author: SMITH, Judge.

text:
    GENERAL DEVELOPMENT CORP., Petitioner, v. DIVISION OF STATE PLANNING, DEPARTMENT OF ADMINISTRATION, State of Florida, Respondent.
    No. CC-118.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1977.
    Rehearing Denied Feb. 8, 1978.

      Parker D. Thomson and Robert T. Wright, Jr. of Paul & Thomson, Miami, for petitioner.
    Louis F. Hubener, III, Tallahassee, for respondent.
   SMITH, Judge.

General Development Corporation (GDC) petitions for review of a “binding letter of interpretation” issued April 15, 1976, by the Division of State Planning, Department of Administration. That letter reconsidered, confirmed and expanded the Division's March 2, 1976 “binding letter” determining that GDC’s segmental development of its remaining lands in Port Malabar — 15,500 acres in some fifteen separate but neighboring tracts in and around the City of Palm Bay, Brevard County — will constitute a development of regional impact which is subject to regulation under Section 380.06, Florida Statutes (1975). GDC urges that the Division erred (1) in vacating its prior binding letters of interpretation determining that two of the smaller tracts, designated for development as Country Club Vista and PM-55, are not developments of regional impact; and (2) in determining that all the tracts known as Port Malabar are in the aggregate a development of regional impact, although those tracts are separated from each other by developed and undeveloped lands owned by others and by GDC lands which are “vested,” hence beyond the Division’s Section 380.06 jurisdiction, because GDC obtained development authority from local government before Section 380.-06 became fully effective.

The effect of the Division’s April 15,1976 letter of interpretation is to require GDC to submit applications for development approval of each tract to local governments, subject to review under certain standards by the regional planning agency and by the Governor and Cabinet sitting as the Land and Water Adjudicatory Commission. Sections 380.06(6) through (11), .07. A developer who bypasses Section 380.06 supervision of its development of regional impact does so at its peril and, notwithstanding local zoning and building permits, the developer may be enjoined during construction. Section 380.11. To sustain GDC’s position with respect to one or more of the Port Malabar tracts would release that land from Section 380.06 control. We are not concerned here with a designated area of critical state concern, as we were in Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977); but the Division’s power respecting developments of regional impact derives from the same source, the Florida Environmental Land and Water Management Act of 1972.

Section 380.06 required the Governor and Cabinet, acting as the Administration Commission, to adopt as rules, subject to legislative approval, guidelines and standards “to be used in determining whether particular developments shall be presumed to be of regional impact.” The Administration Commission was directed to “consider and be guided by”:

(a) The extent to which the development would create or alleviate environmental problems such as air or water pollution or noise;
(b) The amount of pedestrian or vehicular traffic likely to be generated;
(c) The number of persons likely to be residents, employees, or otherwise present;
(d) The size of the site to be occupied;
(e) The likelihood that additional or subsidiary development will be generated; and
(f) The unique qualities of particular areas of the state.

Effective July 1, 1973, but subject to legislative approval, the Administration Commission adopted Chapter 22F-2, Fla. Admin.Code, providing that various developments of a certain character or density “shall be presumed to be a development of regional impact.” Legislative approval was granted by HCR 1039, Fla.Laws (1973). Rule 22F-2.10, concerning residential developments, provides in relevant part that, in Brevard and other counties having a population between 100,001 and 250,000, a proposed residential development that is planned to accommodate more than 1,000 dwelling units shall be presumed to be a development of regional impact and subject to Section 380.06. The Rule further provides:

(2) As used in this section the term “residential development” shall include but not be limited to:
(a) the subdivision of any land attributable to common ownership into lots, parcels, units or interests, or
(b) land or dwelling units which are part of a common plan of rental, advertising, or sale, or
(c) the construction of residential structures, or
(d) the establishment of mobile home parks.

To alleviate a developer’s “doubt whether his proposed development would be a development of regional impact,” Section 380.-06(4) provides that the Division of State Planning shall issue binding letters of interpretation resolving those doubts. Such letters “bind all state, regional, and local agencies, as well as the developer.” Section 380.06(4)(a).

History of this controversy.

GDC designates as “Port Malabar” all its past and present holdings, in varying stages of development, in and around the City of Palm Bay. Portions of Port Malabar extend from Indian River 12.5 miles westward through the city and into the county. The southern boundary of the southernmost tract is roughly twelve miles from the north boundary of the northernmost tract. Of the total of 42,000 acres, 26,500 acres were “vested” by prior development authority given GDC by local governments. The 15,-500 acres in Port Malabar which remain potentially subject to Section 380.06 lie in some fifteen tracts, ranging in size from less than a quarter-quarter section to one of roughly fourteen sections or 9,000 acres. The tracts are separated from each other by vested lands of GDC development or by lands owned by others. Some unvested Port Malabar tracts are within 500 feet of another and some are as distant as 7.5 miles.

The Division’s determination that GDC’s unvested 15,500 acres are in the aggregate a development of regional impact culminated agency proceedings which were concerned primarily with proposed development of three particular tracts: one of 59.4 acres, in which GDC proposed development of 885 dwelling units, called Country Club Vista; a nearby tract of 124.22 acres, for which GDC proposed 223 dwelling units, called PM-55; and Tract E, containing 1,600 acres for which GDC originally contemplated residential development above the 1,000 unit threshold at which the Rule presumes regional impact. The present controversy arose when GDC reduced its proposed development of Tract E to a subthreshold density of 202 dwelling units, intending thus to free Tract E for development independent of Section 380.06. The Division responded, in the March 2 and April 15, 1976 letters, by declaring ail of unvested Port Malabar subject to Section 380.06 jurisdiction and vacating its prior determinations that development of Country Club Vista and PM-55 would not be of regional impact.

The first of the Division’s binding letters of interpretation was issued March 28,1974, in response to GDC’s formal application for a determination that Country Club Vista was not a development of regional impact. The Division’s letter announced a determination to the contrary affecting all of Port Malabar:

[T]he Division . . . has determined that the proposed Country Club Vista development in Brevard County must be considered as part of the total Port Malabar development . . . [and that] your proposed Port Malabar deyelopment is a Development of Regional Impact

The Division’s March 28,1974 binding letter did not explicate the decision, but an underlying staff memorandum expresses the view that “a single increment of a total development [cannot] be considered separately” and thus be exempted from Section 380.06 jurisdiction.

When it issued its binding letter of March 28, 1974, the Division had not ascertained which of GDC’s Port Malabar lands were vested. On GDC’s application, the Division made that determination May 9,1974. Section 380.06(4)(a), Florida Statutes (1975). Finding that Country Club Vista was substantially vested and that the unvested portion was surrounded by vested GDC land and by property owned by others, the Division reevaluated the unvested portion and found in a binding letter issued May 30, 1974, that “the proposed Country Club Vista development ... is not a Development of Regional Impact . . .

Having exempted Country Club Vista from the effect of Section 380.06, GDC then sought the same treatment for PM-55, a proposed development of 223 dwellings on 124.22 acres. The Division issued a binding letter of interpretation on December 23, 1974, finding that PM-55 was not in itself a development of regional impact but that “this unit should be combined” for Section 380.06 treatment with nearby Tract A or Tract C, which GDC represented on its planning map as “probable” developments of regional impact. On January 6, 1975, a Division official (not the director) wrote GDC a letter determining that GDC’s planning map of Port Malabar, showing all tracts, was made “the official point of reference for determining what tracts should be considered as Developments of Regional Impact,” and stating:

General Development Corporation will not be required to submit one ADA [application for development approval] designed to cover the entirety of [Port Malabar], but shall submit Applications for Development Approval for the tracts designated on said [map] as Developments of Regional Impact.

GDC’s Port Malabar planning map showed the six larger tracts, lettered A through F, as “probable” developments of regional impact. The January 6, 1975 Division letter “hereby determined” that those tracts, for which particular development had not then been formally proposed, were “individual Developments of Regional Impact . . .”

On August 7, 1975, on reconsideration of PM-55 at the request of GDC, the Division again determined that PM-55 should be combined with Tract A or Tract C “which are Developments of Regional Impact pursuant to the Division’s letter dated January 6, 1975.” Upon a further plea by GDC, the Division on December 3, 1975 revoked its August 7 determination “[b]ased on the additional information you have provided and the specific factual circumstances regarding your development,” and stated:

Port Malabar Unit 55 is not, in and of itself, a development of regional impact, nor is it reasonably related to any other proposed development which, if aggregated, would constitute a development of regional impact.

