author: GRIMES, Judge. GRIMES, Judge.

text:
    CITY OF TEMPLE TERRACE, etc., et al., Appellants, v. HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., etc., et al., Appellees.
    No. 75-55.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearings Denied Nov. 21, 1975.

      Theodore C. Taub and Robert C. Gibbons of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellants.
    Thomas A. Clark and Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.
   GRIMES, Judge.

This is an appeal from a judgment declaring that the defendants’ operation of a home for the mentally retarded was not amenable to a city zoning ordinance because their activities partook of the sovereign immunity of the State of Florida.

On May 29, 1974, the Hillsborough Association for Retarded Citizens, Inc. (Association) entered into a contract with the Division of Retardation, Department of Health and Rehabilitative Services of the State of Florida, to provide respite care facilities and services to mentally retarded citizens. On June 13, 1974, the defendant Cook, who was a member of the Board of Directors of the Association, purchased a five bedroom house in a residential area of the City of Temple Terrace which was zoned "single family residential.” The following month, the Association took possession of the house with Mr. Cook’s permission and began operating its respite care center on the premises.

The purpose of the center is to provide short-term residence and care for mentally retarded citizens, primarily children, whose parents or guardians are either ill, on a business trip or encountering marital difficulties. The average stay at the center is two weeks, and an average of eleven unrelated retarded persons are in residence at a given time. Cottage parents live at the respite center, and the center is staffed by a program director, assistants, cooks and a janitor. All of the employees at the center are employed by the Association. Some of the neighbors asserted that loud noises, screams and moans are emitted both day and night by the retarded persons staying at the center. They also stated that on occasion mentally retarded residents from the facility have wandered through the neighborhood and that the operation of the facility has generated a heavy volume of traffic on what was formerly a quiet residential street.

Any retarded individual who is a client of the Division of Retardation is eligible to receive services at the respite center. The Division pays the Association a specified sum per day for each retarded person housed at the center. Neither Mr. Cook nor the Association applied to the city for a zoning.variance. The testimony reflected that there were other areas in the city where the center could have been established without violating zoning ordinances.

The City of Temple Terrace, joined by several persons who live near the center, filed suit to enjoin the operation on grounds that it was a nuisance and was in violation of the zoning ordinances of the city. After the taking of testimony, the court entered a judgment in which it found that even though the use of the premises was contrary to the city’s single family residential zoning ordinance, the ordinance could not be enforced against the operation of the facility. The court reasoned that when it was performing respite care services for the retarded, the Association stood in the shoes of the State of Florida and, as such, was not subject to municipal zoning ordinances. The court further found that the plaintiffs failed to support their claim that the defendants’ use of the premises constituted a nuisance.

The appellants present essentially three questions: (1) whether a state agency (the Division of Retardation of the Department of Health and Rehabilitative Services) is subject to municipal zoning; (2) whether the Association is entitled to whatever immunity the Division may have; and (3) whether the operation of the respite care center constituted a nuisance. Since the ease by which these questions may be answered is opposite to the order in which the questions are presented, we shall dispose of them in inverse order.

The question of whether the operation of the respite care center constituted a nuisance is peculiarly one best answered by the trial court. There was evidence on both sides of the question. Suffice it to say, there is ample support in the record for a finding that no nuisance exists. Likewise, we believe the evidence fairly supports the conclusion that in the operation of the respite care center the Association was properly performing services which the state is required to do under Fla.Stat. § 402.13 (1973). Most, if not all, of the admittees to the Association’s home are registered with the Division of Retardation. The Division maintains supervision and inspection of the services rendered to insure the proper operation of the center. The services provided by the Association supplement those provided by the Division in its regional centers throughout the state. Once it is determined that the operation of the center properly performs a state function, the fact that the premises are owned by Mr. Cook becomes irrelevant. Traditionally, where a state agency is immune from municipal zoning, those parties contracting to do the services which would otherwise be performed by the state have also been held to be immune. Abbott House v. Village of Tarrytown, (1970), 34 A.D.2d 821, 312 N.Y.S.2d 841; Unitarian Universalist Church of Central Nassau v. Shorten, (1970), 63 Misc.2d 978, 314 N.Y. S.2d 66. Therefore, if the Division of Retardation is immune from municipal zoning, the Association is also immune in the operation of its respite care center.

The broad issue remaining in the case concerns the extent, if any, to which the use of land by a governmental unit is subject to applicable zoning regulations. In deciding this type of case, the courts have used varying tests. One approach utilized by a number of courts is to rule in favor of the superior sovereign. Thus, where immunity from a local zoning ordinance is claimed by an agency occupying a superior position in the governmental hierarchy, it is presumed that immunity was intended in the absence of express statutory language to the contrary. E.g., Aviation Services, Inc. v. Board of Adjustment, 1956, 20 N.J. 275, 119 A.2d 761. A second test frequently employed is to determine whether the institutional use proposed for the land is “governmental” or “proprietary” in nature. If the political unit is found to be performing a governmental function, it is immune from the conflicting zoning ordinance. E g., City of Scottsdale v. Municipal Court, 1962, 90 Ariz. 393, 368 P.2d 637. On the other hand, when the use is considered proprietary, the zoning ordinance prevails. E. g., Taber v. City of Benton Harbor, 1937, 280 Mich. 522, 274 N.W. 324. Where the power of eminent domain has been granted to the governmental unit seeking immunity from local zoning, some courts have concluded that this conclusively demonstrates the unit’s superiority where its proposed use conflicts with zoning regulations. E. g., Mayor of Savannah v. Collins, 1954, 211 Ga. 191, 84 S.E.2d 454. Other cases are controlled by explicit statutory provisions dealing with the question of whether the operation of a particular governmental unit is subject to local zoning. E.g., Mogilner v. Metropolitan Plan Commission, 1957, 236 Ind. 298, 140 N.E.2d 220.

When the governmental unit which seeks to circumvent a zoning ordinance is an arm of the state, the application of any of the foregoing tests has generally resulted in a judgment permitting the proposed use. This has accounted for statements of horn-book law to the effect that a state agency authorized to carry out a function of the state is not bound by local zoning regulations. 2 Anderson, American Law of Zoning § 9.06 (1968); 8 McQuillin, Municipal Corporations § 25.15 (1965).

Recently, however, several courts have advanced a new test for the resolution of the question of whether one governmental unit is subject to the zoning regulations of another. In Rutgers, State University v. Piluso, 1972, 60 N.J. 142, 286 A.2d 697, the court rejected the criteria often used to resolve the conflicts between governmental units and municipal ordinances as being too simplistic. Even though the dispute involved an attempt on the part of a township to impose its zoning upon an instrumentality of the state, the court adopted what it termed a “balancing of interests” test to decide the case. Thus, the court stated:

“The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests. ... In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great. The point is that there is no precise formula or set of criteria which will determine every case mechanically and automatically.”

See also City of Newark v. University of Delaware, Del.Ch.1973, 304 A.2d 347; Long Branch Division of United Civic and Taxpayers Organization v. Cowan, 1972, 119 N.J.Super. 306, 291 A.2d 381; Town of Oronoco v. City of Rochester, 1972, 293 Minn. 468, 197 N.W.2d 426. A comprehensive note in 84 Harv.L.Rev. 869 (1971) persuasively argues for the use of the balancing of interests principle.

