text:
    Robert L. SHEVIN, as Attorney General and Richard E. Gerstein, as State Attorney, Appellants, v. SUNBEAM TELEVISION CORPORATION and the Miami Herald Publishing Company, Appellees.
    No. 50938.
    Supreme Court of Florida.
    Oct. 28, 1977.

      Robert L. Shevin, Atty. Gen., and James D. Whisenand, Deputy Atty. Gen., Tallahassee, for appellants.
    Allan Milledge and Alan Rosenthal, of Milledge & Hermelee, and Parker D. Thomson, of Paul & Thomson, Miami, for appel-lees.
    Thomas W. McAliley and David J. White, of Beckham, McAliley & Proenza, Miami, for American Civil Liberties Union of Florida, as amicus curiae.
   ADKINS, Justice.

This is an interlocutory appeal from the Circuit Court of Dade County which held Section 934.03(2)(d), Florida Statutes, to be unconstitutional.

We have accepted jurisdiction and will treat the interlocutory appeal as a petition for writ of certiorari. Burnsed v. Seaboard Coastline Ry. Co., 290 So.2d 13 (Fla.1974).

Section 934.03(2)(d), Florida Statutes (1969), permitted the interception of defined wire or oral communications when one party to the communication gave prior consent:

“It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.” (Emphasis supplied.)

Section 934.03(2)(d), Florida Statutes, was amended in 1974, by Chapter 74-249 [S.459], Laws of Florida, to require all parties to the defined wire or oral communication to give prior consent to a defined interception:

“It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.” (Emphasis supplied.)

Appellee Sunbeam Television Corporation is a television station in Miami, Florida, and the Miami Herald Publishing Company is a division of Knight-Ridder Newspapers, Inc., which publishes the Miami Herald, a newspaper of general circulation in the State of Florida.

The complaint was filed by Sunbeam alleging that the amendment impaired its news gathering dissemination activities and constituted a prior restraint in violation of the First Amendment. Sunbeam alleged that secret recordings during investigative reporting activities were necessary to insure the accuracy of the information gathered and to preserve the conversation. It was further alleged that the interests protected by the statute were interests in privacy, which are subordinate to their alleged First Amendment rights. The Miami Herald intervened as a party plaintiff.

Appellees say there are three basic elements which necessitate the use of concealed recording equipment in investigative reporting: accuracy; candidness of person interviewed; and corroboration. The element of accuracy, they say, is in the interest of the individual as well as the public generally, in that no one will be harmed by an untruth. Further, it is in the interest of the broadcaster or publisher that it be able to establish the truth with precision.

Appellees point out that persons engaged in unlawful or undesirable conduct will not speak candidly if they know that their words are being recorded.

Furthermore, if no corroboration of the information gathered was available other than the notes or memory of the reporter, the news resulting from the investigation could not be broadcast. The only effective corroboration of a news story is the recording of the conversation, where the exact words, manner of speech, and inflection can be preserved.

Testimony was produced displaying the value of concealed recordings in investigations of consumer fraud, housing discrimination, illegal abortion, corruption of officials, and various other matters. Appellees contend that the statute substantially impairs these types of news gathering activities.

Appellees do not claim any impairment of their freedom to publish. Instead, they rely on their right to gather news without governmental interference.

In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), a prison rule under attack prevented media representatives from conducting interviews with specific individual inmates. The media could, however, have full access to observe prison inmates through tours and had the right to speak to any inmate encountered and interview inmates selected at random by correctional officials. Inmates and media representatives challenge the rule by relying on their right to gather news without governmental interference. The United States Supreme Court concluded that the rule did affect news sources and news gathering activities, but did not violate any First Amendment rights of the press:

“More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press— access broader than is accorded members of the public generally — face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree.” At 833, 94 S.Ct. at 2809.

A similar factual situation existed in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). In Saxbe, supra, the record contained testimony to the effect that personal interviews were “indispensable to effective reporting.” One witness testified this his experience with 1600 interviews clearly illustrated that the truth could only be gained from private one-to-one interviews. Even with this factual predicate the United States Supreme Court declined to accept any First Amendment violation asserted by the media.

Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), concerned the rights of the media to have constitutionally protected confidential sources. The court required three reporters to appear before grand juries and to testify. The following appeared in the opinion:

“We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated. But these cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request.
“The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.
“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under pri- or cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. * * *
“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. * * *
“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. * * *
“This conclusion itself involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources. * * *
“It would be frivolous to assert — and no one does in these cases — that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. * * *
“Neither are we now convinced that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct, a system that would be unaccountable to the public, would pose a threat to the citizen’s justifiable expectations of privacy, and would equally protect well-intentioned informants and those who for pay or otherwise betray their trust to their employer or associates. The public through its elected and appointed law enforcement officers regularly utilizes informers, and in proper circumstances may assert a privilege against disclosing the identity of these informers.” (Emphasis supplied.) At 681-98, 92 S.Ct. at 2656-2665.

Section 934.03(2)(d), Florida Statutes, is not a restraint or restriction on what the press may publish, nor is there an expressed or implied command that the press publish which it prefers to withhold. Nor does this case involve any intrusion upon speech or assembly. This was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation. It does not exclude any source from the press, intrude upon the activities of the news media in contacting sources, prevent the parties to the communication from consenting to the recording, or restrict the publication of any information gained from the communication. First Amendment rights do not include a constitutional right to corroborate news gathering activities when the legislature has statutorily recognized the private rights of individuals.

In Sigma Delta Chi v. Speaker, Maryland House of Delegates, 270 Md. 1, 310 A.2d 156 (1973), the court affirmed the issuance of an injunction that prohibited reporters from attending sessions of the Maryland legislature with tape recorders in their possession. A rule of the legislature prohibited the use of cameras and recording instruments in the chambers without permission from the senate president or house speaker. The court recognized that news sources and news gathering were protected by the First Amendment, but rejected the assertion that the need of the news media to promote greater accuracy and speed in reporting was also within the protective purview of the First Amendment. The court said:

“They merely claim that the use of tape recorders in each chamber will promote greater accuracy and speed in reporting. We are unwilling to include those purposes, however worthwhile they may be, within a constitutionally protected right to gather news. Thus, the exclusion of recording devices from the legislative sessions constitutes no abridgement of First Amendment rights.” 310 A.2d at 159.

The protection of a person’s general right to privacy is left largely to the states. Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

News gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering. The ancient art of investigative reporting was successfully practiced long before the invention of electronic devices, so they cannot be said to be “indispensable tools of investigative reporting.” The First Amendment is not a license to trespass or to intrude by electronic means into the sanctity of another’s home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.

This was the reasoning followed in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), where investigative reporters attempted to secure information concerning criminal violations in the practice of medicine. A reporter was wired to transmit conversations for recording and a photographer secretly took pictures. The alleged quack successfully sued the press representatives for damages to his “privacy.” The court pointed out that a person should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording in full living color and hi-fi to the public at large. A different rule could have a most pernicious effect upon the dignity of man.

We have considered other objections to the statute and find them without merit.

We have previously dissolved the temporary injunction. We now hold that the statute is constitutional in that it does not violate the First Amendment of the United States Constitution, nor is it vague, nor does it unlawfully chill First Amendment freedom.

The order of the trial court is quashed and the cause is remanded to the trial court for further proceedings consistent with these views.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Concepcion SOSA, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 76-1507.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 30, 1977.
    Ser, Keyfetz, DeCardenas & Levine and Mark Poses, Miami, for appellant.
    W. Thomas Spencer, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Reversed on the authority of Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977); Apodaca v. Old Security Casualty Insurance Company, 348 So.2d 677 (Fla. 3d DCA 1977), opinion filed August 9, 1977.


text:
    Preston G. HATMAKER, Appellant, v. ADVANCE MORTGAGE CORPORATION, a Delaware Corporation, Appellee.
    No. 76-2170.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Rehearing Denied Dec. 1, 1977.
    Thomas E. Brandt of Law Offices of Donald R. Niles, formerly Tripp & Niles, Fort Launderdale, for appellant.
    Peter H. Leavy of Myers, Kaplan, Levin-son & Kenin, Miami, for appellee.
   PER CURIAM.

The plaintiff appeals from a summary final judgment in favor of the defendant.

It is debatable whether, at the time the summary judgment was initially granted, the defendant as the moving party had met its burden of showing that there were no genuine issues of fact. We need not, however, rest our decision on the record before the trial court at the time of the initial hearing. In support of his motion for rehearing the plaintiff filed an affidavit which clearly established the existence of genuine issues of fact; but, the trial court refused to accept the affidavit. After hearing the arguments of counsel on the motion for rehearing the court entered an order denying the motion. We find that the trial court in so doing abused its discretion. Berrol v. Concord Florida, Inc., 305 So.2d 310 (Fla. 3d DCA 1974); National Properties, Inc. v. Ballenger Corp., 277 So.2d 29 (Fla. 3d DCA 1973); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

ALDERMAN, C. J., CROSS, J., and MILLER, ROBERT P., Associate Judge, concur.


text:
    Willie Clement NORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1612.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.
    Rehearing Denied Nov. 30, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

The single question presented by this appeal is whether the proof of possession with intent to sell cannabis was sufficient because of the possibility that there was joint possession of the apartment in which the contraband was found. At the time of the execution of the search warrant, two persons were in the apartment, one of whom was the defendant. Later, the appellant admitted to police officers that he was “. . . the occupant and the owner .” of the apartment and delivered the keys to the police. The defendant offered the testimony of the apartment manager that the defendant was not the person who paid the rent, but the manager testified that he had no knowledge of who occupied the apartment.

