author: HAVERFIELD, Judge.

text:
    William H. STRIPLING, Appellant, v. The STATE of Florida, Appellee. Fred B. SPIEGEL, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-1820 and 75-1821.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Sept. 15, 1977.

      Gerald Kogan, Miami, for Stripling.
    Richard M. Gale, Bierman, Sonnett, Beiley, Shohat & Osman, Miami, for Spiegel.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

In these appeals defendants, Fred B. Spiegel and William H. Stripling, seek reversal of their respective convictions for bribery and conspiracy to commit bribery.

On March 30, 1974 defendant William Stripling was arrested by a Virginia Gardens police officer, Robert Weiss, and charged with driving under the influence. Stripling retained the defendant, Fred B. Spiegel, Esq., to represent him. At the commencement of the trial on May 1, Spiegel requested and was granted a continuance. Immediately thereafter, Officer Weiss joined Spiegel in the courthouse cafeteria for coffee at which time Weiss contended that Spiegel during their conversation offered him money if he would not appear to testify at Stripling’s trial which had been reset for May 29. Weiss reported this alleged conversation to the state attorney’s office and cooperated in the ensuing investigation conducted by that office. At the behest of the state attorney, Weiss made several telephone calls and arranged to meet with Spiegel on various occasions. On the order of the state attorney Weiss failed to appear on the May 29 trial date and the case was again continued until June 26. Spiegel subpoenaed Weiss to take his deposition on June 24, at which time Weiss appeared and was deposed. On the following day Weiss went to Spiegel’s office and after discussing a personal legal problem with Spiegel, raised the matter of the Stripling trial scheduled for the next day and then wrote on a pad which he handed Spie-gel, would Stripling “go $200”. Spiegel wrote back a note to the effect that he would speak to Weiss when the thing was over and that he (Spiegel) had seven years of education at stake. After the meeting the two went out for a beer and upon returning to Spiegel’s office, Weiss announced that he was not going to show up at the trial. Spiegel replied that Weiss should do whatever he wanted. Weiss, as instructed by the state attorney, did not appear at the trial (on June 26) and the case against Stripling was dismissed. Later that day, upon returning to his office, Spiegel found Stripling and Weiss waiting to see him. At the insistence of Weiss, Spiegel accompanied him and Stripling to a nearby restaurant where Spiegel excused himself and went into the restroom at which time Stripling handed Weiss $200. Upon returning from the restroom, Spiegel and Stripling were arrested. The two were charged with bribery and conspiracy to commit bribery and tried jointly. At the trial Spiegel defended on the ground that Weiss, not he, had initiated all conversations with respect to the bribes over his (Spiegel’s) protests and objections, and Weiss was attempting to “shake him down”. The jury found Spiegel and Stripling guilty of the bribery and conspiracy charges. They separately appealed their convictions and these appeals were consolidated for the purpose of the use of a single record. Stripling, in addition to the points raised in his brief, has adopted the arguments raised by Spiegel and we will dispose of both appeals in this consolidated opinion.

For his first point on appeal, Spiegel contends the trial court erred by including in its instruction on entrapment to the jury that the defense of entrapment is not available to a defendant who denies that he committed the alleged crimes.

The judge rendered to the jury the following entrapment instruction to which defendant objected:

“The burden is on the Government to prove beyond a reasonable doubt that the inducement was not the cause or creator of the crime or that the accused was ready and willing to commit the offense charged whenever the opportunity was offered. The burden is upon the Government to satisfy the jury beyond a reasonable doubt that the Defendant was not entrapped into committing the offense, the allegation, which absent entrapment, constituted the offense.
“And in connection with that, the Court would also reiterate to the jury that entrapment predisposes the commission of a crime. The defense of entrapment is available when an officer acts in good faith to discover or detect crime in both commissions of one that had prerequisite criminal intent.
“The defense of entrapment is not available to a Defendant that denies that he committed the acts charged.
“The Court would further advise that the first duties of the officers of the law to prevent, not to punish crime, it is not their duty to incite or create crime for the sole purpose of prosecuting and punishing. It is unconscionable to the punishment of a man for commission of the offense of the like which he has never been guilty and evidently would never have been guilty of if the officer of the law had not inspired and lured him to attempt to commit it. It is well settled that decoys may be used to entrap criminals and to present opportunity to one intending or willing to commit a crime or decoys are not permissible to ensnare the innocent and law abiding into the commission of a crime.” [Emphasis Supplied]
* * * * * *

Shortly after the jury retired to deliberate, it requested a copy of the law of entrapment. Instead, the judge again rendered the jurors an instruction similar to the above and concluded his instruction as follows:

******
“Entrapment predisposes the commission of a crime. The defense of entrapment is not available where an officer acted in good faith to discover or detect crime and merely furnished an opportunity for a commission thereof by one who had prerequisite criminal intent. The defense of entrapment is not available to a defendant who denies that he committed the acts charged.” [Emphasis Supplied]
******

We hold that these two instructions were erroneous.

The instructions are confusing by virtue of the fact that when an instruction on entrapment was rendered, the court found that Spiegel had presented sufficient evidence with respect thereto to warrant such a charge. As a result of the court further instructing that the defense was unavailable to an accused who denies commission of the acts charged, the jurors, even if they believed Spiegel was entrapped, could not then give him the benefit of his entrapment defense because he denied the charges. Indeed, the confusion to the jury is apparent from the record which reflects that shortly after they retired to deliberate, the jurors requested a copy of the law of entrapment. Instead, the jury received another similarly ambiguous entrapment instruction.

Furthermore, Florida Standard Jury Instructions 2.11(e), below, on entrapment contains no such statement as to the unavailability of the defense:

******
“(e) ENTRAPMENT
“One of the defenses asserted in this case is that the defendant was a victim of what is known as entrapment.
“One who, for the purpose of prosecution, is persuaded, induced or lured by an officer of the law or someone acting for him, into the commission of a crime which he had otherwise no intention to commit, may avail himself of the defense of entrapment and should not be convicted. However, that defense is not available if the officer acted in good faith for the purpose of detecting crime and merely furnished an opportunity for commission thereof by one who already had the intent to commit the crime.
“It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that he was decoyed or solicited by persons seeking to expose the criminal, or that law enforcement officers pretending participation in the act were present and apparently assisting in its commission.
“The state must prove beyond a reasonable doubt that the defendant was not the victim of entrapment by law enforcement officers, and unless it has done so you should find the defendant not guilty.”
* * s(t * * *

Nevertheless, the prosecution argues that this challenged instruction is in accord with the holdings in Ivory v. State, 173 So.2d 759 (Fla.3d DCA 1965) and Pearson v. State, 221 So.2d 760 (Fla.2d DCA 1969) that the defense of entrapment is not available to a defendant who denies he committed the offense charged on the theory that entrapment presupposes the act charged was committed and, therefore, a denial of the commission of the offense is inconsistent with the defense of entrapment. While these holdings reflect the general rule, there is a qualification in cases involving a charge of conspiracy. A defendant could deny being a party to a conspiracy and yet raise the issue that any overt acts done by him or her were done because of entrapment; the rationale being that inconsistencies in defenses in criminal cases are allowable so long as the proof of one does not necessarily disprove the other. McCarty v. U. S., 379 F.2d 285, 286-287 (5th Cir. 1967); U. S. v. Newcomb, 488 F.2d 190 (5th Cir. 1974). In the instant case the proof that Spiegel was not a member of a conspiracy would not have necessarily disproved that he was entrapped into committing a particular overt act. Cf. Henderson v. U. S., 237 F.2d 169 (5th Cir. 1956); Sears v. U. S., 343 F.2d 139 (5th Cir. 1965). We, therefore, find that the court committed reversible error in rendering the objected to instructions to the jury.

Spiegel next urges as reversible error the court’s denial of his right to cross-examine Weiss, the prosecution’s key witness, as to whether he, as a police officer, was under investigation by the state attorney’s office.

Spiegel’s counsel outside of the presence of the jury informed the judge that he had reason to believe that Officer Weiss for over one year had been and presently was under investigation by the state attorney’s office for alleged “shake downs” as a City of Virginia Gardens police officer. Nevertheless, the trial judge refused to permit defense counsel to cross-examine Weiss on this subject. Subsequently, defense counsel, outside the presence of the jury, proffered the testimony of Mr. Michael Coon, an investigator for the state attorney’s office, who stated that he had been and still is investigating Officer Weiss for alleged previous “shake downs” in Virginia Gardens. The prosecution admitted to the investigation; but persuaded the trial judge in the interest of confidentiality not to permit Coon to testify before the jury.

We find this curtailment of defendant’s right to cross-examine Weiss also constituted reversible error because it is clear that if a prosecution witness is presently or recently under an investigation which may lead to criminal charges, the accused against whom that witness testifies has the absolute right to bring this fact out on cross-examination so that the jury will be fully apprised as to the witness’ possible motive or self-interest with respect to the testimony he (or she) gives. Morrell v. State, 297 So.2d 579 (Fla.1st DCA 1974); See also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Sweet v. State, 235 So.2d 40 (Fla.2d DCA 1970); Lee v. State, 318 So.2d 431 (Fla.4th DCA 1975).

The investigation of Officer Weiss raises the obvious question of whether he was attempting through his testimony to ingratiate himself and possibly vindicate himself with the state attorney’s office. In the case sub judice, practically the entire case for the prosecution rested on the testimony of Weiss and, therefore, his credibility or possible bias was of the utmost importance to which the jury was entitled to be apprised.

