author: NATHAN, Judge.

text:
    GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA, a Georgia Corporation, Appellant, v. METROPOLITAN DADE COUNTY, and South Florida Regional Planning Council, Appellees.
    No. 76-1180.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellant.

      Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., Milledge & Hermelee, and Allan Milledge, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

General Electric Credit Corporation of Georgia (GECC) appeals from an order dismissing a petition for writ of certiorari for failure to exhaust administrative remedies. The petitioners sought to review the denial by the Dade County Board of County Commissioners of an application for zoning changes and development approval on a tract of land known as Kendale Gables. The petition was filed in the Circuit Court of Dade County by GECC and Intercontinental Group, Inc. However, this appeal is taken solely by GECC, since the latter corporation is now the fee title holder of the subject property by virtue of a foreclosure of its first mortgage against Intercontinental, the former owner.

On April 12, 1974, Intercontinental filed an application with Metropolitan Dade County for changes in zoning on the 610 acre Kendale Gables tract. Intercontinental proposed to construct 3,940 dwelling units on the property. A development of this size is presumed to be a “development of regional impact,” and is subject to the requirements of Chapter 380, Florida Statutes, The Florida Land and Water Management Act of 1972. Under the provisions of Chapter 380, a developer may only undertake development of regional impact where the local government has adopted a zoning ordinance after due consideration of the recommendations of certain regional planning agencies:

“(11) ... in considering whether the development shall be approved, denied, or approved subject to conditions, restrictions, or limitations, the local government shall consider whether, “and the extent in which:
* * * * * *
(e) The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection (8) of this section.”

Section 380.06(11), Florida Statutes (1975).

Accordingly, the rezoning application was submitted to the South Florida Regional Planning Council, the designated regional planning agency for this portion of the state, for a report concerning the regional impact of the proposed development.

On August 8, 1974, the Council recommended that the application for development be denied, citing adverse regional impacts upon drainage, transportation, schools, low and moderate income housing and master plan implementation.

Intercontinental thereafter revised its plan for the development of Kendale Gables. The principal feature of the new plan was a 15% reduction in the number of dwelling units. The revised proposal was never submitted to the Regional Planning Council.

A public hearing was held on the rezoning application in April of 1975, at which time the Executive Director of the Regional Planning Council observed that the revised development plan had apparently corrected some of the defects which were inherent in the original proposal. However, he then stated that the changes in the proposed development required resubmission of the project to the Council for consideration in light of the modifications and, in fact, Intercontinental’s representative at the public hearings acknowledged that the revised plan would have to be submitted to the Council for its review and recommendations.

The application for rezoning was denied, whereupon a petition for writ of certiorari was filed in the Dade County Circuit Court. The petition was filed in the names of both Intercontinental, as the owner of the property, and GECC, as the holder of a first mortgage lien on the property, GECC was admitted as a party through a stipulation with Dade County to the effect that GECC was a proper party due to its substantial interest in the Kendale Gables tract. Ap-pellee South Florida Regional Planning Council was granted leave to intervene as a party respondent.

After hearing oral argument and considering briefs submitted by all concerned parties, the Circuit Court judge dismissed the petition for writ of certiorari. In a comprehensive order, the judge noted that the County Commission’s denial of zoning changes and development permits constituted a “development order” as defined in Section 380.031(2), Florida Statutes, and that the petitioners were therefore required to appeal the denial to the Florida Land and Water Adjudicatory Commission, which was expressly establish for the purpose of hearing appeals from development orders. Since no such appeal had been taken, the court held that the petition should be dismissed for failure to exhaust administrative remedies.

As a second reason for the dismissal, the court cited Intercontinental’s failure to submit its revised development proposal to the Regional Planning Council for its recommendations. The court found that the new plan represented a “substantial modification” of Intercontinental’s development proposal, and that additional review by the Regional Planning Council was therefore mandated by Chapter 380.

Appellant GECC herein maintains that it was not subject to the requirements of Chapter 380 inasmuch as it was not the “developer” of the Kendale Gables project. Appellant argues that it was not in a position to submit the revised development proposal to the Regional Planning Council for consideration and that it had no standing to pursue an appeal before the Florida Land and Water Adjudicatory Commission.

In responding to this argument, we initially note that GECC and Intercontinental are indeed separate corporate entities and, further, that it appears from the record that Intercontinental alone sought approval of the Kendale Gables development. Thus, up until the time when GECC joined as a party in petitioning for a writ of certiorari, it could not be characterized as a “developer” within the meaning of Chapter 380. However, at that point any and all legally cognizable distinctions between these two parties became obscure, for it is clear that GECC is now seeking exactly what was sought by Intercontinental — approval of the Kendale Lakes development proposal. We cannot now allow GECC to avoid those requirements of Chapter 380 which governed the actions of its predecessor in interest, Intercontinental. As was aptly stated in the order of dismissal:

“GECC seeks in this action the same development approvals which Intercontinental Group, Inc. sought from the Metropolitan Dade County Commission, i. e., zoning and other approvals to undertake a development of regional impact. It seems plain that GECC can have no greater standing to obtain development approvals for the proposed project than the owner, and must stand in the owner’s shoes where they seek the identical result. Anything less would create chaos, as holders of lesser interests could claim the ability to avoid the procedures which are required by those having the fee or most substantial interest in the property.”

In particular, with regard to the submission of the revised proposal to the Regional Planning Council for evaluation, we find no merit in appellant’s argument that it would have been illogical to require resubmission of the development application where the original proposal had been rejected at a higher unit density. It may well be that many of the defects of the initial plan were corrected by the revised proposal, but we will not take it upon ourselves to make such a determination where the proper administrative agencies have been denied a similar opportunity. This is the very essence of the doctrine of exhaustion of administrative remedies. Cf. De Carlo v. Town of West Miami, 49 So.2d 596 (Fla.1951).

We therefore hold that Intercontinental should have submitted its revised development plan to the Regional Planning Council for approval. This holding is binding upon the appellant herein, for GECC has effectively stepped into Intercontinental’s shoes, and must bear the burden of the latter corporation’s failure to follow statutorily mandated procedures.

We also hold that this cause was properly dismissed because no appeal from the adverse development order was brought before the Florida Land and Water Adjudicatory Commission. Section 380.07, Florida Statutes (1975), outlines the procedure for such appeals. In pertinent part, it reads as follows:

(1) There is hereby created the Florida Land and Water Adjudicatory Commission, which shall consist of the Administration Commission.
(2) Whenever any local government issues any development order ... in regard to any development of regional impact, a copy of such order shall be transmitted to the state land planning agency and the owner or developer of the property affected by such order. Within 30 days after the order is rendered, either the owner, developer, an appropriate regional planning agency, or the state land planning agency may appeal the order to the Florida Land and Water Adjudicatory Commission . . . . The filing of the notice of appeal shall stay the effectiveness of the order, and shall stay any judicial proceedings in relation to the development order, until after the completion of the appeal process.”

Full notice and hearing are required by the section. In addition, a hearing officer is provided for with the power to subpoena witnesses and evidence. The Adjudicatory Commission must issue a decision within 120 days, which decision is subject to judicial review under Chapter 120, Florida Statutes.

Appellant contends that appeals to the Commission are not mandatory, since Section 380.07(2) merely says “may” appeal, rather than “shall” appeal, and is therefore permissive in nature. This argument misconstrues the doctrine of exhaustion of administrative remedies, which is based on the mere availability of administrative review procedures. In Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386 (Fla.1973), the Supreme Court of Florida held that a summary judgment had been properly granted for failure to exhaust administrative remedies where a method of appeal to an administrative department was available. The statute involved in that case used the same kind of permissive language found in Section 380.-07.

Were we to hold that appeals to the Land and Water Adjudicatory Commission are simply options to be utilized or ignored according to the whim of individual owners or developers, we would frustrate the obvious intent of the Legislature, which was to allow the fullest possible input by regional and state authorities into areas of development which will have extra-local impact. See Section 380.021, Florida Statutes (1975).

Appellant further asserts that even if the review procedures of Section 380.07 are mandatory, it had no standing to pursue such a remedy, since it was not a party to either the rezoning application which was heard by the County Commission or the application for a development of regional impact which was considered by the Regional Planning Council. To support this contention, appellant has mistakenly relied upon Sarasota County v. Beker Phosphate Corp., 322 So.2d 655 (Fla. 1st DCA 1975), and Sarasota County v. General Development Corp., 325 So.2d 45 (Fla. 2d DCA 1976). In both cases, Sarasota County sought to directly appeal development orders to the Adjudicatory Commission without having the kind of interest prescribed by Section 380.07(2) as a condition precedent to appeal. In the earlier case, the First District Court of Appeal observed that the specific enumeration of those parties who are entitled to appeal development orders was designed “to avoid administrative and judicial delay of the resolution of the landowner’s right to lawfully utilize his property.” 322 So.2d at 658, n.11. However, in the case before us the landowner chose to ignore the designated method of review. There is no question that Intercontinental could properly have appealed to the Land and Water Adjudicatory Commission as both the owner and developer of Kendale Gables. Given the identity of purpose between Intercontinental and GECC in petitioning for certiorari, GECC must now be bound by Intercontinental’s failure to pursue administrative review.

