exercise of discretion when required by law.” The APA further provides that “[a]ny person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule . . Section 120.54(5).


text:
    Willie BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 76-19.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      Dewey A. F. Ries, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment and conviction of manslaughter. The defendant was tried on a two count information for second degree murder involving the death of Lawrence Bradley and aggravated assault involving Beatrice Bradley, Lawrence’s mother. A verdict of not guilty was returned on the aggravated assault charge. The defendant appeals on the grounds that the trial court erred in refusing to allow testimony as to the deceased’s reputation for violence and in instructing the jury as to flight. We find no error with reference to the instruction on flight but reverse because of the exclusion of testimony as to reputation.

The defendant admitted shooting Bradley and his mother but claimed self defense. The defendant testified he shot the deceased because “. . .he was pulling his gun to shoot me.” The defendant called his wife and his sister-in-law as witnesses and attempted to have each testify as to the reputation of the deceased. The prosecutor objected each time on the ground that the defendant himself had not established he had prior knowledge of the deceased’s reputation. Each time the trial court ruled that such testimony was not admissible absent a showing of the defendant’s prior knowledge. At the close of the case the trial court did instruct the jury that the deceased’s character or reputation for violence might be considered if such fact was known to the defendant when the incident took place.

Evidence of a deceased’s violent character is admissible when self defense is asserted if there is an issue as to either the conduct of the deceased or the reasonableness of the defendant’s belief as to imminent danger from the deceased. Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Fine v. State, 70 Fla. 412, 70 So. 379 (1915); Copeland v. State, 41 Fla. 320, 26 So. 319 (1899); Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971). Both issues were present in this case. When the defendant seeks only to prove that his actions were based on the deceased’s reputation for violence it is necessary that the defendant establish prior knowledge of such reputation before evidence of reputation is admissible.

However, prior knowledge is not necessary in order to introduce reputation evidence on the issue of the deceased’s conduct at the time of the incident in question. Cole v. State, 193 So.2d 47 (Fla. 1st DCA 1967). Reputation testimony is one way to prove character and it is the decedent’s character that is actually sought to be proven by reputation testimony in order to shed light on his conduct at the time of the incident involved.

In this case where the defendant’s only defense was self defense we are unable to say that the failure to admit reputation evidence was harmless error. For this reason the judgment of conviction is reversed and this cause is remanded for a new trial.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    Martha EDWARDS and John B. Edwards, her husband, Appellants, v. KINGS POINT HOUSING CORP., a Florida Corporation, Sykes Flooring Company, a Florida Corporation, North River Insurance Company, a corporation, and Acousti Engineering Company, Appellees. KINGS POINT HOUSING CORPORATION, Appellant, v. Martha EDWARDS and John B. Edwards, her husband, Sykes Flooring Company, a Florida Corporation, North River Insurance Company, a corporation, and Acousti Engineering Company, Appellees.
    Nos. 76-1418 — 76-1519.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Rehearing Denied Dec. 9, 1977.
    Larry A. Klein, West Palm Beach, and Law Offices of Thomas G. Purdo, Boynton Beach, for appellants-Edwards.
    Louisa H. Smith-Adam of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant-Kings Point Housing Corporation.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees-Acousti Engineering Co.
   PER CURIAM.

Two appeals have been consolidated. In Case No. 76-1418 the plaintiffs, Martha and John Edwards, appeal a summary final judgment against them in favor of the defendant Acousti Engineering Company. In Case No. 76-1519 the defendant Kings Point Housing Corporation appeals a summary final judgment on its crossclaim in favor of codefendant, Acousti Engineering Company. We reverse in both appeals.

In Case No. 76-1418, we conclude that Acousti failed to meet its burden of showing conclusively the absence of any genuine issue of material fact. Acousti relied solely upon Mrs. Edwards’ deposition testimony, but all this shows is that Mrs. Edwards could not of her own knowledge prove that the defendant was negligent. This is not enough to negate the issue of the defendant’s negligence. Matarese v. Leesburg Elks Club, 171 So.2d 606 (Fla.2d DCA 1965); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. Supreme Court, opinion filed September 8, 1977).

In Case No. 76-1519 the summary judgment was entered on the basis of res judicata. In an earlier third party complaint by Kings Point against Acousti, involving the same issue, the trial court entered an “order granting summary judgment.” However, this was not a final ap-pealable order; it therefore could not be the basis of res judicata.

