author: RAWLS, Acting Chief Judge.

text:
    Bernard BERKLEY, Petitioner, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent.
    No. BB-181.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Thomas G. Pelham, Brown, Pelham, McDonnell & Hart, Tallahassee, for petitioner.
    Ross A. McVoy, Tallahassee, for respondent.
   RAWLS, Acting Chief Judge.

Petitioner Berkley challenges an order entered by respondent, Department of Environmental Regulation (department) denying his application for a permit to construct a seawall and fill his privately owned lands.

The following two points posed by petitioner viz.:

The department erroneously denied Berk-ley’s application on the ground that it did not comply with the requirements of Section 258.165, Florida Statutes, the Biscayne Bay Aquatic Preserve Act.
and
Berkley established by the overwhelming weight of the evidence that his proposed filling is necessary to enhance the utility and quality of the preserve,

are meritorious.

In 1974, by enactment of Chapter 74-171, the legislature created the Biseayne Bay Aquatic Preserve. The subject property is located within the boundaries set forth in said chapter. Section 258.165(3)(b), Florida Statutes, provides, inter alia:

“(b) No further dredging or filling of submerged lands of the preserve shall be approved or tolerated by the Board of Trustees except:
2. Such other alteration of physical conditions as may be necessary to enhance the quality or utility of the preserve.

In reviewing petitioner’s application the hearing officer and the secretary, in adopting the hearing officer’s recommendations with modification in the final agency order, found that the Biseayne Bay Aquatic Preserve Act was applicable to- the subject property.

A comprehensive Florida Aquatic Preserve Act incorporating previously established aquatic preserves, including the Biseayne Bay Aquatic Preserve, was enacted by the legislature in 1975 (Chapter 75-172). This later act expressly excludes all privately owned submerged lands with the provision that the board (Board of Trustees of Internal Improvement Trust Fund) “may negotiate an arrangement with any such private owner by which such land may be included in the preserves.” The hearing officer, in his recommended order, found that the following language in Section 258.-39, Florida Statutes, viz.:

“(11) Biseayne Bay-Cape Florida to Monroe County Line Aquatic Preserve, as described in the Official Records of Dade County in Book 7055, pages 852-856, less, however, those lands and waters as described in s. 258.165.”

“specifically exempts therefrom those lands and waters as described in Section 258.165, Florida Statutes, which is the Biseayne Bay Aquatic Preserve Act. Accordingly, the Biseayne Bay Aquatic Preserve Act is expressly excluded from Chapter 75-172, Laws of Florida [Sections 258.35-258.46, Fla.Stat.].” He erred. The language above quoted clearly exempts the Biseayne Aquatic Preserve from the boundaries of the newly established Biseayne Bay-Cape Florida to Monroe County Line Aquatic Preserve. However, it does not exclude the Biseayne Bay Aquatic Preserve from the provisions of the later act. Subsection (27) under the same Section 258.39 specifically includes “the Biseayne Bay Aquatic Preserve, as established by s. 258.165” as being within the purview of the Florida Aquatic Preserve Act.

The rule of statutory construction applicable to the two statutes now being considered was cogently stated in Sparkman v. State:

“ . . . Where there is material repugnance in statutory regulations, or where there is anything from which an intent that a later act shall supersede a prior act may be fairly inferred, it will be given that effect, particularly when the later act covers a broader general subject and contains a portion of the particular provisions of the former act, and adds to some portions and omits other portions of such particular provisions so as to make such particular regulations contained in the prior act conform to the purpose and policy of the later act, covering a broader subject, including the lesser.” (emphasis supplied)

The 1974 Biscayne Bay Aquatic Preserve Act encompassed only a single subject, the Biscayne Bay Aquatic Preserve, which incorporated the “body of water in Dade and Monroe Counties known as Biscayne Bay”. Thus, all property privately owned and publicly owned was included by the terms of the 1974 act (except those submerged lands conveyed to the United States for the establishment of the Biscayne National Monument). The Florida Aquatic Preserve Act of 1975 established aquatic preserves among numerous areas of Florida’s extensive sea-shorelines. Thus, the later act is a subsequent general act that specifically defined “Boundaries of preserves” as:

“the submerged lands included within the boundaries of . Dade . Monroe . . . Counties, as hereinafter described [the Biscayne Bay Aquatic Preserve, as established by s. 258.165] with the exception of privately held submerged lands lying landward of established bulkheads . . . .” (emphasis supplied)

The subject lands admittedly being privately held and lying landward of the established bulkhead, the provisions of Section 258.39, Florida Statutes, clearly excluded them from the Biscayne Bay Aquatic Preserve Act of 1974. In view of our construction of the foregoing statutes, we do not reach petitioner’s constitutional question.

We next consider the evidentiary question. The subject property was conveyed to Berkley on April 17, 1974, by his immediate predecessor in title who acquired same by a conveyance from the Board of Trustees of the Internal Improvement Trust Fund in 1964. The application by Berkley sought to fill approximately two acres seaward of uplands owned by him to the established bulkhead line with material to be hauled in from uplands. This property is the only privately owned submerged land in the area that has not been bulk-headed and filled. At the evidentiary hearing upon his application, Berkley submitted the testimony of two highly qualified expert witnesses, Dr. Howard Teas and Mr. George Love. A biological report on the San Souci Estate Site on Biscayne Bay (the subject property), authored by Dr. Teas, was introduced into evidence. The testimony of Dr. Teas explained in detail a survey made of the property to see what appeared to be biologically valuable, which substantially reflected the following: That the subject submerged property has been in years past substantially altered by the excavation of large pits; that the crux of his findings, from a biological view, was the extreme depths of the water (the water is rarely clear enough to see more than six feet); by diving he found depths up to 20 feet just offshore; in checking dissolved oxygen levels with a calibrated probe at six stations, he consistently found a deficiency of oxygen below a standard minimum of five parts per million — the bottoms were anaerobic. In summary, Dr. Teas testified that in the current state, the water quality of the area is poor and unproductive. Mr. George Love testified in detail as to the engineering plans for containing storm water on Berkley’s property after same was filled. At one point he categorically stated: “ . . .no storm water will go into the Bay directly.” This witness further testified that there “will be a vast improvement over what’s there now, because in the case of a vary hard rain, a considerable amount of runoff now exists from the land into the Bay.” The evidence reflects that Dr. Teas and Mr. Love worked closely in devising the proposed plan for mangrove plantings and rip rap construction that will encourage aquatic growth, which plan had been accepted and approved by Berkley.