Appellant’s final contention is that certiorari to the Circuit Court of Dade County is the sole method for reviewing zoning decisions of the Metropolitan Dade County Board of County Commissioners. While appellate cites numerous cases which have in fact so held, none of these cases involved developments of regional impact. Ordinarily, certiorari is the only means of reviewing a zoning decision by Dade County. However, where a development of regional impact is involved, the provisions of Chapter 380 are applicable, and review must be had in accordance with the dictates of that law. Thus, when a development order as defined in Section 380.031(2) is rendered by the Dade County Commissioners, any appeals must be taken to the Florida Land and Water Adjudicatory Commission.

Chapter 380 is a general law which is equally at force throughout the state. As such, it prevails over the zoning review procedures of Section 33-316 of the Code of Metropolitan Dade County to the extent that the two conflict. Article VIII, Section 1(g), and Article XI, Section 5, Florida Constitution. See Board of County Commissioners of Dade County v. Boswell, 167 So.2d 866 (Fla.1964). Therefore, to the extent that Section 380.07, Florida Statutes, provides what we have determined to the uniform statewide procedure for reviewing development orders, it prevails over the zoning review procedures contained within the Dade County Code.

This holding comports with the clearly evinced legislative policy of Chapter 380 which, as noted earlier, was intended to ensure the participation of regional and statewide land planning agencies in decisions which will affect substantial portions of the state. The circuit court properly refrained from “plowing in advance” ground that “should first be plowed” by the Regional Planning Council and then, if necessary, by the Florida Land and Water Adjudicatory Commission. We therefore find that appellant’s petition for writ of certio-rari was properly dismissed for failure to exhaust administrative remedies.

Affirmed.

      .§ 380.06, Fla.Stat. (1975), defines “developments of regional impact” as follows:
      “(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 more than one county.”
      § 380.06(2) required the Administration Commission to adopt guidelines and standards “to be used in determining whether particular developments shall be presumed to be of regional impact.” These standards are codified in Fla. Admin.Code § 22F-2.10, which in pertinent part states:
      “(1) The following developments shall be presumed to be developments of regional impact and subject to the requirements of Chapter 380, Florida Statutes:
      Any proposed residential development that is planned to create or accommodate more than the following number of dwelling units:
      ******
      (f) In counties with a population in excess of 500,000 — 3,000 dwelling units.”

      . § 380.06(5), Fla.Stat. (1975).

      . The Council’s Impact Assessment for the Kendale Lakes project clearly displays that full consideration was given to the criteria for evaluation set forth in § 380.06(8), Fla.Stat. (1975), as well as to other areas of concern not specifically mentioned in the statute.

      .§ 380.031(2) defines a development order as “any order granting, denying, or granting with conditions an application for a development permit.” A development permit includes “any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter,” § 380.031(3), Fla.Stat. (1975). Development is specifically defined in § 380.04(2)(b) as including “[a] change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land . . .

      . § 380.07, Fla.Stat. (1975). See textual discussion infra.

      . § 380.031(4) defines a developer as “any person . . . undertaking any development as defined in [Chapter 380].” Development is defined as including “any material change in the use or appearance of any structure or land,” § 380.04(1), as well as “[a] change in the intensity of use of land, such as an increase in the number of dwelling units . . . .” § 380.04(2)(b), Fla.Stat. (1975).

      . Centex Homes Corp. v. Metropolitan Dade County, 318 So.2d 149 (Fla. 3d DCA 1975); Baker v. Metropolitan Dade County, 237 So.2d 201 (Fla. 3d DCA 1970); Metropolitan Dade County v. Greenlee, 213 So.2d 485 (Fla. 3d DCA 1968); Land Corporation of Florida v. Metropolitan Dade County, 204 So.2d 222 (Fla. 3d DCA 1967), cert. denied, 210 So.2d 224 (Fla.1968); Dade County v. Carmichael, 165 So.2d 227 (Fla. 3d DCA 1964).

      . Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Neil Robert JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1542.
    District Court of Appeal of Florida, Second District.
    June 1, 1977.
    Rehearing Denied June 23, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals from a judgment and sentence for robbery entered following revocation of probation. The sentence was life imprisonment “with credit time.”

Only one point merits discussion, that relating to the failure of the trial court to state the specific period of time for which appellant was entitled to credit. Section 921.161 Florida Statutes (1975), reads in pertinent part:

“The credit must be for a specified period of time and shall be provided for in the sentence.”

Thus, the trial court should have specified how much credit time appellant was entitled to have notwithstanding the imposition of a life sentence.

Accordingly, the judgment and sentence appealed from should be, and they are hereby, affirmed; but this cause is remanded with directions to the trial court to enter an order amending the sentence so as to specify the period of jail time credit. Appellant need not be returned to the court for this purpose.

Affirmed, but remanded with directions.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.

      . Cf. Sutton v. State, 334 So.2d 628 (Fla. 4th DCA 1976).


author: ERVIN, Judge.

text:
    Joseph TUKES, Appellant, v. STATE of Florida, Appellee.
    No. CC-155.
    District Court of Appeal of Florida, First District.
    June 7, 1977.
    Peter Keating, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Raymond L. Marky, Asst. Attys. Gen., for appellee.
   ERVIN, Judge.

Tukes appeals his fifteen year sentence for breaking and entering a dwelling house with intent to commit a felony. The information incorrectly charged Tukes with violating Section 810.01, Florida Statutes (1973). The statute covering such an offense was repealed by Chapter 74-383, section 66, Laws of Florida and was replaced by Section 810.02, Florida Statutes (Supp. 1974). The failure to cite the proper statute in support of the charge, however, was not assigned as error, and even if it had been so assigned would not be a cause for setting aside the judgment in the absence of a showing of prejudice. Fla.R.Crim.P. 3.140(o).

On September 12, 1975, Tukes was apprehended in the stairway of a vacant house in a drunken condition. Officers found two electric fans, a pressure cooker, linens, blankets and other clothing piled upon an upstairs bed. A vacuum cleaner was found in the back bedroom where a window had been broken. Tukes raises several points on appeal, only one of which we find to be of merit: The trial court erred in failing to grant his motion for directed verdict since the evidence presented did not show the structure broken into was a dwelling. At the time of the offense the house was unoccupied and up for sale although the owner had been in residence the preceding month. We are of the opinion for the reasons stated infra that the structure was not a dwelling and that the sentence imposed must be reduced.

In Smith v. State, 80 Fla. 315, 85 So. 911 (1920), the house which defendant was charged with breaking and entering had been unoccupied for nine months, and although some of the household effects of the owner and his family were left inside it, there was no evidence that the owner intended to return and again occupy it. The court held in the absence of any proof that the occupant intended to return and reestablish his residence there that there was a failure in the evidence to prove the essential allegation that the structure was a dwelling house. The court approved the following common law definition of a dwelling as cited in 6 Cyc. 185:

“ ‘The house must be occupied as a dwelling house, and not merely be suitable or intended for such purpose. The owner or occupant, or some member of his family, or a servant, must sleep there. If it is so occupied the temporary absence of the occupant will not prevent it from being the subject of burglary as a dwelling house; but a house, although furnished as a dwelling house, loses its character as such for the purpose of burglary, if the occupant leaves it without the intention to return. Occasionally sleeping in a house is not enough to make it a dwelling house. In some states, by statute, dwelling houses are the subject of burglary, and may be described as such, whether they are occupied or not.’ ” 85 So. at 912.

To the same effect see Henderson v. State, 80 Fla. 491, 86 So. 439 (1920); Johnson v. State, 188 So.2d 61 (Fla. 3rd DCA 1966); Johnson v. State, 190 So.2d 601 (Fla. 3rd DCA 1966). In the latter two cases the Third District Court of Appeal remanded cases to the trial court with directions to enter judgments for lesser offenses under Section 810.02.

This cause is remanded to the trial court with directions to reduce Tukes’ sentence to that provided for third degree felonies as stated in Sections 810.02(3) and 775.-082(3)(d).

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


author: BOYER, Chief Judge.

text:
    Janet Kay SAUNDERS, Appellant, v. Mark A. SAUNDERS, Jr., Appellee.
    No. FF-175.
    District Court of Appeal of Florida, First District.
    June 7, 1977.

      Robert E. Gibson, Tallahassee, for appellant.
    James J. Richardson and Elaine N. Dug-gar, Tallahassee, for appellee.
   BOYER, Chief Judge.

After entering a default judgment and, thereafter, a final judgment in favor of appellant, the trial court granted appellee’s motion to vacate final judgment. In this interlocutory appeal, appellant challenges the trial. court’s order vacating the final-judgment.

Appellant filed her complaint for compensatory and punitive damages against ap-pellee, her ex-husband, alleging that he had shot out the tires and caused the engine to blow up on a 1971 Jaguar which appellant had received pursuant to a final judgment of dissolution of marriage. One of appel-lee’s defenses contained in his answer was temporary insanity to which appellant responded by filing a motion to strike as well as a motion for order compelling mental examination. Appellee’s attorney (the first of three) filed a motion for leave to withdraw, but had an amended notice of hearing served on appellee. A hearing on all pending motions was held, but appellee did not appear. At that time, the trial court granted the motion of appellee’s counsel for leave to withdraw, rescheduled the hearing and mailed a copy of the order to appellee by certified mail. The receipt was returned, marked “unclaimed”.

The hearing, as rescheduled, was held but appellee again failed to appear. The trial court thereupon granted several of appellant’s motions to strike and ordered appel-lee to appear for a mental examination, or, in the alternative, to amend his pleadings to eliminate the insanity defense. Although the sheriff served a copy of the order on appellee, he did not comply with the terms of the order. Consequently, appellant filed a motion for imposition of sanctions. At the hearing on that motion, which appellee did not attend, the trial court entered its order striking the answer and defenses and entering default judgment.