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS, J., and MILLER, ROBERT P., Associate Judge, concur.


author: OTT, Judge.

text:
    Stephen Irwin SPEREGEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-268, 77-278.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1977.
    As Modified On Denial of Rehearing Nov. 30, 1977.
    Richard H. Mclnnis, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The appellant took a direct appeal from his convictions and sentences on four counts of receiving and concealing stolen property (Case No. 77-278) and also appealed the denial of his Rule 3.850 motion (Case No. 77-268). The cases were consolidated for argument and disposition by this court. We find no merit with the direct appeal. However, the latter appeal has merit.

At issue is the single transaction rule. We hold that the rule applies and reverse.

Appellant was charged by information with four counts of receiving and concealing stolen goods in violation of Section 812.-031, Florida Statutes (1975). The statement of particulars provided that “the alleged date and hour of the alleged criminal offense [was] August 31, 1976, at approximately 2:00 P.M.” In due course appellant was found guilty and received a sentence of five years on Counts I and II to run concurrently, five years concurrent on Counts III and IV but consecutive with the sentence on Counts I and II.

Since we hold the single transaction rule to be applicable only one judgment and one five-year sentence may be imposed.

Section 812.031(1), Florida Statutes (1975) provides:

Whoever intentionally receives, retains, disposes, or aids in concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, commits an offense.

The state’s proof was adequate to show that the major parts of four stolen Corvette automobiles were found by the police on premises leased by appellant, but not four separate offenses.

The state filed a four-count information. Each count charged in identical language of the above statute except that in each count the stolen property was alleged to be the property of a different named person.

The proof of the state, in pertinent part, consisted of the following:

1. Each of the persons named in the four counts was an owner of separate Corvette automobiles that had been stolen at four separate times and places.
2. That all of the stolen auto parts were discovered and seized on premises leased by the appellant at one date, place and time.
3. That the parts seized were subsequently traced or established as containing parts of each of the four stolen Corvettes.
4. That the total value of the seized parts of each of the stolen Corvettes exceeded $100 in value.

In Avilia v. State, 278 So.2d 298 (Fla.4th DCA 1973) the court held “that the four offenses set out in the information were in fact one offense of receiving stolen property.” The court went on to say:

Though the property [airline tickets, travelers checks, finance company checks and a loan company check] was owned by different entities, the offense was by the same person, at the same time, in the same place, under the same circumstances and with the same intent. 278 So.2d at 298-99.

The state argues that Avilia is in conflict with the holding of the supreme court in Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937): The relevant portion of the holding in Hamilton was as follows:

Receiving or concealing different articles of stolen property at different times and on separate and unconnected occasions constitutes separate offenses and cannot be prosecuted as one crime, in one count, though all of the property is afterwards found in the possession of the defendant at the same time and place. 176 So. at 92.

Hamilton is persuasive under a certain set of facts; proof of such facts is not here present. With reference to receipt, in Hamilton the defendant made three separate receipts of unrelated goods. In the instant case, although the goods of four separate owners were found on premises leased by the appellant, the record is barren of any proof of separate receipt, retention, disposition or concealment of the goods by the appellant.

We are not unmindful that our holding will place the burden upon law enforcement officials to develop evidence indicating more than a “single transaction.” However, to fail to apply the single transaction rule would fly in the face of existing law. Multiple sentences must be avoided when they simply reflect several different characterizations (or counts) of the same criminal episode.

What we say here, of course, does not preclude the state under like circumstances from charging under multiple counts, nor from going to trial on each — because a jury might not believe, for instance, that the property was “stolen” in each instance. But once conviction is had on one such count, there being but one concealment, only one judgment may be entered and one sentence imposed.

Accordingly, the cause is remanded for the entry of but one judgment and the imposition of a single five (5) year sentence. The appellant need not be present for this purpose.

BOARDMAN, C. J., and McNULTY, J., concur.

      . In 1975 the supreme court in Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), receded from its decision in Foster v. State, 286 So.2d 549 (Fla.1973) in holding that multiple sentences were proper where the petitioner had possession of two separate drug substances each of which constituted in and of itself a separate violation of law. The court placed the onus upon the legislature in stating the following:
      We recognize that other states have mandated by statute that multiple or consecutive sentences are not to be imposed for offenses committed as part of a single transaction. [Examples given] In the absence of a specific Florida statute, this Court adheres to the view expressed in its prior decisions . . . [Examples given] 322 So.2d at 479.
      The legislative response was Section 775.-021(4), Florida Statutes (Supp.1976):
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


text:
    Francis T. YOUNG and Lola Young, his wife, Appellants, v. Eamonn QUINN, Patricia Quinn, and Frank Moore Realty, Inc., a Florida Corporation, Appellees.
    No. 77-780.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 9, 1977.
    Robert L. Gossett of Bunin & Gossett, and Mark A. Jacobs of Paul Glasel, P.A., Hollywood, for appellants.
    Alvin Capp of Capp, Reinstein & Kope-lowitz, Fort Lauderdale, for appellees— Quinn.
   PER CURIAM.