Before attempting to decide which test should be applied to reach a decision in the instant case, it is necessary to consider the Florida law on the subject. The court below and all parties recognize that no appellate court in Florida has squarely passed on this question. The earliest Florida decision involving a conflict between governmental units over the application of a zoning ordinance is State ex rel. Helseth v. DuBose, 1930, 99 Fla. 812, 128 So. 4. There, the City of Vero Beach refused to issue a building permit to Indian River County for the purpose of constructing a jail in violation of the provisions of the city’s zoning ordinance. The Supreme Court ruled for the county, finding the application of the ordinance in this particular instance to be unreasonable and arbitrary in light of the location of the pfoperty and the proposed use. The court drew no distinction between public and private property owners in the application of zoning ordinances to their land and stated that the vestiture of title in the county was immaterial. Since counties are said to partake of the sovereign immunity of the state, this case could be cited for the proposition that state agencies are subject to municipal zoning in the same manner as private property owners.

On the other hand, the Supreme Court seemed to suggest the application of a governmental-proprietary test in Nichols Engineering & Research Corp. v. State ex rel. Knight, Fla.1952, 59 So.2d 874. This case held that the construction of an incinerator by the City of Miami, which had been authorized and designated a governmental function by statute, was not objectionable on the ground that the property on which it was to be situated had not been “adequately zoned” for the purpose. The court in A1A Mobile Home Park, Inc. v. Brevard County, Fla.App.4th, 1971, 246 So.2d 126, also appeared to adopt a governmental-proprietary test in passing upon whether the land use activity of a county was subject to its own zoning restrictions.

In City of Treasure Island v. Decker, Fla.App.2d, 1965, 174 So.2d 756, this court held that the City of St. Petersburg could impose its zoning regulations upon the City of Treasure Island with respect to a toll collection facility located on a portion of causeway within the city limits of St. Pe-tersburg. The opinion emphasized that the legislative grant of authority to Treasure Island to construct and operate the toll facility did not specifically exempt it from the legislatively delegated zoning authority of St. Petersburg. This case, of course, dealt with two governmental units of equal stature in the governmental hierarchy.

A more recent case on intergovernmental conflict over zoning is Orange County v. City of Apopka, Fla.App.4th, 1974, 299 So. 2d 652. Here, three municipalities sought to construct an airport in an unincorporated area of Orange County. Under the zoning regulations, airports were only allowed in the subject area by special exception. The zoning authority declined to grant an exception. The municipalities brought suit for a declaration that they were not subject to the zoning regulations of Orange County. After noting that the established law of Florida seemed to be that a governmental unit is not bound by its own zoning regulations when acting in a governmental capacity, the court declined to extend the application of the governmental-proprietary function test for resolving zoning conflicts to those cases in which one governmental unit proposed to use property in the jurisdiction of another governmental unit contrary to existing zoning regulations. The court said:

“Rather than become limited by the governmental-proprietary distinction which could lead to situations which cry for relief, we feel the better rule, the rule allowing for the greatest flexibility and fairness, is one which requires that one governmental unit be bound by the zoning regulations of another governmental unit in the use of its extraterritorial property, purchased or condemned, in the absence of specific legislative authority to the contrary. In the absence of express legislative immunity from zoning, the intruding governmental unit should apply to the host governmental unit’s zoning authority for a special exception or for a change in zoning, whichever is appropriate. The zoning authority is then in a position to consider and weigh the applicant’s need for the use in question and its effect upon the host unit’s zoning plan, neighboring property, environmental impact, and the myriad other relevant factors. If the applicant is dissatisfied with the decision of the zoning authority, it is entitled, pursuant to Section 163.250, F.S.1971, F. S.A., to a judicial determination de novo wherein the circuit court can balance the competing public and private interests essential to an equitable resolution of the conflict. The court can consider, inter alia, the type of function involved, the applicant’s legislative grant of authority, the public need therefor, the existing land use scheme, alternative locations for the facility in less restrictive zoning areas, alternative methods for providing the needed improvement, and the detriment to the adjoining landowners. If after weighing all pertinent factors the court finds the host government is acting unreasonably, the zoning ordinance should be held inapplicable to the proposed improvement, just as was done in State ex rel. Helseth v. DuBose, 99 Fla. 812, 128 So. 4 (1930).”

The District Court of Appeal construed State ex rel. Helseth v. DuBose, supra, as having utilized a “balancing-of-public-interest test” and decided to adopt that criterion. That same court more recently reaffirmed its position in Palm Beach County v. Town of Palm Beach, Fla.App.4th, 1975, 310 So.2d 384, by directing the application of a “balancing-of-competing interest test” to determine whether Palm Beach County would be entitled to use certain property in the Town of Palm Beach as an oceanfront beach and recreational facility in violation of the zoning regulations of Palm Beach.

With no sure precedent to go by, we will now examine the merits of the several tests which have been used to decide this type of case.

Superior Sovereign Test

The argument in favor of this view is that since a municipality is a creature of the state legislature, it should not be permitted to use its zoning to thwart a state function. The premise upon which this contention is made seems to have been weakened by the adoption of Florida’s new Constitution. Article VIII, Section 2(b) of the Florida Constitution provides:

“(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. . . . ”

Thus, even though municipalities may be created by statute, their powers are derived from the Constitution.

However, in City of Miami Beach v. Fleetwood Hotel, Inc., Fla.1972, 261 So.2d 801, the Supreme Court cast doubt on the broad scope of municipal home rule which many had thought was provided in the 1968 Constitution. Specifically, the court held that the City of Miami Beach could not adopt a rent control ordinance absent a legislative enactment authorizing the exercise of such power.

Thereafter, in 1973, the legislature passed the Municipal Home Rule Powers Act. Included in this act was Fla.Stat. § 166.-021(4) (1973) which stated:

“The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. . . . ”

In the passage of Fla.Stat. § 166.042 (1973), the legislature repealed the legislative grant of zoning power (what had been Chapter 176) in recognition that the zoning power of municipalities now comes directly from the Constitution. The Municipal Home Rule Powers Act placed two pertinent exceptions upon the constitutionally-based legislative powers of municipalities. First, Fla.Stat. § 166.021(3) (b) (1973) provides that municipalities may not enact legislation concerning any subject expressly prohibited by the Constitution. Second, Fla.Stat. § 166.021(3) (c) (1973) states that municipalities may not enact legislation concerning any subject expressly preempted to state or county government by the Constitution or by general law. The Constitution does not expressly prohibit zoning legislation by municipalities. Neither does the Constitution nor general law expressly preempt zoning power to state or county government.

The Supreme Court considered the validity of a new rent control ordinance promulgated by the City of Miami Beach following the passage of the Home Rule Powers Act in City of Miami Beach v. Forte Towers, Inc., Fla.1974, 305 So.2d 764. The court held that the enactment of a rent control ordinance was not “expressly prohibited by law” and came within the grant of power contained in Fla.Stat. § 166.021(1).

All of this leads us to believe that the instant case should not be decided solely upon the theory that since the state stands higher than a municipality upon the ladder of governmental hierarchy, the decisions of its administrators should necessarily preempt the zoning authority of those charged with governing a municipality. With this in mind, we shall consider the validity of the other recognized tests for deciding this type of case.