Six weeks subsequent to the entry of the default judgment, appellant served appellee with a copy of her motion for final judgment to which were attached affidavits as to the unliquidated damages. The day that the final judgment was filed, appellee’s second counsel filed a request for hearing and motion to set aside default. Six months later, appellee’s third (and present) attorney filed a motion to vacate final judgment and attached an exhibit relating to damages. In granting the motion to vacate final judgment, the trial court did not vacate the default which had been previously entered.

A party may move to vacate a final judgment pursuant to Fla.R.Civ.P. 1.540(b)(1) which provides that “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) Mistake, inadvertence, surprise or excusable neglect; * * * (4) the judgment or decree is void * * The term “mistake” found in the rule may be either a mistake of the party or of the court.

In the case sub judice, it could well have been determined that a mistake was made in not granting appellee a jury trial on the issue of unliquidated damages. Where, as here, plaintiff duly makes a request in the complaint for jury trial, a defendant, even after a default judgment is entered, is entitled to notice and an opportunity to participate in the trial on damages. Riley v. Gustinger, 235 So.2d 364 (Fla. 3rd DCA 1970); Moore v. Boyd, 62 So.2d 427 (Fla.1962). The rationale behind the holding of those cases appears to be that after a jury trial is requested, a defendant may intentionally permit a default to be entered against him and place his confidence in the jury system, being confident that a jury will reasonably assess damages. The right to a jury trial remains one of the most fundamental guarantees. Its importance is underscored by Fla.R.Civ.P. 1.430(a): “The right of trial by jury as declared by the constitution or by statute shall be .preserved to the parties inviolate.” See also subsection (d) of Rule 1.430, to-wit: “A demand for trial by jury . . . may not be withdrawn without the consent of the. parties.” (See also Fla.R.Civ.P. 1.500(e)).

Accordingly, relief granted pursuant to Rule 1.540 was properly afforded appel-lee. Even though the trial judge entered the order here appealed on another ground contained in Rule 1.540 (i. e., that the final judgment was void), the law is well settled that if a trial judge arrives at a correct conclusion albeit on an erroneous basis, his action will nevertheless be upheld by an appellate court. Jones v. Dove, 300 So.2d 758 (Fla. 1st DCA 1974). Therefore, the order appealed here is

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Bertha VENDER, formerly Bertha M. Wright, Appellant, v. 7900 RED ROAD PARTNERSHIP, a Florida Corporation, and County of Dade, Appellees.
    No. 76-328.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    James A. Baccus, Miami, for appellant.
    Richard H. W. Maloy & Associates, Coral Gables, George N. Jahn, Stuart L. Simon, County Atty. and Robert A. Cuevas, Jr., Asst. County Atty., Irving Peskoe, Homestead, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Bertha Vender, appeals a judgment dismissing her amended complaint with prejudice and granting the motion of defendant 7900 Red Road Partnership to compel and effect full performance of a settlement agreement.

Bertha Vender filed a complaint and an amended complaint against appellees Dade County and 7900 Red Road Partnership alleging, in essence, that (1) defendant partnership had erected an office building adjacent to the west boundary line of her property, the sidewalk of which lies entirely within her property, and (2) the building’s two driveways traverse her property in an east-west direction. She further alleged that without notice and compensation Dade County had taken the east 19 feet of her property for a public right-of-way. She prayed for ejectment, injunctive relief, inverse condemnation (as to the County) and compensatory and punitive damages. Defendants answered and subsequently plaintiff’s counsel negotiated a settlement whereby plaintiff would deed the disputed property to defendant partnership in exchange for $4,050 and all parties were to execute a joint stipulation and motion of dismissal of the cause with prejudice. Upon learning of the settlement, plaintiff fired her counsel, refused to proceed with the agreement and retained new counsel. Thereupon, defendant partnership filed a motion to compel performance of settlement agreement. After hearing argument of counsel, the trial judge entered final judgment dismissing the action and compelling performance of the agreement based upon the following findings:

“1. That the Settlement Agreement heretofore entered into by the Attorneys for all parties hereto is enforceable and in full compliance with the provisions of Section 1.030(d) of the Florida Rules of Civil Procedure.
“2. That the attorney of record for the Plaintiff had full and express authority from the Plaintiff to so compromise and settle this cause of action for her and such authority was clear and unequivocal and the Settlement Agreement was in full accordance with such expressed authority so given to the Plaintiff’s Attorney.”

Appellant argues that the trial court erred in ratifying the agreement because she did not give her attorney special authority to compromise or settle her claim, and the agreement reached between her attorney and the appellees was without her knowledge or consent.

Where, as here, the issue sought to be reviewed is necessarily a mixed question of law and fact, the duty devolves upon the appellant to make error clearly appear by availing the appellate court of a proper record of the facts and circumstances pertinent to and connected with the asserted errors.

In this case appellant failed to present a record adequate for this court to make a determination of the point she raises and, accordingly, the appealed judgment must be and is affirmed. See Best v. Barnette, 130 So.2d 90 (Fla.2d DCA 1961); Pan American Metal Products Co. v. Healy, 138 So.2d 96 (Fla.3d DCA 1962); Morceau v. Header, 179 So.2d 242 (Fla.3d DCA 1965); Pierson v. Sharp, 283 So.2d 880 (Fla.4th DCA 1973).

Affirmed.


author: PEARSON, Judge.

text:
    Gloria WASKIN, Appellant, v. Robert R. WASKIN, Appellee.
    No. 76-403.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.

      Aronovitz & Weksler, Miami, for appellant.
    Retter & Sack, Miami, Berryhill, Avery, Schwenke, Williams & Scott, Fort Lauder-dale, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

In this appeal from a Final Judgment of Dissolution of Marriage, the wife argues that the alimony and child support provisions of the judgment are grossly inadequate, and that the trial judge abused his discretion in requiring the wife to pay all of the mortgage, taxes, insurance, maintenance and repairs of the marital residence which is to be exclusively occupied by the wife and the two minor children of the marriage. A third point urges that the trial judge should have required the husband to secure the child support payments by a charge upon his life insurance.

The wife, Gloria Waskin, is twenty-seven years of age and the husband, Robert R. Waskin, is thirty years of age. The couple married in June of 1969, when the wife was a junior college student and part-time office clerk at an osteopathic hospital and the husband was a sophomore medical student at the Osteopathic College of Medicine in Chicago. The parties moved to Chicago in order for the husband to complete his medical training. The wife, at this time, obtained employment and continued to work until December of 1970, when she became pregnant. Since then, due to the fact that she has been raising the parties’ two young children, the wife has not been employed. Following the husband’s internship in Ohio, the parties returned to Miami where the husband took a position with a North Miami Beach osteopathic physician, where he remained for a period of one year and earned in excess of $20,000. In 1973, the parties purchased a comfortable home where they resided together until August 1, 1975. The home was well furnished with added improvements, including a swimming pool, and with all payments made by the husband through the considerable income of his ever improving osteopathic medical practice.

In 1973, the husband went into practice for himself and, during that year, earned approximately $75,000 before taxes. For the fiscal year, July, 1974, to July, 1975, the husband drew from the professional association he had formed as sole stockholder, approximately $78,000 gross income. From July, 1975, he has drawn $1,000 per week as a salary, compared with $1,500 per week drawn the previous year. The reason for this decrease in salary, according to the husband, was due mainly to some changes in the medical laws beginning in July, 1975. However, it does appear that the professional association has a profit of $18,000, which Dr. Waskin can draw from to supplement his salary. Additionally, there was a professional association pension plan contribution to the husband’s pension of $6,400, and a depreciation deduction of $5,000 from which Dr. Waskin can draw cash. The professional association deducted approximately $5,800 for entertainment as well as a sum of $3,300 to cover the expense of weekly psychiatric counseling for the husband. The testimony of a certified public accountant who had visited Dr. Waskin’s offices on two occasions prior to the hearing below projected, on the basis of the doctor’s cash collections and the elimination of entertainment and promotional fees, that Dr. Waskin would be able to draw out the same salary that he drew out the previous, year.

The parties have been accustomed to a fairly high standard of living. Their home is valued at approximately $100,000 and their furnishings at approximately $25,000.

The trial court entered a Final Judgment of Dissolution of Marriage, which provided that the wife be awarded custody of the two minor children, that the husband pay child support of $100 per week per child and $150 per week alimony, that the wife’s tuition and book expenses at Barry College be paid for by the husband for a period of three years, that the wife should have the right to occupancy of the marital home for as long as she remains unmarried or until the children reach majority, that the wife receive the husband’s interest in the Oldsmobile Cutlass, that the husband make available a life insurance policy on his life which the wife may maintain with herself as beneficiary so long as she makes the premium payments, that the husband pay for the parochial pre-school expenses for the younger child, that the husband pay the medical, dental and hospital expenses of the children, that the husband pay certain outstanding bills as well as providing the wife with medical care as a professional courtesy, and that the husband pay for major repairs to the house. Also, the judgment provided that the husband be given liberal visitation rights with the children.

The wife’s first point is as follows:

“Did the court err in determining the award of alimony and child support in a dissolution of marriage judgment by failing to consider (a) the husband’s ability to pay, (b) the needs of the wife and (c) the standard of living shared during the marriage?”