We conclude that the fact that a person, other than the defendant, was also present at the time of the service of the search warrant and that a person, other than the defendant, regularly paid the rent was not enough to bring this cause within the purview of the rule in Torres v. State, 253 So.2d 450 (Fla. 3d DCA 1971), because of defendant’s admission that he was the owner and occupant and the absence of any testimony that the apartment was jointly occupied with another person.

The State has noted and called to the attention of this court that the sentence imposed is in violation of Martin v. State, 251 So.2d 283 (Fla. 1st DCA 1971); and Dorfman v. State, 351 So.2d 954 (Fla. 1977), filed July 28, 1977. Therefore, we affirm the judgment but reverse the sentence and remand the cause for the entry of a sentence in accordance with the cited authorities.

Judgment affirmed; sentence reversed.

      . Petition for Rehearing pending.


text:
    Theditis PERRY, Petitioner, v. CAREER SERVICE COMMISSION of Florida and Florida Department of Health and Rehabilitative Services, Respondents. Jack R. BUTLER, Petitioner, v. CAREER SERVICE COMMISSION OF FLORIDA, Respondent.
    Nos. DD-314 and FF-421.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Rehearing Denied Nov. 30, 1977.
    Jerry G. Traynham of Patterson & Black, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., Betty Stef-fens, Asst. Atty. Gen., and Douglas E. Whitney, Winter Park, for respondents.
   PER CURIAM.

Petitioners in these consolidated petitions for review present to us identical questions concerning the reasonableness of attorneys’ fees awarded to them pursuant to Section 110.061(3), Florida Statutes (1975), upon their reinstatement to their former positions. Petitioner Butler raises an additional question, not raised by Perry, as to whether Florida’s Administrative Procedure Act mandates an evidentiary hearing as to the reasonableness of the fee assessed.

Following petitioners’ reinstatements, the Commission retained jurisdiction for the purpose of awarding an attorney’s fee, stating the fee would be determined upon proper affidavits and motion from counsel. Subsequently, motions for awards of attorney’s fees were filed together with supporting affidavits. Butler’s demand for an evi-dentiary hearing on the question was denied, and in both cases the Commission declined to rule upon each proposed finding as required by Section 120.59, Florida Statutes (1975). We remanded for the entry of proper orders as required by Section 120.59.

SUFFICIENCY OF THE ORDERS

The amended orders properly considered each proposed finding of fact submitted by petitioners, and either accepted those findings or rejected them with a brief statement of the grounds. Petitioners’ motions attacking the sufficiency of the orders are denied.

BUTLER’S RIGHT TO AN EVIDENTIA-RY HEARING

We agree with Butler that he is a substantially interested party as defined by Section 120.57(1), and under normal circumstances would be entitled to an evidentiary hearing on his claim for an attorney’s fee. The award of an attorney’s fee was pursuant to statute and is a fee money award payable by one party to the other as an indemnity for fees reasonably contracted for and incurred. Compare Valparaiso Bank and Trust Company v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977). As such the award is one not to the attorney serving the successful litigant but is to the party. Butler was at liberty to seek petition for review of the original Commission order which reserved the question of attorney’s fees until such time as proper affidavits and motions had been submitted. However, no cross-appeal was filed from that order even though a petition for review was filed by the Department of Banking and Finance. Butler was not at liberty some eight months after that order had been entered to file a demand for an evidentiary hearing before the Commission and then seek to review a denial of that demand, since the prior order entered became final agency action as to that issue.

THE PROPRIETY OF THE AWARDS

Our review of the amended orders shows a consideration of the circumstances of each case. We have not found the awards here to be unreasonable.

The setting of a flat per-hour rate by the Commission is not error in and of itself. However the criteria found in Canon Two of the Code of Professional Responsibility and adopted by the Supreme Court in Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968) should be considered where circumstances warrant.

The petitions for review are DENIED.

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


text:
    COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., Appellant, v. Norman COHEN, Trustee, Appellee.
    No. 77-1294.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.

      Joseph S. Paglino, Miami, for appellant.
    Prates, Floyd, Pearson, Stewart, Richman & Greer and Ursula Mancusi-Ungaro, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3rd DCA 1977).


author: SMITH, Judge. MILLS, Judge,

text:
    Oliver HILL et al., Appellants, v. SCHOOL BOARD OF LEON COUNTY, Appellee. Oliver HILL et al., Petitioners, v. SCHOOL BOARD OF LEON COUNTY, Respondent.
    Nos. HH-223, HH-222.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.
    As Corrected On Denial of Rehearing Nov. 30, 1977.

      Jack L. McLean, Jr. of Legal Services of North Florida, Inc. and Robert Williams of Florida Legal Services, Inc., Tallahassee, for appellants-petitioners.
    C. Graham Carothers and Michael Pearce Dodson of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appel-lee-respondent.
   SMITH, Judge.

The petition for review asserts that the School Board engaged in illicit rulemak-ing, without complying with Section 120.54, by discontinuing its prior practice of affording county-paid transportation on dangerous routes to school children whose transportation costs are not payable from state funds because their homes are within two miles from school. See Section 234.01, Florida Statutes (1975) and Fla.Admin. Code R. 6A-3.01(3) of the State Board of Education. While county school transportation policy may be a proper one for rulemaking, as may policy concerning the availability of hot breakfasts and the distribution and care of school books, not every statement by the Board on those subjects is a rule for which Section 120.54 procedures are required. The Board’s announcement that an optional service previously provided will be discontinued is not necessarily a rule because it is not a statement “which [is] intended by [its] own effect to create rights or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Dep’t of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977).

We recognized in McDonald that APA rulemaking requirements are and must be to some extent self-enforcing. Affected agencies will be pressed toward rule-making by the necessity otherwise to explicate and defend policy repeatedly in Section 120.57 proceedings for agency action affecting the substantial interests of parties. Inasmuch as requiring rulemaking will not automatically provide the transportation petitioners seek, even during the rulemak-ing proceeding itself, our duty in doubtful cases is to withhold judicial imperatives and leave affected parties to initiate rulemaking under Section 120.54(5) or to request proceedings under Section 120.57. Petitioners here have not attempted to invoke either remedy before the Board. Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla, 1st DCA 1977), in which a regulatory agency rescinded official interpretation of its undoubted rule, is distinguished on its facts, as is Straughn v. O’Riordan, 338 So.2d 832, 834 n. 3 (Fla.1976) (dictum).

The appeal from the circuit court of Leon County, which denied appellants’ motion for injunctive relief, urges that the Board’s asserted error in denying transportation is “so egregious or devastating that the promised administrative remedy is too little or too late,” thereby justifying circuit court intervention. State ex rel. Dep’t of Gen. Serv. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). The circuit court properly ruled to the contrary. Appellants’ other arguments in support of circuit court jurisdiction are unavailing. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); United Faculty of Florida v. Branson, 350 So.2d 489 (Fla. 1st DCA 1977).

The judgment of the circuit court is AFFIRMED. The prayer of the petition for review is DENIED.

BOYER, Acting C. J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

I would reverse.

In my judgment, the School Board’s action in discontinuing its prior practice of providing school bus transportation to students who live within two miles of their assigned school was invalid because it was a rule, section 120.52(14), Florida Statutes (1977), which was not promulgated in accordance with the Administrative Procedure Act. Section 120.54(1), Florida Statutes (1977).

But we have more than this involved here. We have the lives and limbs of children jeopardized because they are now required to walk a dangerous route to school without any safeguards being supplied.

It seems to me that the Administrative Procedure Act was not intended to defeat justice. Yet the construction placed upon it by the majority does just this. We should never become so technical that we obscure the justice of a case. To do so merely brings justice and those who administer it into disrepute. Although we must have rules to guide us in the performance of our duties, we should never ignore common sense in reaching a just result. If we desire respect for the law, and we do, we must first make the law respectable. To do this we must not permit technicalities from preventing justice being done.

I would reverse the trial court’s order and would require the School Board to resume school bus transportation of children within two miles of their school until the School Board has taken proper action to adopt such rule as it ultimately decides to adopt.


text:
    DIVERSIFIED MORTGAGE INVESTORS, Appellant, v. VIKING GENERAL CORP. and Viking Mobile Homes, Inc., et al., Appellees.
    No. 76-1142.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1977.
    Rehearing Denied Nov. 29, 1977.
    Julian D. Clarkson, Fort Myers, and Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright, Miami, for appellant.

      Robert Orseck and Michael S. Olin of Podhurst, Orseck & Parks, Miami, for ap-pellees.
   PER CURIAM.