Governmental-Proprietary Test

The wisdom of the governmental-proprietary test is subject to question. E. g., Township of Washington v. Village of Ridgewood, 1958, 26 N.J. 578, 141 A.2d 308; 2 Anderson, American Law of Zoning § 9.05 (1968). Its applicability in Florida now seems limited to situations where a governmental unit seeks to violate its own zoning ordinance. See Orange County v. City of Apopka, supra. Presumably, if a governmental agency is authorized to perform a function, it should not make any difference whether this function is governmental or proprietary in nature for the purpose of complying with local zoning. Some of the fallacies of applying such a test may be seen by comparing the case of County of Westchester v. Village of Mamaroneck, 1964, 22 A.D.2d 143, 255 N.Y.S. 2d 290, with that of Jefferson County v. City of Birmingham, 1951, 256 Ala. 436, 55 So.2d 196. The decision first cited above held that the operation of a sewage disposal plant was governmental in nature, whereas the second held it was proprietary. In the case sub judice, the services provided by the Association for the Division of Retardation appear to be governmental in nature, but we are not inclined to decide the case based upon this characterization.

Power of Eminent Domain Test

Cases which have applied this test generally take the position that where a political unit is authorized to condemn, it is automatically immune from local zoning regulations when it acts in furtherance of its designated public function. Yet, the power to condemn simply provides a method whereby property can be acquired. Such power has nothing to do with the use of the property. The leading case favoring the adoption of this test is State ex rel. Askew v. Kopp, Mo. 1960, 330 S.W.2d 882. However, the Supreme Court of Missouri two years after its decision in Askew modified the doctrine of absolute immunity which had been established in that case. Thus, in St. Louis County v. City of Manchester, Mo.1962, 360 S.W.2d 638, the court held that a city’s power of eminent domain did not necessarily conflict with a county’s authority to regulate land uses through its zoning ordinances. The court held that while the city had the right to acquire the property by eminent domain, it had not been specifically authorized by statute to select the exact location of a sewage plant in disregard of the county’s zoning ordinance. In the instant case, the Association is not asserting that it has the right to disregard the city’s zoning on the basis of any kind of right of eminent domain which might be available to the Division of Retardation. Even if it were, we would not consider this power as controlling our decision in the case.

Statutory Guidance Test

If the legislature had specifically provided that the Division of Retardation could place respite centers in any location it wished without regard to local zoning, such a legislative declaration would control. Likewise, if there was a law which required the Division of Retardation to respect municipal zoning in its selection of sites for respite centers, this too, would be decisive. As it turns out, there is no legislative guidance either way. Obviously, the Association argues that since the legislature has not restricted the Division’s authority, it must be presumed that the legislature intended for the Division to have the right to disregard municipal zoning. On the other hand, the city contends that since the legislature didn’t specifically authorize the Division to ignore municipal zoning, it must be presumed that the legislature intended the Division to respect municipal zoning ordinances. It is more likely that the legislature didn’t express itself on the subject because it wasn’t thinking about the problem. l\We hesitate to suggest that there is a presumption running in either direction. While we acknowledge that a specific legislative statement on the subject would control, in the absence of such a statement we must look to other criteria in order to reach a decision.

Balancing of Interests Test

Thus, we arrive at the balancing of interests test, which is sometimes referred to as the balancing of competing interests test or the balancing of public interests test. For the reasons previously given in discussing this test, we believe that it presents the fairest method by which this type of case can be decided. It permits a case by case determination which takes into consideration all of the factors which may properly influence the result.

The old tests were adopted at a time when state government was much smaller. The myriad of agencies now conducting the functions of the state have necessarily resulted in a diminution of centralized control. The decision of a person administering an outlying function of a state agency with respect to the site where this function should be performed is not necessarily any better than the decision of the local authorities on the subject of land use. The adoption of the balancing of interests test will compel governmental agencies to make more responsible land-use decisions by forcing them to consider the feasibility of other sites for the facility as well as alternative methods of making the use of the proposed site less detrimental to the local zoning scheme.

Our burgeoning population and the rapidly diminishing available land make it all the more important that the use of land be intelligently controlled. This can only be done by a cooperative effort between interested parties who approach their differences with an open mind and with respect for the objectives of the other. When the state legislature is silent on the subject, the governmental unit seeking to use land contrary to applicable zoning regulations should have the burden of proving that the public interests favoring the proposed use outweigh those mitigating against a use not sanctioned by the zoning regulations of the host government.

There may be cases in which a state agency may be so convinced of the overriding public need for a particular land use that it may choose to go forward without resort to local authorities. Yet, under normal circumstances one would expect the agency to first approach the appropriate governing body with a view toward seeking a change in the applicable zoning or otherwise obtaining the proper approvals necessary to permit the proposed use.

As was the District Court of Appeal in Orange County v. City of Apopka, supra, we are reluctant to reverse the decision of the court below. Like the judgment entered in that case, the judgment below was well considered and there is ample authority for the conclusions which were reached. Nevertheless, we adopt the rationale of our sister court in determining to use the balancing of interests test to decide the consequences resulting from the exercise of a governmental function by one governmental unit within the geographic limits of a different governmental unit, and we do so without regard to the fact that one of those governmental units is the state.

The court below rendered its decision on the basis of the superior sovereign test. Therefore, the judgment is reversed, and the case is remanded with directions to conduct further proceedings directed toward the decision of the case through the application of the balancing of interests test.

Reversed and remanded.

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

ON PETITION FOR REHEARING

GRIMES, Judge.

In addition to the usual petitions for rehearing, there have now been filed in this cause motions by the Department of Health and Rehabilitative Services and the Attorney General for permission to file amicus curiae briefs. The Department of Health and Rehabilitative Services points out that it was not a party in the case and says it was first informed of our opinion on the date the motion was filed. The Attorney General says that our opinion conflicts with the previous uniform practice of all state agencies.

The very filing of these motions serves to illustrate the need to employ a balancing of interests test to decide these cases. The! sovereign immunity approach presupposes that the sovereign, in its wisdom, has already carefully weighed the needs of the public agains the hardships likely to be inflicted on nearby property owners in deciding to locate a governmental facility in an area where the proposed activity is prohibited by local zoning laws. To the contrary, it appears that many times, as in this case, the decision of whether to conduct a governmental activity at a location precluded by zoning laws is not being consciously made by persons charged with the responsibility of considering the effect’ of this activity upon the persons who live nearby.

The motions for permission to file amicus curiae briefs come too late and are hereby denied. The petitions for rehearing are also denied.

Recognizing that our opinion would and believing that it should require state agencies affirmatively to take into consideration the effect that their activities may have on local zoning laws and the people sought to be protected by these laws, we hereby certify this case to the Supreme Court as involving a question of great public interest in order that the rules which should be followed may be definitively established on a statewide basis.

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

      . Kaulakis v. Boyd, Fla.1962, 138 So.2d 505.

      . On rehearing, the court receded from its reference to § 163.250 but otherwise adhered to its opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barry HINNANT d/b/a Barry's Car Lot, Appellant (Defendant), v. SHANNON MOTORS, INC., a corporation, Appellee (Plaintiff).
    No. Y-534.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    John R. Alexander, Jacksonville, for appellant.
    Herman S. Paul of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for ap-pellee.
   PER CURIAM.

Upon considering the briefs, record and oral argument, the interlocutory appeal is dismissed.