With Country Club Vista and PM-55 now favorably determined to be free of Section 380.06 implications, GDC on December 15, 1975 filed a formal request for determination that Tract E was not, after all, a development of regional impact. The application represented that GDC “has radically changed its planning assumptions about tract ‘E’ at Port Malabar since the original designation of this tract, and we would like to go forward with planning for the area which would call for 202 units of a minimum of 5 acres each.” Sensing it was losing Section 380.06 control of Port Malabar by increments, the Division on March 2, 1976 issued a binding letter of interpretation determining that, its January 6, 1975 letter to the contrary notwithstanding, all nonvested portions of Port Malabar, including Tracts A through E, must be aggregated for consideration and would clearly exceed in aggregate the 1,000 dwelling unit threshold for presumed developments of regional impact. GDC’s request for reconsideration produced another binding letter of interpretation on April 15, 1976, further reclaiming Division jurisdiction under Section 380.06:

We must therefore revoke the January 6, 1975 letter as a planning approach for Port Malabar . . . . Under your current planning strategies, we feel an overall ADA, even a conceptual one, is necessary. This letter is consistent with the March 2, 1976 determination that Tract E must go through DRI review but adds the requirement that an application for all non-vested areas be submitted including PM-55 and Country Club Vista. (Emphasis added.)

GDC timely sought judicial review here.

The Division’s power to revoke binding letters of interpretation.

The Division’s letters of May 30,1974 and December 3, 1975 determined that development of Country Club Vista and PM-55, projecting 885 and 223 dwelling units respectively, would not be of regional impact. GDC urges that the Division was powerless to revoke those determinations by its letters of March 2 and April 15, 1976. The Division replies that GDC dissolved an agreement with the Division which was the essential inducement for the Division’s determinations of May 30, 1974 and December 3, 1975.

Section 380.06(4) provides that the Division’s binding letters of interpretation shall “bind all state, regional, and local agencies, as well as the developer.” If binding letters of interpretation are to have the settling effect intended for them by the legislature, their integrity must be respected by the Division, developers and the courts. Yet this case teaches that the Division’s commitments must be predicated on its understanding of a developer’s plan for the land in question, which the developer may later wish to change, and may be predicated on an agreement between the Division and the developer concerning the Division’s jurisdiction of the developer’s other nearby lands not proposed for immediate development, which agreement the developer may later find burdensome.

When both the Division and the developer agree that changed plans or new information require revision of a prior binding letter of interpretation, Section 380.-06(6) does not forbid the change. Considering the practicalities of dealings by developers with the Division, and the centrality of negotiation in the Division’s satisfaction of public and private interests, we conceive also that the Division may state in its binding letters what understandings or agreements have induced them, and may later revoke a binding letter when its essential predicate is removed by the developer’s change of plans or failure to perform as agreed.

Any concession of revocation power to the Division must be attended by safeguards against its abuse. The Division cannot be permitted to revoke its binding letters of interpretation, to the prejudice of developers, simply because the Division newly discovers information which if known earlier would have produced another result. Certainly the Division cannot revoke simply because it comes to believe its prior determination was ill-advised. If the Division wishes to predicate a binding letter of interpretation on its understanding of critical information submitted by the developer, or on a contemporaneous agreement with the developer affecting lands proposed for development or held in reserve, the substance of that information or agreement must be clearly stated in the binding letter of interpretation.

The Division’s December 3, 1974 determination that development of PM-55 would not be of regional impact was influenced by an agreement between the Division and GDC, reflected in the letter and in antecedent correspondence referred to in the letter, that separate applications for development approval would be or “probably” would be submitted for Tracts A, B, C, D, E and F, as depicted on the Port Malabar planning map. The Division was content to release PM-55 from Section 380.06 scrutiny in exchange for conceded control of the larger tracts. We consider that the Division was released from the bargain when on December 15, 1975, GDC sought to release Tract E from the strictures of Section 380.06 by reducing its projected density to a subthreshold level of 202 dwelling units. GDC having dissolved the agreement by which PM-55 was exempted from Section 380.06 jurisdiction, the Division was at liberty on April 15, 1976, to revoke its exemption of PM-55.

The Division improperly revoked its May 30, 1974 determination that development of Country Club Vista would not be of regional impact. The May 30, 1974 letter referred vaguely to “information you have provided and the specific factual circumstances regarding your development,” and the Division hedged its determination by references to subsequent review “if at any time in the future this development meets standards” for developments of regional impact; but the developer’s fortunes cannot be dangléd on so slender a thread. It may well be that the Division acted to exempt Country Club Vista with the understanding or expectation that GDC would concede Division jurisdiction of Tracts A through F, but the record does not establish such a concession by GDC as early as May 1974, and there is nothing in the May 30, 1974 binding letter which makes that concession a condition of the Division’s exemption of Country Club Vista.

We cannot accede to the Division’s view that its May 30, 1974 letter was not a binding letter of interpretation because it was not applied for on the prescribed form. While the Division then had forms, its rule prescribing their use was not effective until July 1976. Fla.Admin. Code R. 22F-1.16(2) (Supp.No.69), eff. 7/7/76, superseded 10/13/76 (Supp.No.72). More important, the Division cannot so undermine the effect of its own action, fairly interpreted. The letter of May 30, 1974, appears on its face to be an authoritative disposition of the matter at hand. If the Division wishes to identify preliminary or tentative correspondence as nondeterminative, or if it wishes to reject requests for interpretation not submitted on proper forms, that is within the Division’s power. See n. 4 supra.

The Division’s decision that all nonvested GDC lands in Port Malabar constitute a development of regional impact.

Although the Division was irrevocably committed on May 30, 1974, to its exemption of Country Club Vista, it retained authority to decide whether development of part or all of GDC’s remaining acreage in Port Malabar would be of regional impact. The binding letters of interpretation issued March 2 and April 15, 1976 found that the remaining nonvested GDC land constituted a development of regional impact and that Tract E was part of the development. GDC urges that Tract E must be independently examined for Section 380.06(4) purposes, and that the Division may not in that examination aggregate the projected unit density of contiguous GDC tracts separated from Tract E by vested lands and by lands of others. GDC urges that it has not prepared and cannot reasonably be required to prepare development plans for lands that will not be developed in the foreseeable future. The Division’s position is that the impact of Tract E development cannot be measured without reference to GDC’s other nonvested lands in Port Malabar and that, counting all probable units in the aggregated tracts, the overall GDC development will far exceed the Rule 22F-2 threshold of 1,000 units.

The issue presented is a mix of questions arising under Section 380.06, part of the Florida Environmental Land and Management Act of 1972, and Chapter 120, the Administrative Procedure Act of 1974. In issuing its March 2 and April 15,1976, binding letters of interpretation, the Division was required to satisfy both the substantive requirements of Section 380.06 and the procedural requirements of the APA. If the Division erred procedurally, the question is whether material errors may have impaired the “fairness of the proceedings or the correctness of the action.” Section 120.68(8).

Rule 22F-2 is the source of the parties’ contentions for and against aggregating the projected unit density of separate but neighboring undeveloped tracts owned by GDC. That Rule, quoted earlier in this opinion, establishes a presumption, based on development density, that a certain proposed development in a county of a certain population will be of regional impact. The Rule presumes regional impact from development of airports; mining operations and electrical, oil storage, and port facilities of stated capacities; and recreation facilities, hospitals, industrial plant, office parks, schools, shopping centers and residential developments of a certain size, stated in terms appropriate to those types of development. Rule 22F-2 is the only substantive rule now extant which implements Section 380.06; and it was promulgated to satisfy the legislature’s requirement for rule standards by which developments could be “presumed to be of regional impact” because of “environmental problems such as air or water pollution or noise,” pedestrian or vehicular traffic, population density, site size, the likelihood of consequential development, and “the unique qualities of particular areas.” Section 380.06(2).

Rule 22F-2, with its quantitative thresholds, meets the legislative requirement in letter and in spirit. But the Rule affords only a presumption, not a rule of decision. The Rule does not reduce the Division’s responsibility under Section 380.06(4) to a mechanical chore of counting dwelling units or making other quantitative calculations. The presumption afforded by the Rule is to be respected, but the Division still must decide; and in decision the Rule must not be permitted to swallow the statute, which provides in Section 380.06(1):

“Development of regional impact,” as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.