From our review of the record in this case we determine that the questions presented on appeal have become moot. Under such circumstances an appeal may be dismissed on the court’s own motion. De-Hoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943). No practical result could be attained by reviewing the questions raised by this appeal; therefore the appeal is dismissed.

ALDERMAN, C. J., and LETTS and MOORE, JJ., concur.


text:
    Patrick SCHIFINI, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 77-999.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 9, 1977.
    Patrick Schifini in pro. per.
    Kenneth H. Hart, J., General Counsel, Tallahassee, and James R. Parks, Miami, for respondent.
   PER CURIAM.

The record shows that the untimely filing of a request for reconsideration by the petitioner, Patrick Schifini, was not due to any fault on his part but rather due to a mistake of the Bureau of Unemployment Compensation. Accordingly, the petition for writ of certiorari is granted and the decision of the Industrial Relations Commission is quashed with directions that a rehearing be granted the petitioner on his request for reconsideration filed on November 24, 1973.

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


text:
    Curtis STEVENS and Aldrian Cook, Appellants, v. The STATE of Florida, Appellee. Curtis STEVENS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-733, 76-1272 and 76-540.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 7, 1977.

      Bennett Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for Stevens.
    Stone, Sostchin & Gonzalez and Gisela Cardone Dienstag, Miami, for Cook.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Curtis Stevens and Aldrian Cook were charged by information with conspiracy to commit robbery, attempted murder, robbery, and unlawful possession of a firearm while in the commission of a robbery. They pled not guilty and were tried by jury. Cook was found guilty, convicted and sentenced on all four counts. Stevens was found not guilty on the charge of attempted murder, but convicted and sentenced on the remaining three counts. In separate proceedings, an order was entered revoking Stevens’ probation. These three consolidated cases are a direct appeal by Stevens and one by Cook from their judgments of conviction and sentences, and an appeal by Stevens from the order of revocation of probation.

The action arises from the 1975 robbery of a Publix supermarket. The record reflects that shortly after the robbery, the defendants were apprehended following an exchange of gun shots with the police in an attempt to get away. At trial, the State presented extensive eyewitness testimony linking both defendants to the crimes with which they were charged.

In appeal no. 76-1272, Aldrian Cook raises the point that the trial court erred in denying his request and refusing to instruct the jury on the lesser included offenses of robbery in violation of Rule 3.510, Florida Rules of Criminal Procedure. This point is well taken. The rule provides in pertinent part that upon an information upon which the defendant is to be tried for any offense, the jurors may convict the defendant of any offense which is necessarily included in the offense charged; and “(t)he court shall charge the jury in this regard.” (emphasis added).

In the case of Brown v. State, 206 So.2d 377 (Fla.1968), the Florida Supreme Court set out the four categories of lesser included offenses. The first three categories are (1) crimes divisible into degrees; (2) attempts to commit offenses; and (3) offenses necessarily included in the offense charged. A charge to the jury regarding the lesser offense in these three categories is mandatory. In the fourth category are the offenses which may or may not be included in the offense charged, depending upon the allegations of the accusatory pleading and the evidence.

In its recent decision in the case of Lomax v. State, 345 So.2d 719, 721, the Florida Supreme Court held that,

. . when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is thus per se reversible.”

Lomax was cited with approval by this court in Abreau v. State, 347 So.2d 819 (Fla.3d DCA 1977), wherein it was held that a trial judge is under a mandatory duty to instruct a jury on all lesser offenses required by Fla.R.Crim.P. 3.510, 3.490 as interpreted by Brown v. State, supra, when requested by either the state or the defense. Failure to give such an instruction upon request of the defense will compel a reversal of any conviction obtained thereafter without regard to the harmless error doctrine. Abreau, supra, 821-822.