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


author: SCHEB, Judge.

text:
    Raymond SMITH, Appellant, v. Elwanda SMITH, Appellee.
    No. 75-474.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.

      William P. O’Malley, Clearwater, for appellant.
    George L. Brown Jr., Clearwater, for appellee.
   SCHEB, Judge.

The husband appeals from the trial court’s order dismissing his petition for dissolution of marriage. We reverse.

The parties were married in 1965, and separated in 1973. There were no children born of the marriage. The husband was explicit in testifying that he did not love his wife and had no intentions of continuing in the marriage. The wife testified as to conduct on the husband’s part which included a failing marriage, but she denied that the marriage was broken. In fact, her testimony about incidents in their marital life corroborated the husband’s view in many ways. We find the testimony established the marriage was irretrievably broken. This being the case, and there being no real hope of reconciliation, it appears to be in the best interest of the parties that the marriage relationship be terminated. Nooe v. Nooe, Fla.App.2d 1973, 277 So.2d 835.

From the record, we glean the trial court may have denied the husband’s petition because the parties engaged in sexual intercourse during the pendency of the proceedings. However, we held in Nooe, supra, that absent a clear showing of an intent to reconcile, this is not justification to deny the dissolution under Florida’s “no fault” dissolution of marriage laws, Fla. Stat. Ch. 61. Reconciliation of marital partners requires more than a yielding to biological urges between the sexes. In fairness to the trial court, we note that Nooe, which appears a controlling precedent, was nowhere cited in the proceedings below.

Reversed and remanded for further proceedings consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.


author: MILLS, Judge.

text:
    STATE of Florida, Appellant (State), v. Louis KELLEY and Jessie James Matthews, Appellees (Defendants).
    No. W-390.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.

      Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, Asst. Atty. Gen., and Warren Goodwin, Tallahassee, for appellant.
    John N. Hogenmuller, and Ed Duffee, Jr., Tallahassee, for appellees.
   MILLS, Judge.

This appeal by the State questions the correctness of orders rendered by the trial court dismissing the information filed against the defendants and discharging them on the ground that they were not afforded a speedy trial as required by Rule 3.191(a)(1), Florida Rules of Criminal Procedure.

The issue before us is whether the right to a speedy trial was waived or extended.

On 30 January 1974, the defendants were taken into custody and charged with robbery. Their trial was set for 23 April. On 19 April, the public defender, who was representing Matthews, was required to withdraw because of a conflict. The trial court immediately appointed private counsel for this defendant, and on the morning of the scheduled trial, the court continued the Matthews trial, stating that it knew that Matthews’ newly appointed attorney could not be prepared on such short notice. The newly appointed attorney agreed. Thereafter, in the presence of Kelley’s attorney, in open court, the State’s attorney announced that they had stipulated to a continuance because of the appointment of new counsel for Matthews. Kelley’s attorney made no response. The trial court then continued the Kelley trial.

On 26 April, at a hearing attended by all of the attorneys, the trial court reset the trial for 31 July. There were no objections by the attorneys.

On 31 July, the attorneys for the defendants filed motions to dismiss and to discharge defendants, because the State had failed to bring them to trial within 180 days from date of custody. 31 July was the one hundred eighty-third day from custody. The trial court granted the motions and discharged defendants.

The speedy trial rule may be extended by the trial court on its own motion where the delay is based on a development which could not be anticipated and which would materially affect the trial. Rule 3.-191(d)(2) and (f), Rules of Criminal Procedure.

When counsel for a defendant requests a continuance, the time limitation on a speedy trial is extended for a reasonable period of time. Llano v. State, 271 So.2d 34 (Fla.App. 3d, 1972).

A defendant’s right to a speedy trial may be waived by his attorney. A waiver of a defendant’s right to a speedy trial results where his attorney and the State’s attorney agree upon or stipulate to a continuance of the trial, or when his attorney consents to or acquiesces in a delay sought by the State. State v. Earnest, 265 So.2d 397 (Fla.App. 1st, 1972).

The trial court continued the trial of Matthews so that his newly appointed attorney would have an opportunity to prepare this defendant’s case for trial. Matthews’ new attorney agreed with the court’s action. The actions of the court and the attorney were proper; they were taken to insure that Matthews would be effectively and vigorously defended. However, the actions taken extended the 180-day speedy trial rule.

Counsel for Kelley waived the defendant’s right to a speedy trial by either stipulating to a continuance of his trial, or consenting to or acquiescing in a delay, when in open court he did not object to the statement by the State’s attorney that they jointly stipulated to a continuance, and the trial court granted the continuance. Kelley’s counsel had good reason for his actions; he desired the court to rule on a motion for severance he had just filed on behalf of Kelley. Nevertheless, this action waived the 180-day speedy trial rule.

There has been no complaint that the trial court failed to set the trial within a reasonable time, and there could be none. The trial was rescheduled at the earliest possible date, and only three days beyond the time limitation of the speedy trial rule,

Reversed and remanded for trial.

BOYER, C. J., and McCORD, J., concur.


author: ■GRIMES, Judge.

text:
    Opal SHEPPARD and L. P. Sheppard, her husband, Appellants, v. INVERNESS COCA-COLA BOTTLING COMPANY, a Florida Corporation, Appellee.
    No. 74-1279.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.

      James Nolan Carter of Carter, Anstine, Martin & Barnett, Orlando, for appellants.
    D. J. Bradshaw of Bradshaw, Wagner & Mountjoy, Inverness, for appellee.
   ■GRIMES, Judge.

This is an appeal from an order dismissing a third amended complaint with prejudice.

The appellants allege that Opal Sheppard suffered personal injuries when a Coca-Cola bottle fell from a carton she was handling and exploded when it hit the floor. Mrs. Sheppard was working for Nobleton Grocery Store when an employee of the appellee bottling company was making a delivery of Cokes. According to the complaint, Mrs. Sheppard removed two six-pack cartons from a dolly on which the man from the bottling company was transporting them. The appellee was charged with negligently failing to inspect the carton so as to determine that the bottom was wet and soggy and of insufficient strength to support the weight of the bottle.

The third amended complaint was apparently dismissed on the premise that Mrs. Sheppard interfered with the ap-pellee’s delivery process. Certainly, the complaint is susceptible of this interpretation. If these are the facts, the order of dismissal is correct because the appellee should not be held responsible for the condition of the carton until such time as the appellee intended to surrender possession of it. However, the complaint is susceptible of other interpretations. It could be inferred that the injury occurred after the delivery of Cokes was completed. The complaint may also support the inference that Mrs. Sheppard was assisting in the unloading of the cartons pursuant to custom or the request of appellee’s employee. A motion to dismiss a complaint for failure to state a cause of action does not reach defects of vague and ambiguous pleading. Fontainebleau Hotel Corp. v. Walters, Fla.1971, 246 So.2d 563.

'On balance, we think the third amended complaint sufficiently stated a cause of action for negligence. When the facts are more fully developed, the appelleq may be entitled to summary judgment or a directed verdict, but at this point the appellants should be permitted to stay in court on their count in negligence. Their second count predicated upon a theory of implied warranty was insufficient as a matter of law.

Reversed.

