text:
    In the Interest of V. M. C., a dependent child. Rose Marie WILLIAMSON, natural mother, Appellant, v. STATE of Florida, Appellee.
    No. LL-331.
    District Court of Appeal of Florida, First District.
    April 11, 1979.
    Christina A. Zawisza, Jacksonville, for appellant.
    Robert M. Eisenberg, Jacksonville, and Jim Smith, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pursuant to Section 39.14, Florida Statute, (1977) and Rule 9.030(b), Florida Rules of Appellate Procedure, appellant mother, Rose Marie Williamson, appeals from an order entered by the Juvenile Court of Du-val County which affirmed an adjudication of dependency and which granted temporary care and custody of appellant’s minor child to residents of South Carolina, under supervision of the Florida Department of Health and Rehabilitative Services, retaining jurisdiction over the cause.

Catherine P. White, an agent for HRS had filed an amended supplemental petition for review pursuant to Florida Statute 409.-168 requesting the court to review the status of the child and to consider the alternatives provided by said statute of

(1.) Continuing the child in foster care,

(2.) Returning the child to a parent, guardian or relative,

(3.) Institute procedures to terminate parental rights and legally free such child for adoption.

And, as a fourth alternative the agent suggested permitting the child to reside with nonrelatives in South Carolina, which alternative is not one prescribed by the statute.

Pursuant to Rule 8.130(a)(3), Florida Rules of Juvenile Procedure, appellant mother in response filed a plan for treatment, training or conduct, recommending that the child remain in the physical custody of the state but in a foster home located as near in proximity as possible to the mother’s home, and expressing her desire to continue reasonable visitation with the child in the hope of eventually securing her return to her custody. '

After hearing, the juvenile court issued an order of disposition affirming the previous adjudication of dependency of the child and granting care, custody and control to Larry and Anita Echerer and authorizing the Echerers to take the child to South Carolina.

The child in question is a ten year old white female who was originally removed from her mother’s custody and declared a dependent child in 1972 because of the alleged sexual abuse by her stepfather.

The Echerers are unrelated to the child but Mrs. Echerer is a sister of a former foster parent of the child. The mother did not seek return of the child to her but challenged the dispositional recommendation of HRS that she be placed in the custody of the Echerers in South Carolina.

There was evidence that since her placement with the Echerers the child became attached to them but that she was also happy with her foster parents in Green Cove Springs which is not far from the mother’s place of residence in Jacksonville.

The foster parents in Green Cove Springs had not requested that the child be removed from their care and it appears from the record that the main reason for HRS requesting a change in placement was the fact that the Echerers had sought the placement with them. Subsequent to the dispo-sitional hearing the Echerers were issued a foster care license by the State of South Carolina but this fact did not occur prior to the hearing and is not to be considered by us on appeal.

At the dispositional hearing the evidence established that the Echerers had five sons, an annual income of over $40,000, that they own a four bedroom home with air conditioning, a swimming pool, a play house, two ears and a van.

At the hearing the mother testified that she desired that the child continue living in the Jacksonville area so that she and her close relatives could have regular visitation with the child, which relatives included two other siblings of the child and her grandmother.

Also at the hearing there was expert testimony to the effect that children who do not have regular contact with natural parents suffer from low self-esteem and loss of identity and sometimes evidence negative attributes such as running away. Several of the HRS workers testified that it is doubtful that the mother will ever be able to accept the responsibility for the full time care and custody of the child and that for a period of time from January 1974 to January 1977 the child had had no contact with the mother.

We reverse. Under the provisions of F.S. 409.168(3)(a) the juvenile court had only three dispositional alternatives in a foster care review hearing. The trial court did not adopt either one of these alternatives as outlined by the statute which we have here-inbefore set forth but without statutory authority placed the child in the temporary care, custody and control of the Echerers and directed that such placement be supervised by an authorized agent of HRS “which agency shall include the appropriate employee of the South Carolina Department of Social Services from whom courtesy supervision shall be requested.”

We hold that the juvenile court below had no authority to place this child in the custody of third parties, particularly parties living outside of the state of Florida where the agents of the Florida Department of Rehabilitative Services have no jurisdiction of supervision. Although not considered by either party in their briefs, it was conceded at the oral argument that Florida has no compact agreement with the authorities of South Carolina to supervise Florida placements of children in that state. This being true, when the child is removed to South Carolina the Florida HRS authorities lose supervision control over such child.

We recognize the legal principle that in proceedings of this character the primary consideration of the juvenile court must be the best interest of the child. However, the natural parent has a right to family integrity which must not be treated lightly and such parent should not be deprived of reasonable right of visitation with the hope of restoring future custody and control of the child to the natural parent when future circumstances and the welfare of the child justify the same. The purpose of foster care is for the immediate welfare of the child, but is not a substitute for the natural home of the child, and includes the idea of preparing the child for its return to the real parent or parents.

We therefore reverse and remand to the court below with direction to adopt with respect to this child one of the three disposi-tional alternatives provided for by F.S. 409.-168(3)(a) and if in the selection of one of said alternatives the court determines that the child should be continued in foster care that such placement be either with the foster parents at whose home she had been placed in Green Cove Springs, Florida, or in some other foster home in the Jacksonville area where the mother could exercise reasonable right of visitation.

It is so ordered.

MILLS, Acting C. J., MASON, ERNEST E., Associate Judge and ERVIN, J., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Sara Jane SEDDON et al., Appellants, v. Fred M. HARPSTER and Doris Harpster, his wife, Appellees.
    No. 78-616.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.

      Sanford A. Minkoff of Ford, Cauthen & Robuck, Tavares, for appellants.
    Robert F. Vason, Jr. of Huebsch, Bowen & Vason, Eustis, for appellees.
   SCHEB, Judge.

Defendant Sara Jane Seddon appeals a final judgment holding that she was wrongfully occupying land belonging to the plaintiffs Harpster. Seddon attacks the judgment on several grounds. We have examined her arguments in some detail, and reject each of them. However, we think the trial court’s rejection of her defense of adverse possession merits discussion.

In 1964 Seddon’s parents purchased a twenty-acre tract of rural land in Lake County described as follows:

West Vi of the NWVi of the NEVi of Section 19, Township 17 South, Range 27 East in Lake County, Florida recorded in O.R. Book 259, p. 317.

The new owners promptly had their land surveyed. The survey showed their western boundary, i. e., the north-south midsection line, to be a county-maintained clay road. Accordingly, the elder Seddons erected a fence adjacent to the clay road. Eventually defendant Seddon succeeded her parents as owner of the property.

The Harpsters purchased their property in 1971. According to their legal description the eastern boundary of their land abutted the western boundary of Seddon’s property. Thus the north-south midsection line was the common boundary between the two properties. Mr. Harpster, who is a surveyor, had doubts even before he and his wife purchased their property as to whether the north-south midsection line ran along the clay road. He suspected that the true north-south midsection line was somewhere east of the road.

In November 1975 the Harpsters brought an ejectment action against Seddon, alleging that she was wrongfully occupying the eastern portion of their property. Seddon answered, asserting several affirmative defenses, and counterclaimed. She contended, inter alia, that even if the north-south midsection line was somewhere east of the clay road she nevertheless owned up to the road through adverse possession. See §§ 95.-16-.18, Fla.Stat. (1975).

The cause proceeded to nonjury trial in September 1977. Both sides produced expert testimony as to the proper location of the north-south midsection line, as well as testimony relating to the various defenses raised by Seddon.

The final judgment in favor of the Harpsters was rendered on October 10, 1977. The court accepted the survey conducted by the Harpsters’ expert, Wayne Dukes, which placed the north-south midsection line some 400 feet east of the clay road. Though the expert testimony was conflicting, we find that the trial court did not err in accepting Dukes’ survey. The trial court also rejected each of Seddon’s defenses, and found that she was wrongfully occupying the disputed property between the north-south midsection line and the clay road.

As noted, Seddon argues that she was the owner of the disputed property through adverse possession. She first contends that the evidence was sufficient to show that she adversely possessed the disputed property “without color of title” as described in Section 95.18, Florida Statutes (1975). However, this statute requires a showing that the claimant has “made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes . . . levied against the property by the state, county, and municipality.” Seddon's legal description, upon which she paid taxes, did not encompass the disputed property. Therefore, the trial court properly rejected this defense. See Peters v. Straley, 306 So.2d 588 (Fla.2d DCA 1975).