Under the statutory definition, the character or location of a proposed development may conceivably make it of regional impact though its projected magnitude or density is less than the Rule 22P-2 threshold. That is not presumed — indeed, the presumption is to the contrary — but it may nevertheless be found as a fact. Similarly, the character or location of a proposed development may relieve it of regional impact although the projected density exceeds the threshold of the Rule’s presumption. If numbers alone were conclusive, there would be little need for the substantive definition in Section 380.06(1), or for a mere “presumption,” or for “binding letters of interpretation.” In determining whether a newly proposed development will have regional impact because of its “character, magnitude, or location,” the Division may and should consider existing area development, whether “vested” in Section 380.06(12) terms or not. A new residential development in the midst of a piney woods will have a different regional impact than the same development on the edge of an already overburdened multicounty water supply. The Division’s task under Section 380.-06(4) is not simply to count the houses and apply the presumption of Rule 22F-2, but rather to determine whether the statutory definition is satisfied.

For the same reasons, the Division also has power to consider a developer’s known plans for related development of nearby lands. The Division is not bound to accept the developer’s definition of the “development” for which the developer seeks a Section 380.06 exemption. It is the Division’s responsibility to establish indicia of a relationship between ostensibly separate developments which is sufficient to require their aggregation for Section 380.06 consideration. Rule 22F-2.10(2)(b) considers dwellings a “development” for purposes of the presumption if they are “part of a common plan of rental, advertising, or sale.” The Rule does not exhaust the Division’s power to find other indicia of a single development involving separate tracts.

Standards for Division implementation of Section 380.06 are found not only in Rule 22F-2 but also in the definition section above quoted, in Section 380.06(2), text at n. 3, supra, and in Section 380.06(8), which requires regional planning agencies to review applications for authority to proceed with developments of regional impact. The Division’s responsibility is to implement those substantive standards through rules and orders adopted in compliance with the APA. Rulemaking for the guidance of developers and the public is desirable, inevitable, and within the power of the Administration Commission, Section 20.31(2), though subject in this area to legislative approval. Section 380.10(2). The Administration Commission has not as yet adopted substantive rules beyond those in Rule 22F-2 which establish quantitative presumptions.

In implementing Section 380.06, the Division and Administration Commission have a responsibility to “structure their discretion progressively by vague standards, then definite standards, then broad principles, then rules,” McDonald v. Dep’t of Banking and Fin., 346 So.2d 569, 580 (Fla. 1st DCA 1977), and to do so expeditiously but in good order. If an agency neglects its rulemaking power and attempts to promulgate policy of general applicability on an ad hoc basis by orders in particular cases, we must order rulemaking as a predicate for further action and, if necessary, invalidate agency action taken without rulemaking. E. g., Straughn v. O’Riordan, 338 So.2d 832 (Fla.1976); McDonald, 346 So.2d at 585, State, Dep’t of Admin. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). When an agency’s incipient policy is permissibly developed through orders, our duty is to require the agency “to expose and elucidate its reasons for discretionary action.” McDonald, 346 So.2d at 584.

A binding letter of interpretation issued by the Division under Section 380.06(4) is final agency action in the form of an order which determines substantial interests of the developer. The Division’s proceedings on a request for a binding letter of interpretation must therefore conform to Section 120.57. Formal proceedings are available to the developer if timely requested pursuant to the model rules of the Department of Administration, Fla.Admin.Code R. 28-5.15, or Rule 22F-1.16(10) governing Division proceedings under Section 380.06(4). GDC preferred the benefits of informal proceedings and did not request a Section 120.57(1) hearing; therefore GDC is not entitled to a trial-type hearing even on disputed factual issues unless we exercise a reviewing court’s prerogative to order such a hearing. Section 120.68(6), Florida Statutes (1975); Mitchell v. School Board of Leon Co., 347 So.2d 805, 807 (Fla. 1st DCA 1977); United Faculty of Florida, etc. v. Branson, 350 So.2d 489, 494 (Fla. 1st DCA 1977).

Although the Division’s proceedings leading to its binding letters of interpretation issued March 2 and April 15, 1976 need not have complied with the formalities of Section 120.57(1), they must have substantially complied with Section 120.57(2), which is applicable “[i]n cases to which subsection (1) does not apply.” Informal proceedings require reasonable notice of the agency’s action, whether proposed or already taken, “together with a summary of the factual, legal, and policy grounds therefor”; an opportunity “at a convenient time and place” for affected parties to present “written or oral evidence in opposition to the agency’s action . . . or a written statement challenging the grounds upon which the agency has chosen to justify its action”; and a timely written explanation of the agency’s decision overruling objections.

Binding letters of interpretation, being orders, must conform also to the requirements of Section 120.59, which requires that orders resulting from formal or informal proceedings affecting substantial interests be in writing or stated in the record “and include findings of fact and conclusions of law separately stated.” We held in McDonald, concerning orders after formal proceedings, that:

The agency’s final order in 120.57 proceedings must describe its “policy within the agency’s exercise of delegated discretion” sufficiently for judicial review. Section 120.68(7). [346 So.2d at 582]

The same requirement applies as well to orders entered after informal proceedings. Although an order in informal proceedings may explicate policy in a more “summary" way, Section 120.57(2)(a)l, the Division’s emerging policy must be stated sufficiently to be recognized as a precedent in its own records and to support meaningful judicial review:

The reviewing court shall deal separately with disputed issues of agency procedure, interpretations of law, determinations of fact, or policy within the agency’s exercise of delegated discretion. [Section 120.68(7)]

The Division’s binding letters of interpretation issued March 2 and April 15, 1975 do not satisfy statutory requirements for an order determining a party’s substantial interests in informal proceedings. The matter before the Division for determination was whether development of GDC’s Tract E would be of regional impact. The Division determined that Tract E is part of a development of regional impact embracing all nonvested acreage in Port Malabar. The basis for that determination is not sufficiently stated in the Division’s orders.

It may be, as urged by GDC, that the Division has aggregated all of GDC’s non-vested holdings in Brevard County, though they are separated from each other by vested lands of GDC and by land owned by others, simply because they are GDC’s lands. The binding letters do not announce such a policy of aggregation. Neither do the letters explain or justify such an aggregation except in terms of the history of this particular controversy, in which the Division implies that GDC is estopped by its planning map to deny that its separate tracts are a single development. With respect to PM-55, we have relieved the Division of its part of the bargain by which the Division understood that GDC would submit separate applications for development approval for each of Tracts A through F; and we think it appropriate now to relieve GDC of its part of the same abortive agreement. Moreover, GDC never agreed to regard all of its unvested properties in Port Malabar as a single development of regional impact.

The Division’s binding letters do not explicate facts, law or policy underlying the Division’s decision that Tract E is part of a greater single development. It may be that the Division wishes to regard a single developer’s contiguous properties as a single development, irrespective of separate or incomplete development plans. That position may be referable to Rule 22F-210(2), which for purposes of the presumption defines “residential development” as including:

(a) The subdivision of any land attributable to common ownership into lots, parcels, units or interests .

If that is the Division’s position, the Division has not said so, and it has not expressed by rule or otherwise any policy that would justify countywide aggregation, regional aggregation, or statewide aggregation of “land attributable to common ownership.” It is not for us to define a “reasonable” policy and attribute it to an agency. The agency itself must announce and explicate its policy.

It may be that the Division predicates its determination concerning Tract E on findings that all of GDC’s unvested Port Malabar lands are, in fact, destined to be a single development. GDC insists that the contrary is true. The Division’s letters make no finding of fact to that effect and they express no law or policy which would guide the inquiry leading to such a finding. Rule 22F-2.10(2)(b) contemplates that dispersed dwelling units may nevertheless be part of a single development, if they are “part of a common plan of rental, advertising, or sale . . . But the Division’s binding letters do not invoke that Rule or any other policy of aggregation.

The binding letter issued April 15, 1976 states:

[Meetings with you and your staff on February 24 revealed that there [are] now at least tentative plans for three of the larger tracts.