McNULTY, C. J., and HOBSON, J., concur.


author: WOODSON, J. WILLIAM, Associate Judge.

text:
    HILLSBORO COVE, INC., Appellant, v. G. Hughes ARCHIBALD, Jr., et al., Appellees.
    No. 74-137.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Robert E. Ziegler and Charles G. Brack-ins, of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Curtin R. Coleman and William F. Leonard of Coleman, Leonard, Morrison & Riddle, Fort Lauderdale; Miller, Zachman & Balasso, P. A., Pompano Beach; and Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees, Archibalds and Lawyers’ Title Guaranty Fund.
   WOODSON, J. WILLIAM, Associate Judge.

In 1962, appellee Archibald conveyed Parcel B of real property to Louis Wein-stock. In 1967, Archibald then conveyed adjacent Parcel A to appellant. However, in 1970 it was discovered that Weinstock was the actual owner of a 30-foot strip of property which was conveyed as a part of Parcel A. Parcel A was insured by a title policy issued by appellee, Lawyers’ Title Guaranty Fund. Prior to 1970 Parcel A had been dedicated to condominium use and appellant planned to construct a part of the condominium on the 30-foot strip. In order to secure title to the 30-foot strip of property, appellant expended $49,850.61 plus a surveying fee of $3,385.00. The trial court awarded appellant $6,011.88 damages representing the proportionate cost of the 30-foot strip as of the date of conveyance (1967). The defendant, Lawyers’ Title Guaranty Fund, issued a title insurance policy on Parcel A and was joined for breach of title insurance policy.

Appellant contends that the trial judge errred in not compensating appellant for his actual loss in curing the breach of the covenant of seizin. We follow the rule in Burton v. Price, 105 Fla. 544, 141 So. 728 (1932): “The measure of damages is such fractional part of the whole consideration paid as the value at the time of the purchase of the part to which the title failed bears to the whole block purchased, with interest thereon during the time the [appellant] has been deprived of the use of that part to which he could not acquire possession.”

Williams v. Azar, 47 So.2d 624 (Fla.1950) cites 21 C.J.S. Covenants § 142(5) (b), at 1014 (1940), citing Mayo & Robinson v. Maxwell & Moore, 140 Ark. 84, 215 S.W. 678 (1919), which stands for the proposition that the grantor should pay the costs of clearing title not to exceed the original proportionate value of the land at the time it was sold. However, we agree that the proportionate. value of the strip, not the proportionate area, is the test. The trial court as the trier of fact could find from the evidence that the 30-foot strip of property was not of any greater value per square foot than the major piece.

As to the damages sought against the appellee, Lawyers’ Title Guaranty Fund, the trial court correctly applied the limitations imposed in Paragraph 6 of the policy of title insurance:

“In case of any loss to the owner by reason of a defect . . . affecting only a part of the guaranteed property, the measure of damages . . . shall not be a greater fractional part of the declared value of the property as stated in this guarantee than the proportion which the property affected by said defect . . . bears in value to the entire property covered by this guarantee.”

The various other points raised by appellant and by appellees on cross-assignment of error neither demonstrate error nor require discussion.

Affirmed.

CROSS and OWEN, JJ., concur.


text:
    Gerald D. GORDON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. V-217.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty.Gen., Wallace E. Allbritton, Asst.Atty.Gen, for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error. Accordingly, the judgment and sentence are affirmed.

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


author: CROSS, Judge.

text:
    Robert Paul GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 74-905.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
    Warner S. Olds, Public Defender, and William W. Herring, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Robert Paul Griffin, appeals a judgment of conviction and imposition of sentence for the offense of statutory rape, in violation of Section 794.-05, Florida Statutes 1973. Various issues are raised by the defendant on appeal, but one is dispositive. Did the trial court err in adjudging the defendant guilty of statutory rape under Section 794.05, Florida Statutes 1973, when the information charged the defendant with common law rape in violation of Section 794.01, Florida Statutes 1973.

It is a fundamental right of a person called upon to respond to criminal charges to be notified by the accusatory pleading of all offenses for which he may be convicted in the proceeding. Fla.Const. art. II, § 16. Nevertheless, by procedural rule and case construction thereof a defendant under a criminal charge may be convicted of any crime which is “necessarily included” in the offense charged or which is included within the allegations of the accusatory pleading and shown by the proofs. Rule 3.510 Fla.RCrP1973; and Brown v. State, 206 So.2d 377 (Fla. 1968).

A necessarily included offense is one which is of necessity proved by proof of another offense. Brown v. State, supra. The state concedes, and we agree that the offense of statutory rape as proscribed by Section 794.05, Florida Statutes 1973, is not necessarily included within the offense of common law rape proscribed by Section 794.01(2), Florida Statutes 1973. The state contends, however, that the offense for which the defendant was convicted, statutory rape, was an included offense for which the defendant could be convicted under the information because the elements of statutory'rape were alleged in the information and were shown by the evidence. In pertinent part the information alleged that the defendant did “unlawfully and fe-loniously ravish and carnally know (name of person) a female of previous chaste character and of the age of fifteen (15) years at the time of the offense, by force and against her will, contrary to F.S. 794.-01(2).”

The essential elements of statutory rape are (1) carnal intercourse, (2) the person with whom such intercourse was had was unmarried at the time thereof, (3) the person with whom such intercourse was had was of previous chaste character, and (4) the person with whom such intercourse. was had was under the age of eighteen years at the time of the intercourse alleged. Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944); State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). An examination of the information indicates that one of the essential elements of statutory rape, to-wit, the person with whom the carnal intercourse was had was unmarried at the time thereof, is absent. For this reason, we conclude that the trial court erred in adjudging the defendant guilty of statutory rape in violation of Section 794.-05, Florida Statutes 1973, under the aver-ments of the aforesaid information.

Accordingly, the judgment and sentence is vacated and set aside, and the cause remanded to the trial court to discharge the defendant.

OWEN, J., and WOODSON, J. WILLIAM, Associate Judge, concur.


text:
    Darlene JOHNSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-427.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty.Gen., and Donald K. Rudser, Asst.Atty.Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, the judgment and sentence are affirmed.

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


author: STURGIS, WALLACE E., Jr., Associate Judge. RAWLS, Judge

text:
    Mark SINDRICH and Christopher Ken Takagi, Appellants, v. STATE of Florida, Appellee.
    Nos. V-423 & V-424.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.

      Michael H. Bloom, Bloom & Jacobi, Coconut Grove, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   STURGIS, WALLACE E., Jr., Associate Judge.

Appellants Mark Sindrich and Christopher Ken Takagi, were tried and convicted by jury of possession of more than five grams of cannabis. They appeal from the trial Court’s denial of motion for new trial.

Appellants, both college students, were hired to drive a rented truck from Miami, Florida, to Columbus, Ohio. Out of their presence the cargo area was loaded and padlocked and the key was retained by their employer. Both denied any knowledge of the contents of the locked cargo area.

While driving through Hamilton County, Florida, Takagi failed to stop for an agriculture inspection station. Sindrich was a passenger in the truck at the time. The truck was later stopped by an inspector for the Florida Department of Agriculture who requested examination of the locked qargo area for agricultural products. Appellants advised the officer that they did not have the key and refused permission to break the padlock. Later Appellant Takagi called a Mr. Sam Good, their alleged employer, who spoke with the inspection officer on the phone, refused permission to break the lock on the truck and advised that he would fly to Hamilton County to permit the inspection. A search warrant was obtained by the Sheriff of Hamilton County, the cargo area of the truck was forced open and the cannabis was found. Both Appellants were charged with obstructing justice by interfering with an agricultural inspector in the performance of his duties. Upon trial of this charge they were acquitted. They were also charged with possession of a controlled substance, convicted and sentenced to three years in state prison.