Mr. Brian Barnett, the sole witness adduced by the department, testified that he was employed by the Game and Fresh Water Fish Commission as an environmental specialist. His testimony was that the area is basically in nature to that which Dr. Teas testified to. This witness further stated that a field representative of the commission had told him that the shoreline area of Biscayne Bay was a relatively productive area. As to Berkley’s proposed rip rap plan, Mr. Barnett stated that his department had not envisioned:

“ . . .a plan as ambitious as this one basically because the cost involved in this one usually would not be undertaken by a developer, just because some State agency thinks it’s a great idea, put mangroves in or put seedlings, but it’s certainly a great improvement . . . Over at least what is typically done, yes.”

The only other evidence offered in opposition to the application was a letter from the Game and Fresh Water Fish Commission and a letter from the Department of Natural Resources. These letters basically set forth unsupported conclusions of adverse effect.

The secretary adopted the hearing officer’s recommendations with modifications which are not material to our conclusion; such final agency action being primarily founded upon the provisions of Section 258.-165, Florida Statutes, which we have previously concluded is not applicable to the subject property.

It is well settled that we may not substitute our judgment for the agency; however, it is our responsibility to determine whether the findings of fact and conclusions of law of the agency are supported by competent substantial evidence and to set aside such action which is not so supported. This record with clarion clarity demonstrates the necessity for judicial review of final administrative action which ignored the almost uncontroverted testimony adduced by the petitioner. Clearly, the manifest weight of the evidence presented by Berkley required a finding that the project would enhance quality or utility of the preserve. At the final hearing before the secretary of the department, counsel for the department cogently summarized the evidence in this proceeding when he stated:

“Mr. Berkley wants to fill may be two acres or a little less than that actually, but he’s willing to go out and improve and enhance outside his project. He is willing to go out and do a project that will actually enhance the bay and in my judgment improve the habitat that was lost. He’s willing to put in rip raps and mangroves and take the deep anoxic areas, fill them in so that the grasses can come back, and improve and actually enhance the bay.
“The thing that I thought was perhaps most impressive — it’s a sparsely vegetated bottom right now. The most that it has to offer, as the Game and Fresh Water Fish commented, that there was a feeding habitat there but this will be replaced.”

Assuming, arguendo, that Section 258.-165, Florida Statutes, is applicable to Berk-ley’s property, we find that the department erred in denying the instant application.

The petition for review is granted and the final order of the Department of Environmental Regulation is quashed with directions that the department grant Berk-ley’s application.

McCORD, J., and McDONALD, PARKER LEE, Associate Judge, concur.

      . Section 258.165, Fla.Stat. (1975).

      . Sections 258.35-258.46, Fla.Stat. (1975).

      . Section 258.40(1), Fla.Stat. (1975).

      .It is significant that this subsection also defines the Pinellas County Aquatic Preserve and Boca Ciega Aquatic Preserve. This subsection provides as to the Pinellas and Boca Ciega Aquatic Preserves: “If any provision of this act is in conflict with the aquatic preserves established by s. 258.16 and Chapter 72-663, Laws of Florida, the stronger provision for the maintenance of the aquatic preserve shall prevail.” The above quoted subsection does not provide and is void of any language that the old Biscayne Bay Aquatic Preserve Act will control if in conflict with the later statute.

      . Sparkman v. State, 71 Fla. 210, 71 So. 34, 39 (1916).

      . Section 258.39, Fla.Stat. (1975).

      . Sec. 258.39, Fla.Stat., also provides in the last paragraph of this section: “Any and all submerged lands theretofore conveyed by the Trustees of the Internal Improvement Trust Fund . . . and any and all uplands now in private ownership are specifically exempted from this dedication.”

      . Petitioner further argues that: “The Biscayne Bay Aquatic Preserve Act, assuming that it is applicable to Berkley’s application, is unconstitutional.” As noted, the act purports to place the burden upon a private landowner to demonstrate that filling submerged land will “enhance the quality or utility of the preserve” prior to the granting of a permit to fill. The Supreme Court in Zabel v. Pinellas County Water and Nav. Con. Auth., 171 So.2d 376 (Fla.1965), in an extensive opinion, established that such a statutory burden would render the statutory provision unconstitutional.

      .Berkley contends at the outset that pursuant to this court’s opinions in Askew v. Taylor, 299 So.2d 72 (Fla. 1st DCA 1974), and Kirk v. Gables By the Sea, Inc., 251 So.2d 880 (Fla. 1st DCA 1971), that the department is estopped from denying his permit. In support of this argument, Berkley contends that the record reflects that at the time his predecessor in title purchased the subject property from the Trustees that it was the intention of the parties filling would take place out to the bulkhead line, citing the following finding of the hearing officer’s recommended order:
      “The property in question was conveyed to Berkley’s immediate predecessors in title by the Trustees in 1964 pursuant to a contract for land purchase executed in 1961. The Trustees contracted to sell, and sold, the property to Berkley’s predecessor in title after receiving the buyer’s application to purchase which expressed the buyer’s intent to bulkhead and fill the property. At the time in question all submerged land sold by the Trustees was with the understanding that the property would be bulkheaded and filled.”
      In view of our decision herein, we find it unnecessary to pass upon this point posed by Berk-ley.

      . Dr. Teas, a professor of biology at the University of Miami and biology consultant, is the holder of a bachelor’s degree in biology from Louisiana State University; a master’s degree in biology from Stanford; and a doctorate in biology from the California Institute of Technology. He has conducted extensive biological research in the Biscayne Bay area with federal support on the productivity of Biscayne Bay, grassbeds activity, and the productivity of mangrove areas. He is also the author of several publications on mangroves and estuarive matters.