The trial court’s rejection of Seddon’s defense of adverse possession “under color of title” presents a more difficult problem. In rejecting this defense, the court said:

It is perhaps this defense that comes closest to merit inasmuch as the disputed property is, in fact, under fence with the property of the Defendant Seddon thereby giving rise to a claim of adverse possession pursuant to Florida Statute 95.-16(2)(b) which states that when the occupant entered into possession of real property under a claim of title founded upon a written instrument (which the Seddons did) and has for seven years been in continued possession of the property included in the instrument (which the Seddons have) the property is held adversely.
Under the present day reading of Section 95.16, Florida Statutes, there can be no doubt that the Defendant has met every requirement of acquiring title to property by adverse possession save and except for one. The Defendant has not held such property according to the provisions of Section 95.16, Florida Statutes for a period of seven years. Such section of the Florida Statutes only became law on January 1, 1975. Prior to that, Section 95.16 and 95.17 as interpreted by the Supreme Court of the State of Florida in Meyer v. Law, 287 So.2d 37 was the law.

To fully comprehend the trial court’s holding, a review of the law in this area is necessary.

In Meyer v. Law, 287 So.2d 37 (Fla.1973) the supreme court had occasion to interpret Sections 95.16 and .17, Florida Statutes (1971), which dealt with adverse possession under color of title. At that time Section 95.16 read:

Whenever it appears that the occupant, or those under whom he claims, entered into possession of premises under claim of title exclusive of any other right, founding' such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment for seven years, the premises so included shall be deemed to have been held adversely, except that, where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract; provided, that adverse possession commencing after December 31, 1945, shall not be deemed to be adverse possession under color of title unless and until the instrument of conveyance of the premises in question upon which such claim of title is founded shall be duly recorded in the office of the clerk of the circuit court of the county in which the premises are situated. (Emphasis added.)

Section 95.17, entitled “Definition of possession and occupation under color of title,” then read in pertinent part:

For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in any of the following cases:
(1) Where it has been usually cultivated or improved; or
(2) Where it has been protected by a substantial enclosure. All contiguous land protected by such substantial enclosure shall be deemed to be premises included within the written instrument, judgment, or decree, within the purview oí § 95.16 . . . . (Emphasis added.)

Writing for the four-justice majority in Meyer v. Law, Justice Boyd said:

Reading the foregoing subsection [95.-17(2)] in pari materia with the other quoted sections, we think its proper construction is that persons who claim land adversely under a paper title relating to a certain area, and who fence in or cultivate an area beyond that which is described in the paper title, but who do not pay any taxes on the additional area, can secure good title by adverse possession only to the portion of land described by the deed, decree, or other written instrument of record. We believe that, in enacting the foregoing subsection [95.17(2)], the Legislature intended to provide that, where one has color of title to a larger area than is fenced or cultivated, and he pays no taxes on any of the land described in the title, he may acquire title by adverse possession only to that portion of [the] land shown on the paper title which he actually fences or cultivates. (Emphasis added.)

287 So.2d at 40. So under this holding a person could claim property by adverse possession under color of title only where he had “paper” title correctly describing the disputed property. In the instant case the survey accepted by the trial court showed that Seddon’s legal description did not encompass the disputed land. Therefore, under Meyer v. Law Seddon did not have paper title to the disputed land, and she could not have established adverse possession under color of title.

In 1974 the legislature enacted Chapter 74-382, Sections 11 and 12, Laws of Florida, amending the statutes dealing with adverse possession under color of title. Section 95.17 was eliminated, but its language was changed slightly and incorporated into Section 95.16. Section 95.16 now reads in pertinent part as follows:

(1) When the occupant, or those under whom he claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for seven years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945 shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.
(2) For the purpose of this section, property is deemed possessed in any of the following cases:
(a) When it has been usually cultivated or improved.
(b) When it has been protected by a substantial enclosure. All contiguous land protected by the enclosure shall be property included within the written instrument, judgment, or decree, within the purview of this section. . . . (Emphasis added.)

The new version of Section 95.16 eliminates some of the statutory language relied upon by the supreme court in Meyer v. Law, and adds new language. It appears that under this newer version of the statute it is not necessary to have paper title accurately describing the disputed land in order to establish adverse possession under color of title, so long as the disputed property is “protected by a substantial enclosure” and the other conditions for establishing adverse possession are met.

The effective date of Chapter 74-382 was January 1, 1975. As mentioned previously, the Harpsters brought their ejectment action in November 1975. Thus the amendments were effective at that time. However, the trial court found that the seven years of continual possession necessary to establish adverse possession under color of title could not begin to run until the effective date of Chapter 74-382. The court reasoned that Chapter 74-382 worked a substantial change on the law of adverse possession under color of title, and could not be given retroactive effect since the legislature had not clearly expressed that it so intended. See Foley v. Morris, 339 So.2d 215 (Fla.1976).

Seddon argues that Chapter 74-382 did not substantially change the law of adverse possession. She contends that the Meyer v. Law decision construed Sections 95.16 and .17 contrary to the legislative intent with which these statutes were enacted, and that Chapter 74-382 was meant to clarify—not change—the law of adverse possession under color of title. Therefore, Seddon argues, since Chapter 74-382 did not change the law, it would not be a retroactive application to allow the seven years of continual possession to begin before January 1, 1975.

We cannot agree with Seddon’s analysis. We preface our discussion with the proposition that an amendment to a statute altering substantive rights should be given prospective application only, unless the legislature has clearly expressed its intent to the contrary. Bell v. Isthmian Lines, Inc., 363 F.Supp. 156 (M.D.Fla.1973); Quality Lime Products, Inc. v. Acme Paving Co., 134 So.2d 42 (Fla.2d DCA 1961); see also Wichita Falls & S.R. Co. v. Lindley, 143 S.W.2d 428 (Tex.App.1940); 1A C. Sands, Statutes and Statutory Construction § 22.36 (4th ed. 1972). Chapter 74-382 does not manifest any legislative intent that it be applied retroactively; therefore, if Chapter 74-382 altered substantive rights it must be given prospective effect only.

Another important proposition necessary for the resolution of this issue is that an interpretation of a statute by the highest court of a state is generally regarded as an integral part of the statute. Guaranty Trust Co. of New York v. Blodgett, 287 U.S. 509, 53 S.Ct. 244, 77 L.Ed. 463 (1933); Ray Schools-Chicago, Inc. v. Cummins, 12 Ill.2d 376, 146 N.E.2d 42 (1957); 73 Am.Jur.2d Statutes § 143 (2d ed. 1974). Thus Meyer v. Law must be considered the definitive interpretation of Sections 95.16 and .17 prior to the enactment of Chapter 74-382.

Sections 95.16 and .17 as interpreted by Meyer v. Law required a claimant to have paper title to the disputed property in order to establish adverse possession under color of title, even if the disputed property was “protected by a substantial enclosure”; however, under Section 95.16 as amended by Chapter 74-382, it appears that paper title under such circumstances is no longer necessary. So before the effective date of Chapter 74-382 . Seddon could not have had a claim to the disputed property through adverse possession under color of title, but after that date she could have had such a claim. This is certainly an alteration of substantive rights. Therefore, we must agree with the trial court that Seddon’s seven years of continual possession could not have begun until January 1, 1975. See generally Palmer v. Greene, 159 Fla. 174, 31 So.2d 706 (1947); Edwards v. Hardin Properties, Inc., 313 So.2d 82 (Fla.2d DCA 1975).

Under the decision we feel mandated to make, no claimant could establish adverse possession under color of title until 1982 without having paper title to the disputed property, even if the disputed property had been fenced-in for many years prior to 1975. It is’significant, we think, that the legislature altered Sections 95.16 and .17 at its next session after the Meyer v. Law decision. Since this was the first time these statutes had been amended since 1945, it implies that the Meyer v. Law interpretation of the statutes was perhaps contrary to what the legislature intended. In light of the foregoing, we deem it necessary to certify the following question to the supreme court, pursuant to Article V, Section 3(b)(3), Florida Constitution, as being of great public interest:

DID THE SEVEN-YEAR PERIOD OF CONTINUAL POSSESSION NECESSARY TO ESTABLISH ADVERSE POSSESSION UNDER COLOR OF TITLE BEGIN ON THE EFFECTIVE DATE OF CHAPTER 74-382, OR COULD IT HAVE BEGUN BEFORE THAT TIME WHERE:
1. THE CLAIMANT’S PAPER TITLE DID NOT PROPERLY DESCRIBE THE DISPUTED PROPERTY; YET,
2. THE DISPUTED PROPERTY HAD “BEEN PROTECTED BY A SUBSTANTIAL ENCLOSURE” FOR MORE THAN SEVEN YEARS PRIOR TO 1975?