Appellant, Diversified Mortgage Investors (DMI), appeals a final judgment entered against it in favor of Viking General Corp. (General) and Viking Mobile Homes, Inc. (Mobile Homes).

In June 1975 HNC Mortgage & Realty Investors (HNC) filed an action to foreclose a first mortgage on a mobile home park. HNC joined Mobile Homes, Viking Communities Corp., and 119 Properties, Inc. as the owners of the property and General as an interest holder in the property. The second mortgage holder, Exchange National Bank (Exchange), and the third mortgage holder, DMI, were also joined. Appellees General and Mobile Homes answered and filed a cross-claim against DMI alleging that DMI breached its obligation to fund future advances under the terms of the third mortgage and commitment thereby causing the foreclosure action by HNC.

Following trial the court awarded HNC a judgment of foreclosure and approved HNC’s stipulation not to seek a deficiency judgment. The court also awarded judgment for Exchange against General on its note and for DMI against Mobile Homes on its note. On the cross-claim the court awarded judgment against DMI for the following:

1. debt due HNC (this item of damages was mooted by HNC’s stipulation not to seek a deficiency);
2. the debt due Exchange ($504,183.37);
3. the debt due DMI ($759,558.99);
4. loss of land value of the mobile home park, in excess of the aforementioned debts ($325,000);
5. attorneys’ fees ($45,000); [and]
6. court costs ($3,632.38).

The court set off DMI’s judgment and awarded General and Mobile a net judgment against DMI of $877,815.75. The property was sold at a foreclosure sale and a certificate of sale was issued in the name of HNC at a bid price of $2,126,041.62.

The first mortgage and note held by HNC were executed by General July 9,1972 and modified March 28, 1973. The note called for monthly payments of interest with principal payments due beginning August 1977 or upon acceleration at the declaration of the mortgagee.

The second mortgage was executed March 28,1973 between Exchange and General. The Exchange mortgage provided for annual payments of principal and interest of approximately $100,000, the first of which was due in March 1974 and the second in March 1975.

On December 14, 1973 DMI issued a loan commitment to Mobile Homes. The commitment was for a third mortgage loan in the amount of $650,000 with a provision for future advances in the event of default by Mobile Homes in the maximum amount of $2,250,000. Mobile Homes paid a $39,000 commitment fee. The maximum amount of any future advances was the sum of the two prior mortgages, the $1,750,000 HNC mortgage, and the $500,000 Exchange mortgage. By the terms of the commitment, DMI’s obligation to make future advances expired one year from the date of the loan closing unless extended by Mobile Homes. On December 21, 1973 Mobile Homes executed a $650,000 promissory note and third mortgage to DMI pursuant to the terms of the commitment letter. Contemporaneous with the execution of the note and mortgage, a loan agreement was also entered into by the parties.

The first default under the HNC loan occurred September 1, 1974 when interest due for August 1974 went unpaid. A default in principal occurred when the principal balance of approximately $1,750,000 went unpaid after acceleration on June 4, 1975.

The second annual installment of principal and interest under the Exchange note was not made when due in March 1975. Prior to the March 1975 default, the only default under the $500,000 Exchange note was failure to pay $17,500 interest due March 1974. Appellees contend that the $17,500 was a default in payment of the principal although Wayne Smith, the vice president of Exchange in charge of the loan, testified that the default was in interest. The default in the March 1975 principal and interest payments resulted in acceleration of the Exchange loan on May 27, 1975.

Since Mobile Homes did not pay the additional fee necessary to extend the term of the commitment, the obligation of DMI to make future advances expired as of December 21, 1974. By this date, both prior loans were in default for the payment of interest, but no acceleration had occurred. Therefore, there were no principal payments overdue on either loan.

In its final judgment the trial court ruled that:

On the cross claims of VIKING GENERAL CORP. and VIKING MOBILE HOMES, INC., the Court finds that the terms of the contractual agreements are conflicting and ambiguous, but considering all documents and considering all evidence of the intent of the parties, it is clear that the wrap-around or stand-by committment [sic] was for protection against a default in the prior mortgages, either for principal, interest, or other default or any combination thereof.

The first issue raised by appellant is dis-positive of this appeal, that is, whether the instruments describing the agreement between DMI and Mobile Homes included a commitment to pay defaults in principal and interest or in principal only. We hold that under the terms of the agreement between the parties DMI was obligated to fund a default in principal only. There is no document which specifically requires DMI to cure defaults in the payment of interest. The commitment letter and the loan agreement clearly state that DMI is obligated to pay principal only and could at its option pay the HNC and Exchange mortgages in full.

Commitment letter:

21. Future Advances:

(a) Obligation of Lender to Disburse: If there is an act of default, at any time and from time to time, during the first twelve (12) months after the closing of the Loan, in either or both of the prior mortgages referred to in Paragraph A.19 of this Commitment, Lender shall disburse out of the reserve described in Paragraph 11(B) of Exhibit “B” of this Commitment the payment of principal as same comes due on the mortgage which is in default and, at the option of lender, may pay off either or both of said prior mortgages in full, (emphasis added).

Loan agreement:

52. FUTURE ADVANCES:

(a) Obligation of Lender to Disburse: If there is an act of default, at any time and from time to time, during the first twelve (12) months after the closing of the Loan, in either or both of the prior mortgages referred to in paragraph A.19 of the Commitment, Lender shall disburse out of the reserve described in paragraph 2.A. of Exhibit “E” of this Agreement the payment of principal as same comes due on the mortgage which is in default and, at the option of Lender, may pay off either or both of said prior mortgages in full, (emphasis added).

Appellees argue however that as to the extent of DMFs obligation to make the payments required on the two prior mortgages the loan documents are ambiguous and in conflict with one another. The basis for their argument is found in paragraph 17 of the DMI mortgage. That paragraph was obviously incorporated into the mortgage document from paragraph 10 of the commitment letter. Both paragraphs are quoted below:

Commitment letter:
(c) The aforesaid third mortgage which secures the loan shall provide the following:
“Notwithstanding any prints ed terms and provisions herein contained, the mortgagor shall maintain in good standing all superior liens and encumbrances upon the real property. Upon the failure of the mortgagor to maintain such encumbrances in good standing, the mortgagee shall have the right to cure any defaults by making the defaulted payments or by paying said encumbrances in full. . . .
Mortgage:
Notwithstanding any printed terms and provisions herein contained, the mortgagor shall maintain in good standing all superior liens and encumbrances upon the real property. Upon the failure of the Mortgagor to maintain such encumbrances in good standing, the Mortgagee shall cure any defaults by making the defaulted payment or by paying said encumbrances in full. . . ,

The fact that the critical phrase “have the right to” is omitted from the mortgage reflects the possibility of a clerical error. This would also explain what otherwise appears as an unorthodox method of setting forth an obligation of the mortgagee to make future advances in a document signed only by the mortgagor. If the key words had not been deleted the provision would simply describe the manner in which the mortgagee could protect itself against defaults in prior liens.

Be that as it may and assuming the existence of ambiguities, the documents include, a cure for any conflict among them by providing that the terms of the loan agreement shall have priority.

Commitment letter:

in the event of a conflict between the Loan documents and this Commitment, the Loan documents shall control.

Loan agreement:

in the event of a conflict between any of the provisions of the Mortgage and this Agreement, the provisions of this Agreement shall control.
in the event of a conflict between the Loan Agreement and other loan documents and the Commitment, the Loan documents shall control.

Mortgage:

. in the event of any conflict between the terms and provisions of this Mortgage instrument and the said Loan Agreement, it is agreed that the Loan Agreement shall control.

Promissory note:

If there is any conflict between the Note and said Mortgage or Loan Agreement, the terms and conditions of the Loan Agreement shall control.

The appellees’ contention that the loan agreement is not a loan document and is therefore subordinate to the terms of the mortgage under the second quoted provision of the loan agreement fails because of the inclusion of the word “other” to modify the words “loan documents.” It is the loan agreement then which controls, and it clearly limits DMI’s obligation to fund defaults in principal.

Thus, we hold that because there was no default in principal during the period DMI was obligated to make advances under the agreement, DMI did not breach the agreement and cannot be held liable on the cross-claim. The judgment against DMI is reversed, and the case is remanded for such further proceedings consistent with this opinion as may be necessary.

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


text:
    Alfred J. MOLIN, Appellant, v. Aubrey ROGERS, Sheriff of Collier County, Florida and Joseph P. D’Alessandro, State Attorney, State of Florida, Appellees.
    No. 77-437.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Rehearing Denied Nov. 29, 1977.

      Lawrence D. Martin of Vega, Brown & Nichols, Naples, for appellant.
    James H. Siesky, Naples, for appellee Rogers.
    Louis St. Laurent, Chief Asst. State Atty., Anthony P. Pires, Jr., and Ronald C. Dillon, Asst. State Attys., Naples, for appel-lee D’Alessandro.
   PER CURIAM.

Final judgment affirmed except for Point II, award of court costs, which is reversed the record reflecting no factual basis for which assessment was made.