Appellants on appeal raised three issues for consideration by this Court: (1) that the evidence failed to show they were either in actual or constructive possession of the cannabis; (2) that their trial and acquittal of obstructing justice determined as a matter of law they did not have control of the contents of the cargo area; and (3) evidence of the contents of the truck should have been excluded upon trial because there was no probable cause for the issuance of the search warrant. We decide this case upon the first issue and express no opinion upon the latter two.

The State contends that the issue of possession was a fact for the jury to determine and their determination was conclusive. While we recognize that such is generally true, it is the duty of an appellate Court to determine, in every case, if there is sufficient competent evidence to support a conviction; and if there is, whether it meets the law’s requirements for conviction. Thornton v. State, 306 So.2d 205 (Fla.App. 1st 1975).

The Trial Court instructed the jury on the issue of possession as follows:

“The word ‘possession’ means to have personal charge of or exercising the right of ownership, management or control over the thing possessed. The mere fact that a person is found to be in possession of a narcotic drug is not sufficient in and of itself to warrant your conviction of such person of the crime of possessing that drug, unless you believe beyond a reasonable doubt that the person so charged knew that he was in possession of such narcotic drug.

Neither the State nor the defense objected to these instructions or requested additional, and the sufficiency of the same is not a subject of this appeal. However, implicit in these laws of possession are the principles enumerated by Judge Wiggington in Frank v. State, 199 So.2d 117 (Fla.App. 1st 1967):

(1) The State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on the premises.
(2) If the premises are in the exclusive possession and control of the accused, knowledge of the presence of the narcotic drugs coupled with his ability to maintain control over them may be inferred, but the inference is rebuttable and not conclusive.
(3) If the premises are in the joint possession of the accused, knowledge of the presence of drugs, the drug’s presence and ability to maintain control will not be inferred, but must be established by proof.
(4) Proof of knowledge of the presence of drugs may consist of evidence establishing actual knowledge, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the drug’s presence.
(5)Such inference must be reasonable from proven facts but not based upon inference.

These legal principles are required to be observed by jurors for the protection of innocent persons from the unlawful acts perpetrated by others. They are likewise applicable to this Court in review of the sufficiency of the evidence to substantiate a conviction.

In the case sub judice there was no evidence that the Appellants had exclusive control or access to the cargo area where the cannabis was found. The uncontra-dicted evidence before the jury was that the truck was loaded out of their presence, that they did not have a key to the locked cargo area, and that they did not know of the contents. Neither the fact that Appellants were driving at night nor that they failed to stop at the inspection station were such inferences from which alone the jury might lawfully infer knowledge by the Appellants of the contents. Mere presence of the Appellants where the drugs were found was not sufficient to sustain a conviction of possession. Harris v. State, 307 So.2d 218 (Fla.App. 3rd 1975); Arant v. State, 256 So.2d 515 (Fla.App. 1st 1972); Langdon v. State, 235 So.2d 321 (Fla.App. 3rd 1970).

The State argues that the circumstances involved in the Appellants’ rental of the truck in Miami, their small compensation for driving it out of the state, and their failure to inquire into the contents from a stranger, were unreasonable and unbelievable, and that similar arrangements could permit the transportation of contraband without criminal liability. The predicates for such a conclusion were matters brought out by the Appellants during the defense after the State rested. While we concur in the lack of wisdom on the part of Appellants in their venture, such a failure to observe contents of the cargo or require a larger fee may be poor judgment but not an inference of knowledge sufficient to sustain a. verdict of guilt for possession of drugs.

It is not sufficient in a criminal case for the evidence to be an inference of guilt or a probability of guilt. Proof of the essential elements of the crime must be complete and firm leaving no reasonable doubt in the enlightened minds of the jurors of the guilt. That proof must only come from the evidence presented at the trial.

It is the province of the criminal court jury in weighing evidence, to determine its competency and sufficiency to sustain the charge. The rules governing the consideration of circumstantial evidence as distinguished from direct and positive evidence are not the same. We do not deem it necessary to reiterate the standard instructions given by the trial court on circumstantial evidence, other than to note the principle that where the circumstances are susceptible of two reasonable constructions, one indicating guilt and the other innocence, the jury must accept that construction indicating innocence.

From our careful review of the evidence we are convinced that the proofs considered by the jury fall within that category of a mere probability of guilt and failed to overcome Appellants’ presumption of innocence.

The judgment appealed is reversed and the cause remanded for the Trial Court’s discharge of the Appellants.

BOYER, C. J., concurs.

RAWLS, J., specially concurs.

RAWLS, Judge

(specially concurring).

Florida Statute 570.15 (1973) was effective at the time appellants failed to stop at the inspection station. This statute did not delegate to the Department of Agriculture the unbridled authority to require trucks to stop and submit to a search. Appellants’ failure to stop at an agricultural inspection station did not constitute an unlawful act from which an intent of knowledge of possession of the contraband may be inferred. An opposite result might well obtain if the present enactment relating to agricultural inspection stations survives constitutional, scrutiny.

      . Compare then in effect Florida Statute 570.15 (1973) with House Bill 1222, Chapter 75— 215, Laws of Florida 1975.


author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Michael William SARGA, Appellant, v. STATE of Florida, Appellee.
    No. W-129.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.

      Richard A. Lazzara, of Levine, Freedman & Hirsch, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

This is an appeal from appellant’s conviction of possession with intent to sell marijuana and his sentence thereon. The sole question on the appeal is whether or not the trial court erred in denying appellant’s motion to suppress the evidence (marijuana).

On November 13, 1973, at approximately 10:30 a. m., appellant was driving an “E Z Haul” rental truck from Tallahassee, Florida, to Gainesville, Florida, on U. S. Hwy. 27. While proceeding through the town of Branford, he failed to stop at an agricultural inspection station operated by the Florida Department of Agriculture. The inspector at the station observed appellant go by. He then got into his patrol car, ran appellant down and stopped him. Appellant opened the truck on the inspector’s demand, and the marijuana* which was the subject of the motion to suppress, was found in the truck.

The burden was upon the state to show the validity of the warrantless search. Bicking v. State, Fla.App. (1st), 293 So.2d 385 (1974). The United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), dealt with searches conducted pursuant to consent. At the conclusion of a lengthy opinion, it summed up its ruling as follows:

“ . . . when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”

Here, appellant’s truck was stopped by a marked state patrol car pursuant to its flashing blue light. The inspector, who was garbed in an official uniform, did not ask appellant if he would consent to the search of his vehicle (as was done in Schneckloth) but he demanded (not once but three times) that appellant open the truck for inspection so that he could see what he was hauling. Appellant at first hesitated but on the third demand, he took out the key and opened the back of the truck. We are unable to conclude from these circumstances that there was a voluntarily given consent to the search and that it was not the result of duress or coercion, express or implied. There was, in fact, no consent but only a compliance with the officer’s demand. While we abhor the release of persons who are caught red-handed with contraband, our courts must uphold and defend the Constitution of the United States. Our constitutional safeguards, while that may at times provide an escape for the guilty, are for the protection of decent, law abiding citizens whose forebears established this nation to escape tyranny and police state methods.