      . Mr. George Love is a graduate engineer from Georgia Tech and has practiced his profession for 35 years.

      . The testimony of Dr. Teas was supported by the deposition of Mr. William Kidd, a professional engineer who was Executive Director of the Trustees of the Internal Improvement Trust Fund at the time the subject property was sold to Berkley’s predecessor in title. Mr. Kidd testified that it is essential that bulkheads be completed in order to obtain a smooth, uniform bulkhead line. Otherwise, jagged recessed areas such as the property in question are created which collect debris and trash and cause sanitation problems. According to Mr. Kidd, the filling of the land on each side of the property and the existence of two spoils fingers have further affected the property by removing it from normal flushing action of the bay’s waters. In Mr. Kidd’s opinion, the bulkheading and filling of the property are necessary to prevent the collection of garbage and trash and to facilitate the rapid flow of water along the shore in order to flush out potential pollutants.

      . Mr. Barnett is a graduate of the University of South Florida and holds bachelor’s and master’s degrees from that institution.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William B. MILLS as Trustee under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, Appellant, v. Edward BALL et al., as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, T. Edward Austin, Jr., State Attorney, etc., and the Nemours Foundation, etc., Appellees.
    No. II-19.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1978.

      John H. Wilbur, of Milam & Wilbur, Jacksonville, for appellant.
    William L. Durden and Fred H. Kent, of Kent, Sears, Durden & Kent, F. J. Tassone, Jr., E. Earle Zehmer, of Bedell, Bedell, Ditt-mar & Zehmer, and A. August Quesada, Jr., of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellees.
   PER CURIAM.

Appellant Mills takes this timely interlocutory appeal to review the order of the trial court which granted appellees’ motion to strike appellant’s amended affirmative defenses to the Supplemental Petition of ap-pellees, plaintiffs below. We affirm, for the reason that the issues sought to be raised by such affirmative defenses are tendered by the appellees in their Supplemental Petition in the trial court and joined therein by appellant by his answer thereto. The material allegations of fact contained in the affirmative defenses which were stricken below may be proven under the general issues or denials raised by the answer of appellant. (Tropical Exterminators, Inc. v. Murray, 171 So.2d 432 (Fla.2d DCA 1965)).

AFFIRMED.

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


author: ALDERMAN, Chief Judge. MOORE, Judge,

text:
    Michael HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-165.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 31, 1978.

      Andrew I. Friedrich, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

This is an appeal from a conviction and sentence of life imprisonment for murder in the first degree. The determinative issue is whether the information filed against the defendant was sufficient to evoke the jurisdiction of the circuit court to try the defendant for first degree murder. We hold that it was not and reverse.

The offense was committed on July 6, 1972; eighteen days before the effective date of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). At that time Article I, Section 15(a) of the Florida Constitution (1968) and Fla.R. Crim.P. 3.140(a)(1) required that prosecution for a capital crime be initiated by presentment or indictment by a grand jury. However, Furman invalidated the existing death penalty statute, thus abrogating the classification “capital crimes” in Florida until revived by subsequent remedial legislation. Donaldson v. Sack, 265 So.2d 499 (Fla.1972). Effective October 1, 1972, capital offenses were reinstated by legislative enactment. § 921.141, Fla.Stat. (1973); Lowe v. Stack, 326 So.2d 1 (Fla.1974). Subsequently, on August 27, 1973, the charging document was filed. The prosecutor, relying on Furman, concluded that a first degree murder committed before the effective date of the new death penalty statute was not a capital crime since the new statute could not be applied ex post facto. He therefore filed an information charging first degree murder rather than seeking a grand jury indictment. Although the prosecutor’s conclusion was not altogether unreasonable at the time the information was filed, the Florida Supreme Court has since resolved the question State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974). The operative facts in Manucy are indistinguishable from the present case; the crucial factor in both is that the charging document was filed after the effective date of the new death penalty statute. On authority of Manucy we reverse the defendant’s conviction and sentence.

The defendant has also raised two other points on appeal concerning the voluntariness of a confession admitted into evidence during trial and the alleged failure of the State to establish the corpus delicti of first degree murder independently of the confession. Although we must reverse on the first issue discussed "above, we have considered the two remaining points on appeal and find them to be without merit.

REVERSED.

DAUKSCH, J., concurs.

MOORE, J., concurs specially, with opinion.

MOORE, Judge,

concurring specially:

I join in the opinion of the Court solely on the basis of the United States Supreme Court’s decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); holding that the re-enactment of the death penalty, Section 941.141, Florida Statutes (1972), effective October 1, 1972, was not violative of the constitutional prohibition against ex post facto laws when applied to crimes committed prior to the effective date of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and Donaldson v. Sack, 265 So.2d 499 (Fla.1972).

In my opinion, a reversal of the conviction in this case is in direct conflict with the theory expressed in Donaldson v. Sack, supra, which theory is inconsistent with the holding in State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974).

The critical dates in all of these cases, including the case at bar, are July 24, 1972, the effective date of Furman v. Georgia, supra; October 1, 1972, the effective date of Section 921.141, Florida Statutes (1972) re-enacting “capital crimes” in Florida; and the respective dates of the alleged crimes and the filing of charging documents.

In Donaldson, the Court held that it was no longer necessary to indict for a “capital case” because there was no longer any “capital offense.” In view of Furman, that was the only logical holding at which the Court could have arrived, but the Court did not speculate as to its holding in the event of a re-enactment of capital offenses. Without receding from, or overruling, Donaldson, the Court then held in Manucy (decided before Dobbert, supra), that an indictment by a grand jury was necessary to charge a “capital crime” if the charge was made after the effective date of Section 921.141, Florida Statutes (1972), even though the crime charged occurred prior thereto and was not a capital crime because of Furman. The theories of the holdings in Donaldson and Manucy are absolutely inconsistent with regard to the necessity of an indictment as opposed to an information.

In my opinion, the controlling factor should be whether or not the offense charged is a capital offense. If it is, presentment of an indictment by a grand jury is absolutely necessary. Fla.Const., Art. I, § 15. If it is not, an information filed by the State Attorney will suffice.