As opined in Clark v. State, 301 So.2d 456, 457-458 (Fla.3d DCA 1974), there is a “need for criminal trial judges to apply the mandatory language of Rule 3.510 in a neutral and mechanical manner.” We agree, and find that the trial judge erred in failing to instruct the jury on the lesser included offenses of robbery as requested by Cook’s counsel. See Hand v. State, 199 So.2d 100 (Fla.1967); Miles v. State, 258 So.2d 333 (Fla.3d DCA 1972); State v. Terry, 336 So.2d 65 (Fla.1976). Therefore, we reverse Cook’s conviction and sentence on the robbery count, and remand to the trial court for a new trial on that count.

The remaining points raised by Cook in his brief and amended brief have been carefully reviewed. We find that none of them demonstrates reversible error. The convictions and sentences on the other three counts are affirmed.

We next address case no. 76-733, Stevens’ direct appeal from the judgments of conviction and sentences. He contends that the trial court erred in denying a motion to strike testimony as to an alleged inculpatory statement made by Stevens while in custody. In support of this point, he urges that (1) the prosecutor failed to comply with Rule 3.220, Fla.R.Crim.P., relating to discovery; (2) the court failed to inquire into the circumstances surrounding the prosecutor’s non-compliance, and further failed to determine that no prejudice was caused thereby; and (3) the prosecutor failed to establish any predicate as to the admissibility of the statement, thereby violating defendant’s constitutional rights.

The record reflects that the following colloquy took place during the State’s redirect examination of the arresting officer:

“Q Was Stevens struck by any bullets that you fired?
A I am not sure if he was or wasn’t.
Q How about after he was taken into custody?
A Well, Stevens advised me personally that he was not ...
STEVENS’ COUNSEL: Objection. There has been no predicate as to this and I move for a sidebar at this time.
THE COURT: Overruled. Sidebar denied.
A Stevens advised me when I had him in the holding cell that he had not been shot by me. I thought that perhaps he fell down when I fired a second shot. He might have been shot but he said he cut his leg going over the fence.” (Emphasis supplied.)

At the conclusion of the officer’s testimony, defense counsel renewed his prior objection to the testimony as to the defendant’s statement on the grounds that the officer stated that Stevens was in custody at the time he made the alleged admission, and that no predicate was laid by the State to establish that Stevens had been informed of his Miranda rights; defense counsel further asserted that the State had never provided the defendant with the oral admission to the officer pursuant to a discovery demand under Rule 3.220(a)(l)(iii), for:

“Any written or recorded statements and the substance of any oral statements made by the Defendant and known to the prosecutor together with the name and address of each witness to the statement.”

Based upon those grounds, Stevens’ counsel moved to strike the admission “from the jury’s mind” as well as “from the record,” and moved for a mistrial which was denied.

In our opinion, under the facts presented in the record of this case, there was no necessity for a predicate to be laid before the officer could testify to the defendant’s statement. The statement that after Stevens was taken into custody, he informed the officer that he had not been shot, but had cut his leg going over the fence, does not carry the import which the defendant claims it does. On direct examination, the officer testified that he observed Stevens driving a car, and he pursued the car in a high speed chase, resulting in Stevens’ car crashing. The officer testified that he then chased Stevens on foot across the expressway, and when Stevens reached the fence, he turned around, looked at the officer and went over the fence, after which the officer lost sight of him. On cross-examination, the officer testified that he could identify Stevens as the person in the car he pursued, and as the same person who was arrested shortly thereafter by another officer. There was no doubt concerning his identification of Stevens. Thus, the significance of Stevens’ statement to the officer that he had not been shot, was that it was relevant to prove that Stevens was the individual going over the fence and at whom the officer shot. This issue, however, was not material, since it was never contested that Stevens was the individual pursued by the officer. In fact, the testimony was elicited because defense counsel first questioned the propriety of the officer’s actions in shooting at the defendant, and whether he was too far away to be hit by a bullet. On redirect, the State was trying to establish that Stevens was not hit by a bullet. The defendant did not deny that he was the person chased by the officer. This statement, then, does no more than identify him as the person who was fleeing the scene, which was not denied. It does not otherwise connect him with the robbery which took place inside the Publix store. We do not deem this to be an inculpatory statement in the context of the evidence presented in this case.

As to the point that the State should have provided the defense with this statement during the course of discovery procedures under Rule 3.220, there is no showing in the record that the State had any knowledge of such a statement prior to the time of the officer’s trial testimony.