That statement of a concession by GDC is insufficient, standing alone, to constitute or support a finding that, by standards not announced, approximately 15 separate tracts are in aggregation a residential development of regional impact.

If the Division’s binding letters contained substantive material justifying the determinations made, those letters might well be sustained notwithstanding that the Division did not specify, as required by Section 120.57(2)(a)2, that GDC would have “an opportunity, at a convenient time and place,” to present countervailing evidence or argument. In fact, GDC did request reconsideration of the Division’s March 2 binding letter and did present written legal and factual arguments. However, the April 15 binding letter went further than simply explaining the Division’s “decision overruling objections.” Section 120.57(2)(b)4. The April 15 binding letter added a further adverse determination of GDC’s substantial interests:

This letter is consistent with the March 2, 1976 determination that Tract E must go through DRI review but adds the requirement that an application for all non-vested areas be submitted including PM-55 and Country Club Vista.

The April 15 letter having constituted in this respect a new order, it was the Division’s duty to give GDC “an opportunity at a convenient time and place” to present countervailing evidence and argument.

If on remand the Division is of the opinion that the stated deficiencies may be corrected on the present record, the Division may do so. If the Division is of the opinion that a binding letter of interpretation conforming to this opinion will require consideration and recitation of facts not appearing in this record, further informal proceedings may be had pursuant to Section 120.-57(2). We do not in these circumstances require the Division to honor any GDC request for formal proceedings under Section 120.57(1), although the Division may do so in its discretion. The Division’s binding letters of March 2 and April 15, 1976, constituting final agency orders determining GDC’s substantial interests, are VACATED; the Division’s binding letter of interpretation concerning Country Club Vista, entered May 30, 1974, is REINSTATED; and the cause is REMANDED to the Division for further proceedings.

MILLS, Acting C. J., and ERVIN, J., concur.

      . Sec. 380.06(12) provides that requirements respecting developments of regional impact shall not “limit or modify the rights of any person to complete any development that has been authorized” by lawful authority before the effective date of Administration Commission rules affecting developments of regional impact.

      . This case does not raise constitutional questions concerning § 380.06. In Cross Key we held that certain provisions of § 308.05 violate Art. II § 3 of the Constitution by delegating legislative power without adequate standards for its exercise. In that decision we noted that § 380.06 contains greater legislative specification of standards for administrative action and that the legislature retained supervision over agency rulemaking. 351 So.2d at 1066, 1069.

      . Sec. 380.06(2), Fla.Stat. (1975).

      . For purposes of binding GDC to the implications of the planning map, which shows all tracts under a single legend “Port Malabar,” the Division seems to regard the January 6, 1975, letter as a binding letter or as having other authoritative effect. For other purposes the Division argues that the letter was not a binding letter of interpretation because it was not signed by the Division’s director. We need not decide that technical question; but it does point up the desirability of the Division distinguishing by clear designation its binding letters from other correspondence.

      . An “ADA” is the application for development approval required before commencement of a development of regional impact. Sec. 380.-06(6), Fla.Stat. (1975). It is filed with the local government having jurisdiction but is reviewed by the regional planning agency before approval is granted, § 380.06(8); and local government’s approval is subject to review by the Governor and Cabinet. Sec. 380.07.

      . The letter, signed by the director of the Division of State Planning, states “the proposed Country Club Vista development in Brevard County is not a Development of Regional Impact . . . . The proposed development, therefore, will not be required to comply with the provisions of Section 380.06, Florida Statutes.”

      . Sec. 380.06(8), Fla.Stat. (1975), provides in part:
      In preparing its report and recommendations the regional planning agency shall consider whether, and the extent to which:
      (a) The development will have a favorable or unfavorable impact on the environment and natural resources of the region;
      (b) The development will have a favorable or unfavorable impact on the economy of the region;
      (c) The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities;
      (d) The development will efficiently use or unduly burden public transportation facilities;
      (e) The development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible to their places of employment; and
      (f) The development complies or does not comply with such other criteria for determining regional impact as the regional planning agency shall deem appropriate.

      . “Provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by an agency.”

      . The Administration Commission’s first “rules of practice and procedure pertaining to developments of regional impact” were adopted July 7, 1976, after the Division had already acted finally on GDC’s application for exemption of Tract E. Those rules provided that “the Division may hold a hearing on the petition at its discretion.” Fla.Admin. Code R. 22F-1.16(6), eff. 7/7/76. We later held that agencies have no discretion to deny a hearing appropriately requested. State ex rel. Dep’t of Gen. Serv. v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977). The Division’s present rules, adopted by the Administration Commission three months after the initial rules, assure informal APA proceedings on applications for binding letters of interpretation, as well as formal proceedings when requested for determination of a disputed issue of material fact. Fla.Admin. Code R. 22F-1.-16(6), (10), eff. 10/13/76.

      . “All such rules and orders, catalogued by a subject-matter index, must be made available for inspection and copying by the public in an ever-expanding library of precedents to which the agency must adhere or explain its deviation. Section 120.53(2), 120.68(12)(b).” McDonald, 346 So.2d at 582.


source: Caselaw Access Project

author: BOYER, Acting Chief Judge.

license: Public Domain

text:
    George H. HODGES, Jr., et al., Petitioners, v. JACKSONVILLE TRANSPORTATION AUTHORITY, Respondent.
    No. HH-465.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.

      Hall & Booth, Tallahassee, C. Ray Greene of Greene & Greene, Jacksonville, for petitioners.
    William Lee Allen, Jacksonville, for respondent.
   BOYER, Acting Chief Judge.

Petitioners, who are land owners in Du-val County, Florida, here seek review by petition for certiorari, of a contested Order of Taking entered in an eminent domain proceeding commenced by the Jacksonville Transportation Authority.

Petitioners, in 1970, together with other property owners, conveyed by quit-claim deed in favor of respondent (JTA) certain property within the boundaries of the Consolidated City of Jacksonville as right-of-way for the construction of a controlled access highway, known as J. Turner Butler Boulevard. The quit-claim deeds contained a provision that if the JTA decided to construct a limited access highway it would provide paved service roads along each side with access on alternate sides at intervals of one-half mile. The westerly 5.7 miles of the proposed 13 mile highway were constructed as a controlled access highway. JTA then determined to construct the balance as a limited access highway. The alignment of the proposed highway was changed to a route curved northerly of the donated property except for a small portion near the point at which the proposed highway would cross the Intra-Coastal Waterway.

Exercising its power of eminent domain, JTA filed its complaint for condemnation in June of 1977 seeking to thereby obtain right-of-way along the new proposed alignment. At a hearing on the Order of Taking which was held on October 19, 1977 the property owners resisted the entry of an Order of Taking on the ground, inter alia, that there had been no compliance with F.S. 338.01, which statute requires municipal consent to certain limited access highway construction. A final hearing was held on October 25-26 at the conclusion of which the Order of Taking here sought to be reviewed was entered. We are here only concerned with Parcels 50 and 50X.

Petitioners seek to overturn the Order of Taking on the grounds that: municipal consent had not been obtained as required by F.S. 338.01; the resolution authorizing condemnation was invalid as to Parcels 50 and 50X because JTA already owned substantially all of the property needed for right-of-way purposes along the original alignment; the appraisal submitted for severance damages as to Parcel 50 was invalid since it was based upon the assumption of access to the balance of the parent tract when in fact no evidence of such access was admitted into evidence and the Declaration of Taking was invalid because it was only signed by an Assistant General Counsel of the City of Jacksonville.

We first address petitioners’ contention that respondent has failed to comply with F.S. 388.01(1) in that no consent to the construction of a limited access highway on the subject property has been obtained from the City of Jacksonville, an incorporated municipality within which such property is admittedly located. We agree. The statute is clear and no good reason has been shown for noncompliance. Indeed, it is questionable whether noncompliance may be excused. Respondents successfully urged before the trial court that other instruments executed by the City of Jacksonville containing reference to the construction of the proposed highway on the subject property sufficiently evinces municipal consent and therefore constitutes compliance with the statute. Our examination of those documents reveals that they do not meet the test. The record reveals, however, that at the instance of respondent a resolution has been introduced in the City Council of the municipality which, if adopted, will comply with the statute. We do not hold that the proceeding must be dismissed for failure to obtain timely consent but only that it must be abated until that event has occurred.