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


author: SMITH, Acting Chief Judge.

text:
    J. W. WHITTENTON, Sr., et ux., Appellants, v. CITY OF NEW SMYRNA BEACH, Appellee.
    No. EE-59.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1977.
    Rehearing Denied Dec. 1, 1977.
    Richard S. Graham of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., Daytona Beach, for appellants.
    Charles A. Hall, New Smyrna Beach, for appellee.
   SMITH, Acting Chief Judge.

Viewed in a light favorable to the City, the evidence supports the trial court’s decision that the City is not estopped to enforce its zoning ordinance proscribing the use of appellants’ house by paying boarders. The evidence on the elements of estoppel was conflicting and did not establish appellants’ right to continued use as a matter of law. City of North Miami v. Margulies, 289 So.2d 424 (Fla. 3d DCA 1974).

AFFIRMED.

ERVIN and MELVIN, JJ., concur.


author: KEHOE, Judge.

text:
    Myrtle L. PHILLIPS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1026.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Jose P. Rodriguez, Legal Intern, for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   KEHOE, Judge.

Appellant was convicted by a jury of murder in the second degree. Subsequently, she was adjudicated guilty and sentenced to a term of life imprisonment. By this appeal appellant contends, basically, (1) that the trial court erred in admitting into evidence certain color photographs of the victim and (2) that the trial court erred in excluding certain proposed defense witnesses from testifying. After careful consideration of the points raised on appeal, we are of the opinion that they are without merit.

As a general rule the admissibility of photographic evidence is within the broad discretion of the trial judge. In the instant case, with regard to appellant’s first point on appeal, there has been no clear showing of the abuse of this discretion; therefore, the decision of the trial court on this point is affirmed. See, e. g., Swan v. State, 322 So.2d 485 (Fla.1975); Wilkins v. State, 155 So.2d 129 (Fla.1969); Leach v. State, 132 So.2d 329 (Fla.1961); Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972); and Reed v. State, 224 So.2d 364 (Fla. 4th DCA 1969).

Appellant, in her second point on appeal, contends that the trial court erred by excluding the testimony of four proposed witnesses, who were doctors, whose testimony was relevant and material to her affirmative defense of self-defense. The trial judge, after hearing an offer of proof by defense counsel as to the proposed testimony of the doctors and upon objection by prosecution counsel, ruled that the proposed testimony of the doctors pursuant to the offer of proof would be excluded.

The primary purpose of making an offer of proof in the trial court, i. e., what the witness would say if he were permitted to answer a question and what is expected to be proved by the answer to the question, is to include the proposed answer and expected proof in the official record of the trial, so that in case of an appeal of the trial judge’s ruling, the appellate court may understand the scope and effect of the question and proposed answer in considering whether the trial judge’s ruling sustaining an objection was proper. The statement constituting the offer of proof must be reasonably specific and must state the purpose of the proof offered unless the purpose is apparent. See, e. g., Piecirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976); Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975); and McCormick, The Law of Evidence 109-112 (2d ed. 1972). Further, it is the responsibility of the party attempting to introduce the evidence, by his offer of proof, to make its purpose clear to the trial court, otherwise, an objection to a ruling denying its admittance will not be considered by the court on appeal, even though the appellant may have had a legitimate purpose in proposing its introduction. Without such a showing, it is impossible for the appellate court to determine whether the proposed evidence was admissible. See, e. g., Haager v. State, 83 Fla. 41, 90 So. 812 (Fla.1922); Henry v. State, 81 Fla. 763, 89 So. 136 (Fla.1921); Piecirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976); and Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975).

In the instant case, we have carefully reviewed the record and have concluded that the offer of proof, in regard to appellant’s second point on appeal, was not clear or specific enough for us to determine that the trial court erred in excluding the proposed testimony of the doctors. Although the proposed testimony might have been proper for some purpose, based on the offer of proof as made in regard to the appellant’s defense of self-defense and the principles set forth above, we are unable to say that the trial judge erred as contended by appellant. Therefore, the decision of the trial court on this point is also affirmed. See Lightbourn v. State, 129 Fla. 43, 175 So. 857 (1937); McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975); and Darty v. State, 161 So.2d 864 (Fla. 2d DCA 1964).

Based on the foregoing, the judgment appealed is affirmed.

Affirmed.


text:
    Thomas DUGGER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1284.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 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 NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appealing from conviction of conspiracy to sell a controlled substance and sale and delivery of a controlled substance, the defendant-appellant presents two points. In one, appellant contends the court committed error by permitting an assigned state attorney through his assistant to prosecute the defendant when the period of assignment had expired. Secondly, appellant contends the court erred in denying his motion to dismiss the information as amended for insufficiency and for the asserted ground that the assistant state attorney who signed the information was not legally qualified to do so. Those contentions have been considered in the light of the record, briefs and argument, and we hold that no reversible error has been shown.

Regarding the first contention, there were extensions, made by the Supreme Court, of the Executive Order by which the State Attorney for the Eleventh Judicial Circuit had been assigned to prosecute this and other interrelated cases in the Sixteenth Judicial Circuit. The fact that there was a gap of approximately one week between the end of one extension period and the time of the further extension by the Supreme Court did not operate to vitiate the prosecution, or the proceedings thereon which took place in the interval. In re Executive Assignment of State Attorney, 298 So.2d 382 (Fla.1974); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975). There was no timely challenge of the authority or power of the state attorney then conducting the prosecution, to so proceed. Such challenge, if made, would need to have been presented by quo warranto. Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Carey v. State, 349 So.2d 820 (Fla.3d DCA 1977, opinion filed September 13, 1977).

As to the appellant’s second point, it was shown that the assistant state attorney, who was of the Eleventh Judicial Circuit, who signed the information had been sworn as an assistant state attorney for the Sixteenth Judicial Circuit in the matters, of which this was one, for the prosecution of which the State Attorney of the Eleventh Judicial Circuit was assigned and directed to conduct such prosecution, by Executive Order. Denial of defendant’s motion to dismiss the information as amended was not error.

Affirmed.


text:
    Charles TUNSIL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1615.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Bertone v. State, 224 So.2d 400 (Fla.3d DCA 1969); Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971); Graham v. State, 258 So.2d 317 (Fla.3d DCA 1972); State v. Barber, 301 So.2d 7 (Fla.1974).


text:
    E. Mack LAUDERDALE and J. T. Lauderdale, Appellants, v. A. H. BLAKE, etc., et al., Appellees. Richard M. SEPLER, Appellant, v. A. H. BLAKE, etc., et al., Appellees.
    Nos. 76-1774, 77-387.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Sepler & Hernandez and Irma V. Hernandez, Hialeah, for appellants.
    Stuart L. Simon, County Atty., and Robert Krawcheck, Asst. County Atty., for ap-pellees.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   KEHOE, Judge.

Appellants bring these consolidated appeals from two summary final judgments entered by the trial court upholding the denial by appellees of agricultural classification for ad valorem tax purposes of appellants’ property. In our opinion, the judgments were properly entered; therefore, they are affirmed.

Appellants’ property, as of January 1, 1974, was being used for agricultural purposes. However, during 1973 appellants sought and obtained rezoning of the property from agricultural to R-3-5 (multiple family district). The new zoning permits buildings of unlimited height containing 32 units per acre. When appellants requested an agricultural classification of their property for ad valorem tax purposes, their requests were denied pursuant to Section 193.461(4)(a), Florida Statutes (1972).

The common denominator of appellants’ points on appeal is that the trial court erred in upholding the denials of agricultural classification for ad valorem tax purposes of their property, even though they had requested and obtained, subsequent to the enactment of Section 193.461(4)(a), Florida Statutes (1972), a rezoning of the property for nonagricultural use. This Section provides in pertinent part as follows:

“ * * * The assessor shall reclassify the following lands as nonagricultural:
(3) Land that has been zoned to a non-agricultural use at the request of the owner subsequent to the enactment of this law;”

Based on this statutory provision and the facts in the appeals sub judice, we agree with the trial court that appellants’ requests for agricultural classification of their property for ad valorem tax purposes were properly denied. See Jar Corporation v. Culbertson, 246 So.2d 144 (Fla.3d DCA 1971); and Haines v. St. Petersburg Methodist Home, Inc., 173 So.2d 176 (Fla.2d DCA 1965). Further, we have considered the other points raised on appeal and conclude that they are without merit. Accordingly, the summary final judgments appealed are affirmed.