Stevens’ second point on appeal is that the court erred in failing to instruct the jury as to the lesser included offenses of robbery. Although this constituted reversible error in the case of co-defendant Cook, it does not mandate reversal for Stevens. The record reflects that counsel for Cook made a request for instructions on the lesser included offenses of robbery, and an objection to the court’s failure to so instruct the jury. The record fails to reflect, however, that counsel for Stevens requested those instructions, or objected to the court’s failure to give them; and further fails to reflect that there was an agreement among the court and counsel for the defendants that an objection raised by one would automatically be adopted by the others. See Williams v. State, 285 So.2d 13 (Fla.1973); McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977).

The final point raised by Stevens on this appeal is without merit and will not be discussed. Accordingly, Stevens’ convictions and sentences are affirmed.

In the third appeal, case no. 76-540, Stevens seeks review of an order of revocation of probation. The sole point raised on this appeal is that the trial court erred in revoking probation where Stevens received insufficient notice of the alleged violation, and where the revocation was based upon an offense not charged in the affidavit of violation of probation.

The record reflects that Stevens’ counsel did have advance notice that the alleged probation violation consisted of the same robbery of the Publix market charged in the information. At the time of the probation revocation hearing, the prosecutor stated that Stevens’ counsel had been notified “as to what the probation violation would consist of, and that being the Publix robbery case.” The trial court decided to proceed with the hearing. Defense counsel did not allege that he was unprepared for the revocation hearing.

The allegation that the revocation was based upon an offense not charged in the affidavit, stems from the fact that the affidavit of violation contains an incorrect street number for the Publix which was robbed. We find that this is not a fatal variance since Stevens had actual notice of the correct address, and the record fails to reveal a possibility that he was embarrassed or misled in the preparation or presentation of his defense. See Fitzgerald v. State, 227 So.2d 45 (Fla.3d DCA 1969); Sharp v. State, 328 So.2d 503 (Fla.3d DCA 1976); Rule 3.140(o), Fla.R.Crim.P. The defendant was not denied the minimal criterion of due process guaranteed by law in probation revocation proceedings. See McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966); Holmes v. State, 311 So.2d 780 (Fla.3d DCA 1975).

Therefore, Stevens’ convictions and sentences are affirmed. Stevens’ appeal from the order of revocation of probation is affirmed. Cook’s convictions and sentences are affirmed in part, and reversed in part and remanded.

It is so ordered.


author: NATHAN, Judge.

text:
    Darrell G. KNIPP, Appellant, v. Bernard WEINBAUM, Allan Weinbaum, State Auto Mutual Insurance Co., et al., Appellees.
    No. 76-1744.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 5, 1977.

      Frates, Floyd, Pearson, Stewart, Richman & Greer and William Bruce Harper, Jr., and Gary D. Fox, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman and William S. Reese, Miami, for appellees.
    Before BARKDULL, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

Plaintiff appeals from a summary final judgment for defendants in a personal injury action against the seller of a used motorcycle, and from the trial court’s denial of plaintiff’s motion to amend his complaint, which originally charged breach of warranties and negligence, to include a count in strict liability.

In 1973, plaintiff purchased a three-wheeled motorcycle (“trike”) from defendant, Allan Weinbaum, doing business as Homestead Cycle Shop. The trike had been constructed at home approximately two years earlier by a young motorcycle enthusiast for his own use, and had been privately traded to three other individuals before it reached defendant’s shop. Plaintiff signed a bill of sale which included the prominent statement: CYCLE SOLD AS IS — ONE CUSTOM TRIKE HONDA THREE WHEELER. Several hours later, on the date of purchase, plaintiff was severely injured, allegedly because a defective weld on the rear axle gave way, causing plaintiff to lose control of the trike while on a major highway.

Suit was filed in August of 1974, recovery initially being sought on grounds of breach of express and implied warranties, and negligence. Summary final judgment was rendered in favor of defendants on the original counts on August 23, 1976. On August 26, 1976, the Florida Supreme Court having rendered its decision adopting strict liability in this state on July 21, 1976, plaintiff moved to amend his complaint to include a claim predicated on strict liability. This motion was denied on September 13, 1976.