We also note that Spiegel primarily defended on the ground that Weiss had initiated all conversations with respect to being receptive to a bribe and was attempting to shake him (Spiegel) down and, therefore, the fact that Weiss was under investigation for other alleged shake downs was highly relevant and crucial to Spiegel’s defense.

Spiegel also argues that the court’s order preventing him from discussing the case with his counsel during the luncheon recess called between his direct and cross-examination deprived him (Spiegel) of his right to effective assistance of counsel. This point has merit.

First, a defendant in a criminal trial is entitled to consult with counsel at any time, either before or during the progress of the trial. Hooks v. State, 253 So.2d 424 (Fla.1971).

Second, the trial judge entered the prevention order on the erroneous concept that once Spiegel had taken the stand, he is treated as any other witness and has an imaginary shield around him. In a case similar to the instant case, the United States Supreme Court in Geders v. U. S., 425 U.S. 80, 88, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976) held that the notion that defendant upon taking the stand is a witness like any other person is false and explained:

“But the petitioner was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial. A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial. Moreover, ‘the rule’ accomplishes less when it is applied to the defendant rather than a nonparty witness, because the defendant as a matter of right can be and usually is present for all testimony and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand.”

The Court concluded that with respect to any conflict that may exist in a criminal proceeding between a defendant’s right to consult with his attorney during a long recess falling between the defendant’s direct and cross-examination and the risk of improper coaching by defense counsel, such conflict must be resolved in favor of the right to effective assistance and guidance of counsel under the Sixth Amendment to the U.S. Constitution. Geders, supra at 91, 96 S.Ct. 1330.

The prosecution contends that the holding in Geders, supra, is inapplicable because in the case at bar there was only a two-hour luncheon recess as opposed to the 17-hour overnight recess. Nevertheless, after a careful reading of the majority opinion, we agree with the specially concurring opinion of Justice Marshall that the principles of law adopted by the majority “are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.” Geders, supra at 92, 96 S.Ct. at 1337. The prosecution having failed to demonstrate any interference with the progress of the trial and the risk of improper coaching being insufficient grounds, we find the trial judge erred in preventing defense counsel to consult with Spiegel during the luncheon recess so that he could have obtained from Spiegel information made relevant by the testimony previously presented that morning or to discuss with him the significance thereof.

Spiegel next urges as error the court’s refusal to allow defense counsel to impeach Weiss by offering testimony as to his reputation for truth and veracity.

The general rule is that testimony as to reputation and veracity must be bottomed upon the reputation in the person’s community of residence and neighborhood. See Stanley v. State, 93 Fla. 372, 112 So. 73 (1927); Florida East Coast Railway Co. v. Hunt, 322 So.2d 68 (Fla.3d DCA 1975). The two witnesses from whom defense counsel wished to elicit testimony as to Weiss’ reputation for truth and veracity in the community were investigators and it is inappropriate for one who is a detective or stranger sent out to learn the character of a witness to be permitted to testify as to the result of his or her inquiries. See 98 C.J.S. Witnesses § 520 (1957). If defense counsel wished to introduce such reputation evidence, then he should have called as witnesses, Weiss’ neighbors or qualified people in his community. See Stanley, supra. Thus, we find this point is without merit.

Spiegel additionally argues that the court committed error in admitting into evidence three handwritten notes previously suppressed on the ground that defense counsel exceeded permissible cross-examination and thereby opened the door for their admission.

Following Spiegel’s arrest, Officer Weiss went to Spiegel’s office and unlawfully seized three notes allegedly written by Spiegel during the course of a conversation between them prior to Spiegel’s arrest. These notes were suppressed as a result of Weiss’ illegal search and seizure. During the trial Weiss on direct examination proceeded to track the language of the notes. On cross-examination defense counsel questioned Weiss as to how he obtained the notes; what he discussed about them with Mr. Dardis, an investigator for the state attorney; what he did with the notes after he seized them. Over objection of defense counsel, the prosecution was permitted to introduce into evidence the suppressed notes for the reason that defense counsel had exceeded the bounds prescribed by law of Weiss’ cross-examination and, therefore, opened the door for the admission of the previously suppressed notes.

Generally a defendant does not waive his previous objection to the admission of improper or illegal evidence merely by cross-examining the prosecution’s witness with relation to the objectionable matter, particularly where the cross-examination is not extended beyond the scope of the evidence on direct examination. Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943). In the case at bar, defense counsel was within the proper bounds of cross-examination by questioning Weiss as to how and'when he obtained the notes and anything he did in relation to them. Counsel sought to minimize the harmful effect of Weiss’ testimony and did not expound on the subject matter any further than necessary. See Carbone v. Coblentz, 132 So.2d 629 (Fla.3d DCA 1961). Thus, we find prejudicial error resulted from the admission of the previously suppressed notes.

For one of his points on appeal, Stripling contends that the trial court committed reversible error in denying his pretrial motion for severance. We cannot agree.

Motions for severance are addressed to the sound discretion of the trial judge and an order will not be reversed except for a palpable abuse of discretion and, thus, it is incumbent upon a defendant who appeals a denial of a motion for severance to show at least a likelihood that he did not receive a fair trial because of the denial of the motion to sever. Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976). See also State v. Talavera, 243 So.2d 595 (Fla.1971); Rodriguez v. State, 237 So.2d 772 (Fla.3d DCA 1970); Grech v. State, 243 So.2d 216 (Fla.3d DCA 1971); Dove v. State, 287 So.2d 384 (Fla.1st DCA 1973). After a review of the record, we conclude Stripling has failed in his burden of showing the denial of his severance motion constituted an abuse of discretion.

In light of the above disposition, we do not deem it necessary to consider Spiegel’s and Stripling’s remaining points on appeal. For the numerous reasons cited, the convictions of Spiegel and Stripling are vacated and the cause remanded to the trial court for a new trial.

Reversed and remanded.

      . These telephone calls were taped.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan SKELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-642.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Sept. 14, 1977.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, Juan Skelton, appeals his conviction of unlawful possession of cannabis and sentence to six months in the county jail.

Defendant for his sole point on appeal contends the trial judge erred in denying his motion to suppress, alleging that the warrantless search incident to his arrest was based upon mere suspicion and not the required probable cause. We cannot agree.

Probable cause to arrest exists where a reasonable man, having the specialized training of a police officer, in reviewing facts known to the arresting officer prior to the actual time of arrest, would come to the conclusion that a felony is being or has been committed by the person to be arrested. State v. Profera, 239 So.2d 867 (Fla.4th DCA 1970); see also Russell v. State, 266 So.2d 92 (Fla.3d DCA 1972); State v. Knapp, 294 So.2d 338 (Fla.2d DCA 1974).

In the instant case Officer Cantillo, the arresting officer, was highly experienced and often involved in drug related arrests. He was well acquainted with the neighborhood in which the arrest took place. He testified that on the date in question he observed a young man walk up to the defendant, who was standing on the corner of West Flagler Street and Seventh Avenue, and hand him (the defendant) a stack of small brown packets, each packet being 2" by 3" in size. The defendant placed the packets, secured by rubber bands, into his jacket pocket. Officer Can-tillo exited from his patrol car, retrieved the packets from the defendant’s pocket and placed him under arrest. Cantillo further testified that cannabis is often distributed in packets similar to those he had taken from the defendant and he believed a drug sale was in progress.

Under the totality of the circumstances, Officer Cantillo had probable cause to believe that the packets contained cannabis (marijuana) and a narcotics sale was in progress. Thus, the trial judge was correct in denying the motion to suppress. Cf. U. S. v. Allen, 472 F.2d 145 (5th Cir. 1973); Trivette v. State, 244 So.2d 173 (Fla.4th DCA 1971); Russell v. State, supra; State v. Knapp, supra.

Affirmed.


text:
    Ruben MONZON, Appellant, v. Linda S. MONZON, Appellee.
    No. 76-1353.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 14, 1977.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Arthur E. Huttoe, Miami, for appel-lee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, Ruben Monzon, respondent in the trial court, appeals those provisions of a dissolution of marriage judgment awarding his ex-wife, Linda, the jointly owned marital residence as partial lump sum alimony and rehabilitative alimony of $500 per month for 18 months. Appellant also appeals a subsequent order determining that Linda’s attorney is entitled to a $5,000 fee and directing appellant to pay $3,500 thereof.

With respect to appellant’s first point on appeal, contending error in the awards of the marital residence and rehabilitative alimony, it is now well established that the courts have broad discretion to utilize and award any combination of rehabilitative alimony, lump sum alimony, periodic permanent alimony, etc. Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975). The record reflects that Linda provided the bulk of the down payment for the marital residence and that she quit her job at appellant’s request. There being competent substantial evidence to support the above awards, we cannot say the chancellor abused his discretion and it is not the function of this court to substitute its judgment for that of the chancellor through re-evaluation of the testimony and evidence. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Appellant secondly argues that the chancellor erred in assuming jurisdiction over and awarding attorney’s fees when Linda’s petition failed to demand such fees so that she was not legally entitled to recover them. We cannot agree.