The trial judge has set forth his findings on alimony and child support as follows:

“4. That the Respondent, ROBERT R. WASKIN, an Osteopathic Physician, whose gross income is approximately $1,000.00 a week, has a take home pay of $630.00 a week.
“5. That the Petitioner, GLORIA WASKIN, is studying toward a degree at Barry College, in Fashion Merchandising, and is unemployed, but intends to seek employment upon her graduation. That the Respondent shall pay the Tuition in books and fees, and should continue to do so for a period of three (3) years.”
******
“9. That the Respondent is unable to pay more than $350.00 per week for the support of the Petitioner and the children, and the Court finds that a reasonable amount for alimony is $150.00 per week, and $200.00 per week for the support of the children, together with other expenses as provided for herein.
“10. That the Respondent shall pay for the cost of parochial school for the minor child, KIMBERLY LYNN WAS-KIN, until she is old enough to go to public school.”

Inasmuch as these findings are supported by evidence before the trial court and the real question presented is whether the trial judge abused his discretion by making such meager allowances for the former wife and children in view of the former husband’s ability and their needs, we have examined the record in the light of the holdings of the Supreme Court of Florida in Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and we find no reversible error.

The wife’s second point urges that it was error to require her to pay for all of the mortgage payments, insurance, taxes, repairs and maintenance on the jointly-owned marital residence where it was provided by the judgment where it was provided by the judgment that the residence should be used as a home for the wife and the children. We agree. The mortgage payment was $311 per month in 1975 (the amount has increased each year). The wife’s alimony payment is $150 a week or approximately $650 a month, so that nearly one-half of her alimony is required to provide a place to live for herself and the children. Because the property is jointly owned, the judgment would require her to build her husband’s equity in the property. As we noted in Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975), it is the obligation of each tenant in common to pay one-half of the property expenses consisting of mortgage payments, insurance, taxes and necessary repairs. The failure of the court to require Dr. Waskin to pay one-half of the charges on the former marital residence was clear error. See Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). See also Maroun v. Maroun, 277 So.2d 572 (Fla. 3d DCA 1973); Mintz v. Ellison, 233 So.2d 156 (Fla. 3d DCA 1970); and Spencer v. Spencer, 160 Fla. 749, 36 So.2d 424 (1948). It is both unjust and an abuse of discretion to require the mother, who has no resources other than the small alimony payment to be solely responsible for continuing to provide and maintain the home.

In the present case, the father who has established the home and wishes for his children to remain there, is well able to meet the monthly payments. Because of his present superior position in generating income compared to the position of the mother, we, therefore, direct that the judgment be amended to provide that the father be responsible for all payments upon the residence for the mortgage, insurance, taxes, and necessary repairs.

The wife’s last point urges that the child support payments should be secured by the husband’s large insurance policies on his own life. Such an arrangement is sometimes proper. See Bosem v. Bosem, 279 So.2d 863 (Fla.1973); and Riley v. Riley, 131 So.2d 491 (Fla. 1st DCA 1961). However, there is nothing in the law that requires a husband to maintain insurance for his wife or children unless special circumstances dictate its advisability. See Fleming v. Fleming, 177 So.2d 384 (Fla. 3d DCA 1965). We hold that in view of the relative youth of the parties and the altogether reasonable likelihood that Dr. Waskin will continue to earn large amounts of money in his profession, it was not error for the trial judge to refuse to make this provision for the security of future payments of child support.

The judgment is hereby amended to provide that while the marital residence is occupied by the wife and the children, and until the ultimate sale of the property thereafter, the husband shall pay the charges therein consisting of mortgage payments, insurance, taxes and necessary repairs. Upon the sale of the property, the husband shall be entitled to a credit against the wife’s share of the proceeds of the sale of one-half of such expenses of the property as he shall have so paid and is here ordered. Inasmuch as the omission of any provision in the final judgment for such expenses in the residence property has operated to impose payment thereof on the wife as a matter of practicality, the judgment is hereby further amended to provide that upon the sale of the property, the wife shall receive a credit against the husband’s share of the sale proceeds for one-half of such charges upon the residence as she shall have paid between the date of the judgment (February 12, 1976), and the date of the filing of our mandate in this case.

The judgment as herein amended is affirmed.


text:
    Ralph HELMS, Minnie Goodman and Norman F. LeFevre, Appellants, v. GENERAL FILM DEVELOPMENT CORPORATION et al., Appellees.
    No. 76-1091.
    District Court of Appeal of Florida, Third District,
    June 7, 1977.
    Guy B. Bailey, Jr. and William Berger, Miami, for appellants.
    James Whitmore Miller, Coral Gables, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The plaintiffs appeal a judgment dismissing their complaint with prejudice. The order was entered pursuant to defendant’s motion to dismiss prior to answer. The allegations of the complaint must be taken as true. See O’Neal v. Crumpton Builders, Inc., 143 So.2d 344 (Fla. 1st DCA 1962). Inasmuch as it does not affirmatively appear that the plaintiff does not have a cause of action, it was error to dismiss the complaint with prejudice.

Plaintiffs sued defendants for breach of an original contract and two later supplemental agreements. The original contract provided, among other things, for payment by the defendants to the plaintiffs of $43,-470.00, of which $10,000.00 was actually paid.

The first supplemental agreement, executed by counsel for the parties, provided for payment by the plaintiffs to the defendants of a total of $11,157.00, plus interest. The second supplemental agreement provided for payment by the defendants to the plaintiffs of $32,471.00, plus interest. It also provided that all provisions of the original contract not in conflict with the second supplemental agreement remain in full force and effect.

Plaintiffs sued for compensatory damages of $28,471.00 and for punitive damages, alleging breach of contract and fraud.

The first settlement contract, which was attached as an exhibit to the complaint, contained a penalty for failure of defendants to comply with the agreement. It is as follows:

“5. Upon the execution of this agreement, McCullough and Arbour shall deliver a total of Five Hundred Thousand (500,000) shares of their common stock in General Film, and properly executed stock powers on said stock to H. Jack Klingensmith, at 2951 South Bayshore Drive, Suite E-6, Coconut Grove, Florida. Klingensmith shall hold the stock in escrow for the benefit of Helms, Goodman and LeFevre until the purchase price is paid in full, at which time it shall be returned to McCullough and Arbour.
All dividends accruing on the stock shall be deposited in the Registry of the Circuit Court of Dade County, Florida. Dividends paid into the Registry of the Court shall be subject to withdrawal by McCullough and Arbour with court approval when the purchase price is paid in full.
“In the event the full purchase price is not paid, legal and equitable ownership of the 500,000 shares of common stock in General Film, all rights and privileges incident thereto, and all dividends declared or due on said stock while held in escrow shall immediately vest in Helms, Goodman, and LeFevre.”

Defendants urge that the penalty contained in the above-quoted paragraph 5 was, upon its execution, a full payment of the obligation under the contract. They explain the subsequent contracts, in which they recognized the obligation as existing after the forfeiture of the stock, as having been made under a mistake of law, i. e., that they did not realize that the obligation had been discharged.

Plaintiffs urge that the penalty provision contained in paragraph 5 was a security arrangement and constituted only a partial discharge of the debt.

The contract simply does not say that the execution of the penalty provision is a discharge of the debt. It is apparent that the defensive matter should have been raised by answer. See Fla.R.Civ.P. 1.140(b); Stone v. Stone, 97 So.2d 352 (Fla. 3d DCA 1957). The construction of a contract is for the trial court, but unless it clearly appears as a matter of law that the contract cannot support the action alleged, the complaint should not be dismissed on motion. Spindler v. Kushner, 284 So.2d 481 (Fla. 3d DCA 1973). The intention of the parties is not so clear from the complaint that it can be said as a matter of law that they intended the forfeiture under paragraph 5 of the original agreement to act as a discharge. Therefore, it was error to dismiss the complaint and the cause must be remanded for further proceedings.

Reversed and remanded.

      McCullough & Arbour shall have the right to vote such stock while it is held in escrow.”


text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. DADE COUNTY EMPLOYEES, LOCAL 1363, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Appellees.
    No. 76-1161.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Stuart L. Simon, County Atty., and Alan J. Kan, Asst. County Atty., for appellant.
    Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Metropolitan Dade County appeals an order of the circuit court confirming an arbitration award in a dispute growing out of a collective bargaining agreement between the County and Dade County Employees, Local 1363, American Federation of State, County and Municipal Employees, AFL-CIO.

The dispute, concerning the interpretation and application of the agreement, could not be amicably settled. The union invoked the arbitration provision of the agreement and arbitration proceeded regularly before a mutually selected arbitrator, who found for the union. The County, being dissatisfied, filed a motion in the circuit court to vacate the arbitration award and urged that the arbitrator exceeded his powers by modifying or ignoring the language of the agreement. The union contended that the arbitrator merely interpreted the agreement in order to determine its meaning as applied to the facts of the dispute. The circuit court found that the arbitrator did not exceed his authority in applying the agreement. This appeal is from .that order.

The County makes the same argument here that it did in the circuit court. We hold that no error has been demonstrated. The arbitrator did exactly what the agreement to arbitrate provided. He settled a dispute concerning the application of the collective bargaining agreement. See Cassara v. Wofford, 55 So.2d 102 (Fla.1951); and Dairyland Insurance Company v. Hudnall, 279 So.2d 905 (Fla. 3d DCA 1973).

Affirmed.


text:
    Abraham Thomas OLIVA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1226.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.