The statute in effect at the time of this search, § 570.15, Florida Statutes 1973, authorized certain inspection of “all places of business, factories, farm buildings, carriages, railroad cars, motor vehicles and vessels used in the production, manufacture, storage, sales or transportation within the state of any food product or agricultural product . . . ” This statute provides that if access is refused “the inspector may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases.” (Emphasis supplied.) When we consider the constitutional implications above alluded to in conjunction with this statute, it is apparent that the search made in this case (no consent thereto having been given) was invalid in the absence of a search warrant.

Appellant’s plea of nolo contendere, which he entered after denial of the motion to suppress and upon stipulation that his right of review would be preserved, is vacated and the judgment and conviction are reversed. The cause is remanded for further appropriate proceedings.

HARDING, MAJOR B., Associate Judge, concurs, and RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting)-

The trial judge, after a lengthy hearing, found: “ . . . there is nothing in the evidence to negate the fact that the defendant [appellant] consented to an inspection of the truck and I said inspection.”

I have carefully reviewed the record and find competent, substantial evidence to support the trial court’s denial of the motion to suppress.

I would affirm.


author: DOWNEY, Judge. OWEN, Judge

text:
    Edwin W. YOUNG, Sr., Appellant, v. June Rose YOUNG, Appellee.
    No. 74-1426.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.

      Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, P.A., West Palm Beach, for appellant.
    S. Robert Zimmerman, Pompano Beach, for appellee.
   DOWNEY, Judge.

The sole point on appeal in this case is whether the award of a $12,000 attorney’s fee to a wife is proper where a “separate maintenance agreement” between the husband and wife provided for a $500 attorney’s fee and where the final judgment expressly found the agreement valid.

To put the case in perspective, it seems that on October 2, 1970, the parties hereto entered into a “separate maintenance agreement” in which the husband agreed to convey to the wife his undivided one-half interest in the marital home worth $113,000, and to pay her $200,000 as lump sum alimony over a period of eight years, and she assumed the burden of supporting the minor children of the parties. The wife also agreed to convey to the husband her one-half interest in his automobile dealership and realty associated therewith. After setting forth the foregoing financial dispositions the agreement provided:

“In the event either of the parties hereto may later commence suit or action for divorce against the other, the parties hereby mutually agree to press no claims contrary in nature to the provisions hereof. The provisions of this agreement, to the extent that they may be acceptable to the Court and consistent with the rules and practice of the Court granting a final decree of divorce or separation, if suit therefor be instituted, shall be incorporated in and merged in such final decree. In the event such action is brought by either party, the Husband agrees to pay for the wife’s attorney’s fees in the amount of $500.00 and further agrees to pay all of the wife’s costs expended in such action, including Court costs.”

After the execution of the agreement appellant made some substantial payments to appellee. On May 22, 1973, the appellant filed suit for dissolution and sought enforcement of the agreement. Appellee contended the agreement was obtained from her by force, duress, and overreaching; and in any event it had been abandoned by the parties’ subsequent conduct. In a carefully prepared final judgment entered February 11, 1974, the trial court expressly found that the agreement was valid and binding on the parties and incorporated it by reference in the judgment, subject to certain modifications, such as (a) requiring appellant to pay child support, (b) holding that all payments made by appellant subsequent to the date of the separation agreement were to be treated as temporary alimony, (c) holding the installment payments on the $200,000 lump sum alimony provided for in the "separate maintenance agreement” should commence on the date of the dissolution of marriage. The husband did not appeal from the final judgment of dissolution. The wife did appeal from that final judgment, but she ultimately dismissed her appeal.

By stipulation of the parties the question of attorney’s fees and costs came on for hearing after the final judgment was entered, and the court awarded the wife and attorney’s fee of $12,000 against the husband. In the order allowing said fee the trial judge stated, among other things that:

“The separation agreement of the parties contains a provision limiting the husband’s obligation for attorney’s fees in the event a divorce is instituted. While such a provision is entitled to great weight, it is not binding upon the court, since the court may accept or reject any or all of a separation agreement if equity requires it. The court finds that equity requires that the said provision be rejected by the court.”

Appellant contends that having rejected appellee’s attack upon the validity of the agreement, having found it valid, and having incorporated it in the final judgment, the court was not at liberty to disregard the provision relative to the appellant’s liability for appellee’s attorney’s fees. As authority for that proposition appellant relies heavily upon our decision in Zakoor v. Zakoor, Fla.App.1970, 240 So.2d 193. In Zakoor, relying upon Miller v. Miller, 149 Fla. 722, 7 So.2d 9 (1942), and Underwood v. Underwood, Fla. 1953, 64 So.2d 281, we held the general rule in Florida is that property settlement agreements between husband and wife made in contemplation of a divorce are, in the absence of fraud, coercion, or overreaching, ■ valid and binding on the parties and should be respected by the courts. However, after we decided the Zakoor case, the Supreme Court of Florida decided Belcher v. Belcher, Fla. 1972, 271 So.2d 7. That case holds that if an antenuptial or postnuptial agreement meets the standards set forth in Del Vecchio v. Del Vecchio, Fla.1962, 143 So.2d 17, it is valid and. binding as to such provisions as those for permanent alimony, dower, and inheritance, the rights to which accrue after termination of the marriage; however, it is not binding as to such provisions as those for temporary alimony, suit money, and attorney’s fees while the marriage is still in existence and the obligation of support still subsists.

If we were dealing with the question of alimony, the foregoing principle would make our decision less difficult because the final judgment of dissolution is the line of demarcation between alimony covenants which are conclusive and binding upon the parties and the court and those which are not. But it is a little more troublesome fitting the question of suit money and attorney’s fees into the mold. In Belcher v. Belcher, supra, the court speaks of temporary suit money and attorney’s fees. Thus, it would seem quite clear that if ap-pellee had applied to the court for an allowance of temporary attorney’s fees, the holding in the Belcher case (assuming all other conditions such as need and ability were existent) would authorize their allowance regardless of the agreement between the parties. To say that the court is bound by the provision of the agreement limiting ap-pellee’s attorney’s fee to $500 because ap-pellee waited until final hearing to seek the award is to place form over substance. This is so because in a dissolution proceeding the liability of one spouse for payment of the attorney’s fees of the other spouse is in the same category .as liability for other items of support which predate the entry of a judgment dissolving the marriage. See cases cited at 27A C.J.S. Divorce § 216, note 76, at page 935.

For the foregoing reasons we hold the trial judge was not bound by the provisions of the agreement relative to attorney’s fees, and accordingly we affirm the order appealed from.

Affirmed.

MAGER, J., concurs.

OWEN, J., dissents, with opinion.

OWEN, Judge

(dissenting).

My views can be stated rather simply. The agreement was valid and the parties ought to abide by it.

      . As the body of our opinion indicates, this is an overly broad statement of the law.