In the case at bar, appellant is alleged to have committed first degree murder on July 6, 1972, a crime controlled by Furman and for which the death penalty was available only because of Dobbert, supra. Were it not for Dobbert, I would follow the rationale of Donaldson and affirm. It is unfortunate that the State Attorney did not have the benefit of Dobbert, supra, when filing the information in the instant case.

      . The State initially argues that the defendant’s failure to file a pretrial motion to dismiss challenging the propriety of the charging instrument pursuant to Fla.R.Crim.P. 3.190 precludes review by this court. We reject this argument because the defect affected the very jurisdiction of the circuit court to proceed to trial.

      . Manucy was decided one month before the defendant was adjudicated guilty and sentenced.

      . We observe that if the State attempts to retry the defendant after obtaining a grand jury indictment, the defendant will not be able to effectively assert the two-year statute of limitations applicable to non-capital crimes. Manu-cy, supra. Where a first degree murder was committed before the effective date of Furman, there is no statutory bar to prosecution anytime afterwards. Compare, Reino v. State, 352 So.2d 853 (Fla.1977), for offenses, previously classified as capital crimes, committed during the hiatus period between the effective date of Furman (July 24, 1972) and the effective date of the new death penalty statute (October 1, 1972).


author: DAUKSCH, Judge.

text:
    Woodrow L. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2344.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 31, 1978.
    Woodrow L. Allen, in pro per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

We have for review an order of the Circuit Court of Palm Beach County summarily denying Appellant’s motion to vacate filed pursuant to Rule 3.850, Fla.R.Crim.P.

Rule 3.850 requires that a trial court grant an evidentiary hearing to consider issues raised by a motion filed under the rule unless the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief. Saunders v. State, 340 So.2d 940 (4 DCA 1976).

Appellant alleged in his motion that the trial court failed to grant him credit for all time served between the time he was charged and sentencing, a period of approximately two years according to the allegations of the motion. These allegations, if true, would entitle Appellant to post-conviction relief. Lawrence v. State, 306 So.2d 561 (4 DCA 1975); Miller v. State, 297 So.2d 36 (1 DCA 1974).

In denying Appellant’s Rule 3.850 motion, the trial court determined that Appellant was properly credited for time served prior to sentencing, a period of one year. However, we are unable to determine from the record on appeal the basis for the trial court’s finding that Appellant served only one year. Without a complete record, we cannot find that Appellant’s motion and the files and records of the case conclusively show that Appellant is entitled to no relief. See Saunders v. State, supra, and Hicks v. State, 165 So.2d 204 (2 DCA 1964); and Wright v. State, 355 So.2d 870 (Fla. 2 DCA 1978).

REVERSED and REMANDED for an ev-identiary hearing on Appellant’s Rule 3.850 motion.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    Joseph Reynolds GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 77-1802.
    District Court of Appeal of Florida, Second District.
    April 21, 1978.
    Rehearing Denied June 1, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Joseph Garcia appeals the summary denial of his motion to vacate his sentence, filed pursuant to Fla.R.Crim.P. 3.850, wherein he alleged that his present sentence was predicated in part on a prior conviction in a case in which he was without counsel. Since appellant’s allegations, if true, would entitle him to relief and since his allegations are not refuted by the record, we must reverse.

In 1974 appellant was charged with robbery, tried by a jury, and convicted as charged. Immediately following the publishing of the verdict, the trial judge verbally summarized the contents of the F.B.I. “rap sheets” of appellant and his co-defendant, concluded on the basis of their “backgrounds” that they “should never see the light of day again,” and sentenced them each to 199 years in prison. One of the offenses of the trial judge mentioned as included in appellant’s “rap sheet” was “August of ’55 in Tampa, B & E (breaking and entering), grand larceny, three years. Probation second count deferred.”

In his motion appellant alleges that one of his prior convictions upon which the trial judge predicated the sentence imposed in the instant case, a breaking and entering charge, Case No. 42-719, of which appellant was found guilty and for which he was placed on probation in August 1955, is invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), because appellant was denied counsel in that case.

Appellant’s allegations are not refuted by the record, and if they are true, appellant is entitled to relief. Wolfe v. State, 323 So.2d 680 (Fla. 2d DCA 1975); Glenn v. State, 338 So.2d 263 (Fla. 2d DCA 1976); Lloyd v. State, 346 So.2d 1075 (Fla. 2d DCA 1977). Unless the rap sheet upon which the trial judge relied conclusively demonstrates that the 1955 breaking and entering conviction mentioned by the trial court is not the same conviction described in appellant’s motion, appellant is entitled to an evidentiary hearing at which he should be given an opportunity to present any evidence he has that at the time of his prior felony conviction he was uncounseled, unable to afford counsel, and had not knowingly waived his right to counsel. If the prior conviction is determined to be invalid, then appellant should be resentenced without any consideration of that conviction. Gideon v. Wainwright, supra. *

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

OTT, Acting C. J., and RYDER and DANAHY, JJ., concur. *


author: MILLS, Judge.

text:
    Samuel AUSBY, Appellant, v. STATE of Florida, Appellee.
    No. HH-297.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Rehearing Denied June 1, 1978.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Patti Englander, Asst. Attys. Gen., for appellee.
   MILLS, Judge.

A jury convicted Ausby of kidnapping, sexual battery, armed robbery and aggravated battery. He appeals contending that he was denied his constitutional right to defend himself without proper inquiry by the trial court. We agree and reverse.

At Ausby’s request, and upon being adjudged insolvent, the public defender was appointed to represent him. Shortly before trial he indicated to his public defender attorney his desire to discharge him and to proceed as his own attorney. The public defender arranged for him to be heard by the Court. At the hearing, Ausby orally moved the court to relieve the public defender and to permit him to represent himself. The Court conducted an inquiry into his educational background and his reasons for wanting the public defender discharged. Ausby complained the public defender did not maintain adequate personal contact with him, failed to locate and interview potential defense witnesses and failed to provide him with copies of depositions. The public defender informed the court that he visited Ausby weekly, that potential defense witnesses were actively being sought and copies of depositions would be furnished Ausby as soon as the court reporter transcribed them. Without further inquiry, the court denied Ausby’s motion.