Appellant contends: (1) The trial court erred in granting summary judgment on the count of implied warranty because the testimony of both parties shows that neither intended the “as is” provision to operate as a disclaimer of the implied warranties of merchantability and fitness for a particular purpose; (2) the trial court erred in granting summary judgment as to breach of express warranty because statements of defendant’s employee concerning the dependability of the trike became a basis of the bargain between the parties which was breached when the merchandise did not conform to the statements made; (3) the trial court erred in granting summary judgment on the negligence count since material issues of fact remain to be resolved concerning the adequacy of defendant-sellers’ safety inspection of the vehicle and of their maintenance of it; (4) in light of the policy behind this state’s adoption of strict liability in tort for sellers of defective, unreasonably dangerous products, it was error for the trial court to refuse to allow plaintiff to amend his complaint. We deal with plaintiff-appellant’s contentions in the order of their presentation above.

Plaintiff avers that the parties had differing understandings of the intended meaning of the phrase “as is” on the bill of sale. If the law implies no warranties at all on the facts of this case, the intent of the parties would be immaterial to the first assignment of error. Therefore we must decide initially whether the implied warranties of merchantability, Section 672.2-314, Florida Statutes (1973), and fitness for a particular purpose, Section 672.2-315, have viability in this action. This in turn will depend on whether these warranties are applicable to the sale of used goods; the effect of the words “as is” in a personal injury action based on an alleged defect in used goods sold; and the intent of the parties in the circumstances surrounding the transaction at issue.

On the question of whether implied warranties are applicable to the sale of used goods, we find the rationale of Brown v. Hall, 221 So.2d 454 (Fla.2d DCA 1969) compelling. This case imposed an implied warranty as to fitness, condition, and quality on the sale of used goods when the seller knew the purpose for which the buyer purchased the goods, a used truck, and that he had relied on the seller’s skill and judgment in making the purchase. Though decided on the basis of pre-code law, the applicability of this case is both pertinent and continuous. We find that implied warranties may be imposed on the sale of used goods in limited circumstances, despite ostensible disclaimers.

The plaintiff in this case alleged that his injuries resulted from a defect in the goods sold. To foreclose consideration of his claim by permitting an “as is” disclaimer to operate as an automatic absolution from responsibility through the mechanism of summary judgment would belie the policy behind Section 672.2-719(3), which states that “limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. See generally Matthews v. Ford Motor Company, 479 F.2d 399 (4th Cir. 1973); Sarfati v. M. A. Hittner & Sons, Inc., 35 A.D.2d 1004, 318 N.Y.S.2d 352 (1970).

Moreover, Section 672.2-316(3) provides: (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty . . . . (emphasis supplied).

It is the clause “unless the circumstances indicate otherwise” which precludes a finding that automatic absolution can be achieved in the sale of used consumer goods merely by the inclusion in a bill of sale of the magic words “as is.”

This is not to say that a seller of used goods may not absolve himself from responsibility for defects in the goods sold when both he and the buyer understand this to be the intended meaning of the phrase “as is.” See Comment 3 to Section 672.2-719. The Uniform Commercial Code contemplates that a seller may disclaim warranties as long as the buyer reasonably understands this is being done. Osborne v. Genevie, 289 So.2d 21 (Fla.2d DCA 1974) (dicta). See generally Eckstein v. Cummins, 41 Ohio App.2d 1, 321 N.E.2d 897 (1974); Dobias v. Western Farmers Ass’n, 6 Wash.App. 194, 491 P.2d 1346 (1971). But a disclaimer, to be effective, must be a part of the basis of the bargain between the parties. DeCoria v. Red’s Trailer Mart, Inc., 5 Wash.App. 892, 491 P.2d 241 (1971). See also Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla.2d DCA 1972).

The record reveals conflicting statements in the depositions of the parties regarding the intended meaning of the disclaimer in this case. Indeed, there are statements which indicate that the seller himself may have intended the term “as is” to apply only to minor defects which would have rendered the trike incapable of passing the inspection required in order to get a motor vehicle sticker. Since the law does imply warranties in this sale of used merchandise, and since there is conflicting evidence as to the parties’ understanding of the purpose of the “as is” disclaimer, there remain disputed questions of material fact in this case. Therefore summary judgment was improper. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977).

Plaintiff next asserts error in the trial court’s rendering of summary judgment on the issue of express warranty, claiming that statements made by defendants’ employee amounted to an express warranty of the dependability and safety of the trike under Section 672.2-313, Florida Statutes (1973). Defendant Allan Wein-baum has stated that he did not personally make any representations regarding the safety of the cycle, and further relies on the “as is” disclaimer to negate any inference of such a warranty. The most prominent principle in the construction of warranties is the ascertainment of the intentions of the parties in light of the surrounding circumstances. 28 Fla.Jur., Section 126 (1968). At minimum, these diverse contentions create a jury question as to the facts at issue in the understanding between the parties. In the present posture of the case it cannot fairly be said that, as a matter of law, no express warranty was created, especially since the record reveals no deposition by the employee. We therefore reverse the summary judgment on this issue. Holl v. Talcott, supra; Visingardi v. Tirone, supra.