Petitioners also urge that the Declaration of Taking filed pursuant to the provisions of Chapter 74, Florida Statutes, is ineffective because it was not signed by the chairman nor any member of the JTA but was signed only by that body’s attorney, an assistant to the General Counsel of the City of Jacksonville. We hold contra. Our examination of the record reveals a certified copy, signed by JTA’s chairman and secretary and bearing its seal, of a resolution entitled “A Resolution Declaring the Public Necessity for Acquiring Fee Simple Title Through Condemnation by Right of Eminent Domain of Certain Lands for the Easterly Extension of J. Turner Butler Boulevard as a Limited Access Facility, Directing the Office of General Counsel of the City of Jacksonville to Institute Appropriate Condemnation Proceedings.” The resolution concluded with the following words: “The Office of General Counsel of the City of Jacksonville is directed to institute appropriate legal proceedings to acquire by condemnation the fee simple title to the land described in Section 2 in accordance with this resolution.” Petitioners contend that such resolution is insufficient to authorize the General Counsel or his assistant to sign the Declaration of Taking pursuant to Chapter 74, Florida Statutes, which, unlike proceedings pursuant to Chapter 73, Florida Statutes, permits the condemning authority to acquire title prior to trial by depositing the sum determined in the Order of Taking. It is the position of petitioners that such an undertaking is of such grave consequences as to require a specific resolution to proceed pursuant to Chapter 74 or to require the signing of the Declaration of Taking by the chairman or his designee of the condemning authority. We are not unmindful of petitioners’ argument that once the Declaration of Taking has been validly filed and the deposit made in accordance with the order, the condemning authority is bound to pay the price ultimately fixed even if such payment should bankrupt the condemning authority. It is not the prerogative of this court to question the wisdom of the actions of a governmental entity. In any event, since the institution of this proceeding in this court the condemning authority is on ample notice of the consequences of its actions. If it desires to rescind or amend its resolution it may yet do so.

At the hearing on the Order of Taking petitioners’ attorney objected to, and sought to have stricken, the appraisal as to Parcel 50, claiming it to be invalid because it assumed access to that parcel and none in fact existed. The appraiser testified that his appraisal as to damages sustained by the property owners was based upon the assumption that an access road was provided to the remainder of said parcel. Our examination of the record reveals no evidence of the existence of any such access nor is there evidence of any enforceable agreement that such access will be furnished. An engineer testifying at the instance of respondent stated that such access would be furnished but there is no evidence that he had authority to bind the condemning authority, nor do the plans and specifications in evidence or in the pleadings reveal such access. In the absence of proof of access the appraisal admittedly based upon the assumption of its existence was invalid and should not have been admitted.

As above stated, in the year 1970, in anticipation of construction of the subject highway, JTA obtained gratuitously from petitioners a quit-claim deed to a parcel of property over which it was then anticipated that the highway would be constructed. That quit-claim deed contained inter alia the following recitations:

“In the event Grantee fails to commence construction of a road on the land described above, and in good faith pursue that construction to completion, within thirty (30) years after the date hereof, then the land shall revert to Grantor in fee, and thereafter Grantee shall have no further right, title or interest therein. “Grantee shall have the right to construct a limited access highway on the land described herein, but in that event Grantee shall construct and pave a service road on both sides of the limited access highway, either on the land conveyed herein, or if it is insufficient, along additional abutting land, if it is made available to Grantee at no cost to it. In such case, Grantee shall bear the entire cost of constructing and paving the service road. The Grantee shall provide access to the limited access highway at intervals not to exceed one-half mile apart on each side of the highway. If the highway is not designated as a limited access highway, the abutting property owners will have full access to the highway for the development of abutting property.”

The property now sought to be condemned by respondent lies northerly of the property described in the quit-claim deed. Petitioners contend that respondent is acting in bad faith in changing the alignment of the proposed highway and that the true reason for the change of the alignment is so that JTA may avoid compliance with the above quoted conditions or provisions of the quit-claim deed. JTA, in its brief and oral argument, urges that the reason for the change of alignment was to meet environmental standards but admits that although its counsel has advised that it should recon-vey the property described in the quit-claim deed, it has failed so to do. We are loathe to hold that, as a matter of law, proceedings to acquire a right-of-way by the power of eminent domain while already owning a substantial portion of the necessary right-of-way via another alignment is necessarily indicative of such bad faith as to vitiate the condemnation proceeding. However, proof of ownership by the condemning authority of an alternative route or a substantial portion thereof is material to the reasonable necessity required as a condition precedent to the taking. (See City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977).)

Our interest in the route or alignment is valid only insofar as it may affect the prerequisite of reasonable necessity for the taking. Whether the road should be straight and relatively shorter, as the evidence reveals to have been intended at the time of the procurement of the quit-claim deed from petitioners, or whether it should be longer and curved, may be of legitimate interest to the taxpayers who must pay for it but not to us. We are not unmindful of the adage that the engineer’s transit has no conscience nor are we insensitive to environmental and ecological considerations. However, although the record before us reveals that the highway as originally proposed over petitioners’ land was straight, while the presently proposed realignment is curved and longer, there is nothing in the record to reveal that the original straight alignment was strewn with sinkholes, gul-lys, swamps nor other natural barriers; nor does the record reflect that the original alignment, as distinguished from the one now proposed, will disturb a single eagle’s nest, woodpecker’s habitat nor otherwise adversely affect the balance of nature. Although respondent adduced a great deal of testimony relating to the environmental impact of a limited access highway as distinguished from a controlled access highway, a reading of the record reveals not one scintilla of evidence in support of the necessity for the realignment, viz.: The taking of the subject property. The engineer who conducted the environmental impact study testified that there were four alternative alignments and that an environmental agency suggested a fifth. However he did not testify as to the advantage or necessity of one over the other. It necessarily follows that respondent failed to carry its burden of demonstrating a reasonable necessity for the taking of the subject property. Being bound, as we are, by the record before us we do not, of course, speculate as to what facts the evidence may ultimately reflect. We do determine, however, that in view of the uncontradicted fact that respondent already owns a substantial portion of the right-of-way needed for the subject road, were it to be constructed along the original alignment, the reasonable necessity for the proposed taking which is the subject of this controversy has not as yet been shown. We do not rule that respondent cannot do so but only that it has not done so.

Certiorari is granted. The Order of Taking is quashed and this cause is remanded for further proceedings consistent herewith.

Petitioners have filed a timely motion seeking an award of attorney’s fees incident to this proceeding, which is only a minor skirmish, hardly even a major battle, in the war of eminent domain. We therefore decline to award or fix attorney’s fees at this time incident to this particular proceeding but direct instead that at such time as the trial court shall ultimately consider attorney’s fees incident to the eminent domain proceeding it shall receive evidence incident to this proceeding as a facet of the entire award and include in that award appropriate compensation for the services rendered here.

IT IS SO ORDERED.

MILLS and MELVIN, JJ., concur.


text:
    Theodis McCLAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1687.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.

      Bennett H. Brummer, Public Defender and Paul Morris and Kurt Marmar, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt and Edwin D. Davis II, Asst. Attys. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

By information the appellant was charged in four counts with possession of four separate controlled substances on a certain date. On trial before a jury he was found guilty on all counts, was so adjudged and was sentenced to two years’ imprisonment on each count, with provision for the sentences to be served consecutively. Defendant’s motion for new trial was denied and he appealed.

In the proceedings prior to trial the defendant was represented by an assistant public defender. When the case came on for trial the defendant’s attorney moved to suppress the contraband evidence. The motion to suppress was heard and denied, and the court inquired of the parties as to their readiness to select a jury.

At that point the defendant announced to the court that he no longer desired to have a public defender defend him, and that he proposed to defend himself. The trial so proceeded.

One of the two contentions made by the appellant is that the court committed reversible error by failing to make sufficient inquiry into the circumstances to determine whether there was an intelligent and competent waiver by the accused of his right to be represented by an attorney at his trial, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); Von-Moltke v. Gillies, 332 U.S. 708, 722-724, 68 S.Ct. 316 (1948).

On consideration of the record and briefs we hold that contention of the appellant has merit. On this record, it does not appear that the court adequately complied with the serious protective duty thus involved. We will not outline the details and extent of essential investigation. The inquiry by the court here was limited to questioning the defendant as to his desire and determination to go to trial without an attorney, either a public defender or other counsel, and to advising the defendant as to his right to counsel and informing him of the difficulty to be encountered by one in defending himself.