Our Supreme Court has stated that in the absence of unusual circumstances, an accused who is mentally competent and sui juris has the right to conduct his own defense without counsel. State v. Cappetta, 216 So.2d 749 (Fla.1968). Among the unusual circumstances which would preclude a defendant from representing himself are where by reason of his age, mental derangement, lack of knowledge or education, or experience in criminal procedures would deprive him of a fair trial if allowed to conduct his own defense or in any case, where the complexity of the crime is such that in the interest of justice legal representation is necessary. Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967). The United States Supreme Court has stated that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

When Ausby moved the court to permit him to defend himself, the court should have conducted an inquiry to see if he was making an intelligent and voluntary decision. Upon making a determination that Ausby had made a voluntary and intelligent election, the court should have permitted him to defend himself. Williams v. State, 337 So.2d 846 (Fla. 2d DCA 1976).

The record furnished us discloses that the trial court did no more than make inquiry of Ausby as to his educational background and why he wished to discharge the public defender. The record does not disclose what inquiry the court made about Ausby’s educational background. It does not give us any information concerning this background. The record reveals that the court’s inquiry did not comply with the requirements of our Supreme Court or of the United States Supreme Court.

The court should have made Ausby aware of the dangers and disadvantages of representing himself; the record should have established that Ausby knew what he was doing and that his choice was made with his eyes open. Faretta, supra. No such inquiry was made in this case.

The State argues that the crimes with which Ausby was charged were so complex that legal representation was necessary and that the court correctly denied Ausby’s motion. This argument is without merit because the record is devoid of any inquiry or determination by the trial court as suggested by Cappetta (Fla. 4th DCA), supra.

Our review of this record shows atrocious crimes were committed upon the victim; that Ausby received good- legal representation prior to and at the trial; and that he was found guilty by a jury of his peers after a trial free of error except for the one now urged here. Nevertheless, however distasteful to us, we are compelled to comply with the law laid down by our Supreme Court and by the United States Supreme Court. For this reason, we are compelled to reverse this ease and remand it to the trial court for a new trial.

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


author: KEHOE, Judge.

text:
    CITY OF MIAMI BEACH, Appellant, v. M. Jack BREITBART, Appellee.
    No. 77-311.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 26, 1978.
    Joseph A. Wanick, City Atty., Reichen-thal & Weinstein, Miami, and Lee H. Schil-linger, Coral Gables, for appellant.
    Stanley D. Caidin, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from an order on mandate dated January 18,1977, entered by the trial court. The decretal portion of the order reads as follows:

“CONSIDERED, ORDERED AND ADJUDGED
(a) The provision of the zoning ordinance of the City of Miami Beach in so far as it restricts and limits the use of the subject property to PUD-1 zoning is arbitrary, unconstitutional and void.
(b) That a transitional use for this property, consistent with the use of the neighborhood and the changes in the area for professional office use is consistent with C-2 zoning. The property is not suitable for business use and business should be prohibited other than professional office use.
(c) In its prior opinion this trial Court recommended that the zoning might also be similar to that of the Howard Johnson Hotel which has been referred to. As the zoning has been changed, however, the closest zoning which would permit such a use is RM-100.
(d) The Court retains jurisdiction of this cause for the purpose of enforcing this Order. The Court further reserves jurisdiction to determine whether or not set back or other restrictions are reasonable with reference to the Plaintiff’s property.
(e) Costs shall be taxed against the Defendant.”

Appellant contends: that the trial court’s order is contrary to the opinion and mandate of this court in the case of City of Miami Beach v. Breitbart, 280 So.2d 18 (Fla. 3d DCA 1973) [hereinafter cited as Breit-bart]; that the trial court erred by declaring invalid a zoning ordinance which protected and promoted the health, safety, morals, and welfare of the community in relation to the use of property; and that the trial court erred by invading the legislative province of appellant. We have concluded that, by rezoning the subject property to PUD-1, the City of Miami Beach City Council has complied with this court’s opinion and mandate in Breitbart; therefore, the order on mandate appealed is reversed.

The property involved was initially the subject of the case of City of Miami Beach v. Breit Bay, Inc., 190 So.2d 354 (Fla. 3d DCA 1966). In that case, we upheld a final decree enjoining the City from restricting the use of this property to single family purposes. Thereafter, the City rezoned the property RM-14 (Multiple-Family Low Density District).

On July 1, 1970, appellee filed a complaint attacking the RM-14 classification. Appellee sought to use his property for either an apartment house, a high rise, or business building. The trial court found that the RM-14 classification was arbitrary and unconstitutional, and it directed the City to rezone the property so as to not restrict its use for professional office or motel use.

On appeal, in Breitbart, we upheld that portion of the amended final judgment entered by the trial court which held:

“ ‘The provision of the Zoning Ordinance of the City of Miami Beach, Florida, insofar as it restricts and limits the use of the above described land [by classification RM-14] is arbitrary and unconstitutional and void.’ ” 280 So.2d at 19.

However, we modified that portion of the amended final judgment which directed the City to rezone the property so that it could be used for professional office or motel use, and substituted the following provision:

“ ‘ . . . The City of Miami Beach is ordered to promptly reconsider the rezoning of the property in a manner not inconsistent with the decision of the circuit court and the opinion of the District Court of Appeal.’ ” 280 So.2d at 19.

Thereafter, on September 4, 1974, appellant, through its City Council, passed and adopted Ordinance No. 74-2003. This ordinance classified the subject property as PUD-1 (Planned Unit Development Residential District).

The trial court, in its order on mandate entered January 18, 1977, stated that the cause came on to be heard before it upon appellee’s motion to have the subject property rezoned in accordance with our opinion and mandate in Breitbart. Further, the trial court recited certain of the previous findings of fact contained in its final judgment entered on March 10, 1972. Further still, the trial court concluded that the PUD-1 zoning “could effectively deny the plaintiff [appellee] the use of his property.” [Emphasis added.]