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: RYDER, Judge.

text:
    Betty Ann LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1604.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Betty Ann Lewis was convicted and sentenced for the crime of aggravated battery. The record reveals that during an apparent social function at Ms. Lewis’ home, the victim, one James Gerard, was hit over the head with a bottle by Ms. Lewis. Mr. Gerard claims that Ms. Lewis threw the object at him while he was drinking and hugging and kissing Johnnie Mae Austin. The record also reflects that soon thereafter, Ms. Lewis struck him with a piece of firewood and poured gasoline or diesel fuel over him and that Ms. Lewis exclaimed, “I’m going to burn this son of a bitch up.”

Over defense objection, Nathan Giles testified that he was also at Ms. Lewis’ house on the day in question and observed Ms. Lewis strike one Abraham Jones, still another social guest, with a Vodka bottle a short time before the assault on Mr. Gerard.

After retiring to deliberate, the jury announced it had reached a verdict of guilty. However, when the jurors were individually polled as to the verdict, one juror who was. the foreman of the jury, stated that he did not concur in the verdict he had just delivered to the court. Appellant’s counsel moved for a mistrial. The court denied the motion. Instead, the. court further charged the jury and, after further deliberation, they again returned a verdict of guilty as charged. Ms. Lewis was adjudicated guilty and sentenced to prison.

Ms. Lewis contests the proceedings urging error in two areas. First, she would have us reverse her conviction alleging that the trial court erred by permitting the jury to hear testimony about the earlier assault and battery allegedly made by appellant upon Mr. Jones. We disagree. Her conduct and assault on Mr. Jones occurred just minutes before the assault on Mr. Gerard. It is obvious the testimony of Mr. Giles regarding Ms. Lewis’ action was admissible to show an established pattern of violent misconduct. Bryant v. State, 235 So.2d 721 (Fla.1970). We find no error there and affirm the trial court’s ruling on that point.

However, appellant’s contention that the trial court erred in giving a modified “Allen charge”, we believe, has merit.

The use of the “Allen charge” (sometimes referred to as a “dynamite charge”) has been approved by the United States Supreme Court, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and more recently by the Fifth Circuit Court of Appeal, United States v. Bailey, 468 F.2d 652 (C.A. 5, 1972), and by the Florida Supreme Court in State v. Bryan, 290 So.2d 482 (Fla.1974). The “Allen charge” is included and set out in the Supreme Court approved Florida Standard Jury Instructions in Criminal Cases, Second Edition, as Instruction 2.21.

Such a charge may be properly given depending on the circumstances of the particular case but only in limited circumstances, Flynn v. State, 351 So.2d 377 (Fla. 4th DCA 1977); Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975).

In the case sub judice, however, the trial court did not follow the standard jury instruction but, instead, formulated a charge of its own.

Comparing the approved “Allen charge” with the improvised “Allen charge” one quickly perceives the infirmities of the tailored charge. An “Allen charge” must not be calculated to coerce a jury into reaching a verdict or to lead them to believe they must reach a verdict. Kozakoff v. State, supra; Lee v. State, 239 So.2d 136 (Fla. 1st DCA 1975). When the trial court gave its modified “Allen charge”, it also made reference to the fact that one member of the jury indicated the jury had less than a unanimous verdict. It is impermissible for a trial court to instruct in such a manner which tends to embarrass a single juror in holding to his honest convictions. Jones v. State, 92 So.2d 261 (Fla.1957); Lee v. State, supra. A defendant has the right to have a hung jury, Kozakoff v. State, supra; Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975) and “[njothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lee v. State, supra, at 139.

REVERSED and REMANDED for a new trial.

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

      . 2.21 Jury deadlocked. It is your duty to agree on a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride of opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply for the purpose of terminating the case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and this case may be disposed of.
      You may retire to the jury room for further deliberations.

      . The following is the instruction given by the trial court:
      “. . Members of the jury, one of your members made an answer which indicates that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further consideration of your verdict. When you have reached a unanimous verdict, you may return it to the court. If you are not unanimous, then you should continue your deliberations. After you return to the jury room, any member is free to change his vote on any issue submitted to you. Each juror is free to change his vote until the jury is discharged. We’re going to retype that one verdict form and then we’ll get all the available verdict forms to you in just a moment.” . ■


author: PER CURIAM.

text:
    Elmer Lee BARRON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1635.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of appellant’s probation is affirmed. However, we remand for correction of the order of revocation and the sentence.

Although the affidavit and warrant filed against appellant charged him with violating conditions (a), (b), and (h) of his probation, the trial court limited the testimony at the revocation hearing to the charge of violating condition (b). The trial judge made an oral finding that appellant had violated condition (b), but the written order of revocation recites a finding that he violated all three conditions. Since appellant did not admit the charged violations and there was no evidence that he committed the other two violations, the findings that appellant violated conditions (a) and (h) must be stricken from the order of revocation.

In addition, appellant was not awarded all of the credit time to which he was entitled. Although he was given some credit, he was not credited for the time he spent in the Hillsborough County Diagnostic and Treatment Center in 1972 as a condition of his probation. Appellant is entitled to such credit, Johnson v. State, 334 So.2d 334 (Fla.2d DCA 1976); his sentence must be corrected. Appellant need not be present for this purpose.

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


text:
    John J. BOROME, Petitioner, v. CONTINENTAL EMPLOYEE BENEFIT ASSOCIATION, d/b/a Protective American Life Insurance Company, Respondent.
    No. 79-196.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.
    James R. Dirmann, Sarasota, for petitioner.
    Stephen H. Sears and Ted R. Manry, III of MacFarlane, Ferguson, Allison & Kelly,Tampa, for respondent.
   PER CURIAM.

We deny the petition for writ of certiora-ri. In so doing, we have reached the conclusion that the arbitration proceedings to which the parties have agreed must take place in the State of Florida pursuant to Chapter 682, Florida Statutes (1977).

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


author: MASON (Retired), Associate Judge.

text:
    John Robeson TURNER, Appellant, v. STATE of Florida, Appellee.
    No. JJ-137.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Michael J. Minerva, Public Defender and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   MASON (Retired), Associate Judge.

This is an appeal from a judgment and sentence entered and imposed in the Circuit Court of Escambia County by the Honorable Ervin Fleet, Circuit Judge.

We reverse. Appellant Turner was charged in Count II of an amended information with the crime of principal in the first degree to the criminal offense of solicitation. In such count it was charged that the appellant “did aid, abet, counsel or otherwise procure as a principal in the first degree, the commission of a felony, to wit: Solicitation to Commit Burglary of a Conveyance ... in that the said John Robinson Turner did aid, abet counsel or otherwise procure one Teddy Warren Kelly to unlawfully solicit another, to wit: Mitchell McNeil to enter or remain in a certain conveyance, to wit: The State Vehicle of Florida Department of Criminal Law Enforcement Special Agent M. R. Cornelius, with the intent to commit an offense therein, to wit: Grand Larceny . . . ”.

Count I of the amended information charged Kelly with the crime of solicitation of McNeil to commit the crime of burglary of the conveyance described in Count II with the same intent as referred to in such Count II. The two counts were severed for trial purpose and on November 21, 1977, Kelly was tried under the first count by a jury and found not guilty and later adjudicated not guilty by the court. Following such acquittal of Kelly, Turner moved the court to dismiss Count II against him on the ground that Kelly having been acquitted under Count I, the State was estopped to try him as a principal in the first degree to the same offense. We agree.

Appellant was charged as a principal in the first degree under the provisions of F.S. 777.011 (1977). This statute was enacted in 1974 (Chapter 74-383) and defines a principal in the first degree as follows:

“Principal in first degree. — Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.” (Emphasis supplied)

Prior to the enactment of the 1974 statute the underscored words were not included in the statute defining a principal in the first degree but such prior statute enacted in 1957 was merely a statute replacing the former accessory before the fact statute.