      Alvin E. Entin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Abraham Thomas Oliva appeals his conviction pursuant to a jury verdict of one count of the sale of cocaine and one count of possession of cocaine. The transactions presented by the counts were separate. The proof of Oliva’s guilt was overwhelming. The points presented on this appeal claim errors during the trial of the charges, which Oliva claims deprived him of a fair and impartial trial. They are: (1) the State was allowed, over objection, to present prejudicial evidence of a prior criminal transaction between the parties; (2) the court wrongfully restricted defendant’s right to cross-examine a witness; and (3) the court erred in failing to grant defendant’s motion for a mistrial because of an improper comment by the prosecutor during closing argument.

The circumstances out of which the first point is presented were that the defendant took the stand in his own behalf. On cross-examination, he testified that until the date of the alleged sale he had never seen Debbie Young, the State’s witness who had testified that he sold her cocaine. In addition, he testified that he had never given her cocaine and that he had never bought anything of value from Arthur Moore, another State’s witness. The trial judge was well within his discretion in allowing the State to show a prior meeting of the parties at which it was proved that the defendant negotiated with Young and Moore and furnished them with a sample of cocaine. It was further brought out on cross-examination and in the State’s case on rebuttal that on the prior occasion the defendant had received cash from Young and Moore.

The cross-examination of the defendant and the subsequent rebuttal by the State was proper under the rule stated in Dabney v. State, 119 Fla. 341, 161 So. 380 (1935); and Fla.R.Crim.P. 3.250. See also the rule in Matera v. State, 218 So.2d 180 (Fla.3d DCA 1969). Even if the cross-examination of the defendant and subsequent rebuttal testimony should be held to be within the scope of the “other crimes” rule set forth in Williams v. State, 110 So.2d 654 (Fla.1959), the evidence would meet the test of the Williams rule because the evidence showed a method of operation which was the same as that employed in the sale with which defendant was charged. Cf. Crespo v. State, 344 So.2d 598 (Fla.3d DCA 1977), case no. 76-634, released April 5, 1977.

In the above-cited Crespo decision, we dealt with a point similar to defendant’s claim on this appeal, i. e., that the court wrongfully restricted defendant’s right to cross-examine the witness. In Crespo, we held that the right of the defendant to cross-examine the prosecution witness in order for the jury to have the benefit of such evidence as might bear on the witness’s bias or self-interest through the testimony given by him was violated where the defendant was precluded from cross-examining the witness concerning a criminal charge or prosecution then pending against him. In Cresop, the court sustained an objection to the question: “Do you have a charge presently against you now for carrying a concealed weapon?” We reversed that holding based upon the fact that the testimony of a witness under an actual or threatened criminal investigation or charge may well be biased in favor of the State because the witness may seek to curry favor with respect to his own legal difficulties. See Morrell v. State, 297 So.2d 579 (Fla.1st DCA 1974).

In the present case, the court complied with the rule. Defendant was allowed to cross-examine the witness concerning his current employment, his lack of past employment, his previous convictions, prior addresses and the current charges pending against him. Defendant’s point simply urges that he should have been allowed a more extensive cross-examination. We hold that the extent of the cross-examination was adequate to inform the jury fully of the history of the witness and the fact that he had a pending charge against him, the trial of which had been delayed possibly in order to secure his testimony for the State at defendant’s trial. The refusal of the trial court, after the facts were revealed, to allow defendant’s counsel to exhaust the subject to his own satisfaction did not deprive the defendant of a fair trial. Cf. Ray v. State, 262 So.2d 475 (Fla.3d DCA 1972).

Defendant’s claim that he was prejudiced by the non-disclosure of the present address of the paid informer witness has been disposed of adversely to the defendant in Crespo v. State, 344 So.2d 598 (Fla.3d DCA 1977), case no. 76-634, released April 5, 1977.

Defendant’s point claiming error upon the court’s failure to grant a mistrial because of a claimed improper comment by the prosecuting attorney during closing argument does not present reversible error. During closing argument, the prosecutor stated:

‡ $ sk $ * *
“I urge you to send him a message, to let him know you just can’t go around the City of Key West, and County of Monroe, and peddle cocaine, or that if you do, you have to be prepared to face the consequences.”

The remark was improper because it was not a comment upon the evidence before the jury. See Frenette v. State, 158 Fla. 675, 29 So.2d 869 (1947). Defendant immediately moved for a mistrial. No curative instruction was sought. The question remains: Was the remark so prejudicial as to constitute the denial of the motion for mistrial reversible error? We hold that it was not of such a nature so as to poison the minds of the jurors or to prejudice them so that a fair and impartial verdict could not be rendered. See Johnsen v. State, 332 So.2d 69 (Fla.1976). Cf. Wingate v. State, 232 So.2d 44 (Fla.3d DCA 1970).

Accordingly, the judgment and sentence are affirmed.

      . See also the companion case, Crespo v. State, 344 So.2d 601 (Fla.3d DCA 1977), released April 5, 1977.


text:
    Charles N. DONNER, Appellant, v. Margo DONNER, formerly known as Margot Donner, Appellee.
    No. 77-162.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    L. J. Cushman, Miami, for appellant.
    No appearance by counsel for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This action was commenced by Margo Donner, formerly known as Margot Donner, filing a complaint to set aside certain property settlement agreements.

After the pleadings closed, the parties stipulated for the appointment of a special master and, upon such stipulation, an order of reference was entered appointing Shelby Highsmith (a former circuit judge) as special master to conduct a trial upon the issues in the cause, to make his findings of fact and conclusions of law, and report same to the court. Thereafter, the master conducted hearings on five different days and received oral argument on another day from opposing counsel. The matter was referred to him by order on September 3, 1975; he heard final argument on April 14, 1976, and filed his five-page special master’s report on June 2, 1976. In the report, he found that the defendant, Charles N. Donner, had committed a fraud upon his former wife as to his net worth, he having indicated to her it was approximately $3,000,000.00 when, in fact, he had a net worth of approximately $7,000,000.00. He also made other misrepresentations relative to the value of certain corporate stock, as a result of which the special master recommended that the property settlement agreements be set aside; that the parties, as near as possible, be returned to the status quo prior to the execution of said agreements, and that further hearings be held to determine the alimony and property rights of Margo Donner.

Thereafter, the special master filed a motion for the determination and award of special master’s fee. An affidavit in support of said motion indicated that the master reviewed 17 legal instruments and memorandums of law; that he received 22 pieces of correspondence; that he prepared 7 pieces of correspondence; that, in addition to 5 days of final hearings, he had 4 other days of hearings or conferences with counsel as well as a final day for oral argument. He also indicated that he reviewed the complete court file, researched the law, examined certain exhibits, had numerous telephone conversations, and reviewed all exhibits admitted into evidence and the transcript of testimony. In addition to the affidavit, at the time of the hearing on the motion to fix special master’s fees, the master indicated that he had spent in excess of 150 hours on the matter and that the exhibits exceeded, by count, 14,000 pages; that the transcript of testimony was apparently lengthy but the actual number of pages does not appear from the limited record. The special master indicated that he thought a reasonable fee was $20,000.00, and there was expert testimony to support this amount. The trial court noted, and we do also, that the parties to this cause were represented by diligent adversaries, two fine advocates, which would have required strong efforts on the part of the special master to conduct the proceedings in a fair and orderly manner. Following the hearing, the trial judge awarded the $20,000.00 fee to the special master, to be paid by Charles N. Donner. This appeal ensued. It is urged that the chancellor erred in exercising his discretion in the amount of the fee awarded.

Today, in Florida, this is clearly a discretionary matter with a chancellor. See: Section 69.051, Florida Statutes (1975). Prior to this statute, we had statutes that fixed statutory fees and had other statutes providing for fees for extraordinary services. An examination of authorities in Florida indicates that in Marion Mortgage Company v. Moorman, 100 Fla. 1522, 131 So. 650 (1930), an extraordinary fee for a master in the amount of $2,500.00 was disallowed and the master was limited to the then statutory fee; in Cohn v. Cohn, 160 Fla. 619, 36 So.2d 199 (1948), a $750.00 master’s fee was also reversed, and the master was accorded nothing but the statutory fee; in Garlick v. Garlick, 38 So.2d 222 (Fla.1948), without error being assigned, the Supreme Court of Florida found a master’s fee of $1,000.00 to be a “jolt to the judicial equilibrium” and returned the matter to the trial court for further consideration; in Gulfstream Park Racing Association, Inc. v. Clark, 42 So.2d 279 (Fla.1949), a special master’s fee of $3,000.00 was reduced to $500.00; in Kleinschmidt v. Kleinschmidt, 66 So.2d 815 (Fla.1953), a $3,000.00 fee was reduced to $1,500.00; in Reid v. Reid, 68 So.2d 821 (Fla.1953), a master’s fee was reduced to $500.00; and in City of Miami v. Hollis, 77 So.2d 834 (Fla.1955), a special master’s fee of $3,500.00 was reduced to ¡>1,500.00. These cases were decided he-neen 1930 and 1955; we have found no .ater cases.