Because of the actions of the parties by acting on our opinion and mandate, we are now confronted with the following dilemma: appellant, in rezoning appellee’s property, has concluded that PUD-1 was the appropriate zoning classification of the property; whereas the trial court has determined that such classification fell short of its judgment and our mandate, and, therefore, was arbitrary, unconstitutional, and void.

We have carefully reviewed the record and find that the reason for appellant’s classification is best understood by quoting the following testimony of Mr. Toal, Director, City of Miami Beach Planning Board, given before the City Council on August 7, 1974:

“And, when you give your recommendations Mr. Toal, please let Council know the various alternatives that were considered by the Planning Board. All right, sir.
TOAL: As I say, this was sent to the Planning Board by the City Attorney, based upon a directive of the Circuit Court to rezone this property. The history of this is unfortunately back in 1960 when the State Road Department acquired this for highway purpose. They did not acquire this parcel, and left a very bad situation from the standpoint of zoning. This property was ordered rezoned by the Circuit Court several years ago, I think five or six years ago, at that time, it was single family. The court ordered the Council at that time to rezone it. The Council then put it in an RDE classification which was really like a quad-wraps or a double duplex type of zoning. Now when we created the new zoning ordinance in 1971, our RM 14, which is our lowest density, multiple family, was the nearest thing to an RDE. So, we changed it from RDE at that time to RM 14. We felt that this was the absolute maximum we would like to see. Now, this court order has said the RM 14 must be changed this zoning must be made more liberal. Our next district from RM 14 would be RM 60 which allows sixty units per acre. Like I say, that under the present zoning this property has a square footage of 26,455 square feet. At the present time, under RM 14 it would be impossible to build between eight and nine apartment units with a forty foot height limitation. There is a height limit on the RM 14 district. Under the going back a minute, we didn’t want to go to RM 60, we thought that was much too liberal from the standpoint of density, as well as other permitted uses in that particular district. We didn’t feel it was proper to create a new district, just one specific district for one piece of property, so therefore, after going over this very carefully, realizing that we had to come up with a recommendation, to liberalize this zoning, we felt the part of a planned unit development district was most proper. First of all, it would allow a total number of units of some twenty-three, a total of twenty three. Beyond this, what we like about the part is that it requires a site-plan, must be submitted to the Planning Board, for public hearing and the City Council, and we feel it does give some control, therefore, we felt that having to rezone this property, and having to make it more liberal, that the PUD-1 is the best answer to the situation.
WEINSTEIN: Just by way of giving the members of Council the benefit of actual figures, the number of units per acre, I was under the impression just a few minutes ago when we referred to this property, that it was 14 units per acre
TOAL: It is now RM 14, which is 14 units per acre at the present time.
WEINSTEIN: And the court has turned us down on that?
TOAL: Yes.
WEINSTEIN: And, the court now says we must go to a greater density, or a more liberal .
TOAL: This time we’ve got to go to a more liberal type of zoning.
WEINSTEIN: And, the next most liberal type used is PUD-1.
TOAL: Yes sir.
WEINSTEIN: Which would allow, and give us those figures, not only for us, but for the members of the public.
TOAL: It would allow twenty-three units on this particular piece of property. Which is .61 acres. It’s a little more than half an acre; it’s some 26-1/2,000 square foot of area. But, it does give you the site-plan controls and therefore any development here, must come to both the board and the Council for a final review. And, the Council does have the prerogative of imposing additions or controls, because of the site-plan analysis.” Council Minutes, City of Miami Beach, at 39, August 7, 1974.

This court on several prior occasions has set forth the principles applicable to the determination of zoning cases, such as this one. See, e. g., Moviematic Industries Corp. v. Board of County Commissioners of Metropolitan Dade County, 349 So.2d 667 (Fla. 3d DCA 1977); Hart Properties, Inc. v. Metropolitan Dade County, 346 So.2d 1199 (Fla. 3d DCA 1977); Town of Hialeah Gardens v. Hebraica Community Center, Inc., 309 So.2d 212 (Fla. 3d DCA 1975), and Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3d DCA 1977). With these principles in mind, we have reviewed the entire record, studied the briefs of the parties, and listened to the oral arguments of counsel; from this consideration, we have concluded that appellee totally failed to establish that the rezoning of his property was arbitrary, unconstitutional, or void. Further, we have concluded that the classification of PUD-1, as applied to appellee’s property in the instant case, was fairly debatable. Accordingly, the order on mandate appealed is reversed and the cause is remanded for the trial court to enter an order consistent with this opinion.

Reversed and remanded.

      .Section 6-2, Zoning Ordinance, No. 1891, City of Miami Beach (Sept. 1, 1971, as revised) describes RM-14, Multiple-Family Low Density District as follows:
      “A. DISTRICT PURPOSE: This is a low density, low rise, single and multiple family, permanent residence District.
      B. USES PERMITTED. No land, water or structure may be used, in whole or in part, except for one or more of the following uses:
      1. Apartment building
      2. Group houses
      3. One- or two-family dwelling.
      4. The following uses may be permitted as a Conditional Use:
      a. Church, synagogue and temple.
      b. School, elementary or high, having a curriculum substantially equivalent to public schools of comparable grades and having approval of the State Department of Education.
      c. Public and governmental buildings and uses.
      d. Public utilities or public service uses, structures and appurtenances thereto.
      e. Temporary use for a period not to exceed 15 days.
      f. Publicly owned and operated recreation facility, playground, playfield, park and beach.
      5. Accessory uses for above uses.
      C. MINIMUM LOT AREA. 6,000 square feet.
      D. MINIMUM LOT WIDTH. 50 feet.
      E. MINIMUM YARDS. As provided in Section 8.
      F. MAXIMUM DENSITY. 14 units per acre.
      G. MAXIMUM BUILDING HEIGHT. 30 feet.

        H.MINIMUM FLOOR AREA.

      1. Single-family detached dwelling: 1,800 square feet.
      2. Two-family dwelling and group house: 900 square feet per dwelling unit.
      3. Apartment building: 750 square feet per dwelling.”

      . Section 6-3, Zoning Ordinance, City of Miami Beach (Sept. 1, 1971, as revised) describes PUD-1, Planned Unit Development Residential District as follows:

        "PUD Planned Unit Development Residential District.