A second contention by the defendant is that reversible error was committed when the judge, during the time of final argument by defendant, commented on the failure of the defendant to have testified in his own behalf. That came about when the defendant, in argument at the close of the case, proceeded to relate facts bearing on the case which were not in evidence; that is, appeared to be testifying rather than arguing the case.

In sustaining an objection by the prosecutor, the court said: “Sustained. You can’t testify at this time. You had an opportunity to testify, and you chose not to. The jury is instructed you cannot regard that, the fact that you did not testify.”

Fla.R.Crim.P. 3.250 prohibits prosecutorial comment before a jury or Court on the failure of an accused to testify in his own behalf. Such comment when made has been held repeatedly to constitute reversible error. Prior to the decision of the Supreme Court in State v. Jones, 204 So.2d 515 (Fla.1967) the error was considered to be of such degree of prejudice as to be incurable by instruction to disregard it, and to invoke for it the exception that it should call for the granting of mistrial by the court, or on appeal for reversal for new trial, in spite of the absence of an objection thereto and a motion for mistrial being made on behalf of the accused. However, in Jones, after noting that prior to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963) the good resulting from application of the exception in such instances over-shadowed the evil, where thereby trial judges notwithstanding absence of objection were admonished to intervene, sua sponte, and declare a mistrial, the Court held application of the exception no longer was necessary now that all accused unable to employ an attorney are supplied one without cost. Therein, the Supreme Court said (204 So.2d at 519):

“At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting ‘the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society.’ ”

This case presents an instance where the accused was tried without counsel. The fact that this situation occurred by choice and demand of the defendant is not material. Therefore, the exception as previously in effect must be applied to this defendant tried without counsel. Notwithstanding absence of objection by the defendant, the clear comment of the judge on the failure of the defendant to have testified in his own behalf at the trial impels reversal for new trial. While the criminal procedure rule admonishes against such a comment by a prosecutor, it is equally impermissible for it to be made before a jury by the judge who is presiding at the trial. Diecidue v. State, 131 So.2d 7, 9 (Fla.1961); Young v. State, 330 So.2d 235 (Fla. 2d DCA 1976). In fact, the degree of prejudice to an accused from such a prohibited comment is greater when it is made by the judge than when made by the prosecutor, due to the great weight which jurors tend to give any such comment when made by the judge. Young v. State, supra.

On consideration of these two points advanced by the appellant, we are impelled to conclude that the interest of justice would best be served by granting a new trial.

Accordingly, the judgment is reversed and the cause is remanded for a new trial.


author: PER CURIAM. PEARSON, Judge

text:
    CRANBROOK CLUB LIMITED, Appellant, v. HARRY HURST AND ASSOCIATES, INC., Appellee.
    No. 76-2030.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.
    Smith, Mandler, Smith, Werner & Jaco-bowitz, Joe N. Unger and Mark King Le-ban, Miami, for appellant.
    Onett-Colodny and Glenn T. Harris, North Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The plaintiff Cranbrook Club, Ltd. appeals from a final judgment entered upon the involuntary dismissal at trial of the plaintiff’s cause of action against its insurance agent, the defendant Harry Hurst and Associates, Inc. The plaintiff had sought the return of an insurance premium which it had paid to the defendant on the basis that the defendant had allegedly failed to forward as directed the said premium to the plaintiff’s insurer Calvert Fire Insurance Co. The evidence is uncontradieted that the defendant did in fact forward the premium as required to Calvert’s designated agent and that an insurance policy was in fact issued to the plaintiff. Nine or ten months later, Calvert cancelled the policy claiming nonpayment of premium. We conclude that the defendant under these circumstances breached no duty which it owed to the plaintiff as an insurance agent under the rule stated in Jones v. Central National Bank & Trust Co., 110 Fla. 262, 148 So. 765 (1933). The plaintiff’s cause of action, if any, lies against Calvert Fire Insurance Co. for unjustifiably cancelling the insurance policy herein.

Affirmed.

PEARSON, Judge

(dissenting).

This is an appeal from a final judgment pursuant to an involuntary dismissal of plaintiff’s cause at the conclusion of plaintiff's case in a trial before the court without jury. See Fla.R.Civ.P. 1.420(b). It is my view that the majority has failed to apply the rule set forth in Jones v. Central National Bank & Trust Co., 110 Fla. 262, 148 So. 765 (1933), where the court, citing to Mechem on Agency, said:

“ ‘It is the duty of every agent, when no other arrangement is made, to bring to the performance of his undertaking, and to exercise in such performance, that degree of skill, care and diligence which the nature of the undertaking and the time, place and circumstances of the performance ordinarily and reasonably demand. A failure to do this, whereby the principal naturally and proximately suffers loss or injury, constitutes negligence for which the agent is responsible.’ ”

The facts presented by the plaintiff present an issue of the liability of the defendant insurance agent for the agent’s failure to follow through upon its undertaking on behalf of the plaintiff. I would, therefore, reverse for a trial of the issue.


author: PER CURIAM.

text:
    Thomas Leo COLLIER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-2143 to 76-2145.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.
    David A. Russell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and John C. Moppert, Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

In these consolidated appeals Thomas Leo Collier seeks reversal of his conviction for burglary of a conveyance and an order revoking his probation.

Defendant Collier along with Earnest Wilson was arrested and charged with burglary of a conveyance. While in police custody, defendant wrote out a confession admitting he had aided Wilson by opening the window of the burglarized truck. Collier was on probation at the time for carrying a concealed firearm (case # 73-8126) and burglary of a conveyance, grand larceny and loitering or prowling (case # 76-511) and as a result of the instant pending burglary charge, an affidavit of violation of probation was filed. Thereafter, defense counsel invoked the reciprocal rules of discovery and filed a motion to suppress Collier’s confession on the ground that it was coerced. At a hearing on the motion to suppress, Collier testified that he had been beaten by the police. The officers who allegedly beat him denied the accusations. Upon conclusion of the hearing, the trial judge found that Collier’s confession was procured without coercion and denied the motion to suppress. The revocation of probation hearing (on cases # 73-8126 and 76-511) followed. Mrs. Raleigh, an eyewitness to the (Collier-Wilson) burglary, testified that she was brought to the police station and was unable to pick out Collier or Wilson from 12 mug shots shown to her. However, she was able to identify Collier at the hearing. Thereupon, defense counsel moved to dismiss the probation violation charges on the ground that the prosecution violated the reciprocal rules of discovery in that he failed to disclose the fact that Mrs. Raleigh had been shown mug shots and was unable to identify Collier therefrom. Collier testified at the hearing that his presence at the scene only involved his attempts to dissuade Wilson from burglarizing the truck. At the end of the hearing, the trial judge revoked Collier’s probation. Thereafter, Collier changed his plea to the present burglary of a conveyance charge from not guilty to nolo contendere. He was adjudicated guilty and sentenced to four years imprisonment on this charge.

For his first point on appeal Collier argues that the trial judge erred in denying his motion to suppress his confession.

The established law is that the resolution of the issue of the voluntariness of a confession is for the trial judge whose province it is to pass upon the credibility of the witnesses and the weight of the evidence. Reynolds v. State, 222 So.2d 246 (Fla. 3d DCA 1969); Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975). Further, the trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness and in testing the accuracy of the trial court’s conclusions, this court should interpret the evidence and all reasonable inferences therefrom in a light most favorable to sustain these conclusions. Rodriquez v. State, 189 So.2d 656, 660 (Fla. 3d DCA 1966); Ponder supra.

Reviewing the denial of the instant motion to suppress in accordance with the above principles of law, we find that there was competent substantial evidence presented upon which the denial order was based and, thus, we will not disturb this order on appeal. See Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976).

Collier secondly contends that the judge erred in denying the motion to dismiss the violation of probation charges because of the prosecution’s failure to make full and complete discovery after the reciprocal rules of discovery were invoked.

In order to be entitled to dismissal for the prosecution’s violation of a rule of discovery, defendant must show that noncompliance with the particular rule resulted in prejudice or harm to him (or her). Richardson v. State, 246 So.2d 771 (Fla.1971); Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976).