Affirmed.


text:
    Sam MOKSEL, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY CO., a Foreign Corporation, Appellee.
    No. 76-1947.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Stabinski, Funt, Tucker & Levine and Norman D. Funt, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Board of County Com’rs v. F. A. Sebring Realty Co., 63 So.2d 256, 258 (Fla.1953) and 2 Fla.Jur. Appeals § 346 (1963) and cases cited therein.


text:
    The INSURANCE COMPANY OF PENNSYLVANIA, INC., Appellant, v. William H. WASHINGTON, Sr., Appellee.
    Nos. 76-1956, 76-1957.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant.
    David Goldman, Miami, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973).


text:
    The STATE of Florida, Appellant, v. John BRANNON, Appellee.
    No. 76-2011.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Richard E. Gerstein, State’s Atty., and Dennis L. Curran, Asst. State’s Atty., for appellant.
    Carr & Emory, Miami, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Sutton v. State, 327 So.2d 234 (Fla. 1st DCA 1976).


text:
    Aurora PACHECO and Ubaldo Pacheco, Appellants, v. Pedro M. RAMOS and Pan American Hospital, Appellees.
    Nos. 76-2070, 77-149 and 77-150.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    West & Fowler and John Goodman, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, Adams, George, Schulte & Ward and Richard B. Adams, Miami, for appellees.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. City of Miami Beach v. Chadderton, 306 So.2d 558, 559-60 (Fla.3d DCA 1975); Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965).


author: HUBBART, Judge.

text:
    INDUSTRIAL TRUCKS OF FLORIDA, INC., Allis-Chahners Corporation, Ernest Williams, Royal Crown Cola Company and Hartford Accident & Indemnity Company, Appellants, v. Roberto GONZALEZ, Appellee.
    Nos. 77-1044, 77-1065 and 77-1144.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Nov. 30, 1977.

      Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for Industrial Trucks.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for Allis-Chalmers.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Kenneth J. Smith, Miami, for Williams, Royal Crown and Hartford, appellants.
    Kaplan, Dorsey, Sicking & Hessen and Joseph Segor, Miami, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   HUBBART, Judge.

This is an interlocutory appeal taken from an order denying a motion to dismiss for lack of prosecution under Fla.R.Civ.P. 1.420(e).

The sole issue presented for review is whether a plaintiff waives the implied notice requirement for a hearing on an adverse motion to dismiss for lack of prosecution under Fla.R.Civ.P. 1.420(e) when he files in writing at the time of said hearing his alleged good cause why the action should remain pending. We hold that such filing constitutes a waiver of the implied notice requirement under the above rule and reverse.

The record reveals that the plaintiff Roberto Gonzalez filed an action against the defendants, Ernest Williams, Royal Crown Cola Co., Hartford Accident and Indemnity Co., and Allis-Chalmers Corporation before the Dade County Circuit Court. Industrial Trucks of Florida, Inc. was later impleaded as a third party defendant.

On April 15, 1977, the defendant Allis-Chalmers and third party defendant Industrial Trucks of Florida filed a motion to dismiss the plaintiff’s action for lack of prosecution and served the plaintiff by mail the same day. On April 19,1977, the other defendants in the cause filed similar motions and served the plaintiff by mail the same day. There had been no activity in the cause for one year prior to the filing of the above motions to dismiss other than a notice of substitution of plaintiff’s counsel and an order entered thereon.

On April 21, 1977, the motions to dismiss came on for hearing before the trial court. At the hearing, the plaintiff filed with the court a writing stating his alleged good cause why the action should remain pending. The asserted good cause for not properly prosecuting the action for a period of one year consisted of plaintiff’s claimed “inadvertence.”

The trial court, after hearing from all the parties on the motion to dismiss, took the matter under advisement. A week thereafter, the court entered a written order denying the motions to dismiss on the sole ground that the plaintiff was not given at least five days notice for the hearing on the motions to dismiss to enable the plaintiff to show cause in writing why the action should remain pending.

The law is clear that it is an abuse of discretion for a trial court to deny a motion to dismiss an action for lack of prosecution under Fla.R.Civ.P. 1.420(e) where there has been no affirmative activity in the case for a period of one year preceding the filing of a motion to dismiss and good cause has not been shown as to why the action should remain pending. The filing of a notice of substitution of counsel and an order entered thereon does not constitute affirmative case activity to preclude such a dismissal. Moreover, mere inadvertence or misimpressions and erroneous assumptions of plaintiff’s counsel in not prosecuting a cause for a period of one year does not constitute good cause why the action should remain pending.

In the instant case, it is undisputed that under the law there was no affirmative case activity for a period of one year preceding the filing of the motions to dismiss. Moreover, it is equally undisputed that the plaintiff failed to show good cause why the action should remain pending. Accordingly, the action was subject to dismissal by the trial court.

It is true that the plaintiff herein was given less than five days notice for the hearing on the motions to dismiss. It is also true that Fla.R.Civ.P. 1.420(e) contemplates that a party should have sufficient notice for such a hearing to allow him to file a written pleading no later than five days before such hearing showing good cause why the action should remain pending. Henzel v. Goldstein, 349 So.2d 824 (Fla.3d DCA 1977). This implied notice, however, may be waived when the contemplated written pleading showing good cause is in fact filed by the plaintiff prior to or at the hearing on the motion to dismiss. The very purpose of the implied notice requirement under Fla.R.Civ.P. 1.420(e) is to give the plaintiff sufficient time to enable him to file in writing his good cause why the action should remain pending. When he does in fact file such a written pleading before or at the hearing in question, he is hardly in any position to complain because of insufficient notice.

As a matter of fact, the plaintiff herein made no complaint at the trial level and makes no complaint in this court that he was given insufficient notice on the motions to dismiss. Instead, he argues that the defendants should be estopped from asserting their motions to dismiss because they delayed the cause prior to the onset of the one year period of inactivity preceding the motions to dismiss. Assuming this fact to be true, it would not excuse the subsequent one year of inactivity in the case. The critical determination is whether there has been any affirmative activity in the case, or good cause shown for the lack thereof, during the period of one year prior to the filing of the motions to dismiss. Delays prior to that one year period are irrelevant to this determination. Ace Delivery Service, Inc. v. Pickett, 274 So.2d 15 (Fla.2d DCA 1973).

In fairness to the trial judge, we might add that he acted in an understandable abundance of caution to protect the plaintiff’s right to be heard on the merits of the cause, a policy which we find most commendable. Ordinarily, we would not disturb his exercise of discretion in this matter. See Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497 (Fla.1963). Our review of the applicable law, however, convinces us that the procedural error herein was at best harmless to the plaintiff and that the motions to dismiss were otherwise well-taken.

The order appealed from is reversed and the cause remanded with directions to dismiss the action with prejudice for lack of prosecution.

      . “All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in ■ writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”

      . Koppers Co. v. Victoire Development Corp., 284 So.2d 193 (Fla.1973); Metropolitan Transit Authority v. Porter, 328 So.2d 573 (Fla.3d DCA 1976); Crouse-Hinds Co. v. Capellia, 302 So.2d 800 (Fla.4th DCA 1974); Karkeet v. Snyder, 275 So.2d 302 (Fla.3d DCA 1973); Shalabey v. Memorial Hospital of the South Broward Hospital District, 253 So.2d 712, 715 (Fla.4th DCA 1971). See also Little v. Sullivan, 173 So.2d 135 (Fla.1965); Equity Capital Co. v. 601 West 26 Corp., 223 So.2d 762 (Fla.3d DCA 1969); Landfield v. Sherman, 201 So.2d 819 (Fla.4th DCA 1967).

      . St. Anne Airways Corp. v. Larotonda, 308 So.2d 129 (Fla.3d DCA 1975); Florida Power and Light Co. v. Gilman, 280 So.2d 15 (Fla.3d DCA 1973). See also Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951).

      . Shanley v. Allen, 346 So.2d 548 (Fla.1st DCA 1976); Florida Power and Light Co. v. Gilman, 280 So.2d 15 (Fla.3d DCA 1973).


text:
    METROPOLITAN TRANSIT AUTHORITY, a political subdivision of Dade County, Florida, Appellant, v. Vera KANEVA, Appellee.
    No. 77-1309.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Stuart L. Simon, County Atty. and John H. Moynahan, Jr., Asst. County Atty., for appellant.
    Harold C. Culmer, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Dade County, appeals an order denying its motion to dismiss for failure to prosecute pursuant to Fla.R.Civ.P. 1.420(e).

A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes and abuse of discretion and this burden must be borne by the losing party. Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126, 128 (Fla.3d DCA 1975).

The County has not provided this court with a record of the May 12, 1977 hearing and, therefore, has failed to meet its burden to show an abuse of discretion.

Affirmed.


text:
    Morris LEFKOWITZ, Appellant, v. CITY OF MIAMI, a Municipal Corporation, Appellee.
    No. 76-1449.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Tew & Mason, Miami, for appellant.
    George F. Knox, Jr., City Atty., and Eugene M. Steinfeld, Asst. City Atty., for ap-pellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Ammerman v. Florida Board of Pharmacy, 174 So.2d 425 (Fla. 3d DCA 1965); Morris v. City of Hialeah, 140 So.2d 615 (Fla. 3d DCA 1962).


author: OTT, Judge.

text:
    Willie J. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 76-877.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1977.
    Jack 0. Johnson, Public Defender, and Victoria J. Powell, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of the Malicious Maiming of an Animal in violation of Section 828.07, Florida Statutes (1975) (Repealed). The issue is whether the appellant’s shooting of a dog in the leg falls within the felony coverage of the Florida Statutes. We hold that under the prevailing circumstances, the appellant could not have been charged and convicted of a felony. Therefore, we reverse.