Although Linda’s petition for dissolution contained no such prayer, counsel for the respective parties agreed prior to the final hearing that the chancellor should reserve ruling on attorney’s fees on behalf of Linda and the final judgment expressly reserved ruling on attorney’s fees. We, therefore, find that the chancellor had jurisdiction to enter an order awarding reasonable attorney’s fees subsequent to the final judgment of dissolution of marriage. See Section 61.-16, Florida Statutes (1975) and Cf. Frumkes v. Frumkes, 328 So.2d 34 (Fla.3d DCA 1976); Church v. Church, 338 So.2d 544 (Fla.3d DCA 1976).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Michael VISCITO, Joseph Covello, Joseph Ippolito, Anthony Romano and Barry Mark, Appellees.
    Nos. 76-1460, 76-1461, 76-1462 and 76-1895.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 14, 1977.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellant.
    Varón, Stahl, Kay & Roderman and Steadman S. Stahl, Jr., Hollywood, for Vis-cito.
    P. D. Aiken, Fort Lauderdale, for Covello.
    Max Lurie, Miami, for Ippolito.
    Kogen & Kogan and Geoffrey C. Fleck, Miami, for Romano and Mark.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

The State of Florida appeals the orders dismissing four separate informations filed against the defendant-appellees by Philip S. Shailer, State Attorney of the 17th Judicial Circuit, on the ground that Executive Order 76-4 under which he was acting was invalid.

On May 28, 1975 the Governor, pursuant to Section 27.14, Florida Statutes (1974), issued Executive Order (hereinafter E.O.) 75-27 assigning Philip Shailer, State Attorney of the 17th Judicial Circuit, to discharge the duties of the State Attorney of the 11th Judicial Circuit with respect to the prosecution of certain named individuals who had been indicted by the Second Statewide Grand Jury. Thereafter, by E.O. 75-36 of July 31, 1975, the Governor expanded E.O. 75-27 by providing Philip Shailer with the authority to investigate and prosecute all individuals indicted by the Second Statewide Grand Jury where venue lies in Dade County, Florida (the 11th Judicial Circuit). Subsequently, E.O. 75-27 as amended by E.O. 75-36 was extended until January 27, 1976 by the Governor on July 28, 1975 in E.O. 75-40.

On February 10,1976 the Governor issued E.O. 76-4, reissuing E.O 75-27 and all subsequent related Executive Orders (i. e. 75-36, 75-40, 75-56) and extending Philip Shailer’s assignment thereunder until August 9, 1976. On February 24 the Florida Supreme Court issued an “Order Approving Extended Assignment” of Shailer. Thereafter, on March 4, 1976 Shailer filed an amended information against defendant-ap-pellees Anthony Romano and Barry Mark for various gambling violations. Likewise, on March 22 a similar information was filed against defendant-appellees Michael Viscito and Joseph Covello. Also, on March 22 Shailer filed an information against defendant-appellees Joseph Ippolito and Michael Viscito for gambling violations. Upon various motion, these informations were dismissed as to the above defendants on the ground that since the first extension of E.O. 75-27 had expired on January 27, 1976, the issuance of E.O. 76-40 on February 10,1976 could not serve to revive it and, therefore, Shailer was without authority to file the above informations. The State appeals these dismissal orders and basically contends the authority of the assigned state attorney should have been tested by quo warranto proceedings. We agree.

Our Supreme Court in Hart v. State, 144 Fla. 409, 420, 198 So. 120, 125 (1940) held that “if the power and authority of an assigned state attorney is to be tested, it should be done in direct proceedings by quo warranto.” See also State, ex rel. Christian v. Austin, 302 So.2d 811 (Fla. 1st DCA 1974). Defendants having failed to pursue this method in attacking the informations filed against them on the ground that Philip Shailer, the assigned attorney was without authority, the orders of dismissal appealed are reversed and the causes remanded to the trial court for further proceedings.

Reversed and remanded.


author: McCORD, Chief Judge. RAWLS, Judge

text:
    Allen Murphy OWENS, Appellant, v. STATE of Florida, Appellee.
    No. CC-183.
    District Court of Appeal of Florida, First District.
    July 22, 1977.
    Rehearing Denied Sept. 12, 1977.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Appellant was tried by jury and found guilty of robbery. He appeals the judgment and sentence contending that the court erred in denying his motion for mistrial based on alleged insufficiency of the in-court identification of appellant by the victim, Daniel Russo, and alleged improper conduct of Officer Grayson which allegedly tainted the in-court identification. Appellant further contends the court erred in denying his motion for new trial because he presented newly discovered evidence which, taken in conjunction with the evidence adduced at trial, he argues established that Russo was incompetent to testify.

As to the first point, the record shows that Officer Grayson pointed out an accomplice to Russo in the courtroom. Appellant contends that through the process of elimination such aided Russo’s identification of appellant and thereby tainted Russo’s in-court identification of appellant. While Russo’s in-court identification was shaky, as was brought out by cross-examination before the jury, we find no reversible error. Russo had previously identified appellant, appellant’s companions, appellant’s and their clothing, and the automobile approximately 10 minutes after the crime had been committed. Also, appellant had confessed. The jury was made fully aware of the limitations upon the in-court identification. Appellant made no objection to the identification testimony at the time but waited until the state rested its case before moving to strike the testimony and for a mistrial. Such action comes too late. See Barrett v. State, 266 So.2d 373 (Fla. 4 DCA 1972), where the court stated:

“It was not error to deny the motion for mistrial, coming as it did at the close of all of the evidence, where appellant had failed to raise any timely objection to the witness testifying or to the identification testimony. McGriff v. State, Fla.App. 1970, 232 So.2d 454. The accused in a criminal proceeding is not entitled to the privilege of refraining from making timely objection to matters felt to be prejudicial and then waiting until the relative strength of the prosecution and defense presentations can be evaluated before raising a cry of prejudice.”

As to appellant’s second point, it is predicated upon alleged newly discovered evidence that Russo had pled guilty in municipal court to making a false report of a crime. That fact, however, is not undisputed because the prosecutor as an officer of the court represented that the offense was really a false report to an ambulance service of an injury; but, be that as it may, there is no question that Russo was the victim of this crime. His condition fully demonstrated it. Newly discovered evidence going only to credibility of a witness is insufficient. See Dames v. State, 314 So.2d 171 (Fla. 3 DCA 1975).

Affirmed.

SMITH, J., concurs.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

I dissent.

Daniel Russo, the victim in the instant case, notified the Daytona Beach police that while hitchhiking he had been the victim of an assault and a robbery. More specifically, Russo identified his assailants as being two black males and a black female who had picked him up in a red Mercury Capri. Sometime later that day, the police apprehended a red Capri driven by a black female with two black male passengers. Russo was brought to the arrest site and identified appellant Owens as the individual who had beaten him and taken his money. A search of the car revealed sunglasses, a floppy red hat and a one dollar bill under the driver’s seat. A search of Owens disclosed a twenty dollar bill in his right sock. Owens was arrested, advised of his rights, and transported to the police department where he allegedly made a confession. Owens was charged with robbery, tried by jury, convicted and sentenced to two years imprisonment and eight years probation.

By this appeal, Owens poses two points: 1) that the trial court erred in denying his motion for mistrial which was based upon the insufficiency of the victim’s in-court identification and the improper conduct of one of the arresting police officers which tainted that identification, and 2) that the trial court abused its discretion in denying his motion for new trial, which motion was founded on newly discovered evidence establishing that the state’s chief witness, Russo, was incompetent to testify. I find both points to be meritorious and would reverse.

While it is clear that Owens was in the Capri when it was stopped by the police, the only evidence linking him to the actual robbery was the testimony of the victim, Daniel Russo. That portion of Russo’s testimony clearly directed to the actual robber describes him as black and wearing a red shirt, red flop hat and sunglasses. Russo’s remaining descriptive testimony either describes Owens at the arrest site or in the courtroom. On cross-examination the following colloquy took place:

“Q. [defense counsel] Speaking of that, Mr. Russo, this morning, while I was across the street in Judge Blount’s court—
A. [Russo] Yes, sir.
Q. — you were sitting in the courtroom, weren’t you, with Officer Grayson [an arresting officer] and some other people?
A. Yes, sir.
Q. Some black people?
A. Yes, sir.
Q. And didn’t you ask Mr. Grayson which one was Allen Owens?
A. Yes, sir.
Q. You did?
A. Yes.
Q. Because you didn’t know?
A. No, sir.
“A. And we were leaving the courtroom back in county jail, and he said, ‘Do you remember the one with the green hat on?’ And he pointed him out to me.
And I didn’t even know who it was, because it’s been such a long time ago. Q. You didn’t recognize either one of them, did you?
A. No, sir.”

On re-direct, Russo testified that there was no doubt in his mind that Owens was the man the police had custody of at the site of the red Capri. However, on re-cross the following occurred:

“Q. Oh. So what you base your identification on that night was the fact that he got out of the car and he had a red shirt on. Isn’t that true?
A. I’m telling you what I saw in the car: he had a red shirt on. And, when he was over the hood of the police car, he still had a red shirt on. So I figured that was him.”

On cross examination, Officer Grayson testified as follows concerning his in-court discussion with Russo:

“Q. Was Danny Russo also here?
A. Yes, he was.
Q. And the Defendant was also here, wasn’t he?
A. Yes.
Q. And the juvenile [Munge] was also here, wasn’t he?
A. Yes.
Q. And, at some point . . . didn’t Danny Russo ask you which of these two people was the Defendant?
A. He made a statement — He pointed at Mungen, and said, ‘Is that him?’
Q. He didn’t know?
A. That’s what he asked me. He pointed at Mungen and said, ‘Is that him?’
Q. And what was your response?
A. I said, ‘That’s Mungen’.”

Thus, by pointing out Mungen, Officer Grayson, by a process of elimination, identified Owens who was also present.