As indicated, there was a statute in existence that controlled the fees at this time prior to 1953. See: Section 62.07, Florida Statutes (1951). After 1953, see: Sections 62.07, 62.071, Florida Statutes (1953). It is also noted that at this time, special masters could be appointed over the objection of the parties; this has not been the case since 1954. Slatcoff v. Dezen, 74 So.2d 59 (Fla.1954). Obviously, since these earlier cases, inflation has made the dollar worth less; it is also apparent that a special master’s fee should not be based on the same criteria as that used in fixing an attorney’s fee. It is also recognized that the special master’s fee should not be measured by judicial salaries. It is also recognized that in rendering services as a special master, a practicing attorney is required to forfeit the ability to be otherwise gainfully employed by his clients and, in some instances, is prevented from accepting additional clients.

It is apparent, from the parties to this cause and their counsel and the complexity of the issues, that this was a matter of considerable magnitude and involved a substantial sum of money, but this standing alone should never justify a large master’s fee. However, taking everything into consideration, we find that a fee in excess of $10,000.00 constituted an abuse of discretion.

Therefore, the order under review be and the same is hereby modified to the extent that the master’s fee is reduced to $10,-000.00.

Affirmed as modified.

      . Section 62.07, Florida Statutes (1953) was repealed by Laws of Florida, 1967, Ch. 67-254, § 49. Section 62.071, Florida Statutes (1953) was amended and renumbered Section 69.051 by Laws of Florida. 1967, Ch. 67-254, § 23.

      . It is noted that an accountant was employed, who was in attendance at hearings and prepared documents which consisted of some 23 hours of his time.


text:
    The STATE of Florida, Petitioner, v. Edward SAWYER, Respondent.
    No. 77-374.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Stuart L. Simon, County Atty. and H. T. Smith and Richard M. Dunn, Asst. County Attys., for petitioner.
    Bennett H. Brummer, Public Defender and Elliott H. Scherker, Asst. Public Defender, for respondent.

      Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Petitioner, prosecutor in the trial court and appellee in the circuit court, seeks review (by certiorari) of an order of the circuit court, sitting in its appellate capacity, which held Section 21-31.1(b)(2) of the Code of Metropolitan Dade County [a loitering ordinance] to be unconstitutional and reversed the respondent’s conviction for violation of said ordinance.

During the evening hours of October 9, 1975, officers of the City of Miami Police Department set up a stakeout to surveil narcotics activity around a pool hall in the City of Miami. The pool hall under surveillance was known to the police as a place where narcotics were sold, both inside and outside. During the narcotics stakeout, respondent Sawyer was observed standing in front of the pool hall with a man known to the police as “Roach”. Respondent was also seen with Howard Wilamenko and Reginald Washington. “Roach”, Wilamenko, and Washington were all suspected by the police as being narcotics dealers. The police observed approximately six drug transactions in front of the pool hall. On each drug transaction, an unidentified buyer would walk up to either “Roach”, Wilamenko or Washington and start conversing. The respondent was next to each alleged drug dealer when each buyer was talking to the dealer. The unidentified buyer was observed passing money to the dealer, and the dealer would pass a tinfoil packet to the buyer.

One of the officers testified that he knew from previous experience that tinfoil packets usually are used for decks of heroin, and he had seen packets at least 55 times. The respondent was seen next to each dealer while they participated in each narcotic sale. On one such sale, a female in an orange Volkswagon took the object that the dealer gave to her, put it up to her nose, sniffed it, closed it, and put the rest in her brassiere.

The respondent was charged with the crime of knowingly loitering in a place where narcotics are used or possessed, in violation of Section 21-31.1(b)(2) of the Code of Metropolitan Dade County. During the trial in the Metropolitan Court, the defendant-respondent moved to dismiss the charge, contending that the loitering statute was unfair and overly broad and, therefore, unconstitutional. The motion to dismiss was denied; the defendant was convicted. Upon appeal, the conviction was reversed by the trial court, sitting in its appellate capacity, the circuit judge holding the loitering ordinance unconstitutional, and bottomed his opinion upon the dissenting opinion in Commonwealth v. Tirella, 356 Mass. 271, 249 N.E.2d 573 (1969). This cer-tiorari proceeding followed, the petitioner contending that the circuit court, in its appellate capacity, departed from essential requirements of the law. We agree.

In construing an ordinance, the courts must assume that the legislative body intended a valid ordinance. State v. Tampa Water Works Company, 56 Fla. 858, 47 So. 358 (1908). If possible, a challenged ordinance should be construed as legal. State v. Brogden, 84 Fla. 520, 94 So. 653 (1922); Bentley-Gray Dry Goods Company v. City of Tampa, 137 Fla. 641, 188 So. 758 (1939). The courts should be very cautious in declaring a municipal ordinance unreasonable, there being a peculiar propriety in permitting the inhabitants of a city, through its officials, to determine what rules are necessary for their own local government. State v. McCarthy, 126 Fla. 433, 171 So. 314 (1936).

Section 21-31.1(b)(2) of the Code of Metropolitan Dade County, which is commonly referred to as Dade County’s loitering ordinance, reads in part as follows:

“For the purpose of this Section ‘loitering’ means the act of standing or remaining in or about any public street, public sidewalk, public overpass, or public bridge, or other place specifically enumerated herein.
“A person commits the offense of loitering when he knowingly loiters in any place with one or more persons knowing that a narcotic or dangerous drug, as detailed in Sections 893.01 and 893.15, Florida Statutes, is being unlawfully used or possessed.” [emphasis added]

Under the provisions of Dade County’s loitering ordinance, the elements of the offense are: (1) that the respondent knowingly loitered in a place with one or more individuals; (2) that narcotics or dangerous drugs were being unlawfully used or possessed; and (3) that the respondent had knowledge of the fact that narcotics or dangerous drugs were being unlawfully used or possessed.

Petitioner asserts that in holding Dade County’s loitering ordinance facially over-broad, the circuit court rejected the case law and the principles of constitutional construction of the State of Florida while choosing to adopt the dissenting opinion in a 1969 Massachusetts case. See: Commonwealth v. Tirella, supra, 249 N.E.2d pages 577-578. Florida appellate courts have dealt with the issue of whether or not a loitering law was over-broad on several occasions. See: Jolley v. City of Jacksonville, 281 So.2d 901 (Fla. 1st D.C.A. 1973); State v. Ecker, 311 So.2d 104 (Fla.1975); Ciccarelli v. City of Key West, 321 So.2d 472 (Fla. 3rd D.C.A. 1975). In Jolley v. City of Jacksonville, supra, the First District had under review a municipal ordinance prohibiting one’s presence in a place with knowledge that narcotics were being used. The ordinance reads in part as follows:

“ * * * Visiting or being present in any room, vehicle, or other place where any narcotic drug, barbiturate, central nervous system stimulant or hallucinogenic drug is being unlawfully injected, smoked, swallowed, taken or consumed with the knowledge that such activity is occurring.”

The First District ruled that Jacksonville’s ordinance did not violate one’s freedom to associate and thus was not over-broad. The court went on to state:

* * * * * *
“In our view, it is perfectly legitimate for a legislative body to enact statutes or ordinance which have as their purpose and goal a prevention of the practice of visiting or being in a place where narcotics are knowingly used unlawfully.
“When construed and applied in the manner herein discussed, the ordinance is a valid exercise of governmental authority.”
* * * * * *

The circuit court, in its order of reversal, attempts to distinguish Jolley v. City of Jacksonville, supra, on two grounds: First, the court reasoned that the Jacksonville ordinance required narcotic “activity” rather than mere possession. Second, the court asserted that the Jacksonville ordinance deals with attendance at a place, whereas the Dade County ordinance deals with association with a person. Both arguments are somewhat attractive, but neither is legally sound. As to the first argument, that Dade County’s loitering ordinance only requires knowledge of mere possession of narcotics, it is universally known that possession of narcotics is a violation of the criminal laws of this State. Possession being a criminal violation, it is also a breach of the peace. If an ordinance proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

As to the second “fault” found by the circuit court, although the words of the two ordinances are not identical, the essential elements for conviction under both ordinances are the same. It is conceded that convictions under loitering ordinances in Dade County and Jacksonville touches somewhat upon an association with another person who is committing the crime. The Florida Supreme Court, in State v. Ecker, supra, upheld the constitutionality of Florida’s loitering statute, Section 856.021, Florida Statutes (1973). Said statute reads as follows:

“(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-aiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
“(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
“(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.”

The Supreme Court of Florida held that Section 856.021, Florida Statutes was not over-broad and construed the words “under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity” to mean those circumstances where peace and order are threatened and where safety of persons or property is jeopardized. The court went on to adopt the following language from the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968):

******
“ * * * The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [a finding that a breach of the peace is imminent or the public safety is threatened].”
******

The ruling in State v. Ecker, supra, is based upon the court’s recognition that:

******
“ * * * if a statute proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack. * * *”
******

Section 21-31.1(b)(2) of the Code of Metropolitan Dade County clearly has criminal intent (scienter) written into the ordinance. The intent here is the knowledge on the part of the person loitering that he has voluntarily associated with one who is unlawfully possessing or using a narcotic or dangerous drug. As was stated in Commonwealth v. Tirella, supra, 249 N.E.2d p. 575:

******
“A violation * * * is made out by proof that the defendant had more than casual or momentary association with another, with knowledge of the latter’s illegal possession * * * ”
******

By enacting its loitering ordinance, Dade County has specifically defined the word “loitering” and the offense of loitering. Section 21-31.1(b)(2) defines loitering as knowingly committing four specific acts. Dade County’s legislative body has gone a step further than State law and has also required the acts to be committed “knowingly”. Clearly, a more specific culpability requirement and a more stringent standard for conviction are present under the County ordinance than under the State statute.