In State v. McLain, 150 Fla. 592, 8 So.2d 392 (1942) the court held that then applicable Section 7360, Florida Statutes did not apply to dogs because the legislature had evidenced its intent that a separate statute govern injuries to dogs. (Section 7242) Thus, the court held that notwithstanding the fact that the definitional section then in force (Section 7071) defined animal as including “every living dumb creature” that the “horse, cattle or other animals” language of Section 7360 did not include dogs.

Prior to 1972 there existed four separate statutory provisions dealing with the broad area of criminal conduct with respect to various animals. Section 811.19 [whose predecessor was Section 7242 — discussed in McLain ] was the statute dealing specifically with dogs before its repeal in 1972. The general animal misdemeanor statute was Section 828.09 [whose predecessor was Section 7360 — discussed in McLain ]; the general animal felony statute was Section 828.-07, Florida Statutes. Both 828.07 and 828.-09 were repealed by the Laws of 1974; the effective date of the repeal of 828.07 was subsequent to appellant’s act. The final statute — Section 828.12, Florida Statutes— is the only one of the four still in force. Under this statute the prohibited acts constitute a misdemeanor only. For its own reasons the state chose to charge the appellant under 828.07 rather than 828.12.

The repeal of Section 811.19 was without comment. In the absence of a clearly expressed legislative intent the mere repeal cannot elevate a misdemeanor to the status of a felony under these circumstances. Since the legislative history clearly establishes that dogs never fell within the coverage of Section 828.07, we cannot countenance the state’s bringing the information under this section.

Whether dogs are covered by the presently applicable Section 828.12 is another question for another time. In any event, we think it worth noting that if dogs are covered the offense would be a misdemeanor as it was previously.

The judgment of conviction of the appellant is therefore set aside, the sentence vacated and the appellant ordered discharged.

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


author: SMITH, Judge.

text:
    MARINE MIDLAND BANK-CENTRAL, etc., et al., Appellants, v. Arthur J. COTE and Elizabeth R. Cote, Appellees. Harvey C. ALTES, Appellant, v. Arthur J. COTE and Elizabeth R. Cote, Appellees.
    Nos. EE-181, EE-185.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1977.
    Edwin P. B. Sanders and David A. Burt of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., Daytona Beach, for appellant Marine Midland Bank-Central.
    Dan R. Warren of Judge & Warren, and Joseph T. Garlovsky, Ormond Beach, for Harvey C. Altes.
    Richard A. Krause, Ormond Beach, for appellees.
   SMITH, Judge.

Early in the morning of August 3, 1972, appellant Altes or a person employed by him entered appellees’ private property and removed a vehicle from the open carport. Appellees had defaulted on payments due on the vehicle to Marine Midland Bank-Central, and Altes repossessed the vehicle on behalf of the bank. Appellees sued Altes and the bank, charging trespass. The court awarded appellees $2,500 in compensatory damages and $2,500 in punitive damages and found the bank had agreed to indemnify Altes for any judgment against him. Altes and the bank appeal.

Northside Motors of Fla., Inc. v. Brinkley, 282 So.2d 617 (Fla.1973) and Raffa v. Dania Bank, 321 So.2d 83 (Fla.4th DCA 1975) approved repossessions in similar situations. But appellees argue those cases involved security agreements which explicitly authorized the creditor to enter upon the debtor’s premises to repossess the security. Here the security agreement stated only

that when the Buyer is in default under this Contract . . . the Holder shall have all the rights and remedies of a secured party when a debtor is in default under a security agreement as provided under the Uniform Commercial Code, [appellees] hereby acknowledging and agreeing that such rights and remedies include the Holder’s right to take possession and dispose of the vehicle after default .

We must decide whether the secured party’s right to repossess collateral provided by the Florida UCC in Section 679.503, Florida Statutes (1975) includes a right to enter upon private property, or whether the statute simply authorizes creditors to contract for that right.

In Northside Motors, supra, the Supreme Court held Section 679.503 “is no more than a codification or restatement of a common law right and a contract right recognized long before the promulgation thereof and creates no new rights.” 282 So.2d at 622. The Restatement (2d) of Torts, § 183 (1965) states that at common law:

(1) Except as otherwise agreed, a conditional vendor or lessor of a thing who is entitled to immediate possession thereof is privileged, at a reasonable time and in a reasonable manner, to enter land in possession of the vendee or lessee, for the purpose of taking possession of the thing and removing it from the land.

Our Supreme Court recognized this privilege in Percifield v. State, 93 Fla. 247, 111 So. 519 (1927). See also Bank of Jasper v. Tuten, 62 Fla. 423, 57 So. 238 (1911). Cf. McDowell v. James Talcott, Inc., 183 So.2d 592 (Fla.3d DCA 1966); Westchester Nat’l Bank v. Corey, 293 So.2d 796 (Fla.3d DCA 1974), app. dism., 303 So.2d 28 (Fla.1974). Contrast C.I.T. Corp. v. Brewer, 146 Fla. 247, 200 So. 910 (1941), in which a creditor was found liable for trespass when its agent forcibly attempted to remove an automobile from property owned by a third party.

Courts in other jurisdictions have held a secured creditor privileged, under the UCC or the common law, to peacefully enter on the debtor’s land when the security agreement authorizes repossession but does not specifically authorize entry. E. g, Hollembaek v. Alaska Rural Rehabilitation Corp., 447 P.2d 67 (Alaska 1968); Gill v. Mercantile Trust Co., 347 S.W.2d 420 (Mo.App. 1961); Benschoter v. First Nat’l Bank of Lawrence, 218 Kan. 144, 542 P.2d 1042 (1975), app. dism., 425 U.S. 928, 96 S.Ct. 1656, 48 L.Ed.2d 170 (1976) (where security agreement granted creditor “the remedies of a secured party under the Kansas Uniform Commercial Code,” creditor had privilege to enter); Ikovich v. Silver Bow Motor Car Co., 117 Mont. 268, 157 P.2d 785 (1945); Westerman v. Oregon Auto. Credit Corp., 168 Or. 216, 122 P.2d 435 (1942); Willis v. Whittle, 82 S.C. 500, 64 S.E. 410 (1908); Morrison v. Galyon Motor Co., 16 Tenn.App. 394, 64 S.W.2d 851 (1932); Pioneer Fin. & Thrift Co. v. Adams, 426 S.W.2d 317 (Tex.Civ.App.1968). While many of the cases approving entry by a creditor have involved a contract clause specifically authorizing entry, we have not found or been directed to any case holding a creditor liable because a security agreement lacked such a clause. Cases holding creditors liable for trespass or conversion have involved entry in to dwelling, removal of collateral from an enclosed and secured garage, or some fraud or other misconduct by the creditor.

We hold that, absent a contrary agreement, when a security agreement provides the secured party has on default the rights and remedies provided by the UCC, the right of repossession stated by Section 679.503 implies, just as it did at common law, a limited privilege to enter on the debtor’s land. The privilege may be exercised only “without breach of the peace.” Professors White and Summers have summarized the cases concerning breach of the peace, a number of which are cited above, as follows:

The meaning of the phrase “breach of the peace” has been the subject of countless judicial opinions. The draftsmen [of the UCC] knowingly chose this well worn phrase, and did not define it anew. Accordingly the numerous pre-Code cases are still good law. To determine if a breach of the peace has occurred, courts inquire mainly into: (1) whether there was entry by the creditor upon the debt- or’s premises; and (2) whether the debtor or one acting on his behalf consented to the entry and repossession.
In general, the creditor may not enter the debtor’s home or garage without permission, but he can probably take a car from the debtor’s driveway without incurring liability. The debtor’s consent, freely given, legitimates any entry; conversely, the debtor’s physical objection bars repossession even from a public street. This crude two-factor formula of creditor entry and debtor response must, of course, be refined by at least a consideration of third party response, the type of premises entered and possible creditor deceit in procuring consent. [Footnotes omitted.] (J. White and R. Summers, Uniform Commercial Code 966-67 (1962), quoted with approval in Northside Motors, 282 So.2d at 624.)

We do not undertake to define the limits of the privileged entry accorded a creditor under Section 659.503. We hold simply that, unless the parties otherwise agree, when a vehicle is covered by a valid security agreement providing the creditor has a right to repossess the vehicle upon default, repossession of the vehicle from the debtor’s unenclosed carport without threat or use of force is not trespass, regardless of whether the security agreement specifically authorizes entry upon the debtor’s premises.

In # EE-185, the judgment against Harvey C. Altes is REVERSED. Since the liability of Marine Midland Bank-Central in # EE-181 is predicated on Altes’ liability, the judgment against the bank is REVERSED.

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

      . Altes disputes the trial court’s finding that the person who physically repossessed the vehicle was Altes’ agent, contending the man was an independent contractor. Our disposition of the case makes this issue immaterial.

      . Section 679.503 provides in part:
      Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace

      . E. g., Northside Motors, supra; Raffa, supra; C.I.T. Corp. v. Short, 273 Ky. 190, 115 S.W.2d 899 (1938); Dearman v. Williams, 235 Miss. 360, 109 So.2d 316 (1959); Rea v. Universal C.I.T. Credit Corp., 257 N.C. 639, 127 S.E.2d 225 (1962); Helfinstine v. Martin, 561 P.2d 951 (Okl.1977); Ford Motor Credit Co. v. Cole, 503 S.W.2d 853 (Tex.Civ.App.1974).