By adding the underscored words in the 1974 statute the Legislature has made it as a prerequisite to a conviction for being a principal in the first degree to a crime of aiding, abetting, counseling, hiring or otherwise procuring such crime to be committed by another person, that such other person must have committed or attempted to commit such crime. Since Kelly was acquitted of the crime of solicitation as charged in Count I of the information, a necessary element of the crime of principal in the first degree by aiding, abetting, counseling, hiring or otherwise procuring charged against appellant has ceased to exist. Therefore, appellant cannot later be charged and convicted of the crime of principal in the first degree to the crime of solicitation.

Appellant’s judgment of conviction and sentence imposed thereupon is hereby reversed and he is hereby discharged therefrom.

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


text:
    Larry Steven WAGGONER, Appellant, v. Martha P. WAGGONER, Appellee.
    No. KK-426.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 8, 1979.
    Clayton J. M. Adkinson, of Thompson, Adkinson & Beasley, De Funiak Springs, for appellant.

      Virginia M. McGuffey, Fort Walton Beach, of Cotton, Wesley & Poche, P.A., Shalimar, for appellee.
   PER CURIAM.

In this case the father appealed from an order denying his petition for modification of custody. The mother cross-appealed from that portion of the order granting to the father expanded visitation rights. The trial judge expressed his concern about the past conduct of the child’s mother and stated in the order that the court was making this “a temporary order so that the court may further consider this matter and the best interest of the child”. While we might be inclined to find the order objectionable as in effect providing for joint custody, 10A Florida Jurisprudence, Dissolution of Marriage, etc., Section 91, we decline to do so in this instance upon the assumption that this was a temporary order justified by the unusual circumstances presented, and that further orders or proceedings concerning custody are contemplated. The remaining issues on appeal and on cross-appeal are without merit.

Accordingly, the order is affirmed. Ap-pellee’s motion for attorney’s fees is denied.

McCORD, C. J., MELVIN, J. and SMITH, LARRY G., Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    ARVIDA CORPORATION, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, Appellee.
    No. LL-143.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    As Corrected April 20, 1979.
    William H. Adams, III, of Mahoney, Had-low & Adams, Jacksonville, for appellant.
    Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellee.
   McCORD, Chief Judge.

This appeal is from a dismissal by the trial court of appellant’s/plaintiff’s amended complaint alleging that appellee/defend-ant is charging appellant discriminatory electric rates for electricity furnished to it in the Sawgrass Development.

The complaint alleges an unusual arrangement originally worked out between appellant’s predecessor in title (Sawgrass, Ltd., the developer of Sawgrass), appellee Jacksonville Electric Authority (hereafter referred to as JEA) and the City of Jacksonville Beach (hereafter referred to as the City). As alleged in the amended complaint, JEA is a corporate body politic existing under Chapter 67 — 1569, Laws of Florida, one of the charter laws of the City of Jacksonville, and is a public utility engaged in the business of furnishing electric power throughout the City of Jacksonville and in adjacent counties. The complaint alleges that JEA has charged or is charging appellant a rate for electric power that is illegal, arbitrary, unreasonable and discriminatory. It seeks to enjoin JEA from directly or indirectly charging appellant an amount that exceeds the rate charged by JEA under its regular rate schedule to other customers similarly situated. It further seeks an accounting and determination of the aggregate amount of the excess charges paid by appellant directly and indirectly to JEA and seeks entry of a judgment in favor of appellant for the amounts so paid.

As alleged in the amended complaint, appellant is the owner of land and buildings in a real estate development known as Saw-grass. It acquired its property in 1977 from the Atlantic National Bank of Jacksonville, as Trustee. The bank was preceded in ownership by Sawgrass, Ltd., the developer of Sawgrass.

From the allegations of the amended complaint, it appears that Sawgrass, Ltd., in 1973, worked out an arrangement with the City (who buys its electric power from JEA) and JEA whereby JEA built an electrical distribution system in Sawgrass and Sawgrass, Ltd., then purchased electricity for the system from the City which in turn had purchased that same electrical power along with all of its other electrical power from JEA. Upon purchase from JEA of the power, the City then delivered it to the distribution system of JEA. Upon distribution thereof, JEA then billed Sawgrass, Ltd., along with the other electric users in Sawgrass at its regular rates. The complicating factor here is that JEA then reimbursed Sawgrass, Ltd., but only reimbursed it the amount JEA had charged the City for that quantity of electricity rather than the amount the City had charged Sawgrass, Ltd., for the power delivered to JEA’s distribution system at Sawgrass. Because of the difference between the amounts paid by Sawgrass, Ltd., (and now appellant) to the City for power and the lesser amount reimbursed to Sawgrass, Ltd. (and now to appellant) by JEA, appellant contends that JEA is indirectly discriminating against it; that it alone (to the exclusion of the other electric users in Sawgrass) is being required to absorb this differential and, thus, is required to pay higher rates for electric service than the rates being charged the other property owners in Sawgrass.

JEA is not necessarily bound to charge its customers in Sawgrass the same amount that it charges its other customers elsewhere if it can show that a higher cost is justified in Sawgrass because of a difference in the cost to it of furnishing electricity to the residents of Sawgrass as opposed to furnishing service to its other customers. Compare Clay Utility Company v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969).

Looking only to the allegations of the complaint, as we must do at this point, and without benefit of any defenses which may exist in favor of appellee, it appears that appellant has stated a prima facie case of discrimination against it by JEA and in favor of the other property owners in Saw-grass. JEA’s failure to either reimburse appellant for the full amount paid by appellant to the City for the power furnished by the City to the distribution lines of JEA or the failure to readjust its charges in some other way so that appellant and the other electric customers of appellant in Sawgrass will pay the same rates for the same service presents a prima facie case of discrimination.

The amended complaint states a prima facie case.

REVERSED.

ERVIN and BOOTH, JJ., concur.


text:
    Mavis L. HARRIS, Appellant, v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, Appellee.
    No. 78-319.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Herskowitz & Grossman, Miami, for appellant.
    McCormick, Bedford & Backmeyer, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The order of the trial court holding that Section 627.7262, Florida Statutes (1977), is constitutional is reversed. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Aubry v. Larson, 368 So.2d 1289 (Fla.1979); Entenmann’s Bakery of Fla., Inc. v. Loughlin, 368 So.2d 1291 (Fla.1979); Mills v. Allstate Insurance Company, 369 So.2d 674 (Fla.1979); Aetna Casualty & Surety Co. v. Beane, 368 So.2d 1292 (Fla.1979); Chervony v. Nationwide Mutual Ins. Co., 368 So.2d 1284 (Fla.1979).

This case is remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.


text:
    Barbara Ann DIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1004.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The order revoking probation and the three year sentence imposed thereunder is affirmed. The cause is remanded to the trial court, however, with directions to give the defendant credit for any period of time she spent in jail pursuant to the split sentence of March 30, 1977. State v. Jones, 327 So.2d 18, 24-25 (Fla.1976).


author: SCHWARTZ, Judge.

text:
    Christopher A. BUSH, Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-1043, 78-1377.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.

      Bennett H. Brummer, Public Defender and Mark King Leban, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In 1977, Bush pled nolo contendere to a charge of battery on a law enforcement officer; adjudication of guilt was withheld and he was placed on two and a half years probation. While that judgment, which was not stayed or superseded, was on appeal to this court, Bush was charged with and convicted of the sale of heroin. Because of the heroin violation, his existing probation for the battery charge was revoked; he was adjudicated guilty of both crimes and sentenced to concurrent terms of two years in the state prison. In these consolidated appeals, he challenges both judgments and sentences. We affirm.

As to the substance of the heroin charge, the record shows that on February 4, 1978, a confidential informant who was not otherwise identified told officer Mullaly of the Dade County Public Safety Department that a black male and a black female, whom he described, were dealing in drugs on a specified street corner. As a result, Mullaly went to the vicinity of the corner, which was located in an area of the county known to the officer as one “used heavily in the narcotics traffic.” Within a half hour, he personally observed three separate incidents in which a person approached the male, who turned out to be Bush, and gave him currency; on each occasion the female, Vanessa Thrash, thereupon took from her change purse and handed the “customer” a tin foil packet of a type which Mullaly knew from extensive experience invariably contained a controlled substance. After the third such transaction, Mullaly — without a warrant— along with two other backup officers, arrested Bush and Thrash for unlawful sale or delivery of contraband. In searches conducted incident to the arrests, the officers discovered 28 tin foil packets of heroin in Thrash’s change purse and over $200 in cash on Bush.