Florida has long held that all essential elements of a crime, including the identification of the accused as the guilty party, must be proved beyond a reasonable doubt. Further, the identification of a person charged with a crime should be reasonably clear and unequivocal. In the instant case, Russo admitted that at the time of the assault it was dark and he could not get a good look at his assailant. He stated further that all blacks looked alike to him and admitted that any young black male of appellant’s general size who put on sunglasses and a red flop hat would look like his assailant. Also, it is evident from the record that most of Russo’s testimony concerning his assailant relates to his observations of Owens either at the time of his arrest or at trial. However, even these observations are conflicting, in part, with the descriptive testimony given by the arresting officers.

Officer Grayson’s in-court conduct of identifying Owens to Russo prior to trial was impermissibly suggestive and required the suppression of Russo’s identification testimony unless and until the state had demonstrated that the in-court identification of Russo rested upon an independent and untainted foundation. As stated by the Second District in Hamilton, supra:

“We cannot treat the error as harmless because this is not a case in which the identity of the defendant is otherwise established or in which the opportunity to know the identity of the suspect was so great and the identification so clear the police impropriety thereafter did not raise a question of deprivation of due process when all of the circumstances are considered.”

Owens’ second contention of error is that the trial court abused its discretion in failing to grant his motion for new trial. Owens’ motion for new trial was predicated upon certain new evidence he offered concerning Russo’s competency, i. e., a certified statement of the Clerk of the City Court of Daytona Beach Shores establishing that Russo, less than two weeks after Owens’ conviction, had plead guilty to the offense of falsely reporting an injury to an ambulance service for which he served seven days in jail. Owens buttresses his contention that the above new evidence was sufficient grounds for a new trial by pointing out that the court, at trial and over Owens’ objection, found Russo competent to testify, despite the fact that he had recently been hospitalized for psychiatric treatment and, further, in view of Russo’s own testimony that he had, three days before the trial, told a man in the courtroom that he had killed a policeman, robbed two gas stations and was going to prison for a long time — none of which was true.

Although it is the general rule that to warrant a new trial on the ground of newly discovered evidence, the evidence “must go to the merits of the cause and not merely to impeach the character of a witness”, the Florida Supreme Court has held that in certain circumstances newly discovered evidence of a witness’s bad character and reputation was a sufficient basis for a new trial. In Childre v. State, supra, the Supreme Court stated:

“Probably there are few cases in which a new trial should be granted because of newly discovered evidence consisting only of evidence as to the bad character and reputation of a witness. In a case like this, however, where the state relies upon the uncorroborated testimony of one witness to prove a charge which is easy to make and hard to negative, and where the evidence upon the trial shows, as it did show in this case, that such witness is, to say the least careless in her habits, and that the alleged assault occurred while she was under the influence of intoxicating liquor imbibed by her at a general drinking party of which she was one of the heaviest drinkers, such newly discovered evidence becomes most relevant and material.”

In my opinion, the new evidence submitted in support of Owens’ motion for new trial, in view of Russo’s previously questionable competency, is especially significant to the issue of his competency to testify, and it was error for the court below not to grant a new trial.

      . It is undisputed that Owens was a passenger in the car when it was apprehended.

      . Owens was dressed in gym shorts or “cut offs”, which he claimed were pocketless and gave the explanation that he kept his money in his sock while playing basketball. The driver of the car, Barbara Watson, had approximately $21.00 in her purse in different denominations which the police officers “determined” was her own money. Russo testified that he was robbed of approximately $38.00 consisting of a twenty, a ten and some ones.

      .Owens’ confession was oral, although the officer who took it had access to audio and visual tape recording machines as well as writing materials.

      . Mungen was the second black male apprehended in the red Capri.

      . McNeal v. State, 104 Fla. 360, 139 So. 791 (1932).

      . Anderson v. State, 92 Fla. 477, 110 So. 250 (Fla. 1926).

      . Appellant weighed substantially more than Russo’s description of his assailant and Russo testified that his assailant had his hair in an afro style while the arresting officers testified that Owens’ hair was either plaited or braided on the night in question.

        . Hamilton v. State, 303 So.2d 656 (Fla. 2nd DCA 1974); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

      . Howard v. State, 36 Fla. 21, 17 So. 84 (1895).

      . Childre v. State, 106 Fla. 334, 143 So. 309 (1932).


text:
    YELLOW CAB COMPANY OF BOCA RATON, INC., a Florida Corporation, Appellant, v. AIROCAR, INC., and Broward County, a political subdivision, Appellees.
    No. 76-702.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Rehearing Denied Sept. 15, 1977.
    Richard B. Austin of Law Office of Richard B. Austin, Miami, for appellant.
    R. T. Shankweiler of Patterson, Maloney & Shankweiler, Fort Lauderdale, and John P. Bond of Bond & Woitesek, Miami, for appellees.
   PER CURIAM.

Upon consideration of the record on appeal and briefs of the respective parties, we determine the trial court did not err in enjoining appellant from providing transportation service from the Fort Lauderdale-Hollywood International Airport, Broward County, Florida, until appellant had secured appropriate authority from the Florida Public Service Commission. Accordingly, the order appealed is affirmed.

Affirmed.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


text:
    Daniel Lee SWANSON, a minor, by his next friend, Frank Swanson, Donna Pauline Swanson and Frank Robert Swanson, Individually, Appellants, v. STATE FARM FIRE & CASUALTY CO., etc., Gerald Lee Pinder, Dorothy Lee Pinder, et al., Appellees.
    No. 75-907.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Sept. 15, 1977.
    Arthur J. Morburger, Weinstein & Bavly, P. A., Miami, and Carl M. Collier, Palm Beach, for appellants.
    Thomas A. Hoadley, West Palm Beach, for appellees.
   PER CURIAM.

Upon review and due consideration of the appellate issues we are of the opinion that the record on appeal reflects several errors, the totality of which warrant the granting of a new trial. In particular, admission into evidence of a Mary Carter agreement in a modified and excised form and later referred to by counsel as a “secret agreement” was prejudicial and contrary to the holdings in Imperial Elevator Co., Inc. v. Cohen, 311 So.2d 732 (Fla. 3d DCA 1975); General Portland Land Development Co. v. Stevens, 291 So.2d 250 (Fla. 4th DCA 1974); Weinstein v. National Car Rentals, 288 So.2d 509 (Fla. 3d DCA 1973); Ward v. Ochoa, 284 So.2d 385 (Fla.1973). Accordingly, the final judgment is reversed and the cause remanded for a new trial or such other proceedings as may be consistent herewith.

REVERSED AND REMANDED.

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


text:
    Dan PIVER, Samuel Biberman, et al., Appellants, v. Herman BIRMAN et al., Trafalgar Towers Corp., etc., and Millman Construction Co., Appellees.
    No. 76-613.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Sept. 15, 1977.
    Joe Easthope, of Ferrero, Middlebrooks & Houston, Fort Lauderdale, for appellants.
    Douglas C. Kaplan, of Kaplan, Jaffe & Associates, Hollywood, for appellees.
    Alan B. Whitaker, Jr., of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for Millman Constr. Co.
    Daniel N. Heller, Miami, for third party appellants.
   PER CURIAM.

Twelve condominium owners suing individually and as members of a class, together with the condominium association of the condominium complex in question, filed a class action against numerous defendants, including the developer, in a six count complaint that sought both legal and equitable relief.

At pretrial conference the trial court denied the defendants’ motions for: (a) a continuance to allow plaintiff to further depose certain unit owners, (b) a summary judgment, (c) dismissal of the class action as to certain corporations, and (d) severance of the equitable claims not triable by jury. In this interlocutory appeal the defendants contend that the denial of the foregoing motions constituted reversible error.

Appellants’ brief states that the equitable count for rescission was severed from the remaining counts of the complaint. Thus, we find no further basis for a motion to sever.

The order denying a continuance is moot, as appellants certainly have had adequate time to take the depositions of all unit owners during the appellate proceedings, which were initiated in 1974.

As to the remaining points on appeal, we believe the trial court’s rulings at pretrial conference find adequate support in two recent cases. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977), and Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla.4th DCA 1976).

Accordingly, the order appealed from is affirmed.

AFFIRMED.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    Stephen J. POLATNICK, Relator, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. 77-543.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Sept. 16, 1977.

      Stephen J. Polatnick, in pro. per.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondent.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Claimant, Stephen J. Polatnick, by petition for writ of certiorari seeks review of an order of the Industrial Relations Commission dismissing his application for review of the decision of the appeals referee on the ground that such application was untimely filed and, therefore, the Commission lacked jurisdiction in this action arising out of a claim for unemployment compensation benefits.