        A. DISTRICT PURPOSE. PUD District is intended for a transitional area where there is a need for allowing flexibility as to the arrangement of buildings and a need to regulate access and circulation in order to preserve the character and natural habitat of an existing neighborhood. Large sites best lend themselves to this type of development and incentives have been provided to encourage assembly of properties. The proposed development must be designed to produce an environment of desirable character and in harmony with the particular area. The provisions herein are intended to result in a superior quality of housing and open space relationships, high standards for recreation areas, parking areas and service areas. The objectives can only be defined in general terms and their realization can be obtained only by review and approval of the development plans for each development in the PUD Residential District.
      B. USES PERMITTED.

      1. Single family detached dwelling.

        2. The following uses are subject to site plan approval:
      a. Two family dwelling
      b. Group house
      c. Apartment building
      d. Churches, synagogues and temples
      e. Accessory uses for above
      C. MINIMUM LOT AREA.

      1. PUD-1: 7,000 square feet
      D. MINIMUM LOT WIDTH.

      1. PUD-1: 50 feet
      E. MINIMUM YARDS.

      1. PUD-1: Front, side and rear yard minimums shall be determined according to specific site plans but shall not be less than those specified for MF-10 unless approved otherwise.
      F. MAXIMUM HEIGHT. None
      G. MINIMUM FLOOR AREA. 800 square feet per dwelling unit.
      H. MAXIMUM FLOOR AREA RATIO. 2.0
      I. MAXIMUM LOT COVERAGE.

      I. PUD-1: 50%
      J. MAXIMUM DENSITY.

      1. PUD-1: Density is determined by size of the site as specified below:
      LOT AREA 7,500 15,000 22.500 30,000 37,000/QVER
      UNIT/ACRE 30 35 40 45 50
      K. SITE PLAN APPROVAL.

      1. When required a site plan shall be submitted, meeting the requirements of Section 14, and other information as may be required by the specific project.
      2. Procedures: Approval of site plan shall be in accordance with Section 7-1, D, as applied to conditional uses.”


text:
    Robert D. FEBLES, M.D., Petitioner, v. Irene ABERCROMBIE, joined by her husband, Robert B. Abercrombie, Respondents. Robert D. FEBLES, M.D., Appellant, v. Irene ABERCROMBIE, joined by her husband, Robert B. Abercrombie, Appellees.
    Nos. 77-2012 and 77-2016.
    District Court of Appeal of Florida, Second District.
    April 26, 1978.
    Rehearing Denied June 1, 1978.
    William C. Blake, Jr. of Blake & Ford, P.A., Tampa, for petitioner/appellant.
    Tom J. Johnson, Jr., Tampa, for respondents/appellees.
   PER CURIAM.

Dr. Febles, defendant below, petitions for writs of certiorari to review the judicial referee’s order dismissing the medical mediation panel for lack of jurisdiction before a hearing on the malpractice claim against him and the concomitant denial of his motion for judgment on the pleadings in the suit filed against him in circuit court. Fe-bles contends that the referee erred in ruling that mediation panel jurisdiction could not be extended beyond the ten-month period prescribed in Section 768.44(3), Florida Statutes (1976 Supp.). We hold that the judicial referee was correct and affirm.

The hearing before the medical mediation panel was originally scheduled for September 16, 1977, only six days before the ten-month period prescribed by the statute was due to expire. A few weeks prior to the scheduled hearing, it became apparent that the assigned judicial referee would not be available on the hearing date set. Attempts were then made to either reset the hearing for an earlier date or to have a successor referee appointed in time to hold the hearing before the ten months expired. Through no fault of either party, neither of these objectives could be accomplished.

On September 12,1977, Dr. Febles moved for an extension of mediation panel jurisdiction beyond the ten-month period, and the original referee granted the motion. In November, however, plaintiffs concurrently filed a motion to dismiss the mediation panel for lack of jurisdiction and a complaint against Dr. Febles in the circuit court. Dr. Febles simultaneously filed an answer to the complaint, asserting as an affirmative defense that mediation panel jurisdiction continued, and a motion for judgment on the pleadings. The successor judicial referee granted plaintiffs’ motion to dismiss the mediation panel and, in his capacity as a circuit court judge, denied Dr. Febles’ motion for judgment on the pleadings, finding that he did not have jurisdiction to extend mediation panel jurisdiction beyond the ten-month period prescribed by the statute.

Section 768.44(3), Florida Statutes (1976 Supp.) [formerly Section 768.133, Florida Statutes (1975)] provides in pertinent part:

If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.

The position of the First and Fourth Districts is that there are no exceptions to the statutory ten-month limit on mediation panel jurisdiction. Aldana v. Holub, 354 So.2d 1272 (Fla.1st DCA 1978); Perkins v. Pare, 352 So.2d 65 (Fla.4th DCA 1977). Although not applicable here because plaintiffs’ claim was filed prior to the September 1, 1977 effective date of the new Rules of Medical Mediation Procedure, Fla.R.Med.P. 20.190 is indicative of the Florida Supreme Court’s position. It provides:

The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
(d) The final hearing has not been concluded within 10 months from the date the claim is filed. Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.

This court in State ex rel. Lund v. Keough, 352 So.2d 572 (Fla.2d DCA 1977) and the Third District in State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977), and State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla.3d DCA 1977), held that the ten-month period could be extended where the mediation panel proceedings had been improperly stayed pending determination of the constitutionality of Section 768.133, Florida Statutes (1975), the statute governing medical mediation panels. However, Vann, supra, and Cowart, supra, were expressly limited to their facts, and we believe Keough, supra, should also be so limited. We decline to further extend the doctrine expressed in Keough.

For the reasons set forth above, the petitions for writ of certiorari are denied,

BOARDMAN, C. J., and SCHEB and DANAHY JJ. concur

      . The order appealed from in Case No. 77-2016 is not an appealable order. However, we choose to treat the notice of appeal filed in that case as a petition for certiorari.


author: NATHAN, Judge.