Plaintiff’s third claim of error rests on his assertion that material issues of fact remain unresolved concerning defendants’ alleged failure to inspect and maintain the cycle adequately. The movant in a summary judgment proceeding must meet a twofold requirement. He must show both that there is no genuine issue of material fact remaining unresolved and that he is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). The Florida Supreme Court has recently stated:

Movant’s burden is even more onerous in negligence actions where summary judgment procedures historically have been employed with special care. (Citations omitted.) The necessity for exercise of such caution is emphasized by virtue of this Court’s adoption of comparative negligence, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and its recent abolition of assumption of risk as an absolute defense, Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Unless a movant can show unequivocally that there was no negligence, or that plaintiff’s negligence was the sole proximate cause of the injury, courts will not be disposed to granting a summary judgment in his favor.

Wills v. Sears, Roebuck & Co., supra at 30.

Here the plaintiff has alleged that the negligent omissions of defendants were the causative factors in the accident which injured him. In support of this proposition plaintiff proffered the affidavit of a professor of mechanical engineering which stated that a competent safety inspection would have revealed the defects which allegedly caused the accident. Only the defendant’s testimony in deposition that he had checked the trike and his reliance on the disclaimer in the bill of sale stand in opposition to this claim.

Even if the “as is” term were to be found to negate liability under the causes of action in warranty, an issue by no means settled, the absence of warranties in the sale of chattel does not necessarily preclude liability for negligence. Fleming v. Stoddard Wendle Motor Co., 70 Wash.2d 465, 423 P.2d 926 (1967); Turner v. International Harvester Company, supra, note 2. On the contrary, in the instant situation, the “as is” disclaimer serves to add another dimension to the negligence claim, for its effect on the evidence presented may be substantial, especially on the question of whether or to what degree the defendant owed a duty to the plaintiff. The understanding of the parties as to the extent of the disclaimer is particularly relevant to a jury’s determination of what was reasonable under the circumstances. See Turner v. International Harvester Company, supra. There remain disputed facts as to the degree of care exercised by defendants and the degree of care required of them. Summary judgment on the negligence count is singularly inapt on the facts before us.

Plaintiff’s final assignment of error relates to the trial court’s refusal to grant his motion to amend his complaint to include a cause of action in strict liability. We do not now deal with the broad question of whether strict liability in tort is applicable to the purchase of used merchandise not originally manufactured for sale to the public. We reach only the procedural question of whether the trial judge abused his discretion by refusing to allow plaintiff to amend his complaint to include a count in strict liability after final summary judgment had been rendered.

The facts reveal that the supreme court’s decision in West v. Caterpillar Tractor Co., Inc., supra, note 1, adopting strict liability, was rendered approximately five weeks before plaintiff moved to amend. The decision was a major one, opening new avenues of relief previously unavailable in personal injury actions. Because the time lapse between the filing of the West decision and plaintiff’s motion to amend was reasonable in the light of practical considerations, because of the importance of West to litigants in this state, and because of the policy behind Rule 1.190(e), Florida Rules of Civil Procedure, denial of the motion to amend was inappropriate. Rule 1.190(e) provides that the court may permit a pleading to be amended at any time in furtherance of justice. Liberal construction of this rule is particularly applicable in a situation such as the one before us where the amendment is based on the same conduct, transaction and occurrence upon which plaintiff had brought his original claim. Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla.4th DCA 1971).

Moreover, the Florida Supreme Court, in Linder v. Combustion Engineering, Inc., 342 So.2d 474 (Fla.1977), specifically held that the doctrine of strict liability of West should be applied to cases already commenced but in which trial has not yet begun. Id. at 476. Since the trial had not started when summary judgment was rendered, and since this decision reverses the summary judgment below, reinstituting proceedings in the trial court, the amended pleading must be allowed.

Reversed and remanded for further proceedings consistent with the views expressed herein.

      . West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976).