Collier claims he was prejudiced by not having the information about the inability of Mrs. Raleigh to identify him and Wilson from the mug shots shown her by the police shortly after the robbery. We fail to see how Collier was harmed or prejudiced thereby. This information was brought out on direct examination of Mrs. Raleigh. Thereafter, Collier’s counsel was able to extensively cross-examine her with regards to the mug shots and her inability to identify Collier therefrom in an attempt to attack her credibility with respect to her in-court identification of Collier.

We also conclude that Collier’s last point on appeal is meritless.

Affirmed.


text:
    Roy J. PHELPS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2158.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, Roy Phelps, appeals his conviction for manslaughter (as a lesser included offense of second degree murder for which he was informed against).

Defendant first urges as reversible error the denial of his motion for mistrial on the ground that the prosecution had elicited testimony from him that he had been in jail in violation of the stipulation that neither the prosecutor or defense counsel would inquire whether the defendant had ever been convicted of a crime.

This contention arises out of the following colloquy between the defendant and the prosecutor:

“Q You did not think he was going to live?
“A I didn’t give that no thought. I just hope the cops to come, and they did.
“Q When they got there you did not let them in?
“A They didn’t ask that question.
I told them I didn’t think I needed to go down to the police station.
“Q That is not the first time for you, it is, Mr. Phelps?
“MR. LINK: Objection.
“THE COURT: Sustained.
“A No, sir. It is not.”

We find the notion that the above colloquy indicated to the jurors that the defendant had previously been convicted of a crime is highly speculative and reversible error cannot be predicated upon mere conjecture. See Sullivan v. State, 303 So.2d 632 (Fla.1974); Hutchins v. State, 334 So.2d 112 (Fla.3d DCA 1976).

Defendant also argues that the judge erred in admitting into evidence initial statements made by the defendant to the officers when they first arrived on the scene in that the judge failed to make a specific finding of voluntariness. We cannot agree.

A review of the record with respect thereto refutes this contention. At the hearing on judgment’s motion to suppress these and other statements, the judge specifically found that at the time defendant made these initial statements he understood what he was saying. There being no suggestion of coercion, we conclude that the judge determined that these statements were voluntary by virtue of his finding above and refusal to suppress them. See Wilson v. State, 304 So.2d 119 (Fla.1974).

We also considered defendant’s remaining points on appeal and find that he has failed to make reversible error appear.

Affirmed.


text:
    Charlie MINCEY, Appellant, v. NATIONAL FIDELITY LIFE INSURANCE COMPANY, Appellee.
    No. 76-2177.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.

      Alfred D. Bieley, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment for the insurer in this action to determined coverage under a disability insurance policy.

In September, 1974 Charlie Mincey purchased a motor vehicle from Sheehan Buick, Inc. along with credit life insurance issued by National Fidelity Life Insurance Company, defendant appellee. The policy provided coverage in the event the insured became totally disabled due to injury or sickness, and further provided that no benefits were payable for a disability resulting from a “pre-existing condition” defined as:

“ ‘an illness, an injury, disease or physical condition for which the individual received medical diagnosis or treatment or would have caused a reasonably prudent person to have sought medical diagnosis or treatment within six (6) months preceding the effective date of coverage, provided, however, that disability commencing thereafter resulting from such condition shall be covered.’ ”

In January, 1975 Mincey became totally disabled as a result of hypertensive cardiovascular disease and congestive heart failure, and demanded the benefits under the policy. National Fidelity denied coverage under the pre-existing condition exclusion in that Mincey was diagnosed in 1967 as having heart trouble and had been receiving treatments since then. Thereupon, Mincey filed the instant action seeking a determination of his rights under the policy. Following pretrial discovery, both parties filed motions for summary judgment. After hearing, the trial judge entered judgment for National Fidelity. We affirm.

The undisputed facts as gleaned from the record demonstrate that (1) Mincey had a pre-existing condition (heart problem) for which he had received treatment within six months of the effective date of the policy (September 9, 1974); (2) the pre-existing condition resulted in total disability within less than six months of the effective date of the policy; and (3) the policy very clearly excludes coverage for total disability under such circumstances.

Affirmed.


text:
    The LIFE INSURANCE COMPANY OF VIRGINIA, Appellant, v. TOWER 2450, INC., etc., et al., Appellees.
    No. 77-423.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Feb. 2, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Tom E. Scott, Jr., and Frank A. Shepherd, Miami, for appellant.
    Leo Greenfield, North Miami, Friedman & Britton and Ed A. Kaufman, Samuel Fletcher, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930); Lehman v. Trust Co. of America, 57 Fla. 473, 49 So. 502 (Fla.1909).


text:
    Alan KARTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1026.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 30, 1978.
    Grusmark, Jaffe & Karten and Milton E. Grusmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is from an order of the Circuit Court, by which the appellant was held to be in contempt of the court and was fined. On the facts, it was within the discretion of the court to so hold. See: In Re Taylor, 240 So.2d 170 (Fla. 1st DCA 1970). Involved was a direct contempt, and it appears from the record that the procedural requirements therefor were met. Fla.R. Crim.P. 3.830.

Affirmed.


author: DAUKSCH, Judge.

text:
    William P. SCHERER, M.D., Petitioner, v. Sara B. LIBERTO, Respondent (two cases). William P. SCHERER, M.D., Appellant, v. Sara B. LIBERTO, Appellee. STATE of Florida on the relation of William P. SCHERER, M.D., Relator, v. The Honorable Judge John G. FERRIS, Judge of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, and Sara B. Liberto, Respondents.
    Nos. 76-2633, 77-46, 76-2631 and 76-2632.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Rehearing Denied Feb. 2, 1978.

      Richard M. Gale, Alan R. Dakan and Stephens & Schwartz, Miami, for appellant/relator/petitioner.
    Alan C. Brandt, Jr., and E. Hugh Chap-pell, Jr., of McCrory, Chappell, Brandt & Gore, P.A., Fort Lauderdale, for appel-lee/respondents.
   DAUKSCH, Judge.

The question on appeal is whether the requirement of Section 768.133(l)(c), Florida Statutes (1975) (now Section 768.-44(l)(c), Florida Statutes (Supp.1976)), is jurisdictional. That is, if a defendant fails to file an answer to a medical malpractice claim within 20 days of service of the claim does the medical mediation panel ever gain jurisdiction. We answer that the clear wording of the statute indicates the filing of the answer is jurisdictional and the failure of the Appellant-Petitioner to file his answer timely disallows him from receiving the benefits of the medical liability mediation proceedings. The fact that he mailed the answer on the last day matters not. Just as in notices of appeal to this court, the document must be filed with the court on or before the last day or no jurisdiction is obtained. Knee v. Smith, 313 So.2d 117 (Fla. 1st DCA 1975). Of course, in medical mediation matters, jurisdiction begins when the claim is filed but is terminated when 20 days passes and no answer is filed, Section 768.44(l)(c), Florida Statutes (Supp.1976), or ten months after the claim is filed if an answer is filed and no hearing is held. Section 768.44(3), Florida Statutes (Supp.1976). Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977).

The Order terminating the jurisdiction of the medical mediation panel is affirmed. The Order denying the Motion to Dismiss the Complaint at Law is affirmed. The Petition for Writ of Mandamus is denied. The Petition for Writ of Certiorari is denied. The trial court is affirmed.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: SCHEB, Judge.

text:
    BLOSAM CONTRACTORS, INC., a Florida Corporation, Appellant, v. REPUBLIC MORTGAGE INVESTORS, Appellee.
    No. 76-1690.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1977.
    Rehearing Denied Feb. 2, 1978.

      C. Ray Greene, Jr., of Greene & Greene, and Eugene G. Peek, III, of Smith, Davenport, Peek & Bloom, Jacksonville, for appellant.
    R. Dewey Burnsed of McLin, Burnsed, Austin & Cyrus, Leesburg, for appellee.
   SCHEB, Judge.

Appellant Blosam challenges a final judgment of foreclosure denying its claim to an equitable lien on undisbursed mortgage loan proceeds held by appellee Republic. We reverse.

In June 1973 Blosam contracted to build 104 condominium units on land owned by Continental Development Corporation of Florida. Continental, in turn, agreed to pay Blosam in excess of two million dollars. Shortly thereafter Continental arranged with Republic for construction financing of the project.