      . E. g., Evers-Jordan Furniture Co. v. Hartzog, 237 Ala. 407, 187 So. 491 (1939); Renaire Corp. v. Vaughn, 142 A.2d 148 (D.C.Mun.App.1958); Girard v. Anderson, 219 Iowa 142, 257 N.W. 400 (1934); Hileman v. Harter Bank & Trust Co., 174 Ohio St. 95, 186 N.E.2d 853 (1962); Childers v. Judson Mills Store Co., 189 S.C. 224, 200 S.E. 770 (1939).

      . E. g., Dominick v. Rea, 226 Mich. 594, 198 N.W. 184 (1924); Wilson Motor Co. v. Dunn, 129 Okl. 211, 264 P. 194 (1928); Voltz v. Gen. Motors Acceptance Corp., 332 Pa. 141, 2 A.2d 697 (1938); A. B. Lewis Co. v. Robinson, 339 S.W.2d 731 (Tex.Civ.App.1960).

      . E. g., Barham v. Standridge, 201 Ark. 1143, 148 S.W.2d 648 (1941) (creditor secured possession by promising to repair the car); Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247 (1935) (creditor posed as policeman); Stone Mach. Co. v. Kessler, 1 Wash. App. 750, 463 P.2d 651 (1970) (creditor repossessed tractor with unauthorized aid of a uniformed sheriff’s deputy).


text:
    Rubin James MAULDIN, Appellant, v. STATE of Florida, Appellee.
    No. FF-413.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1977.
    Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

There was no reversible error in the trial court’s refusal to charge the jury that insanity may result from extended and habitual intoxication. Appropriate charges were given on insanity and on intoxication as rendering a person incapable of a crime requiring specific intent. The jury convicted of murder in the first degree, obviously persuaded that appellant intended the death of the deceased. The charge that “voluntary drunkenness or intoxication does not excuse nor justify the commission of a crime” was appropriately qualified, was not confusing, and produced no harmful error.

AFFIRMED.

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


text:
    Dennis WATKINS, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. HH-477.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1977.

      Dennis Watkins in pro. per.
    Robert L. Shevin, Atty. Gen., for respondent.
   SMITH, Judge.

This petition and attached exhibits demonstrate that petitioner inadvertently was denied an opportunity to request the circuit court to find him indigent for purposes of appeal and appoint the public defender to represent him on appeal with the result that no notice of appeal was timely filed. Petitioner is thus entitled to a belated appeal under the principles of Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. den., 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968) and Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). The petition is GRANTED. The circuit court of Alachua County will determine whether petitioner is indigent and, if so, will appoint counsel to represent petitioner on appeal to this court.

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


text:
    Earl Roger JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-1169.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal, appellant argues that the trial court improperly sentenced him for petit larceny after having withheld sentence for more than five years. We agree.

The state charged appellant with petit larceny and burglary. On September 29, 1969, after accepting a plea of guilty to both charges, the trial court withheld sentence on the petit larceny count and placed appellant on probation for a term of five years on the burglary count which term it later changed to seven years. Subsequently, on June 24, 1976, the court revoked appellant’s probation, adjudged him guilty on both counts and gave him a five-year general sentence at hard labor.

Section 775.14, Florida Statutes (1975), reads as follows:

“Any person receiving a withheld sentence upon conviction for a criminal offense, and such withheld sentence has not been altered for a period of five years, shall not thereafter been sentenced for the conviction of the same crime for which sentence was originally withheld.”

Clearly, under this statute the trial court could not sentence appellant on the petit larceny charge since more than five years elapsed between the date on which the court withheld sentence and the date on which the court imposed sentence. Therefore, we must vacate appellant’s sentence and remand the case to the trial court for the imposition of a new sentence on the burglary count alone.

We note here, that, unlike the original sentence, the new sentence should not imprison appellant to hard labor, as there is no existing statute providing for such punishment for any offense. Corsey v. State, 349 So.2d 738 (Fla.2d DCA 1977); McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1974).

REVERSED AND REMANDED.

HOBSON, Acting C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Frank W. PEPE, Appellant, v. WHISPERING SANDS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 76-1982.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1977.
    As Modified On Denial of Rehearing Nov. 29, 1977.

      Henry P. Trawick, Jr., of Trawick, Griffis & Ferrell, P.A., Sarasota, for appellant.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, P.A., Sarasota, for ap-pellee.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

We are asked herein to decide whether a condominium association has the right to consolidate under one budget the budgets of separate condominium sections within a multiple section complex. Under the facts herein we think not and reverse the trial court’s ruling to the contrary.

Whispering Sands Condominium Village is a complex comprising seven adjacent condominium sections. Certain easements, facilities and services are mutually enjoyed by and are the responsibility of all sections, and the units respectively therein, equally. But each section is also a separate condominium unto itself and has its own common elements which are the responsibility of and are enjoyed only by the unit owners of that section. All sections were created under identical declarations of condominium (except as to the section number) and Article I of each declaration provides: (Here, we quote from appellant Pepe’s declaration.)

“ . . . Developer does hereby declare the property . . . to be known as: WHISPERING SANDS CONDOMINIUM VILLAGE, Section Six [Pepe’s section], hereinafter referred to as the ‘CONDOMINIUM’ ....
“It is contemplated that there may be additional Sections . . . which said Sections may be operated and managed in conjunction with this Condominium through that certain non-profit corporation known as: WHISPERING SANDS CONDOMINIUM ASSOCIATION, INC., and hereinafter referred to as the ‘ASSOCIATION.’ The creation of any such further Sections will not merge the common elements of this Condominium with the common elements of such additional Section. Each such Section will be and remain a separate Condominium under the law of Florida, but may be operated and managed, as aforesaid, through the said Association in conjunction with the other Sections of WHISPERING SANDS CONDOMINIUM VILLAGE collectively, so that there may be common control, unity of policy, procedure, management and purpose, among all Sections. . All grantees . . . and their successors and assigns ... do hereby agree to the foregoing.” (Italics supplied.)

Article XI of each declaration provides for the developer to manage the condominium for a certain period of time and then to turn the management over to the unit owner’s Association (now the appellee herein) provided for and referred to in Article I first above-quoted. Article XI further provides:

“At such time as Developer turns over the management of the Association and Condominium affairs to the Unit owners, the Unit owners shall themselves through the Association determine the monthly maintenance charges and assessments to thereafter be assessed and collected and provide for themselves through the Association the items set forth above as well as all other services, benefits or improvements thereafter determined necessary by the Association. . . (Italics supplied.)

It is undisputed that as to the entire complex, the Association is responsible for the budgeting and management expenses common to the whole complex; but as to the budgets of each section, appellant contends, and we agree, that under the quoted provisions of the declarations the unit owners of each section control as to the elements common only to that section and that such budgets are merely to be administered and managed by the Association.

On March 19,1974, the Association adopted a resolution that made the following findings of fact: That the declarations of condominium of all sections reveal a clear intent to treat the condominium village as though it were one condominium with a single uniform policy; that the declarations required the Association to maintain all buildings and grounds for the benefit of all unit owners; that the value of all units would seriously decline if the common elements of any section were permitted to deteriorate; that there is no practical way to measure the exact value to each condominium parcel of the maintenance of the common elements; and there is no practical way to ascertain the precise share of the costs of maintenance of the common elements to be charged against the owner of each unit. The resolution then resolved

“[T]hat all charges and costs for the maintenance, repair and replacement of the common elements of each section and those parts or portions of units for the maintenance or repair of which the Whispering Sands Condominium Association is liable (with the exception of capital expenditure as that term is used according to commonly excepted [sic] accounting principles and major outlays which the Board of Directors determines are assessable against the individual units or sections) be prorated equally among the owners of all units under the administration, management or control of the Whispering Sands Condominium Association in the ratio of one part for each unit owned by said owners.”

Thereafter the budgets were prepared and common expenses allocated on a basis of the total number of units in the condominium complex with each unit paying an equal share. This action ensued in which plaintiff-appellant sought a declaration of his rights under the declaration of condominium and the resolution adopted by defendant-appellee. The court ruled that the resolution of March 19, 1974 and the budgets of the Association prepared pursuant thereto are within the authority granted to the Association by the declarations of condominium and the bylaws. We cannot agree.

It may well be that the purposes of the Association in its resolution aforesaid are desirable, sensible and expedient. The fact remains, however, that the net result of its implementation is to change without his consent a unit owner’s share of the common expenses he has assumed and agreed to in his declaration of condominium. Under the resolution he would bear a share of the expenses of the elements common respectively to each of the other six sections in contravention of the express prohibition in the aforequoted Article I against merger of the common elements.

A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto — it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interest therein. Absent consent, or an amendment of the declaration of condominium as may be provided for in such declaration, or as may be provided by statute in the absence of such a provision, this enjoyment and use cannot be impaired or diminished. None of the conditions precedent exists here, although the declarations do provide for means of amendment as to each section by an extraordinary vote of the unit owners therein.