After being discharged by his employer, Stephen Polatnick filed a claim for unemployment compensation benefits. On September 24, 1976 the claims examiner disqualified him and on the same day mailed him a notice to that effect to his last known address which was listed as Mill Valley, California. The notice provided that he had 10 days from the date of mailing (October 5, 1976) within which to file an appeal. Polatnick by letter postmarked September 29 timely filed his notice of appeal which was received by the Bureau of Unemployment Compensation on October 1. The Bureau retained the appeal letter and on October 5, after the 10 day appeal period had expired, returned it to Polatnick with the request that he fill in his social security number. On October 9 Polatnick mailed his appeal letter back to the Bureau which received it on October 12. By letter of October 15 he was informed that his appeal was being forwarded to the appeals section for handling. The appeals referee determined that Polatnick had not filed his appeal until October 9 (the date he returned his appeal letter to the Bureau with his social security number filled in); that he (the appeals referee), therefore, lacked jurisdiction because the notice of appeal was untimely, being in excess of 10 days from September 24, and, thus, the determination of disqualification by the claims examiner became final on October 4. On November 12, 1976 this decision of the appeals referee was mailed to Polatnick in California. The notice informed Polatnick he had 10 days from November 12 (until November 22) in which to appeal the decision to the Industrial Relations Commission; however, Polat-nick had returned to Florida and did not receive notice of the decision of the appeals referee until after the expiration of the 10 days. By letter postmarked November 24, Polatnick mailed his application for review of the referee’s decision to the Industrial Relations Commission. The Commission took the position that his application for review was untimely and that it lacked jurisdiction thereupon affirming the decision of the appeals referee. After a consideration of the record, the petition for writ of certiorari, the briefs and oral argument, we conclude that State ex rel. Martinez v. Fla. Div., Etc., 339 So.2d 313 (Fla.3d DCA 1976) is controlling and hereby treat this cause as a petition for writ of mandamus.

We find that the denial of an appeal under the facts of this case as argued by petitioner Polatnick amounts to a denial of due process. See Article I, Section 9 and Article V, Section 1, Florida Constitution. Cf. Martinez, supra. We, therefore, hold that Polatnick is entitled to the issuance of a preemptory writ of mandamus to provide him with a hearing on his entitlement to unemployment compensation benefits and assume that such hearing will be provided without the necessity for the issuance of a formal peremptory writ of mandamus.

So ordered.

      . Which was forwarded by the U.S. post office from his California to his Florida address.


author: SMITH, Judge.

text:
    Edward L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. DD-39.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    Rehearing Denied Sept. 13, 1977.
    Frank E. Sheffield, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

A co-defendant’s statement incriminating herself and Davis was received in evidence in their joint trial, over Davis’ objection. Although the statement contained hearsay inadmissible against Davis, his counsel knew of the statement long before the trial and made no motion for severance until the trial was well under way. The motion for severance was untimely under Fla.R.Crim.P. 3.153, but the trial court had discretion under the same rule to entertain the motion, which the court here did. Davis here contends that, having heard or “entertained” the motion in midtrial, the court was powerless to do other than require the State then to elect as between (a) withdrawing its offer of the statement, (b) deleting its references to Davis, which would have excised significantly incriminating admissions by the declarant, or (c) severing Davis for another trial. Fla.R.Crim.P. 3.152(b)(2). See Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969).

Considering the untimeliness of the motion, the absence of circumstances mitigating its untimeliness, the absence of a practical way to excise the statement’s references to Davis without significantly detracting from admissible evidence against the declarant, and the independent evidence incriminating Davis much as did the hearsay, we find no reversible error. The jury was charged to consider the statement as evidence against the declarant only. To force other alternative dispositions on the trial court as a consequence of listening to the tardy motion would do no more than discourage “entertainment” of meritorious motions. An impermeable consciousness is not a judicial attribute. Unquestionably there are circumstances in which Rule 3.152(b)(2) requires a choice between its three alternative remedies even when the motion is late, but the trial court does not become bound to them, irrespective of other considerations, merely by hearing a tardy motion in midtrial. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) contemplates a pretrial motion for severance as the appropriate means for obtaining the relief sought, and does not require a different result.

Davis’ other points are without merit.

AFFIRMED.

McCORD, C. J., and RAWLS, J., concur.

      . “(a) A defendant’s motion for severance of multiple offenses or defendants . . , shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for such a motion but the court in its discretion may entertain such a motion at the trial.”


text:
    GUARANTY FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, Petitioner, v. David L. KILBORN, R. J. Edwards and Rachel Jean Mitchell Eskew as Executrix of the Estate of Morris T. Eskew, Deceased, Respondents.
    No. 77-64.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    William C. Owen, Jr., Cone, Owen, Wagner, Nugent, Johnson & McKeown, Teques-ta, for petitioner.
    Paul Thibadeau, Law Offices of Paul Thi-badeau, Palm Beach, for respondent Kil-born.
    Frank A. Shepherd, Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for respondents Edwards and Eskew.
   PER CURIAM.

Petition for writ of certiorari is denied upon the authority of Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

ALDERMAN, DAUKSCH and LETTS, JJ., concur.


text:
    BAMA INVESTORS, INC., and Bar-Zac, Inc., Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 76-5.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 15, 1977.
    Korner, Sampson & Partridge and Donald Eugene Mason, Miami, for appellants.
    Stuart Simon, County Atty. and Stanley B. Price, Asst. County Atty., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Plaintiff corporations appeal an order dismissing their complaint for injunctive relief for lack of subject matter jurisdiction in this action seeking to enjoin the enforcement of a zoning ordinance applicable to their property.

Bama Investors, Inc. and Bar-Zac, Inc., appellants herein, are the owners of certain real property located in Dade County and zoned RU-1 and RU-2 (single family residential and duplex or two family residential). Desirous of more liberal zoning classification, appellants filed applications for a change of zoning to BU-1 (neighborhood business district) with the appropriate county agencies and on September 24, 1975 the county commission denied appellant’s application. After exhausting their administrative remedies, appellants on November 4, 1975 filed a complaint for injunctive relief seeking to enjoin the County from enforcing the RU-1 and RU-2 zoning ordinance and requesting that they be permitted to develop their property in accordance with the uses permitted under a BU-1 classification. The gravamen of their complaint is that as a result of the changing social, physical and economic character of the surrounding neighborhood, the present zoning ordinance is unreasonable, arbitrary and confiscatory. Therefore, the ordinance as applies to their property deprives them of equal protection of the laws and constitutes a taking of their property without due process of law contrary to the guarantees under the United States and Florida Constitutions. Dade County filed a motion to dismiss the complaint on the ground that cer-tiorari is the only proper remedy for review of the county commission’s resolution denying appellants’ requested zoning change, and appellants failed to comply with the requirements of Section 33-316, Code of Metropolitan Dade County, for review of this resolution. After hearing arguments of respective counsel, the trial judge dismissed the complaint with prejudice for lack of jurisdiction over the subject matter. We reverse.

The issue presented is whether the method of review prescribed by Section 33-316, Code of Metropolitan Dade County (certiorari), is the exclusive remedy available to a complainant who on constitutional grounds directly attacks the validity of a Dade County zoning ordinance as it applies to his (or her) property.

The leading case with respect to this issue is Harris v. Goff, 151 So.2d 642, 645 (Fla. 1st DCA 1963) wherein the court stated that “suits in equity seeking injunctive relief against a zoning ordinance or resolution on the ground that it is arbitrary, capricious, confiscatory or impinges on some right or guarantee of the Constitution of this State has long been the traditional method of assaulting the validity of zoning ordinances or resolutions.” As pointed out in Goff, supra, this statement is based upon the following holding by the Florida Sureme Court in De Groot v. Sheffield, 95 So.2d 912, 915 (Fla.1957):

“ . . .It must be conceded that over the years orders of administrative agencies have been placed under scrutiny in Florida in both mandamus and certiorari cases. Admittedly, little attention has been given to the propriety of the procedure in particular cases. Hence the resultant confusion. We interpolate that we pretermit in this instance any discussion of the proper use of the equity injunction and the writ of prohibition. Injunction has been many times employed to assault legislative action at the state and local level where such action allegedly impinged on some constitutional right. Attacks on municipal zoning ordinances are typical . . . ” [Emphasis Supplied]

We note that this court in Dade County v. Markoe, 164 So.2d 881, 882-3 (Fla. 3d DCA 1964) by implication has approved the above holding in Goff, supra.

Presented with a similar issue as in the instant case, the Florida Supreme Court in Thompson v. City of Miami, 167 So.2d 841, 843 (Fla.1964) held that Section 176.16, Florida Statutes (1963), providing for review of, inter alia, municipal zoning ordinance by statutory certiorari was not applicable to an equity proceeding which assaults the validity of a municipal zoning ordinance and even if applicable “would not have been available to accomplish the results desired”. The clear implication gleaned from the Thompson case is that even if statutory certiorari is available, the traditional equity suit still, as in the past, continues to be the proper method of review where an owner desires to make an assault upon the validity of a zoning ordinance as applied to his (or her) property. See City of Miami v. Rosen, 151 Fla. 677,10 So.2d 307 (1942); City of Miami Beach v. Perell, 52 So.2d 906 (Fla.1951); Harris v. Goff, supra; Metropolitan Dade County v. Greenlee, 213 So.2d 485 (Fla. 3d DCA 1968); City of Coral Gables v. Deschamps, 242 So.2d 210 (Fla. 3d DCA 1970).

Nevertheless, appellee Dade County argues that the sole and exclusive method of challenging a zoning resolution of the commission is by timely filing a petition for writ of certiorari as prescribed by Section 33-316, Code of Metropolitan Dade County. In support of this contention, appellee primarily relies upon Dade County v. Metro Improvement Corp., 190 So.2d 202 (Fla. 3d DCA 1966); Baker v. Metropolitan Dade County, 237 So.2d 201 (Fla. 3d DCA 1970) and Centex Homes Corporation v. Metropolitan Dade County, 318 So.2d 149 (Fla. 3d DCA 1975). Reliance upon the Baker and Centex Homes cases is misplaced because therein this court construed the respective complaints as direct attacks on a resolution of the county commission rather than a challenge to the validity of a zoning ordinance as pertained to the owner’s property and, therefore, such a challenge was required to be brought by petition for certio-rari from the resolution of the county commission and not by an equitable proceeding. However, implicit in these holdings is that where, as in the case sub judice, the complaint is a challenge to the validity of a zoning ordinance as it pertains to complainant’s property, then an equitable proceeding is proper. See Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1977).