Bush’s primary contention on appeal is that the heroin and cash should have been suppressed because Mullaly did not have probable cause to make the warrantless arrests. This claim is in turn based upon the fact that the state did not establish the reliability and credibility of the confidential informant whose information led Mullaly to observe the defendant. The defendant relies on the familiar authority of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); see St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978); Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977). We think that this reliance is entirely misplaced. In the case at bar, the tip by the c. i., and therefore his personal reliability and believability, were in effect irrelevant to the propriety of the defendant’s arrest, which was based entirely and independently upon what the officer himself saw, rather than what he was told. See State v. Gieseke, 328 So.2d 16 (Fla.1976); Findlay v. State, 316 So.2d 33 (Fla.1975); State v. Henderson, 318 So.2d 524 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 18 (Fla.1976). And we think it apparent that what Mullaly saw, as interpreted by him in the light of his training and experience, more than established probable cause to conclude that the defendant had committed the felony for which he was arrested. This court so held on very similar facts in Skelton v. State, 349 So.2d 193, 194 (Fla. 3d DCA 1977), where we stated:

“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).”
* * * * * *
“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.”

Citing our decisions in State ex rel. Salomon v. Sandstrom, 349 So.2d 696 (Fla. 3d DCA 1977) and State ex rel. Brenner v. Dubitsky, 347 So.2d 777 (Fla. 3d DCA 1977), Bush also contends that the trial judge had no jurisdiction to revoke his probation for the battery charge while that ease was on appeal. We do not agree. The Brenner case holds only that the lower court may not adjudicate a violation of the terms of a sentence to probation while the sentence was validly stayed by a properly posted supersedeas bond and the effect of the then applicable appellate rules. See 3 Fla.Jur.2d Appellate Review § 143 (1978); cf. Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), cert. denied, 247 So.2d 63 (Fla, 1971), as distinguished in Brenner. In Salo-mon we simply held that the trial court could not unilaterally reconsider, amend, or revoke a probationary sentence after an appeal had been taken to review it. See Goodner v. Shapiro, 367 So.2d 1110, n.1 (Fla. 3d DCA 1979); Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971), cert. denied, 252 So.2d 798 (Fla.1971); Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. 3d DCA 1960), cert. denied, 125 So.2d 879 (Fla. 1960). Neither case considered or controls the present situation, which involves subsequent conduct of the defendant in violation of an unstayed order of probation. Under these circumstances, we hold that the general rule that, during the pendency of an appeal, the trial court retains jurisdiction to enforce the terms of an unsuperseded judgment is applicable so as to confer authority upon the lower court to consider such an alleged violation and, if appropriate, to revoke the probation in question. See Glasser v. Hachett, 37 Fla. 358, 20 So. 532 (1896); 3 Fla.Jur.2d Appellate Review § 132 (1978), and cases cited.

Affirmed.

      . The judgment has since been affirmed in Bush v. State, 367 So.2d 273 (Fla. 3d DCA 1979).

      . If the issue were not one of subject matter jurisdiction (and particularly because the judgment has been affirmed in the meantime, see n.l, supra), we would be disinclined even to consider any separate point involving the probation case since only a concurrent sentence was imposed. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 186 (Fla. 1978); see Gibson v. State, 368 So.2d 667, n.2 (Fla. 3d DCA 1979).


text:
    L. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1362.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Bennett H. Brummer, Public Defender and Jacquelyn S. Plasner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant, L.A., a juvenile, appeals from an adjudication of delinquency for theft entered by the Circuit Court of Dade County-

The trial court placed the appellant under supervision of the Division of Youth Services.

The sole point on appeal is whether the court erred in denying appellant’s motion for judgment of acquittal based on the ground that the evidence wholly failed to prove that the property in appellant’s possession was that which had been stolen from the truck. We hold that there was merit in the motion and that the motion for acquittal should have been granted. Carson v. State, 205 So.2d 340 (Fla. 3d DCA 1967); Hornbrook v. State, 321 So.2d 127 (Fla. 1st DGA 1975), and Longshaw v. State, 343 So.2d 1290 (Fla. 3d DCA 1977).

The order appealed is reversed with directions to discharge the appellant.

Reversed and remanded with directions.


text:
    Jeffrey C. ANGEL and Dan R. Richardson, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 78-1572.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.

      Stone, Sostchin & Gonzalez and Gisela Cardone, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and J. Alberto Gonzalez-Pita, Miami, for appel-lee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Laster v. United States Fidelity & Guaranty Co., 293 So.2d 83 (Fla.3d DCA 1974).


text:
    Alan E. BLONDER, Appellant, v. CITY OF MIAMI, Appellee.
    No. 78-1594.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Freidin & Goldfarb and Alan Goldfarb, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final order granting judgment on the pleadings in favor of the City of Miami is reversed and the cause remanded for further proceedings based on the authority of Woods v. City of Palatka, 63 So.2d 636 (Fla.1953); Town of Palm Beach v. Hovey, 115 Fla. 644, 155 So. 808 (1934); Welsh v. Metropolitan Dade County, 366 So.2d 518, 521 (Fla.3d DCA 1979); Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla.3d DCA 1978); Trumpe v. City of Coral Springs, 326 So.2d 192 (Fla.4th DCA 1976).


author: KEHOE, Judge.

text:
    Howard BRODSKY’and Leona Brodsky, his wife, Appellants, v. BEACH CLUB VILLAS CONDOMINIUM II, INC., Appellee.
    No. 78-1637.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Maurice Rosen, North Miami Beach, for appellants.
    Firtel & Entin and Richard C. Entin, North Miami Beach, for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a final judgment entered by the trial court in favor of appellee, a condominium association, in a suit involving maintenance assessments charged against appellants. In our opinion, as also determined by the trial court, the disputed assessment under the condominium declaration and Chapter 718, Florida Statutes (1977), was properly made. Accordingly, no error having been made to appear, the final judgment appealed is affirmed.

Affirmed.


text:
    METROPOLITAN DADE COUNTY, Florida, for the Use of or Sale by the Dade County Public Safety Department, Appellant, v. David MARTIN, and a 1978 Lincoln Versailles, Bearing Florida Tag # BRS-070, VIN # 8W84F803783, Appellees.
    No. 78-2304.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Janet Reno, State’s Atty. and Robert W. Wennerholm and Albert K. Antonio, Asst. State’s Attys., for appellant.
    Ferrell & Ferrell, Miami, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Griffis v. State, 356 So.2d 297 (Fla.1978); Strawgate v. Turner, 339 So.2d 1112 (Fla.1976).


author: EZELL, Associate Judge.

text:
    RIVERGATE RESTAURANT CORPORATION, d/b/a Cye’s Rivergate Restaurant, a Florida Corporation, Appellant, v. METROPOLITAN DADE COUNTY, Florida, a Political Subdivision of the State of Florida, Appellee.
    No. 79-274.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.

      Lee, Murphy & Coe and Thomas E. Lee, Jr., Miami, for appellant.
    Stuart L. Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., JR., (Ret.), Associate Judge.
   EZELL, Associate Judge.

Rivergate Restaurant Corporation, d/b/a Cye’s Rivergate Restaurant, appeals from a final judgment which, inter alia, denied its application for an injunction restraining Metropolitan Dade County from holding a special referendum election on a certain proposed ordinance to the Code of Metropolitan Dade County designated as the “Clean Indoor Air” ordinance. Because the referendum election is scheduled for May 8, 1979, this court has expedited the briefing schedule provided in the Florida Rules of Appellate Procedure and ordered early oral argument of this cause. We now hold that the court below properly denied the appellant’s application for injunctive relief but erred when it passed upon the constitutionality of a portion of the proposed ordinance. The circuit court was restricted to a determination of the validity of the proposal in its entirety; once the proposed ordinance was found not to be invalid in its entirety, the circuit court’s judicial function terminated. Accordingly, we modify the final judgment by reinstating the language stricken from the proposed ordinance in order that it may be submitted to the electorate in its original form.