Appellee alludes to the fact that a straw vote was taken on the resolution among all unit owners in the entire complex and that 224 approved and 23 disapproved. Further, it points out that the unit owners in appellant Pepe’s section, Section Six, voted 45 to 16 in favor of the resolution. This all may be true and, indeed, if it is, the Association ought have no difficulty in getting the necessary votes to amend the declaration as to Section Six. The declaration was not amended, however, simply by the straw vote. Moreover, we would suggest that a “straw vote” is an entirely different device than is that employed in an amenda-tory process. Certainly, a simple “straw vote” would not be conducted with the same solemnity, deliberation and debate we would expect from a campaign to amend a declaration of condominium in which the very property rights and obligations of the parties are formally spelled out.

We have carefully considered the remaining two points raised by appellant on this appeal and are persuaded that no comment need be made thereon and that no reversible error with respect thereto is made to appear.

In view whereof, the judgment appealed from should be, and the same is hereby, reversed as to the matters raised under Point One relating to the consolidation of budgets. It is affirmed with respect to Points Two and Three. The cause is remanded for further proceedings not inconsistent herewith.

GRIMES, Acting C. J., and SCHEB, J., concur.

      . See Section 711.10, F.S.A., as amended in 1974.

      . See Thiess v. Island House Association, Inc., 311 So.2d 142 (Fla.2d DCA 1975).

      . This assumes, of course, that any amendment sought does not otherwise offend the declaration or existing law.


text:
    SUNSHORES, INC. a Tennessee Corporation, and H & S, Inc., an Alabama Corporation, Appellants, v. COUNTY OF PINELLAS et al., Appellees.
    No. 77-2.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1977.

      Jack F. White, Jr., Clearwater, for appellants.
    Gerald A. Figurski, Asst. County Atty., Clearwater, for appellees.
   OTT, Judge.

The lower court dismissed an alternate writ of mandamus with prejudice. We reverse.

Plaintiffs/appellants’ complaint alleged that they had acquired and begun to develop property in reliance upon zoning which was later changed to their detriment. The prayer was for the writ of mandamus. Initially the lower court issued the alternate writ of mandamus requiring the county/appellee to show cause why appellants’ building permit should not be issued. Subsequently, the circuit court dismissed the writ with prejudice, holding in relevant part:

Florida Appellate Rule 4.1 provides that all appellate review of any rulings of any commission or board shall be by certiorari as provided by the Florida Appellate Rules. Based on the allegations of appellants it is clear that a review of the actions of the appellees . . . had to be by certiorari rather than mandamus.

Although mandamus was an improper method, this should not deprive appellants of the opportunity to state a cause of action in equity. Accordingly, the dismissal below should have been without prejudice.

Although Fla.App. Rule 4.1 provides for appellate review by certiorari appellants are not thereby precluded from proceeding with a separate action in equity for equitable estoppel, declaratory relief or injunction. Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla.1976); Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla.2d DCA 1975); Sakolsky v. City of Coral Gables, 151 So.2d 436 (Fla.3d DCA 1963).

While the trial court was correct in dissolving the alternative writ of mandamus we reverse the dismissal of appellants’ complaint with prejudice and remand for further proceedings consistent herewith.

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


text:
    George WHITESIDE and Nationwide Mutual Insurance Company, Petitioners, v. Joann JOHNSON and Joseph R. Johnson, Respondents.
    No. 77-1315.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1977.

      William E. Partridge of Dart, Dickinson, O’Riorden, Gibbons & Quale, P. A., Sarasota, for petitioners.
    Michael R. Karp of Wood, Whitesell & Karp, P. A., Sarasota, for respondents.
   PER CURIAM.

Petitioners herein make a rather persuasive argument for the proposition that the trial court erroneously denied their motion to dismiss respondents’ complaint on the ground that it is barred by the statute of limitations. However, we decline to issue our discretionary common law writ of certiorari because there is a full, adequate and complete remedy available to petitioners by appeal after final judgment, should a final judgment adverse to petitioners ultimately be entered herein. Robinson v. Klein, 350 So.2d 124 (Fla.2d DCA 1977); Employers Fire Insurance Company v. Blanchard, 234 So.2d 381 (Fla.2d DCA 1970); Gulf Cities Gas Corporation v. Cihak, 201 So.2d 250 (Fla.2d DCA 1967). See generally, Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 207 (1977) and the cases cited therein. Certiorari is not designed to serve as a writ of expediency and should not be granted merely to relieve the petitioners seeking the writ from the expense and inconvenience of a trial. State v. Morey, 339 So.2d 1139 (Fla.App.1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973).

Accordingly, the petition for writ of cer-tiorari is denied without prejudice to the right of petitioners to seek review of the matters contained therein by way of appeal from final judgment.

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


text:
    R. R. MOORE and Jane B. Moore, Appellants, v. Allen Dean CHAPMAN, Jr., et al., Appellees.
    No. Z-460.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1977.

      D. Michael Chesser, of Selby & Chesser, Fort Walton Beach, for appellants.
    No appearance for appellees.
   PER CURIAM.

This is an appeal from a judgment wherein the trial judge in effect found and confirmed an agreement between R. R. Moore and Marvin E. Chapman.

The action arose by way of interpleader as the funds in dispute had been placed in escrow with attorneys Smith, Grimsley, Barron & Remington. The records disclose that Moore and Chapman had had a partnership and had been engaged in various business ventures. These partners had had a falling out and their various businesses were financially distressed. Considerable litigation ensued. One such piece of litigation was a mortgage foreclosure action against them and one of their corporations. An opportunity to settle that litigation arose, with the old partners receiving the sum of Seventy Thousand Dollars ($70,000) and assuring themselves of no personal deficiencies by allowing the foreclosure to proceed against the corporation without further controversy. In discussing the settlement an agreement was made between themselves as to the disposition of the proceeds, which included the payment of a portion of the funds to third parties, with the balance of the funds to be equally distributed, one-half to one Jane Moore (apparently the interest of R. R. Moore) and one-half to Dean Chapman (apparently the interest of Marvin E. Chapman). A dispute as to the actual terms of the agreement later developed. Mr. Moore acknowledges the agreement to pay the third parties named but stated that that agreement was conditioned upon the payment of certain engineering expenses. Mr. Chapman denied this and claimed that Moore’s contention was an afterthought. The trial judge resolved this controversy by accepting the version of Chapman and directed the funds to be disbursed in accordance with the agreement as he found it to be.

Mr. Moore urges that that portion of the agreement calling for the payment to third parties cannot stand as it was not in writing, called for the payment of the individual debts of Mr. Chapman and, therefore, violates the provisions of Chapter 725.01, commonly referred to as the Statute of Frauds. The trial judge apparently rejected that contention, as we must here.

We are not favored with a brief from the appellees, nor from specific findings of the trial judge. Nevertheless, it is the responsibility of this court to pronounce the law as it exists in a particular case but with the same admonition to counsel of the appellees as appears in the case of Griffith v. Shamrock Village, Fla., 94 So.2d 854.

It is quite obvious from the record that the agreement to pay these bills was part and parcel of a settlement between the parties. As such, there was independent consideration for the promise to pay. Reading from Craft v. Kendrick, 39 Fla. 90, 21 So. 803,

“This Court, in the case of Pencil Co. v. Wolfe, 30 Fla. 360, text, 371, 11 So. 488, 491, said, ‘Even the promise to pay the debt of a third person, arising out of some new consideration, of benefit to the promissor (emphasis supplied) or harm to the promisee, moving to the promisor, either from the promisee or the original debtor, is not within the statute of frauds, although the original debt still subsists and remains unaffected by said agreement’; and this we think is the true rule.”

Independent consideration which operates to the benefit of the promisor for the payment of a third party debt can take the transaction out of the Statute of Frauds. Harvey v. Bank of Center Hill, 83 Fla. 55, 90 So. 699.

We also note the following language appearing at 72 Am.Jur.2d 737:

“A promise by one person, although he is in no way liable for an existing debt, made to the debtor for an adequate consideration to discharge the debt, is not regarded as a promise to answer for the debt of another within the meaning of the statute of frauds.”

In any event it appears to us that Mr. Moore received what the trial judge found that he bargained for and that under the facts of this case the Statute of Frauds is not applicable.

The judgment is, therefore AFFIRMED.

BOYER, C. J., RAWLS, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


text:
    Johnny Bee MOYE and Wendell Robinson, Appellants, v. STATE of Florida, Appellee.
    Nos. EE-352, FF-211.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1977.
    Michael J. Minerva, Public Defender, Theodore E. Mack, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander and Charles W. Musgrove, Asst. At-tys. Gen., for appellee.
   PER CURIAM.

We affirm the judgments adjudicating the defendants guilty of aggravated battery but reverse the sentences of ten years because at the time the crimes were committed aggravated battery was a third degree felony for which the maximum sentence was five years. We, therefore, vacate the sentences imposed on the defendants and remand these cases to the trial court for the imposition of correct sentences. It is unnecessary that the defendants be present.

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