      . But see Belcher v. Belcher, Fla.App.1975, 307 So.2d 918.


text:
    Amanda BEVERLY, Appellant, v. STATE of Florida, Appellee.
    No. Z-5.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appeal was taken herein from a judgment and sentence following a plea of nolo contendere which alledegly immediately followed an order denying a motion to suppress. The Supreme Court of Florida held in State v. Ashby, Sup.Ct.Fla.1971, 245 So.2d 225, that a plea of nolo contendere may be accepted, conditioned upon reservation for appellate review of a question of law. Sub judice appellant candidly conceded that the record in this case contained no indication that the plea was conditioned upon the reservation of a question of law. This Court subsequently, upon appropriate motion, entered an order staying further proceedings for a period of 30 days in order to allow appellant an opportunity to supplement or perfect the record on appeal, demonstrating that the plea of nolo con-tendere was conditioned upon reservation of right of appeal on a question of law incident to the trial court’s denial of appellant’s motion to suppress. Appellant has now filed herein a motion entitled “Motion To Proceed With Appeal in which he requests this Court to consider this case as a “Hollingshead Appeal” (see Hollingshead v. Wainwright, Sup.Ct.Fla.1967, 194 So.2d 577), citing this Court’s opinion in Farrell v. State, Fla.App.1st 1975, 317 So.2d 142.

Appellant has apparently misconstrued our opinion on rehearing in the Farrell case. In that case we initially affirmed the trial court on the basis that the record on appeal did not reveal that appellants had conditioned their pleas of nolo contendere on the reservation of a right to seek appellate review of a question of law. By petition for rehearing defendant Farrell alleged that the omission from the record on appeal resulted from a clerical error and the co-defendant Raulerson alleged that the. failure of the record on appeal to reflect the reservation of right to appellate review resulted from an oversight of his attorney, the public defender, and requested this Court to consider the case on its merits in accordance with Hollingshead v. Wainwright, supra. Since we thereupon proceeded to consider the case on its merits, appellant sub judice has concluded that we did so under authority of Hollingshead v. Wainwright. Such is not the case. Examination of the record of that case reveals that the appellants filed a supplemental record (pursuant to appropriate motion and order) which revealed the reservation of the right.

Sub judice appellant has filed an affidavit attached to his above mentioned motion which, however, does not constitute a supplement to the record nor does its recitation meet the test of State v. Ashby, supra. Although that affidavit recites that at the time of the entry of the plea of nolo con-tendere the defendant “intended” to appeal the trial court’s denial of his motion to suppress there is no allegation that the entry of the plea was so conditioned.

Accordingly, appellant’s “Motion To Proceed With Appeal” is denied and appellant is allowed to and until November 29, 1975 within which to file a supplemental record reflecting that his plea of nolo contendere was conditioned upon a reservation of right to appellate review of a question of law as permitted by State v. Ashby, supra; failing which this Court will have no alternative but to affirm the judgment and sentence here appealed, as a nolo contendere plea admits all facts which are well pleaded and waives all formal defects in the proceeding of which the accused could have availed himself by a plea of not guilty or motion to quash. (Peel v. State, Fla.App.2nd 1963, 150 So.2d 281).

It is so ordered.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Delma J. NUSSBAUM et al., Appellees.
    No. 75-679.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
    Patrick J. Murphy, of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellant.
    Geo. W. Thomas, Jr. of Jacobson & Thomas, Sarasota, for appellees.
   PER CURIAM.

Affirmed. See White v. Reserve Insurance Company, Fla.App.1st 1974, 299 So. 2d 661.

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


text:
    Lawrence Lee GUINEA, Petitioner, v. STATE of Florida, Respondent.
    No. 75-940.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.

    Joseph F. McDermott of McDermott & Ohle, St. Petersburg, for petitioner.
    E. J. Salcines, State Atty., Pat C. Whitaker III, and John Hooker, Asst. State Attys., Tampa, for respondent.
   PER CURIAM.

The petition for writ of certiorari is

Denied.

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


author: DOWNEY, Judge.

text:
    The Matter of Kimberly Ann CASTRO, a minor incompetent by reason of minority. The Matter of Deena Theresa CASTRO, a minor Incompetent by reason of minority.
    Nos. 75-914, 75-915.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Bruno L. Di Giulian of Di Giulian, Spel-lacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for petitioner Julie Ann Nord-strom Castro.
    Steadman S. Stahl, Jr., of Varón, Stahl & Kay, P. A., Hollywood, for respondent Bernard Castro, Sr.
   DOWNEY, Judge.

The petitions for writ of certiorari in these consolidated cases are denied because in our judgment the orders sought to be reviewed do not depart from the essential requirements of law. In reaching this conclusion we of course have not in any way considered or ruled upon the propriety of any specific question which might be propounded to the petitioner upon the taking of her deposition. Nor can this decision be taken as precluding the entry of a protective order in the future if the facts and circumstances then existing warrant it.

Petitions for writ of certiorari denied.

CROSS and OWEN, JJ., concur.


text:
    Howard D. McCAULEY, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. Y-25.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
    Howard D. McCauley, pro se.
    Kenneth H. Hart, Jr., and Luther C. Smith, Tallahassee, for respondent.
   PER CURIAM.

Upon considering the briefs and record, certiorari is denied.

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


text:
    CITY OF HALLANDALE, a Municipal Corporation, et al., Appellants, v. STATE of Florida ex rel. E. M. SEGALL, as Trustee, Appellee.
    No. 74-931.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 10, 1975.
    Charles A. Finkel, Hallandale, for appellants.
    Joe N. Unger, of Smith, Mandler, Smith Parker & Werner, Miami Beach, for ap-pellee.
   PER CURIAM.

Appellee-Segall’s application for an amended building permit for construction of a ten-story condominium was denied by appellants. Appellee instituted a mandamus proceeding in the circuit court to compel appellants to issue appellee the requested permit. The circuit court issued an alternative writ of mandamus. Responsive pleadings thereto were filed by appellants. Appellee then moved the circuit court to issue a peremptory writ of mandamus. The cause came on for hearing. Thereafter the circuit court entered final judgment granting appellee a peremptory writ of mandamus directing appellants to issue ap-pellee the requested amended building permit. It is from this final judgment that appellants take their appeal.

Upon review of the record on appeal and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine that the ap-pellee did not possess a clear legal right to the issuance of the subject amended building permit, such right being necessary to warrant the circuit court’s enforcement of that right by mandamus. The circuit court, therefore, erred in entering final judgment granting a peremptory writ of mandamus.

Accordingly, the final judgment appealed is reversed and the cause is remanded, with directions to enter an order dismissing the petition for a writ of mandamus.

Reversed and remanded, with directions.

WALDEN, C. J., and CROSS and OWEN, TT., concur.


text:
    Barbara BUTLER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-381.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, the final judgment is affirmed.

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


text:
    SIMS CRANE SERVICE, INC., Appellant, v. COAST FEDERAL SAVINGS & LOAN ASSOCIATION et al., Appellees.
    No. 75-592.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
    C. Elmon Gatlin, Tampa, for appellant.
    Johnson S. Savary of Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellees.
   PER CURIAM.

Affirmed. See Industrial Supply Corporation v. Bricker (Fla.App.2d, 1975), 306 So.2d 133.

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


text:
    B & B DISTRIBUTING COMPANY, a Florida Corporation, Appellant (Defendant), v. IMPERIAL ENTERPRISES, INC., a Foreign Corporation, Appellee (Plaintiff).
    No. Z-268.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Carl E. Rude, Jr., of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellant.
    W. Guy McKenzie, Jr., and Thomas F. Panebianco of Carswell, McKenzie, Dean & Owen, Tallahassee, for appellee.
   PER CURIAM.

Upon considering the briefs, record and oral argument, the interlocutory appeal is dismissed.

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