Neither do we find Dade County v. Metro Improvement Corporation, 190 So.2d 202 (Fla. 3d DCA 1966), supra, to be controlling because therein no challenge was presented to the validity of the underlying zoning ordinance as applied to appel-lee’s property. Appellee was contesting the method by which the county commission adopted a zoning resolution reclassifying its property from RU-4L (multi-family) back to the original classification of IU-1 (light industrial), and this court affirmed the finding of the trial court that the commission had acted improperly and could not do indirectly what could not be done directly. Further, the holding that Section 33-316, Code of Metropolitan Dade County, prescribes the sole or exclusive method (certio-rari) whereby a person who has been aggrieved by a decision of the county commission in actions taken by the commission relating to zoning matters may take an appeal is referring, in essence, to the passage of zoning resolutions by the commission which an adversely affected property owner is seeking to challenge. This holding, however, was never intended to include actions which challenge the constitutional validity of a zoning ordinance as applied to one’s property on the grounds that the ordinance totally denies to an owner any reasonable use of his (or her) property in that it is confiscatory and amounts to a taking without compensation. For the right to make a reasonable use of property is fundamental and constitutionally protected under the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution. When this constitutional right is interfered with through a zoning ordinance which deprives an individual of any reasonable use of his (or her) property to the extent that the ordinance becomes confiscatory in nature and amounts to a taking without compensation, that individual, after exhausting administrative remedies, cannot be precluded from instituting an equitable suit seeking to enjoin the enforcement of the zoning ordinance as applies to his (or her) property and the local governmental authority from infringing upon his constitutionally protected property rights. See City of Miami v. Rosen, 151 Fla. 677, 686, 10 So.2d 307, 310 (1942), supra.

We have re-examined our recent opinion in Peterson v. Dade County, 329 So.2d 47 (Fla. 3d DCA 1976) in light of our holding herein and anything to the contrary found in this court’s opinion in Peterson v. Dade County, supra, be and the same is hereby receded from.

We find, therefore, that the trial court had jurisdiction over the instant equitable suit instituted by the appellants to directly challenge on constitutional grounds the validity of the present RU-1 and RU-2 zoning ordinance as applied to their property. Accordingly,, the order dismissing appellants’ complaint for injunctive relief with prejudice is reversed and the cause remanded to the trial court with directions to reinstate the complaint.

Reversed and remanded.


author: HENDRY, Chief Judge.

text:
    BURGER KING CORPORATION, a Florida Corporation, Appellant, v. METROPOLITAN DADE COUNTY, etc., et al., Appellees.
    Nos. 76-181, 76-102.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 8, 1977.
    Turner, Shapiro & Levy, Miami, for appellant.
    Stuart Simon, County Atty., and St. Ju-lien P. Rosemond, Asst. County Atty., Fromberg, Fromberg & Roth, and Jeffrey Michael Cohen, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

Appellant, petitioner below, appeals from an order of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, which denied its petition for writ of certiorari in a zoning matter. Ap-pellee, Metropolitan Dade County, was the respondent below and appellees Diane Lawrence and Irvin Steele were intervenors.

Two issues are presented by this appeal. The first issue presented is whether appellant’s request for a variance was barred by either judicial or administrative res judica-ta. The second issue presented is whether appellant has suffered the requisite “unnecessary hardship” so as to be entitled to a use variance for its property.

The facts are as follows: Appellant requested a district boundary change for a parcel of land it owned at the corner of Southwest 107th Avenue and North Kendall Drive, Miami. The requested change was from an RU^L classification (limited apartments) to an RU-5A classification (professional offices). Along with the reclassification of the property, appellant sought a use variance to permit the first story of the building to house a restaurant, i. e., a “Burger King.”

Pursuant to a hearing held before the County Commission of Dade County, the rezoning of the property was granted, however, the use variance was denied. (There were 248 filed protests against the variance for the reason, among others, that the particular corner property whereon the proposed restaurant was to be built was situated at one of Dade County’s most hazardous intersections, thereby making the hamburger emporium an attractive nuisance to the children at a nearby elementary school.)

Appellants thereupon filed its petition for certiorari in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Said petition was denied on December 17, 1975, on the grounds of res judicata and failure to show any unnecessary hardship peculiar to the land on which to base the granting of a variance.

From this ruling, appellant has filed this appeal.

Initially, we note that the same property in question was the subject of a prior zoning application on December 7, 1972, at which time the Board of County Commissioners of Metropolitan Dade County denied with prejudice a request for a district boundary change in the property to a BU-I classification (neighborhood business). The change was sought by appellant’s predecessor in title for the purpose of building a “Burger King” restaurant.

In that prior attempt at reclassification, certiorari was sought in and granted by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, on May 23, 1973. From that order granting certiorari, we entertained an appeal, reported as Metropolitan Dade County v. Crowe, 296 So.2d 532 (Fla.3d DCA 1974). In that opinion, we reversed the order of the Circuit Court based, in part, on the following reasoning:

“Moreover, the owner had previously made a similar application to have the zoning of the parcel so liberalized, and the application therefor had been denied. There was no showing of changed circumstances applicable thereto, since the denial of the prior application, sufficient to overcome the administrative res judicata effect thereof. See City of Miami Beach v. Prevatt, Fla.1957, 97 So.2d 473, 477-478; Metropolitan Dade County v. Rockmatt Corp., Fla.App.1970, 231 So.2d 41.”

This current attempt at liberalizing the classification of this particular piece of property marks the third time that the Dade County Commission has heard arguments on whether to permit construction of a “Burger King” and the second time that we have been asked to rule upon the correctness of the Commission’s decision. During the time between our prior decision, cited above, and the present, we have not been shown a substantial change of circumstances applicable to the property sufficient to overcome either the effect of administrative or judicial res judicata. Metropolitan Dade County Board of County Comissioners v. Rockmatt Corporation, 231 So.2d 41 (Fla.3d DCA 1970). As such, we hold that either doctrine is applicable as a bar to the relief appellant seeks.

Even assuming that res judicata does not apply, appellant has failed to show the requisite “unnecessary hardship” so as to be entitled to a variance on its property. Elwyn v. City of Miami, 113 So.2d 849 (Fla.3d DCA 1959). The only “hardship” claimed by appellant is one of economic disadvantage, which does not constitute a hardship sufficient to warrant the granting of a variance. Dade County v. Frank N’Bun Operating Co., 169 So.2d 875 (Fla.3d DCA 1964). In addition, appellant purchased the property in question with both full knowledge of the zoning applicable thereto and the County Commission’s refusal to reclassify said property as BU-I. As such, any “hardship” appellant has suffered has been self-created, precluding relief. Josephson v. Autrey, 96 So.2d 784 (Fla.1957); Elwyn v. City of Miami, supra.

Accordingly, for the reasons stated above, the order denying certiorari is hereby affirmed.

Affirmed.

      . Appellant contends that it has shown a “sufficient change in the circumstances” so as to preclude the applicability of res judicata by virtue of the County Commission’s reclassification of the parcel of land from RU-4L (limited apartments) to RU-5A (professional offices). This contention is without merit, as the “change in circumstances” accompanying the above reclassification is clearly neither of the variety nor magnitude as will support a change from RU-4L to BU-1 (neighborhood business).


text:
    Preston SHANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-703.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 7, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943); Epler v. Judges of Thirteenth Judicial Circuit, Hillsborough County, Florida, 308 So.2d 134 (Fla.2d DCA 1975).


text:
    SOUTH FLORIDA BEACHES AIRCRAFT, INC., Appellant, v. AIR METAL COMPANY, INC., and Canadian Aerocon, Ltd., Appellees.
    No. 76-1568.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 16, 1977.

      Thomas F. Pepe, Miami, for appellant. Shutts & Bowen and Brenton Ver Ploeg, Miami, for appellees.
    Before HAVERFIELD, BARKDULL and NATHAN, JJ.
   HAVERFIELD, Judge.

This is an appeal by South Florida Beaches Aircraft, Inc. from an adverse final summary judgment in favor of defendant, Canadian Aerocon, Ltd., in a breach of contract action.

South Florida Beaches Aircraft, Inc. filed a breach of contract action against Canadian Aerocon, Ltd., which manufactures aircraft parts, and alleged that it had entered into a written agreement with Raymond Wheeler, as agent for Canadian Aerocon, whereby plaintiff was given the exclusive right to sell “spar kits” (aircraft wing supports) in the South Florida area manufactured by Canadian Aerocon. Plaintiff further alleged that the agreement provided that it was subject to validation by Canadian Aerocon under separate cover and Canadian Aerocon ratified and accepted the agreement; that Canadian Aerocon subsequently breached the agreement by allowing Air Metal Company, Inc. to also sell the “spar kits”. Canadian Aerocon answered and thereafter filed a motion for summary judgment with supporting affidavits to the effect that it had never ratified the agreement. Raymond Wheeler also filed an affidavit that he was never authorized to bind Canadian Aerocon, hence the proviso for validation under separate cover by Canadian Aerocon. Plaintiff filed two affidavits in opposition to the motion for summary judgment. After a hearing, the trial judge entered summary judgment for Canadian Aerocon. We affirm.