      . Cf. Turner v. International Harvester Co., 133 N.J.Super. 277, 336 A.2d 62 (1975), where the court found that circumstances surrounding the sale indicated only the normal statutory exclusions dictated by an “as is” clause in a contract for the sale of a used truck, but implied that, had the facts so required, an implied warranty would have been imposed on the sale of used merchandise..


author: PEARSON, Judge.

text:
    Alvaro SUAREZ, Appellant, v. Carlos AGUIAR, etc., Appellee. Carlos AGUIAR, Individually and as Administrator of the Estate of Ileana Elsa Aguiar, Deceased, Appellant, v. CUMIS INSURANCE SOCIETY, INC., Appellee.
    Nos. 76-1746 and 76-1747.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 5, 1977.

      George P. Telepas, Miami, for Suarez.
    Stabinski, Funt, Tucker & Levine, Miami, for Aguiar.
    Smathers & Thompson, Miami, for Cumis Ins.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

Alvaro Suarez and Carlos Aguiar, individually, and as administrator of the estate of Ileana Elsa Aguiar, have separately appealed a Final Declaratory Judgment which held that the appellee, Cumis Insurance Society, Inc., was liable upon its insurance policy for uninsured motorist coverage in the amount of $20,000 per automobile for a total of $60,000.00, and that punitive damages are not recoverable under uninsured motorist coverage. The appeals have been consolidated for all appellate purposes.

Appellants’ first point urges that the trial judge erred in finding that the insured had rejected uninsured motorist coverage in the full amount of the limits of liability insurance purchased by the insured. The trial court has given us the benefit of extensive findings of fact. Appellant has failed to point out any particular in which these findings are not supported by the record. We conclude that the record and the statute support the conclusion reached by the trial judge. Cf. Lopez v. Midwest Mutual Insurance Company, 223 So.2d 550 (Fla.3d DCA 1969).

Appellants’ second point claims error upon the trial judge’s holding that punitive damages are not recoverable under uninsured motorist coverage. It is conceded that there is no direct holding by an appellate court in Florida that punitive damages are recoverable under uninsured motorist coverage. It is argued that such a holding would be a logical development from the case law established in Mobley v. Allstate Insurance Company, 276 So.2d 495 (Fla.2d DCA 1973); and Leatherby Insurance Company v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975). The Mobley case held that damages for loss of consortium were recoverable under uninsured motorist coverage. The Leatherby case held that damages for an intentional tort were recoverable. The statute, Section 627.727, Florida' Statutes (1973), provides that damages resulting from “ . . . bodily injury, sickness or disease, including death, resulting therefrom . . . ” may be recovered. It should be noted that both the Mobley and Leatherby cases allowed recovery for actual damages to the insured which are compensatory in nature.

Punitive damages are distinguished from compensatory damages in that punitive damages do not have as their primary purpose the making of a plaintiff whole after a bodily injury, sickness or disease. See Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (Fla.1936); Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964); and Wrains v. Rose, 175 So.2d 75 (Fla.2d DCA 1965).

In Northwestern National Casualty Company v. McNulty, 307 F.2d 432 (5th Cir. 1962), the United States Court of Appeals, applying Florida law, held that an automobile liability policy does not cover punitive damages assessed against the insured. While not binding as precedent, the reasoning based upon public policy is persuasive and the holding has been adopted by the District Court of Appeal for the Second District. See Nicholson v. American Fire and Casualty Ins. Co., 177 So.2d 52 (Fla.2d DCA 1965).

We conclude from the law as established and the reading of the statute that the uninsured motorist coverage in the State of Florida does not include liability for punitive damages.

Affirmed.

      . The parties have agreed that for the purpose of determining the amount of the coverage, the court properly considered Section 627.727, Florida Statutes (1973), which is for the purposes of this appeal identical with Section 627.-727, Florida Statutes (1975).

      . “6. The insured had knowledge of the fact that he was entitled to UMI coverage in the same amount as his liability coverage (exhibits two and three for the Plaintiff, which Plaintiff testified that he read and understood). The Court finds that the required offer of coverage was made (distinguished Cumbie vs. State, [Fla.App.,] 327 So.2d 67, where the Court found that the insured did not have knowledge nor was offered UMI coverage).
      “7. The telephone application was then processed and the insured received a premium quotation (Defendant’s exhibit A into evidence) which contained an application on the reverse side of the document, together with Plaintiffs exhibits two and three. The application indicated coverage commenced on May 1, 1974 (expires May 15, 1974) and upon signing the application and remitting a premium the policy would remain effective six (6) months from May 1, 1974. The policy clearly indicates the special package of $50,-000.00 liability and $20,000.00 UMI. The insured filled out the balance of the application and returned same to the Defendant company with a check for his premium.”