California has a loitering statute similar to Dade County’s. California’s statute reads as follows:

“It is unlawful to visit or to be in any room or place where any narcotics are being unlawfully smoked or used with knowledge that such activity is occurring.” Section 11556, Health and Safety' Code.

However, when the statute was first enacted, the scienter verbiage was omitted and the California Supreme Court struck down the statute as being unconstitutionally over-broad. Bonwell v. Justice Court for the Tulare Judicial District, 148 Cal.App.2d 906, 307 P.2d 716 (1957). Subsequently the California legislature included scienter as an element of the above statute and the statute was held constitutional. People v. Brim, 257 Cal.App.2d 839, 65 Cal.Rptr. 265 (1968).

Section 21-31.1(b)(2), Code of Metropolitan Dade County, requires that one must have knowledge of another’s unlawful possession of narcotics. Moreover, the words “loiters * * * with one or more persons” imply some type of comradeship or companionship. While the ordinance might be unconstitutionally applied in certain situations, this is no ground for finding the ordinance itself unconstitutional. State v. Ecker, supra. Par from having an imper-missibly broad prophylactic ordinance, Dade County punishes only knowing association with persons possessing or using narcotics.

Therefore, the judgment of reversal by the circuit court is quashed, with directions to reinstate the conviction and sentence rendered in the Metropolitan Court.


author: SCHOONOVER, JACK R., Associate Judge.

text:
    Thomas Winfred LLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1019.
    District Court of Appeal of Florida, Second District.
    June 8, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Stephen O. Rushing, Asst. Public Defender, Tampa, and Sue Hicks, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Tampa, for appel-lee.
   SCHOONOVER, JACK R., Associate Judge.

The appellant, defendant in the lower court, was found guilty of robbery and sentenced to ninety-nine years in prison. On appeal to this Court, the judgment and sentence of the lower court were affirmed. The appellant subsequently filed two Rule 3.850 motions. After an evidentiary hearing was held, the motions were denied and this timely appeal followed. The appellant contends that the trial court erred by not vacating and setting aside his sentence on the ground that the trial court improperly considered prior invalid convictions when he meted out the appellant’s sentence. We agree and reverse.

During direct examination of the appellant at his original trial, he was questioned regarding prior convictions and testified to having several prior felony convictions. At the time, neither the appellant, nor his trial counsel, was aware of the possible illegality of some of these convictions. In the instant case, the trial court indicated at the eviden-tiary hearing held on the Rule 3.850 motions that the appellant’s prior convictions may have influenced his sentence when he said that: “I wouldn’t say that it did not have some bearing on the court’s sentencing process . . . and I won’t say that Mr. Lloyd's prior record didn’t have some bearing on it.”

From the above portions of the record, it appears that the trial court may in fact have considered prior convictions and in doing so enlarged the appellant’s sentence.

The appellant alleges that some of his prior convictions were uncounseled, and that he was not financially able to obtain counsel. He further contends that he did not waive his right to counsel. If these allegations are true, appellant would be entitled to relief. Wolfe v. State, 323 So.2d 680 (Fla. DCA 2nd 1975); Glenn v. State, 338 So.2d 263 (Fla. DCA 2nd 1976).

We are therefore of the opinion that the appellant is entitled to a full evidentiary hearing in which he will be given an opportunity to present evidence that at the time of his prior felony convictions he was indigent and unable to employ an attorney and, in fact, uncounseled, and that he did not knowingly waive his right to counsel. If the prior convictions are determined to be invalid, then the appellant should be resen-tenced without any consideration of his pre-Gideon convictions. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

This case is therefore remanded for proceedings in accordance with this opinion.

McNULTY, Acting C. J., and OTT, J., concur.


text:
    CITY OF NAPLES, Appellant, v. Herbert L. POLK d/b/a Lamar Citrus Outdoor, Appellee.
    No. 76-1958.
    District Court of Appeal of Florida, Second District.
    June 8, 1977.
    John Ruff, City Atty., and Charles K. Allan, Naples, for appellant.
    Michael D. Martin, Martin & Martin, Lakeland, for appellee.
   PER CURIAM.

In 1972 the appellant/defendant, City of Naples, enacted Ordinance No. 1822 relating to signs. While permitting on-site advertising signs, all off-site (i. e., non point-of-sale signs) were prohibited. Appel-lee/plaintiff Lamar leased a site in an industrial zone in the City of Naples where commercial establishments are permitted. Lamar applied to the City for a permit to erect one of its 300-square-feet advertising signs, commonly referred to as billboards, on its leased site. On basis of the Ordinance, the City denied the permit; whereupon Lamar brought suit seeking to declare the Ordinance unconstitutional and to restrain its enforcement.

The trial court held that to the extent the City Ordinance prohibits all non point-of-sale advertising, it is unconstitutional and enjoined its enforcement. On basis of the rationale in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960), we must affirm the trial court. See also City of Sarasota v. Sunad, Inc., 181 So.2d 11 (Fla.2d DCA 1965).

Affirmed.

HOBSON, Acting C. J., and SCHEB and OTT, JJ., concur.


text:
    John R. WILSON, Genevieve Wilson, Esther Wilson and Carl Wilson, Appellants, v. Jackson B. TANNER and Pearl E. Tanner, Appellees.
    No. BB-258.
    District Court of Appeal of Florida, First District.
    June 10, 1977.

      Charles Vocelle, Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellants.
    William Randall Slaughter, Slaughter & Slaughter, Live Oak, for appellees.
   ERVIN, Judge.

The Wilsons brought an ejectment action against the Tanners as to a tract of land containing approximately 25 acres lying south of the Wilsons’ fence line. The Tanners counterclaimed seeking title quieted to the property by reason of adverse possession. A jury returned a verdict for the Wilsons and, upon the Tanners’ motion for new trial, the court set aside the jury verdict, directed a verdict in favor of the Tanners and entered final judgment in their favor. The Wilsons appeal. We reverse.

The Wilsons have legal title to the disputed tract of land and they or their predecessors have paid taxes on it for many years. However since 1905 a fence has been in existence which marks the northern boundary of the disputed property. The tract was open to the Tanners but closed to the Wilsons, although not so sufficiently as to restrict them from hunting and fishing on the property. In 1970, appellant Carl Wilson advised Jackson Tanner that since the fence was in poor condition it would be necessary to replace it and have the property line surveyed so that the new fence would be placed on the true line. The survey revealed that the fence line was not the true property line. Hence this action.

Only a portion of the property involved here is susceptible to cultivation. The tract includes a deep natural gorge, trees, waste areas, seepage and springs as well as a large pond. The Tanners sufficiently showed that they adversely possessed portions of the disputed tract by farming it for the required statutory period subsequent to the time it was conveyed to them, i. e., from 1942 through 1975. Since, however, it is undisputed that the Tanners did not claim the property either under color of title nor did they return it for taxes at any time subsequent to 1942, when they acquired title to their property adjoining the disputed tract, they may not claim title by adverse possession unless they can prove that the possession of their predecessors for seven years prior to July 1,1939 was open, notorious, hostile and continuous to the rights of the Wilsons and their predecessors. Moreover it was necessary that proof of such possession be clear and convincing. Hyer v. Griffin, 55 Fla. 560, 46 So. 635 (1908).

Turning to the two elements relating to proof of occupancy, i. e., substantial enclosure or cultivation or other improvements, the evidence shows that the property was fenced for the statutory period of time prior to the amendment of the statute on July 1, 1939. Whether the fence was indeed a substantial enclosure, however, is a question of fact to be determined by the jury. Wicker v. Williams, 137 Fla. 752, 189 So. 30 (1930). In Adams v. Fryer, 59 Fla. 112, 52 So. 611 (1910), the court stated that where the enclosure was such that the cattle of the neighborhood roamed through and over it at will, it was not substantial as required by the statute. In Baugher v. Boley, 63 Fla. 75, 58 So. 980 (1912), a jury’s verdict finding for one who relied upon title by adverse possession was upheld when the evidence at trial showed that care was taken to keep in good order the fence enclosing the property involved. In the case before us there was no evidence concerning the condition of the fence during the statutory period of time claimed. We know from this record only that the fence was in such disrepair in 1970 that the Wilsons took it upon themselves to have a new survey prepared so that another fence could be established on the correct property line. The jury was instructed by the court on the requirement of a substantial enclosure. We may only conclude that the jury, having been appropriately instructed, decided that the Tanners had not met their burden of establishing that the fence was such a substantial enclosure. We see no reason to disturb its verdict in this regard.

Concerning the second element that the land be cultivated or improved, we also believe it was error to disregard the jury verdict. In the absence of adequate proof that the property be substantially enclosed, it was necessary for the Tanners to show that their predecessors continuously and without interruption cultivated or improved the acreage for seven years. Such continuity of possession must be shown clearly, definitely and with accuracy. E. g., Atlantic Coast Line R. Co. v. Seward, 112 Fla. 326, 150 So. 257 (1933); Dallam v. Sanchez, 56 Fla. 779, 47 So. 871 (1908). Thus the moment possession is broken it ceases to be effectual for then the law restores constructive possession to the owner. 1 Fla.Jur., Adverse Possession, section 25.

In the case before us, after the verdict of the jury had been returned, motion for new trial was filed wherein it was alleged, inter alia, that the court erred when it failed to grant defendants’ motion for directed verdict. The relief requested however was only for new trial. The court’s order on the motion not only set aside the verdict, it also directed a verdict for defendant, stating it “does hereby enter up a judgment in favor of the defendants.”