Validation under separate cover by Canadian Aerocon clearly was a condition precedent to the agreement. There being no such validation, the agreement never became effective. See 7 Fla.Jur. Contracts § 104 (1956) and Cf. Rork v. Las Olas Co., 156 Fla. 510, 23 So.2d 839, 842 (1945).

Next, Raymond Wheeler as per his affidavit was not authorized by Canadian Aero-con under his agency to enter into the subject agreement and thereby bind Canadian Aerocon. This fact is clearly gleaned from the provision in the agreement requiring the validation under separate cover.

Finally, there was no acceptance by acquiescence or inference because Canadian Aerocon not only shipped spar kits to plaintiff, but also to other dealers in Florida and, therefore, acted contrary to, not consistent with, the subject agreement purporting to make plaintiff the exclusive sales agent in Florida.

Summary judgment affirmed.

      . South Florida Beaches Aircraft, Inc. also sued Air Metal Company, Inc. in the same action for tortiously interfering with its contractual relationship with Canadian Aerocon. However, summary judgment was only requested by and entered for Canadian Aerocon. Therefore, Air Metal Company is not a party to this appeal.


text:
    Dr. Richard V. LIMOND, and Westchester General Hospital, Petitioners, v. Eneida LLANIO, etc., et al., Respondents.
    Nos. 76-2260, 76-2279, 77-89, 76-2284 and 76-2315.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Rehearing Denied Sept. 14, 1977.
    Walton, Lantaff, Scroeder & Carson and Joan S. Buckley and Calvin David; Preddy, Haddad, Kutner, Hardy & Josephs and John Thompson, Miami, for petitioners.
    West, Friesner & Goldman, Miami, for respondents.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

In these consolidated appeals, Dr. Richard Limond and Westchester General Hospital, defendant-appellants herein, seek review of an order denying their motions to set aside certificate of termination of mediation panel, and an order denying their motions to dismiss plaintiff’s complaint in this medical malpractice action.

On June 30, 1976 plaintiff-appellee, Enei-da Llanio, filed a claim and request for medical mediation pursuant to Section 768.-133, Florida Statutes (1975) against West-chester General Hospital, Dr. Arthur Henson and Dr. Richard Limond. Westchester General filed an answer along with a designation of medical specialty [See Section 768.133(2)(f), Florida Statutes (1975)]. Thereafter, the judicial referee noticed the determination of specialty for a July 29 hearing; however, this hearing was can-celled when the referee was informed that Dr. Limond had not as yet been served. After Limond was served on August 12, he filed his answer and designation of medical specialty on the following day. Previous thereto, plaintiff on August 5 filed her designation of specialty. On October 12 West-chester General filed a request to extend the time for up to six months, the maximum time allowable, for holding the final hearing of the mediation panel. [See Section 768.133(3), Florida Statutes (1975)]. This extension request was set down for hearing on October 21; but was not heard at that time because the judicial referee was on vacation. The matter was then renoticed for hearing on November 11; however, the referee still had not returned from his vacation as of this date, and again the request for extension was not heard. On November 17 the clerk of the circuit court entered a clerk’s certificate of termination of mediation panel for the reason that a hearing had not been held on the merits in this cause since its filing on June 30, 1976, a period of more than 120 days and, pursuant to Section 768.133(4), Florida Statutes (1975), terminated the mediation. Westchester General and Dr. Limond filed motions to set aside certificate of termination on the ground that the request for extension was still pending and no hearing had been set by the judicial referee with respect to the designation of specialty. On December 8 the judicial referee entered an order denying the motions. Thereupon, Eneida Llanio filed a complaint for medical malpractice. Dr. Limond and Westchester General filed motions to dismiss the complaint for lack of jurisdiction over the subject matter for the reason that the medical mediation proceeding was wrongfully terminated. After a hearing, the trial judge by order of January 7, 1977 denied these motions. Westchester General and Dr. Li-mond timely filed petitions for common law certiorari and notices of appeal seeking review of the denial orders of December 8, 1976 and January 7, 1977. We reverse.

Very recently this court in State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977) determined that Section 768.-133(3), Florida Statutes [now Section 768.-44(3), Florida Statutes (1976 Supp.)] provides that if there is no hearing on the merits within 10 months of the date the claim is filed, the jurisdiction of the mediation panel terminates and, therefore, the jurisdiction of the panel to hold a hearing on the merits necessarily extends until the expiration of such 10-month period. Based upon this holding, the clerk in the case sub judice wrongfully terminated the mediation panel on November 17, 1975, and the judicial referee erred in denying appellant’s motions to set aside the clerk’s certificate of termination on December 8 as the mediation panel still had jurisdiction to hold a hearing on the merits.

Plaintiff-appellee’s reliance upon State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977) is misplaced because in that case the 10-month period had expired, in contrast to the instant case where only 120 days had elapsed. Further, despite the expiration of the 10 months, the court found the medical defendants should not be deprived of their right to mediation because of the judicial referee’s unauthorized and void order dismissing the medical mediation proceeding and transferring the cause to the circuit court.

Westchester General made a timely request for extension of final hearing of the mediation panel and twice attempted unsuccessfully to have this request heard. In addition, although the parties filed different designations of medical specialty, the judicial referee failed to make any determination as required by Section 768.133(2)(f), Florida Statutes (1975).

As in Love, supra, we likewise believe the medical defendant-appellants should not be deprived of their right to mediation. Cf. also State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977). Appellants having timely appealed by writ of certiorari, the order of December 8 denying their motions to set aside the November 17 certificate of termination is reversed.

In light of the above, it follows that the trial judge erred in denying appellant’s motions to dismiss plaintiff’s complaint. The denial order of January 7, 1977 is reversed and the cause is remanded to the trial court with directions to dismiss the complaint and reinstate the medical mediation proceedings.

Certiorari granted.


author: GREEN, OLIVER L., Associate Judge.

text:
    JUPITER INLET CORPORATION, a Florida Corporation, Appellant, v. The VILLAGE OF TEQUESTA, a Florida Municipal Corporation, and Thomas J. Little, William E. Leone, William J. Taylor, Dorothy M. Campbell and Almeda A. Jones, Town Councilmen of the Village of Tequesta, Appellees.
    No. 76-783.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Paul C. Wolfe and Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant.
    John C. Randolph of Johnston, Sasser & Randolph, West Palm Beach, for appellees.
   GREEN, OLIVER L., Associate Judge.

This is an appeal from a summary final judgment in favor of appellee, The Village of Tequesta. In granting the summary judgment the trial court stated that it was considering any factual conflicts in the light most favorable to the appellant, Jupiter Inlet Corporation. So the summary judgment, in effect, was a determination by the trial court that Jupiter Inlet’s complaint failed to state a cause of action.

The legal issue is whether a municipality may be held responsible to an owner when it takes water for a public purpose from the shallow aquifer underneath the owner’s land, to the extent that it deprives the owner of the beneficial use of the shallow aquifer. We hold that in such a case a municipality may be held responsible through inverse condemnation, and further that the plaintiff in this case has alleged sufficient facts to state a cause of action.

Viewing the facts in the same light as did the trial court, it appears that appellant Jupiter is the owner of certain land upon which it built condominium apartments. Tequesta owns and operates a well field in close proximity to Jupiter’s property. Pumping by Tequesta from the well field has depleted the fresh water in the shallow aquifer in the vicinity of the wells and also underneath Jupiter’s land. The withdrawal of fresh water by Tequesta caused a salt water intrusion into the shallow water aquifer under Jupiter’s land, making it unfit for use as a water source. Jupiter had intended to use its shallow aquifer as a source of potable water for its condominium apartments. Because of the loss of its shallow water aquifer, Jupiter is required to obtain its water at a much greater expense from the deeper Floridan aquifer. The water taken by Tequesta was used by the municipality for a public purpose.

The right of a governmental entity to take private property is limited.

No private property may be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner. Article X, Section 6(a), Florida Constitution.

When a governmental entity takes private property for a public purpose without the formal exercise of the power of eminent domain, the aggrieved property owner has a cause of action for inverse condemnation. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1964).

Because there is no constitutional requirement that the government pay for damage done to private property, as opposed to taking private property, much hinges on how the word “take” is interpreted. Florida courts have not, over the years, been in consistent agreement on this matter, particularly where — as in this case— there was no actual entry by the governmental authority on the owner’s land. It seems apparent, however, that when something is removed from its owner’s property by a governmental agency and put to a public use, it has been taken. The owner has been deprived by government action of the use and enjoyment of what was his, and so through a suit in inverse condemnation he can compel the government to pay for what it has taken. Compare: State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941); White v. Pinellas County, 185 So.2d 468 (Fla.1966).

The shallow aquifer beneath the surface of land is a form of private property, the beneficial use of which the owner of the land cannot be divested by the government for a public purpose without due process of law and the payment of full compensation. See Valls v. Arnold Industries, Inc., 328 So.2d 471 (Fla. 2d DCA 1976). That is true whether agents of the government actually physically enter upon the owner’s property in order to take the water from the aquifer or whether they draw off the water from beneath the owner’s land by pumping. In either event, the owner has been deprived of the beneficial use of his property by government action for a public purpose.

We conclude that the trial court should not have granted summary judgment and that Jupiter has alleged sufficient facts to state a cause of action for inverse condemnation.