On July 30, 1973, Continental and Republic entered into a construction and development loan agreement which incorporated Republic’s loan commitment. Continental executed the required note and mortgage documents in favor of Republic. Blosam, as contractor, executed its acceptance to the construction and development loan agreement and expressly made any rights or claims of its own subordinate to Republic’s mortgage.

On January 18, 1974, the loan commitment as well as the construction and development loan agreement were revised by Continental and Republic to provide for an additional $500,000 retainage. Whereas the initial agreement stipulated that Continental was to have no more than 48 units under construction in excess of sales, the amended loan documents allowed construction of all 104 units without regard to the number of sales.

On June 1, 1974, the contract between Blosam and Continental was amended to recognize these changes. It was more specifically provided that $250,000 of the re-tainage would be paid to Blosam when the 104 units were constructed, and the final $250,000 would be paid upon the conveyance of the first 56 units. Finally, under the revised agreement, Continental gave Blo-sam a $500,000 note secured by a second mortgage on the condominium property. Republic assented in writing to this revised agreement between Blosam and Continental.

When the 104 units were completed Blo-sam received $250,000 from Republic. However, Continental defaulted on Republic’s mortgage before any of the units were sold. Thereupon Republic refused to pay the remaining $250,000 to Blosam. Republic then instituted mortgage foreclosure proceedings against the 104 units, naming Blosam as one of the defendants. Blosam counterclaimed and sought to establish an equitable lien superior to Republic’s mortgage against the property, or, alternatively, to impose an equitable lien on the undis-bursed loan proceeds. A final judgment of foreclosure was entered granting foreclosure to Republic, but denying Blosam’s counterclaim for an equitable lien on the property or the loan proceeds. Republic’s nominal bid at the foreclosure sale was accepted and it thereby acquired the completed units.

Since Republic has not disbursed the required funds to Blosam as contractor, Blo-sam contends the trial court erred in not awarding it either an equitable lien on those undisbursed proceeds or a lien on the property superior to Republic’s mortgage lien. Blosam argues that Republic has been unjustly enriched by acquiring the completed units without disbursing the balance of the loan proceeds. In effect, says Blosam, Republic realized its security but still retained some of the funds earmarked to create that security.

In an attempt to sustain the trial court’s judgment, Republic makes two principal arguments. First, since the required 56 units were never conveyed, Republic had no obligation to fund Blosam’s final draw of $250,-000. In support, Republic points out that had the units been conveyed, it would have received sufficient sums from release payments to have funded the final draw of $250,000 due Blosam. Second, Republic argues that Blosam’s acceptance of the second mortgage from Continental as security for the retained $500,000 was a repudiation or waiver by Blosam of any right to demand the funding by Republic.

We find no merit to Republic’s arguments. Obviously the units could not have been conveyed in the usual sense, as the foreclosure sale made this impossible. Nor can Republic rely on the second mortgage granted to Blosam by Continental. The second mortgage was merely to assure Blo-sam that Continental would perform, and had nothing to do with Republic’s role as financier. Therefore, the acceptance of the second mortgage by Blosam in no way acted as security for Republic’s performance, and did not relieve Republic of its duty as financier.

The facts of this ease closely resemble the facts in Morgen-Oswood & Assoc., Inc. v. Continental Mortgage Investors, 323 So.2d 684 (Fla. 4th DCA 1975), where a general contractor entered into a contract with a property owner to build a hotel. The owner obtained construction financing from a mortgage lender. After the hotel was completed, but before all the funds were disbursed to the contractor, the mortgage lender declared the owner in default and refused to make any additional disbursements from the $93,000 still to be paid to the contractor. The trial court awarded the contractor a money judgment, but denied his prayer for an equitable lien on the un-disbursed loan proceeds. The Fourth District Court of Appeal reversed, noting that the mortgage lender received the full benefit of its security by having been placed in a position to foreclose on the completed hotel. The court concluded that the lender had been unjustly enriched as it enjoyed the benefit of the security in addition to retaining some of the funds owed the contractor. Therefore, the court held the contractor was entitled to an equitable lien. Recently this court has cited the Morgen-Oswood case with approval. See J. G. Plumbing Service, Inc. v. Coastal Mortgage Co., 329 So.2d 393 (Fla. 2d DCA 1976).

Equitable liens are adjudged to charge a particular property or fund with an obligation, usually where a written instrument evinces this intention or right and justice require it. Jones v. Carpenter, 90 Fla. 407, 414, 106 So. 127, 129 (1925). Under circumstances similar to this case the fourth district found an equitable lien in Morgen-Oswood, and we feel that “right and justice” require that we do the same here.

The 104 completed condominium units are now owned outright by Republic. Republic has received the benefit of its security, as was its right. However, Republic still holds $250,000 that should have gone toward the creation of that security, while Blosam has not received its just dues. This is neither right nor just and the most feasible method of remedying the injustice is to impose an equitable lien on the undisbursed proceeds held by Republic.

Before trial the parties entered into a stipulation which said, in part:

In the event a determination is made that Blosam does in fact have an equitable lien superior to the mortgage of RMI, or an equitable lien against a specific undis-bursed fund, then trial will be had to determine whether or not Blosam fully performed, or to what extent if any it breached its contract and failed to perform in accordance with the contract documents.

Obviously, on remand it will be necessary to litigate the issue of whether Blosam fully performed its contract.

Accordingly, the final judgment insofar as it denies Blosam an equitable lien on the undisbursed loan proceeds held by Republic is reversed and the cause is remanded for proceedings consistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

      . We are assuming, though we are not holding, that there are no other claims to the undis-bursed loan funds superior to Blosam’s claim.


author: DAUKSCH, Judge. MOORE, Judge,

text:
    Arsoreda BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 76-2134.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Rehearing Denied Feb. 7, 1978.
    Richard L. Jorandby, Public Defender, and Crais S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

We have no jurisdiction to consider the appeal because Appellant appealed only from the Judgment and not the Order placing the Defendant on probation. Recht v. State, 344 So.2d 885 (Fla. 4th DCA 1977). Since the error arose as a result of state action, as so many things nowadays seem to do, we shall assume jurisdiction as the First District did in Jackson v. State, 301 So.2d 490 (Fla. 1st DCA 1974), and treat this as a Hollingshead appeal. Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967).

This indigent Appellant was ordered, as a condition of her probation, to pay court costs. This is error. Section 939.15, Florida Statutes (1975), says the county must pay the court costs and two appellate decisions say the sentencing judge cannot require a defendant to pay the costs. Cox v. State, 334 So.2d 568 (Fla.1976); Mack v. State, 305 So.2d 264 (Fla. 3rd DCA 1974). That portion of the probation Order requiring the Defendant to pay $116 court costs is reversed. The Judgment is otherwise affirmed.

AFFIRMED AS MODIFIED.

LETTS and MOORE, JJ., concur.

MOORE, Judge,

specially concurring:

I concur with the holding of the Court that this matter should be treated as a Hollingshead appeal and that it is error to require an indigent defendant to pay court costs as a condition of probation. I would, however, reverse and remand with instructions that such a requirement is permissible if it is conditioned upon a showing that the defendant becomes solvent during the term of probation. See, Gryca v. State, 315 So.2d 221 (1 DCA 1975).


text:
    Arthur L. BIGELOW and D. Allen Johnson, Appellants, v. GORE NEWSPAPERS COMPANY, a corporation t/a Fort Lauderdale News and Sun Sentinel and the Players Club, Inc., Appellees.
    No. 77-1433.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Rehearing Denied Feb. 9, 1978.

      Jesse S. Faerber, of Brinkley & McNer-ney, Fort Lauderdale, for appellants.
    Neil G. Frank, of Friedman & Britton, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a partial summary judgment finding the appellants, Arthur L. Bigelow and D. Allen Johnson, liable to the appellee, Gore Newspapers Company, under a guaranty agreement, for advertising services allegedly rendered to The Players Club, Inc., a business previously owned by the appellants. There is an affidavit in the record which states that the services sued for were not rendered to The Players Club, Inc., but rather were rendered to the new owners of the business, a different corporate entity. This sworn statement alone creates an issue as to the liability of the appellants for the services alleged in the complaint. Accordingly, the partial summary judgment is hereby reversed.

ALDERMAN, C. J., and CROSS and AN-STEAD, JJ., concur.