On January 9, 1979 the County Commission voted to submit the proposed “Clean Indoor Air” ordinance to the electors at a special referendum election scheduled for May 8, 1979. This action was taken following presentation to the commission of an initiative petition which proposed the ordinance at issue regulating smoking in enclosed public places. The commissioners chose to submit the proposal to the electors rather than adopt the ordinance as initially submitted to them in the petition.

The appellant owns and operates a restaurant in Dade County which is licensed by the State of Florida to sell alcoholic beverages and which would be affected should the initiative petition be adopted. Appellant brought this suit against the county seeking a judgment declaring the proposal regulating smoking in enclosed public places in this county to be unconstitutional. In addition, appellant sought injunctive relief restraining the county from submitting the proposed ordinance to the electorate at any special or general election, and also sought to enjoin the County Commission from reconsidering its adoption without the necessity of voter ratification at a special or general election.

The ordinance would, if adopted, prohibit smoking (with certain specified exceptions) in all enclosed public places, places of employment, educational and health facilities located in all unincorporated and incorporated areas of Dade County. That portion of the ordinance particularly relevant to appellant’s business (Section 5) would require each restaurant or cafeteria in the county to establish non-smoking sections in its dining area comprising at least 50 percent of its available seating. This section reads as follows:

“Section 5. Restaurants and Cafeterias.
“(a) Every restaurant and cafeteria shall establish a non-smoking section in its dining area in which signs or placards referred to in Section 7(b) shall be posted or placed in at least 50 percent of its available seating, subject to change if the needs of the owner or manager so require. Any such section shall be one contiguous area. Any other provisions of the Ordinance notwithstanding, smoking is unlawful in any food service line in a cafeteria.
“(b) A conspicuous and clearly legible sign shall be posted at every public entrance to a restaurant or cafeteria indicating the non-smoking section of the dining area.
“(c) It is the intent of the people of Dade County, Florida for restaurant and cafeteria owners and managers to provide seating in a non-smoking section for any patron who desires such seating and to encourage restaurant and cafeteria owners and managers to use presently existing physical barriers and ventilation systems to minimize the permeation of smoke from adjacent smoking sections into non-smoking sections.”

The appellant attacked the ordinance in general and this section in particular as being unconstitutional on its face for several reasons which we need not discuss in light of our decision herein. After an accelerated final hearing, at which no testimony was taken, the circuit court entered a final judgment denying the appellant’s application for injunctive relief and ruled that the county had the authority to regulate smoking in restaurants licensed under the state beverage law. The circuit court also struck a phrase found in the proposed ordinance as unconstitutionally vague.

Appellant now appeals from the final judgment contending that the county had no authority to regulate smoking in restaurants licensed under the state beverage laws since the state has preempted the area in which the ordinance has its primary effect. We need not reach this issue since we hold that the circuit court was correct in denying injunctive relief and refusing to restrain the referendum election, although we reach our conclusion for reasons different from those expressed in the final judgment.

At the outset we emphasize that we specifically refrain from any comment upon the wisdom or the merits of the proposed ordinance. That is a matter for the electorate, not the courts, to decide. Our opinion deals only with the propriety of injunctive relief under the circumstances presented below. Upon review, we hold that the circuit court had the authority to enjoin an election in a proper case, but rightly refused to do so in this instance.

The circuit court had the authority to entertain a complaint attacking the constitutionality of the proposed “Clean Indoor Air” ordinance under the law as set forth in Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958). In that case, the Supreme Court, speaking through Justice Thornal, held that the courts had the authority to consider the constitutionality of a proposed municipal autonomy amendment in advance of an election called to enable the electorate to express its approval or disapproval of the amendment, and to enjoin the election if the proposed amendment was found to be unconstitutional in its entirety.

The facts of that case are similar to those which developed below: As a result of an initiative petition, the Dade County Commission called for a special referendum election to submit a proposed amendment to the electorate that would amend the Home Rule Charter for Metropolitan Dade County. This amendment would, if adopted, reserve certain powers to the municipalities located in the county. It provided that the municipalities could exercise all powers granted to them by their charters or by statute, notwithstanding anything to the contrary in the county Home Rule Charter. To forestall adoption of this proposed amendment, certain county taxpayers, representatives of a class, filed suit against the county seeking a declaratory decree on the matter of the constitutionality of the proposed amendment, and requested an injunction restraining the county from holding the special referendum election at which the voters would approve or disapprove the proposed amendment. The circuit court issued a decree which affirmed the constitutionality of the proposed amendment, and it temporarily enjoined the special referendum election on the matter until its constitutionality could be finally resolved on appeal.

The Supreme Court dissolved the temporary injunction and found that the proposed .municipal autonomy amendment sufficiently comported with constitutional requirements to be submitted to the electorate. The court held that it was proper for the circuit court to consider the constitutionality of the proposal in advance of the special election in order to prevent the county from spending money in what could be “a vain and useless thing”. The court concluded that the special election could be enjoined only if the proposed amendment was invalid in its entirety:

“. . . We limit our consideration of the problem entirely to a determination of whether the proposal in its entirety contravenes the provisions of Article VIII, Section 11, Florida Constitution. We have used the word ‘entirety’ advisedly. When a proposal of the nature here involved is assaulted on the ground that it violates the Constitution, the courts will not interfere if upon ultimate approval by the electorate such proposal can have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law. In other words, if an examination of the proposed amendment reveals that if adopted it would be legally operative in part, even though it might ultimately become necessary to determine that particular aspects violate the Constitution, then the submission of such a proposal to the electorate for approval or disapproval will not be restrained. Gray v. Moss, [115 Fla. 701, 156 So. 262 (1934)]; Gray v. Winthrop, [115 Fla. 721, 156 So. 270 (1934)].”

Dade County v. Dade County League of Municipalities, supra 104 So.2d at 515.

Under the clear authority expressed above, the circuit court, in entertaining the appellant’s complaint, was limited to a determination as to whether the proposed ordinance was invalid in its entirety before it could restrain the holding of the special referendum election. See also City of Miami Beach v. Smith, 251 So.2d 290 (Fla.3d DCA), cert. denied, 257 So.2d 561 (Fla.1971); Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla.3d DCA 1957). An individual piecemeal attack upon a portion of the proposal, as opposed to an attack on the proposal in toto, was not sufficient to enable the circuit court to enjoin the election or to delete the language of the proposed ordinance that the court found to be unconstitutionally vague. Once it was determined that the “Clean Indoor Air” ordinance was not invalid in its entirety, or once it became clear that the appellant intended only a piecemeal attack on the proposed ordinance, the circuit court’s judicial function was at an end and the wisdom vel non of the proposal was purely a matter for the electorate to decide.

In short, the circuit court’s authority was restricted to an overall examination of the constitutionality of the proposed ordinance on its face. It fell into error when it went beyond that and determined that a portion thereof was unconstitutionally vague and should be deleted prior to consideration by the electorate.

In Metropolitan Dade County v. Shiver, 365 So.2d 210 (Fla.3d DCA 1978) (appeal and certiorari pending), we recently reversed an injunction restraining a referendum election on a proposed ordinance that would impose a tourist development or “room” tax on county hotels and motels. We rejected the arguments against submitting the proposal, as written, to the electorate, and concluded that the ballot language of the proposed ordinance gave the voter fair notice of the question to be decided and was not misleading under Section 125.-0104(6)(b), Florida Statutes (1977). In reaching our conclusion that the injunction against the referendum election was improper, this court briefly commented upon the role of the judiciary in the political process:

“[1] The law is well-settled that a court of equity as a general rule will not restrain the holding of an election because a free election in a democracy is a political matter to be determined by the electorate and not the courts. City of Deland v. Fearington, 108 Fla. 498, 146 So. 573 (1933); Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932); Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla.3d DCA 1957). Limited exceptions to this rule have been recognized but only on the narrowest of grounds. One such exception is where the election is being held in violation of an applicable legislative enactment. City of Miami Beach v. Herman, 346 So.2d 122 (Fla.3d DCA 1977). Another is where the ballot question on a referendum is misleading and deprives the voter of an opportunity to know and to be on notice as to the proposition on which he is to cast his vote. Hill v. Milander, 72 So.2d 796 (Fla.1954).”

Metropolitan Dade County v. Shiver, supra 365 So.2d at 212.