Pursuant to Article V, Section 3(b)(3) of the Florida Constitution we hereby certify to the Supreme Court as a matter of great public interest, the following question:

Can a municipality be held responsible through inverse condemnation for a taking, from private ownership for public purposes, of underground shallow aquifer water, to the extent that the owner is deprived of the beneficial use of the aquifer?

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALDERMAN, C. J., and DOWNEY, J., concur.


author:
      ANSTEAD, Judge.
      DOWNEY, Judge,

text:
    Nathan C. DAVIES and Jean F. Davies, his wife, Appellants, v. L. G. COX and Jessie Cox, his wife, Appellees.
    No. 76-828.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    James T. Vocelle of Vocelle, Gallagher & Block, Vero Beach, for appellants.
    Thomas Thatcher of Smith, Heath & Smith, Vero Beach, for appellees.
   ANSTEAD, Judge.

This is an appeal involving the construction and effect of Section 697.05, Florida Statutes, dealing with balloon mortgages. The trial court held that the appellants, Nathan C. Davies and Jean F. Davies, were not entitled to invoke the provisions of Section 697.05 to prevent the appellees, L. G. Cox and Jessie Cox, from collecting interest and attorneys’ fees under an alleged balloon mortgage. We affirm.

In 1971, as part of the purchase of income property, the Davies assumed a mortgage in the amount of $20,556.06 wherein Mr. and Mrs. Cox were the mortgagees. The mortgage provided for regular monthly payments of interest with the total principal amount due in a final payment in five years. The note also provided that principal payments of $100.00 monthly would be payable if the gross annual income from the income property for the preceding year exceeded $15,000.00. In January of 1973 the Davies notified the Coxes that the income for the preceding year exceeded $15,000.00; and the Davies started making monthly payments of $100.00 on principal, in addition to the interest payments. When the mortgage matured, the parties could not agree on the amount due, because of the dispute as to whether the mortgage in question was a balloon mortgage.

Section 697.05(2)(a) provides:

Every mortgage in which the final payment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage shall be deemed a balloon mortgage, and shall have printed or clearly stamped on such mortgage:
THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR THE BALANCE DUE UPON MATURITY IS _, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.

Thereafter, the statute provides that the failure to comply with the requirements of Section 697.05(2)(a) shall cause the mortgagee to forfeit any claims for interest on the mortgage or attorneys’ fees and costs. The Cox mortgage does not contain the language set out in Section 697.05(2)(a). However, in Section 697.05(5)(d), certain mortgages are excepted from the requirement set out above including:

Any mortgage, the periodic payments on which are to consist of interest payments only, with the entire original principal sum to be payable upon maturity.

At the time of execution the mortgage herein was covered by the exception contained in Section 697.05(5)(d), since the periodic payments were for interest only with the entire principal payable upon maturity.

Although it is contended that the mortgage eventually “became” a balloon mortgage in 1973 after the income exceeded $15,000.00, we do not believe such contingency terms were sufficient under the circumstances to invoke the forfeiture provisions of the statute.

The Florida Supreme Court, in upholding the constitutionality of Section 697.05, has stated that the purpose of the statute was to deal with an abusive use of balloon mortgages which “give the illusion of ‘easy payments,’ while saying little about the ultimate consequences.” However, the Supreme Court indicated at the same time that the statute’s application should be limited to mortgages falling clearly within its provisions:

The forfeiture of interest is a stringent penalty and its application ought not extend to properties outside the purview of the statute.

Accordingly, the judgment of the trial court is hereby affirmed.

FOGLE, HARRY W., Associate Judge, concurs.

DOWNEY, J., specially concurs, with opinion.

DOWNEY, Judge,

specially concurring:

I agree entirely with the majority opinion and would only add that the evidence in this case demonstrates there are no equities which militate in appellants’ favor. Mr. Davies, the appellant, testified that when he purchased the property he was not represented by counsel; that he relied on the title insurance to protect him. He stated that he had never seen any of the three mortgages encumbering the property before he received title, but that he was told that the mortgage in question “was interest only for the total length of time that the mortgage had to run.” Thus, it is quite clear that the mischief the statute sought to prevent did not happen here, i. e., Davies was not mislead by the ostensible provisions of the mortgage into believing it an “easy payment” mortgage. On the contrary he said he was told it was interest only for the life of the mortgage. Obviously then he knew there would be a balloon effect at the end of the term.

      . Winner v. Westwood, 237 So.2d 151 (Fla. 1970).

      . Id. at 153-154.


author: ALDERMAN, Chief Judge.

text:
    William MARKHAM, as Broward County Property Appraiser (formerly tax assessor), Broward County Board of Tax Adjustment and Lester L. Bauer, in his capacity as Director of the Broward County Division of Tax Collection, Appellants, v. NATIONWIDE DEVELOPMENT COMPANY, an Ohio Corporation, Appellee.
    No. 76-872.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.

      Gaylord A. Wood, Jr., Fort Lauderdale, for appellant-William Markham, as Bro-ward County Property Appraiser.
    Betty Lynn Lee, Fort Lauderdale, for appellants-Broward County Board of Tax Adjustment, and Lester L. Bauer, as Director of the Broward County Division of Revenue Collection.
    Harry S. Raleigh, Jr., of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, for appellee.
   ALDERMAN, Chief Judge.

The Property Appraiser of Broward County appeals from a summary final judgment reducing the 1974 assessed value of certain land owned by Nationwide Development Company. The parties agree that there are no disputed issues of fact. The trial court found as a matter of law that the land was being used for bona fide agricultural purposes and should have been classified for assessment as agricultural property under Section, 193.461, Florida Statutes (1973). We reach a contrary conclusion and reverse.

Appellee, Nationwide Development Company, is in the business of buying, developing and selling real estate for residential and industrial purposes and is not directly involved in agriculture. In 1973 it purchased 224.7 acres for $11,110.00 per acre. That was considerably more than three times the 1973 agricultural assessed value of the land. Nationwide admittedly acquired the land for residential development and not for agricultural purposes. The property had previously been owned by Mr. and Mrs. Goolsby, who retained the right, for no additional rent, to remain in possession of the property. That right terminated, and the Goolsbys ceased all agricultural operations arid vacated the property on May 1,1974. The Goolsbys had operated a dairy on this land, and prior to 1974 the land had been classified for tax purposes as agricultural.

Nationwide filed a timely application to renew the agricultural classification, based upon the Goolsbys’ use of this land as a dairy on January 1, 1974. The Property Appraiser, concluding that Nationwide was not using the land for bona fide agricultural purposes within the meaning of Section 193.461, denied the application. After an unsuccessful appeal to the Broward County Board of Tax Adjustment, Nationwide filed this suit contesting the assessment.

The purchase price paid by Nationwide for this land created a presumption that the land is not used primarily for bona fide agricultural purposes. The trial court held as a matter of law that there had been a showing of special circumstances sufficient to rebut the presumption. This was incorrect. Special circumstances, sufficient to overcome the statutory presumption, must be something more than a showing that an existing agricultural use of the land is continued. Various special circumstances which may be sufficient to overcome the statutory presumption are set out in the Rules of the Department of Revenue, Division of Ad Valorem Tax, Chapter 12D-502. For example: Where the acquired property is needed to expand a previously owned agricultural operation, or to facilitate proper drainage of such an operation, or for ingress and egress related to such an operation, or to establish an agricultural operation after the owner’s previous one is terminated by eminent domain proceeding or similar circumstances, or when the purchase price includes payment for other than real property. This list is by no means exhaustive, but it is illustrative of what is meant by the term special circumstances. In the present case there was no showing by the landowner of special circumstances demonstrating that the land was to be continued in a bona fide agricultural operation.

Even without the statutory presumption of Section 193.461(4)(c), the facts of this case justify the Property Appraiser’s denial of Nationwide’s application for agricultural classification. Section 193.-461(3)(b), Florida Statutes (1973), provides in part:

“Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. ‘Bona fide agricultural purposes’ means good faith commercial agricultural use of the land. . . . ” (Emphasis supplied.)

Good faith commercial agricultural use of the land requires more than mere agricultural use. First National Bank of Hollywood v. Markham, 342 So.2d 1016 (Fla. 4th DCA 1977). To be a good faith commercial agricultural use, there must be at least a reasonable expectation of meeting investment cost and realizing a reasonable profit. When the land was owned by the Goolsbys, their operation of the dairy was a good faith commercial agricultural use of the land. Their land cost was lower, so they could still expect to meet their investment cost and realize a reasonable profit even though the actual value of their land increased. Subject to certain statutory exceptions, as long as the Goolsbys owned the property and continued a good faith commercial agricultural operation thereon, they would have been entitled to an agricultural classification. Section 193.461(4)(a)(b), Florida Statutes (1973).

An entirely different situation arose when Nationwide purchased the land for an amount greatly in excess of its agricultural value. True, the Goolsbys continued their dairy operation, but the dairy could no longer be considered a good faith commercial operation when measured against Nationwide’s land cost. It cannot be said that Nationwide had a reasonable expectation of meeting investment cost and realizing a reasonable profit through the agricultural use of its land.

The trial court erred in entering summary final judgment in favor of Nationwide. It should have entered summary final judgment in favor of the Property Appraiser upholding his denial of Nationwide’s application for agricultural classification.

REVERSED and REMANDED for further proceedings consistent with this opinion.

DOWNEY, J., and GREEN, OLIVER L., Associate Judge, concur.

      . Section 193.461(4)(c), Florida Statutes (1973), provides:
      Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.
      The constitutionality of this statutory presumption has recently been upheld. Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla. 1976).