Aside from the problem inherent in the court’s order directing verdict against the Wilsons when they were not on notice that such relief was sought, even had notice been afforded we are of the opinion that the order was incorrectly entered. What the court did, although not called upon to do, was to enter judgment in accordance with motion for directed verdict. This, if properly moved for, would have been pursuant to Fla.R.Civ.P. 1.480(b).

Since, under the present Florida practice, there is no procedure relating to judgments notwithstanding verdicts, the order entered by the court will be treated by us as a judgment in accordance with motion for directed verdict. See Hall v. Ricardo, 331 So.2d 375 (Fla. 3rd DCA 1976). Nevertheless it is helpful to consult those cases in which judgments notwithstanding verdicts were formerly entered to determine an appellate court’s responsibility on review of such orders. The rules governing motions for judgments n. o. v. are substantially the same as those relating to the disposition of motions for directed verdict. The trial judge is authorized to grant a motion for judgment n. o. v. only if there is no evidence or reasonable inferences to support the opposing position. E. g., Brown v. Walker, 306 So.2d 209 (Fla. 1st DCA 1975); Stirling v. Sapp, 229 So.2d 850 (Fla.1969). Moreover a judgment n. o. v. should be awarded with extreme caution “since the granting thereof holds that one side of the case is essentially devoid of probative evidence.” Brown v. Walker, supra, at 210.

When we examine the record we fail to find that there is either no evidence or reasonable inference to support the opposing position. We note that Luke Henderson testified in 1975 that a portion of land had been cultivated by the Tanners’ predecessors the preceding 65 years. Johnny Wilson stated however that in 1935 very little of the tract was under cultivation. Jackson Tanner testified that in 1928 and 1929 he helped cultivate the property when he lived on it with his aunt. Clayton Pope knew that the fence had been there for 35 to 40 years prior to 1975 and stated that his nephew had farmed the land south of the fence for the same period of time. B. T. Niblack testified that for the past 55 years he was familiar with the fence line and while he stated that he did not know whether the Wilsons had exercised any control or use of the land south of the fence, nevertheless a large number of unidentified people had farmed up to the fence. Carl Wilson testified that he had seen only the Tanners farm the property since their acquisition of their adjoining property in 1942.

While it may not have been necessary that the identity of the Tanners’ predecessors to the property in dispute be established since the defendants’ claim was not based upon color of title, still their identity and the duration of their possession would have been corroborative of the Tanners’ claim to an unbroken continuous possession adverse to the Wilsons’ title for the full statutory period. We know from this record that the Tanners received their deed to their property from the Floyds in 1942. How long the Floyds were on the property is silent. We know that a family named Sasnet tended it for some unknown period of time as well as Jackson Tanner’s aunt. We know also that tenants farmed the property, but still the record is silent as to the length of their stay. What we do not know, by clear and positive proof, is what person or persons possessed the property involved for the full statutory period, or whether indeed there was unbroken, continuous possession for seven years.

In Meyer v. Law, 287 So.2d 37 (Fla.1973), our Florida Supreme Court held that a record title holder to disputed property would prevail over one who claimed adversely, even though the adverse party had maintained a fence enclosing the disputed property. While the case turned on issues different from those before us, we think the following language from the opinion is appropriate to our situation:

“A man who owns some virgin land, who refrains from despoiling that land, even to the extent of erecting a fence to mark its boundaries, and who makes no greater use of that land than an occasional rejuvenating walk in the woods, can hardly be faulted in today’s increasingly ‘modern’ world. Public policy and stability of our society, therefore, require strict compliance with the appropriate statutes by those seeking ownership through adverse possession.” 287 So.2d at 41.

It was within the province of the jury to determine that the defendants had not overcome the statutory presumption that title to the tract was in the record owner.

The judgment of the trial court quieting title to the disputed tract of land in favor of the defendants is reversed with directions that the court enter judgment in favor of the plaintiffs in accordance with the verdict returned by the jury.

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

      . On July 1, 1939, Ch. 19254, § 2, Laws of Florida (1939), became effective requiring that in addition to occupancy of the land for seven continuous years, an adverse possessor must return the land for taxes.

      . For example, section 2936(1), vol. 2, Revised General Statutes of Florida (1920), requires that when there is an actual occupancy of premises not under color of title, the occupancy shall be in existence for seven years. Subsection two of the above section requires that the land shall be deemed to be possessed only: “1) where it has been protected by substantial enclosure; or, 2) where it has been usually cultivated or improved.”

      . The facts here are easily distinguishable from those in Porter v. Lorene Invest. Co., 297 So.2d 622 (Fla. 1st DCA 1974), in which we affirmed a judgment quieting title to one claiming by adverse possession where the evidence clearly showed that in 1923, Lorene Investment Co.’s predecessor in title, Angus Alderman, erected a fence which completely enveloped the area involved and was sufficient to turn hogs and cows. He also cultivated a portion of the land. He turned possession of it over to B. J. Aider-man in 1929, who in turn deeded it to Lorene in the late 1960’s. Thus there was clear, positive proof of unbroken and continuous adverse possession for the required seven years.

      . § 95.13, Fla.Stat. (1975) provides that the person establishing legal title to the property shall be presumed to have possessed it, and the occupancy of the property shall be deemed to be in subordination to the legal title unless the property was possessed adversely for seven years.


text:
    Gregory Alan BENZ, Appellant, v. STATE of Florida, Appellee.
    No. CC-253.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    John R. Nettles, Port Charlotte, for appellant.
    Robert L. Shevin, Atty. Gen., Jeanne Dawes Schwartz, Charles F. McClamma, and Michael H. Davidson, Asst. Attys. Gen., for appellee.
   PER CURIAM.

By prior order of this Court this case was scheduled for oral argument on May 26, 1977. Prior to oral argument, the Court discovered its jurisdiction to be questionable and thereupon issued an order directing the parties to be prepared to argue the jurisdictional issue at the same time argument on the merits had been scheduled. Having now considered the record, briefs and oral argument of counsel, the Court determines that if the Court had jurisdiction affirmance would nevertheless be required because appellant has failed to demonstrate prejudicial error. However, we may not reach that point because we determine that as a result of untimely filing of the notice of appeal jurisdiction has never vested in this Court. Accordingly, this case is dismissed for want of jurisdiction.

BOYER, C. J., MILLS & ERVIN, JJ., concur.


author: SMITH, Judge. BOYER, Chief Judge,

text:
    John Francis TRAINER, a/k/a Robert Edward White, Appellant, v. STATE of Florida, Appellee.
    No. CC-325.
    District Court of Appeal of Florida, First District.
    June 10, 1977.

      Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Trainer was convicted of breaking and entering with intent to commit grand larceny and attempted breaking and entering with intent to commit a felony. His appeal urges that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were compromised by police testimony concerning his evasive answers to questioning before he was advised of his right to remain silent, and that the trial court also erred in admitting testimony of his alleged accomplice, during the State’s direct examination, of prior consistent accusatory statements made by the accomplice to the prosecutor.

After the accomplice was apprehended and identified at the burglary scene after dark in a high-crime area, one of the police approached Trainer’s nearby parked car. Holding a shotgun, but not pointing it, the officer called “Freeze!” to the dozing Trainer and asked his identity. After receiving an answer, the officer inquired what Trainer was doing there, to which Trainer replied he had car trouble and was napping. The officer then inquired whether anyone was with Trainer (“and he said, yes, he had somebody with him”) and where (“and then he tells me he don’t know where the guy is”) and who (“and he wasn’t sure about it”). The officer then examined a wallet found on the front floorboard which contained identification of the accomplice.

We find that Trainer was questioned while significantly restrained by an officer whose suspicion was trained on him. The interrogation was custodial and Trainer’s answers, beyond those of identification, were inadmissible without prior Miranda warnings. State v. Ecker, 311 So.2d 104 (Fla.1975). There is no plausible argument here that a limited interrogation was privileged to secure the officer’s safety. Contrast United States v. Castellana, 488 F.2d 65, 500 F.2d 325 (5th Cir. 1974).

In the necessary retrial, the State should not be permitted to elicit on direct examination of its accusatory witness, the accomplice, that the witness had previously told the prosecutor “the same thing that you have stated to the Jury here about what happened.” A prior consistent statement may not be introduced to shore up a witness’ direct testimony unless and until an effort is made to impeach his testimony as a recent fabrication. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974).

REVERSED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. In my view appellant’s Miranda rights were not violated and State v. Ecker, cited in the majority opinion, does not require reversal. As to the second point relating to the eliciting of a prior consistent statement, in my view that error was harmless.


author: PER CURIAM. BOYER, Chief Judge,

text:
    Arthur Jordan BUTT, III, Petitioner, v. Calvin GREY and Royce Lee Mosley, Respondents.
    No. CC-340.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    Rehearing Denied June 30, 1977.
    O. E. Adams, Sr., Pensacola, for petitioner.
    Calvin Grey and Royce Lee Mosley, in pro. per., for respondents.
   PER CURIAM.

CERTIORARI DENIED.

MILLS and ERVIN, JJ., concur.

BOYER, Chief Judge,

dissents.

I respectfully dissent. In my view the learned county judge erred in two respects, as urged by the petitioner, and the learned circuit judge departed from the essential requirements of law when affirming the judgment of the county judge. Accordingly, I would grant the petition for common law certiorari and reverse the actions in the courts below.