The circuit court’s determination that the county had the authority to regulate smoking in restaurants licensed under the beverage laws was premature where that issue was not properly presented for resolution in advance of the special election. Here the appellant seriously contested only that portion of the proposed ordinance restricting smoking in restaurants and cafeterias. The circuit court found that a small portion of this section was unconstitutionally vague. In so doing, it exceeded the authority it had under Dade County v. Dade County League of Municipalities, supra.

We again emphasize that we are not at this time passing upon the merits of the proposed ordinance itself. Nothing in this opinion should be read endorsing the merits of the proposed ordinance or precluding any challenge to its contents, or any portion thereof, should it be subsequently adopted. In that event, it may be examined by the courts in the same manner that any statute or ordinance may be examined.

We approve only so much of the final judgment that denies injunctive relief and we direct that the proposed ordinance, as originally submitted by the county commission, be placed before the electorate at the special referendum election of May 8, 1979. All other portions of the final judgment in conflict with this opinion are disapproved. The final judgment, as so modified, is affirmed.

Affirmed.

      . This procedure was authorized pursuant to the Home Rule Charter for Metropolitan Dade County, art. 7, § 7.01 (1957).

      . Chapters 561 & 562, Fla.Stat. (1977).

      . The substance of the final judgment reads as follows:
      “This case concerns the constitutionality of a Dade County initiative petition to regulate smoking. The proposed ordinance would apply inter alia to restaurants which, like the plaintiff, are licensed under the beverage laws of the State of Florida.
      “Plaintiff argues that the proposed ordinance is invalid on three (3) grounds:
      “1. Dade County lacks the powers of an ‘incorporated municipality’ under Section 562.45(2), Florida Statutes,
      “2. The State has pre-empted the regulation of liquor licensees, and , “3. A portion of Section 5(a) of the proposed ordinance is unconstitutionally vague.
      “After extensive argument of counsel and being otherwise fully advised in the premises, it is thereupon,
      “ORDERED and ADJUDGED:
      “1. Dade County has the authority to regulate smoking in restaurants licensed under the beverage laws of the State of Florida.
      “2. The challenged language of Section 5(a) of' the proposed ordinance, to wit: ‘. . subject to change if the needs of the owner or manager so require . .’, is unconstitutionally vague. Accordingly, that portion of Section 5(a) which is quoted in the preceding sentence shall be and the same is hereby stricken from said Section.
      “3. The prayer for injunctive relief shall be and the same is hereby denied, and the proposed ordinance as modified by Paragraph 2 of this Final Judgment shall be submitted to the electorate of Dade County on May 8, 1979, at a special election previously scheduled by the Dade County Board of County Commissioners.”

      . .... . . In a proceeding of this kind the courts cannot with propriety go beyond measuring the proposal by the standards set in the Constitution itself. Any effort on our part to attempt to reconcile the provisions of the existing charter with the proposed amendment prior to the approval of the latter would be an encroachment on the political functions of the electorate and then would amount to nothing more than an advisory opinion on our part in a matter which is beyond our immediate judicial province.”

        Dade County v. Dade County League of Municipalities, supra 104 So.2d at 518.

      . The phrase which the circuit court held should be deleted was: . . subject to change if the needs of the owner or manager so require. .


author: LETTS, Judge.

text:
    Irene B. WHITEFIELD, Brevard County School Board and Hartford Accident & Indemnity Company, Appellants, v. Ernestina L. KAINER, as Administratrix of the estate of Mark Joseph Kainer, Deceased, Appellee.
    No. 77-2420.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    E. Clay Parker and Michael P. Falkowski, III, of Parker, Falkowski, Johnson & Owen, P.A., Orlando, for appellants.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Nance & Cacciatore, P.A., Melbourne, for appellee.
   LETTS, Judge.

This appeal results from a wrongful death action in which the trial court refused to grant a motion for a directed verdict. The motion set forth that the illegitimate child was not a survivor as defined by the Florida Wrongful Death Act. We agree and reverse.

The facts are that the 18 year old alleged father was killed on a motorcycle. Nine months later his girlfriend gave birth to a child on whose behalf this wrongful death action was instituted. The child claims to be a “survivor” under Section 768.18(1), Florida Statutes (1977) which reads:

(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support. (emphasis supplied)

We are of the opinion that a directed verdict should have been granted in this case. At the time of his death there was no evidence that the putative father even knew that his girlfriend was pregnant and certainly there was no evidence whatever that he had recognized any responsibility for the child’s support. Therefore this child does not qualify under the unequivocal language of the statute.

The child urges upon us the cases of Wilcox v. Jones, 346 So.2d 1037 (Fla. 4th DCA 1977) and In Re Estate of Burris, 361 So.2d 152 (Fla.1978). Both of them are distinguishable because in both Wilcox and Burris the question of responsibility for support was not in dispute.

Although not necessary to this result, we also note that the trial court did not require the child to prove paternity. It instead accepted an ex parte order entered by the probate court declaring the child to be the deceased’s heir. We are of the opinion that this too was error and that the child should have had the burden of proving the deceased was his father.

Accordingly the cause is reversed with directions to enter a judgment in accordance herewith.

REVERSED AND REMANDED.

DOWNEY, C. J., and MOORE, J., concur.


author: BERANEK, Judge.

text:
    John B. CROSS, a/k/a John Benjamin Cross, Appellant, v. STATE of Florida, Appellee.
    No. 78-1751.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Brad Culverhouse of Culverhouse & Van Natta, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by defendant from a violation of probation proceeding. Defendant’s probation was violated on the basis of an affidavit alleging violation of probation based upon possession of a weapon in paragraph 1 and trespass to real property in paragraph 2.

At the actual hearing the trial judge who knew the defendant personally due to his numerous appearances in court commented that the defendant’s real problems were alcohol related. The defendant, his lawyer, and the Judge all agreed. The trial judge made reference to a report by the probation officer indicating that the defendant had been intoxicated during the incidents mentioned in the affidavit. Without taking evidence, the defendant was found to be in violation of his probation. It seems clear from the transcript of the violation hearing that the court was simply attempting to get at the true issue which was apparently the defendant’s alcohol problem. However, the court may not revoke a defendant’s probation on a ground not charged in the affidavit. King v. State, 349 So.2d 738 (Fla. 2d DCA 1977), and Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973). The conviction below is, therefore, reversed and the matter remanded for a hearing on the probation violation as alleged or as same may be amended.

REVERSED AND REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


text:
    Willie Lee BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-205.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Defendant appeals from his conviction of murder in the second degree. We affirm.

After an earlier altercation had ended, defendant Willie Lee Burgess returned to the Brown Derby in Ocala where, after a shooting incident in which defendant fired at Carter Woods, Carter Woods was determined to have been killed by a single bullet wound. There was direct evidence that one other person, Morand, fired a gun, but no evidence that he fired at decedent; and ballistic tests eliminated his gun as the murder weapon. The decedent’s brother, Isaac Burgess, also had a gun, but he testified it was a .25 caliber pistol, whereas the death bullet was a .22 caliber. Furthermore, no direct evidence linked him with the shooting of decedent.

Although defendant by his own admission fired a .22 caliber pistol at decedent, he seeks reversal primarily upon what he conceives to be the weakness of the State’s evidence tending to connect defendant with the pistol recovered by the police and identified by the State’s ballistics expert as the murder weapon.

While admittedly the State’s evidence was circumstantial, we conclude that the issue of causation was properly submitted to the jury for determination, and that upon consideration of the evidence in its entirety we find that it was sufficient to sustain defendant’s conviction. We have compared the facts in this case with those present in State v. Roby, 246 So.2d 566 (Fla.1971), and Wright v. State, 318 So.2d 477 (Fla. 4th DCA 1975), and while we agree with the conclusions reached in those cases they are not considered controlling because of what we conceive to be substantial factual dissimilarities.

On defendant’s remaining point we find no reversible error occurred by virtue of the trial court’s inadvertent commencement of the proceedings, after a recess, in the absence of defendant and his attorney. The record shows that a state laboratory analyst testified to his name, place of employment, length of employment, and was proceeding to state his experience in other employment when defendant and his attorney entered the courtroom. After apologies by the State Attorney, and directions by the Court to proceed, with no objection by the defendant, the trial continued. Under these circumstances the error, if any, was harmless, and in any event was not preserved for our review.

The judgment of conviction is therefore affirmed.

McCORD, C. J., and LARRY G. SMITH and MELVIN, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Andre Keith LANCASTER, Appellant, v. STATE of Florida, Appellee.
    No. KK-73.
    District Court of Appeal of Florida, First District.
    April 19, 1979.

      Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Lancaster appeals his conviction under Section 812.019, Florida Statutes (1977), pursuant to a plea of nolo contendere reserving the right to appeal the denial of his motion to dismiss the information on the ground that there were no material disputed facts and that the undisputed facts did not establish a prima facie case. Fla.R. Crim.P. 3.190(c)(4). Lancaster urges that he could not properly be convicted under Section 812.019 because the undisputed evidence, established by affidavit, lacked a pri-ma facie showing that Lancaster, who was in possession of property he knew or should have known was stolen, intended to sell, transfer, distribute, dispense, or otherwise dispose of that property. Sections 812.-012(7)(b), .019, Florida Statutes (1977). The state, on appeal, agrees with Lancaster’s interpretation of the statute. We also agree.

Lancaster was charged pursuant to Section 812.019(1) which states:

Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083,- and 775.084.

Section 812.012(7) defines “traffic” to mean:

(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

The undisputed facts, as established for purposes of this decision, are that Lancaster purchased and received an engine which he knew or reasonably should have known was stolen, and placed the engine in his van. The trial court held that Section 812.019 applied to the conduct of buying property, knowing it to be stolen, and maintaining possession of it. The trial court also held that the defendant “disposed” of the engine, or evidenced an intention to “dispose” of it, by placing the engine in his van.

The offense proscribed by Section 812.-019(1) is trafficking in stolen property. In Section 812.012(7)(b) the qualifying words “with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property,” modify not only the word “use” but also the words “buy, receive, possess, [or] obtain control of”. Therefore one does not “traffic” in stolen property merely by receiving it. Nor does one evidence an intent to “dispose” of stolen property merely by putting it in his vehicle. An intent to traffic in the stolen property, as by disposing of it by transfer to another, is essential. Contrast Section 812.014, Florida Statutes (1977).

The judgment is REVERSED and the information is DISMISSED.

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


text:
    Teresa CRAWFORD and William M. Blynn, Appellants, v. DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION and the Retirement Commission of the State of Florida, Appellees.
    No. LL-59.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Karl J. Leib, Jr. of Leib & Popper, P.A., Miami, for appellants.
    Stephen S. Mathues, Tallahassee, for the Division of Retirement, appellees.
   PER CURIAM.

Upon a thorough consideration of the record and briefs, we find appellants’ attack on the constitutionality of Section 121.021(15), Florida Statutes (1977) to be without merit. See Department of Administration v. Brown, 334 So.2d 355 (Fla. 1st DCA 1976), cert. denied 344 So.2d 323 (Fla.1977); Shields v. Division of Retirement, 352 So.2d 1239 (Fla. 1st DCA 1977), cert. discharged and appeal dismissed, 368 So.2d 590 (Fla. 1978) (rehearing denied); Dempsey v. State Retirement Commission, 354 So.2d 913 (Fla. 1st DCA 1978), cert. denied 360 So.2d 1248 (Fla.1978). Similarly under the same authorities, the challenge to Rule 22B-1.05 is without merit.

Accordingly, the order denying appellants’ special risk membership is affirmed.

McCORD, C. J., and LARRY G. SMITH, and BOOTH, JJ., concur.


author: MELVIN, Judge.

text:
    SCHOOL BOARD OF ORANGE COUNTY, Florida, Appellant, v. Robert N. BLACKFORD and Margaret H. Harrison, Individually and for the use and benefit of Cherokee Junior High School Parent-Teacher Association, Appellees.
    No. LL-94.
    District Court of Appeal of Florida, First District.
    April 19, 1979.

      John W. Bowen of Rowland, Bowen & Thomas, Orlando, for appellant.
    David B. King of Peed & King, Orlando, for appellees.
   MELVIN, Judge.

The School Board of Orange County, hereinafter referred to as the School Board, has timely filed its appeal from a final order entered by the hearing officer, Division of Administrative Hearings, which held and determined that the action of the School Board in closing Cherokee High School, transferring the students in that institution, and reutilizing Cherokee Junior High School as a school facility for exceptional education, for the school year 1978-79 was invalid. The order also held invalid the School Board’s agency action in adopting attendance zone lines around some of the junior high schools of the school district. The hearing officer determined that the action of the School Board in each instance was invalid because the action was not taken pursuant to the rule-making requirements of Section 120.54, Florida Statutes (1977).

The School Board is an agency charged under the Constitution and laws of the State of Florida with responsibility for the control, operation and maintenance of the free public schools within the Orange County school district.

Prior to the adoption of the Administrative Procedure Act, the School Board had adopted rules that controlled the drawing of attendance zone lines around each of the schools. Those were readopted pursuant to the Administrative Procedure Act, after the effective date of such act. Underlying the activity of the School Board in the establishment of school zones, transfer of students, the relocation of children from one school to another and establishing an institution for exceptional educational programs, was an order entered by a judge of the United States District Court relating to the educational system in Orange County, Florida, directing and requiring that certain activities be undertaken by such School Board. It is, therefore, readily apparent that the School Board had no discretion in the drawing of the zoning lines around each school as directed by the U. S. District Court Judge’s order. The court order was entered, final and binding, and it was the responsibility of the School Board to comply with it. They did so by the entry of the orders complained of.

Robert N. Blackford is the parent of a child who was enrolled in the seventh grade at Cherokee Junior High School for the 1977-78 school year. Pursuant to the orders of the School Board here above referred to, his child was assigned and transferred to Howard Junior High School which is located some distance further from the Blackford residence than the Cherokee Junior High School. However, the Howard Junior High School still is within walking distance from the Blackford residence. Respondent Margaret Harrison has a child, likewise transferred, who will be in the ninth grade at Howard Junior High School for the year 1978-79. Her child was in the eighth grade at Cherokee High School during the 1977 — 78 school year. Here again, the Harrison residence is within walking distance to the Howard Junior High School. There is no showing in this record that the educational opportunities offered these two children at the Howard Junior High School are in any degree inferior to those that they were subject to receive at the Cherokee Junior High School. Out of all the students that were thus transferred from the Cherokee Junior High School to the Howard Jún-ior High School and to other schools in the area, in obedience to the directives of the School Board and compliance with the federal court order, we have two parents who complain that the interest of their children by such School Board action were substantially affected.

The hearing officer in the final order entered by him concluded that the parents did have a substantial interest in that part of the long range plan for pupil assignment that related to the closing of the junior high school and its use-change to that of an exceptional educational school, and that they also had a substantial interest in the adoption by the School Board of attendant zone lines for some of the other junior high schools in the district. In reaching this conclusion, the hearing officer ruled that the parents of the children:

“[Ijnterest in maintaining for their children an educational program which is not unnecessarily disrupted by changing schools, and realigning friendships, is a substantial one.”

Every concerned parent has an interest in their children and in the educational program in which their children are enrolled. They also have a natural interest that the educational progress of the child not be unnecessarily disrupted. However, a change from one school to the other which would, of course, bring about an exposure of the child to the opportunity of making new friends may not on its face, standing alone, be considered a hindrance. Such concern on the part of parents is not sufficient to satisfy the threshold requirement of a standing to bring about a rule challenge of the school board procedure under the provisions of Section 120.56, Florida Statutes (1977). We hold that these children (who were not made parties to this cause) represented by their parents have not been “substantially affected” so as to give these parents or children standing to challenge the procedure of the School Board. Likewise, the parent-teacher association has no standing to challenge the subject orders. While it may be that these parents might be considered an “affected party” entitled to present evidence and to present argument before an agency in a rule adoption procedure under Section 120.54(3), this record falls far short of establishing that such parents or children were “substantially affected” so as to clothe them with standing to bring about a rule challenge under the provisions of Section 120.56, Florida Statutes (1977). To walk a little bit further, or to have the chance to make new friends does not offer entitlement to complain. See Florida Dept, of Offender Rehab, v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Also, see ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla.1976).

We hold that while these children have a legal right to receive from the School Board equal opportunities for the obtaining of a free education, they do not have a right to be seated at a particular desk in a particular room at a particular school in order to receive such educational exposure.

To uphold the order entered striking down the orders of the School Board herein referred to would require first that common sense and logic take a holiday.

The final order entered by the hearing officer here under review is reversed and the orders entered by the School Board herein referred to are affirmed.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.