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Ana FONSECA, Appellee. Ada Fernandez ROJAS, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    Nos. 77-619, 77-1688.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied May 26, 1978.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Benjamin Reid, Miami, for Fidelity and Casualty Co.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for Fonseca & Rojas.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

These consolidated appeals emanate from separate decisions by two trial courts, each interpreting the provisions of a single automobile insurance policy as they relate to a specific incident. We must decide whether, in light of the particular facts involved, the subject policy provides either personal injury protection (PIP), liability coverage, neither, or both to a wife, who resided with her husband, for an accident which occurred when she was driving the husband’s automobile, which was not scheduled as insured under the policy. We hold that, on the facts before us, the plain, unambiguous language of the policy provides neither PIP nor liability coverage.

Ada Rojas, the wife, owned a 1966 Ford Fairlane which was the only described vehicle on the declaration sheet of the policy issued to her, as the named insured, by Fidelity and Casualty Company of New York (F&C). On the date in question, July 15, 1975, the Ford was out of service and being repaired so Mrs. Rojas borrowed her husband’s car, a 1968 Oldsmobile Cutlass, which was not scheduled as insured by the subject policy and for which no coverage premiums were paid. While driving the Oldsmobile, Mrs. Rojas was involved in an accident in which both she and a passenger, Ana Fonseca, were injured.

Both Mrs. Rojas and Ana Fonseca sought benefits under the policy, the former under its PIP coverage and the latter under its liability provisions. F&C denied coverage, and each woman instituted separate suits.

In the action brought by Mrs. Rojas against F&C (Case number 77-1688 in this court), summary judgment was granted in favor of F&C, the trial court ruling that no PIP coverage was available for the incident sued upon. In the suit brought by Ana Fonseca against Mrs. Rojas, as tortfeasor (Case number 77-619 in this court), summary judgment was granted in favor of Ms. Fonseca, the trial court finding that, as a matter of law, the husband’s car qualified as a temporary substitute automobile, and the liability provisions of the subject policy afforded coverage to both Ada Rojas, as named insured, and Ana Fonseca, as third party beneficiary of the insurance contract. The court further found that the “severability of interests” clause contained in the policy also required a holding that coverage existed.

During the course of proceedings below Mrs. Rojas and Ana Fonseca settled and stipulated to the entry of judgment against Mrs. Rojas, with execution to be solely against F&C should coverage be determined to exist. In these consolidated appeals, Mrs. Rojas is appellant in Case number 77-1688, and F&C is appellee; F&C is appellant in Case number 77-619, and the injured plaintiff, Ana Fonseca, is appellee.

Under Part I of the subject policy, which was in effect at all pertinent times, the following relevant liability coverage provisions were contained:

The company agreed to pay, on behalf of the insured, all sums which the insured became legally obligated to pay as damages because of bodily injury to any person “arising out of the ownership, maintenance, or use of the owned automobile or any non-owned automobile. . . . ”

An “owned” automobile was defined as “a private passenger . . . automobile described in this policy for which a specific premium charge indicates that coverage is afforded, . . .”

A “non-owned” automobile meant one “not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.”

A “temporary substitute automobile” was defined as any automobile “not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

The term “named insured” was defined as “the individual named in item 1 of the declarations and also . . . his spouse, if a resident of the same household.”

Finally, under Part I, the following sever-ability of interests clause was included:

“The insurance afforded under Part I [Liability] applies separately to each insured against whom claim is made or suit is brought, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.”

The availability of PIP coverage depended upon whether or not liability coverage was afforded under the policy. Therefore our decision on F&C’s appeal of the summary judgment in favor of Fonseca will be dispositive of Rojas’ appeal of the summary judgment in favor of the insurance company.

There is no question but that no premiums were paid to F&C to cover the Cutlass, so it is clear that the husband’s automobile was not an “owned” vehicle under the terms of the policy. Therefore, since the only way liability coverage could be found to exist would be to conclude that the husband’s car was a “non-owned” vehicle used as a temporary substitute, the crucial issue in these appeals becomes whether or not the husband’s car was a “non-owned” vehicle under the provisions of the liability sections of the subject policy.

F&C argues that the unambiguous language of the policy precludes such a finding, and that the case which controls the disposition of the instant appeals is Boyd v. United States Fidelity and Guaranty Company, 256 So.2d 1 (Fla.1972). Rojas and Fonseca assert that the husband’s car qualifies as a temporary substitute and that the case which should control our decision herein is Shelby Mutual Insurance Company v. Schuitema, 183 So.2d 571 (Fla. 4th DCA 1966); affirmed, 193 So.2d 435 (Fla.1967). They argue that Boyd did not deal with the applicability of a severability of interests clause and therefore should not be disposi-tive here, while Schuitema, which did deal with such a clause, should determine the result in the cases at bar.

We find Boyd almost directly on point, but deem an examination of both cases necessary in order that we may lay to rest any remaining misconceptions as to the applicability of a severability of interests clause to language such as that specifically at issue herein, that is, to policy provisions dealing with a single class of “named insureds” as opposed to provisions applicable to two different classes of “insureds.” _

In Boyd, a husband was driving his wife’s car at the time of the accident sued upon. When recovery was sought from the husband’s insurer, the crucial issue (as in the cases sub judice, except that the parties were reversed; here we would substitute wife for husband and husband for wife) was whether the wife’s car was a “non-owned” automobile under the liability provisions of the husband’s insurance policy. The husband’s insurer denied coverage on the basis of contractual language virtually identical to that in the policy herein under consideration.

The Boyd Court found that, since the wife was a “named insured” under the proviso in the husband’s policy which defined a “named insured” as a spouse who resided in the same household, the wife's car could not be a “non-owned” vehicle. Therefore no liability was found and the husband’s insurer was not obligated to pay. The court acknowledged the incongruity of the fact that the husband would be covered in almost any car in the world which he drove with the owner’s permission except that of his wife, but found the clear language of the contract controlling, recognizing that the rationale of the exclusion was to prevent an individual from paying a single premium to secure coverage on other vehicles which he had the opportunity to use frequently, particularly in situations where members of a single household may have “two or more automobiles actually or potentially used interchangeably, but with only one particular automobile insured.” 256 So.2d 1 at 5, citing 13 Couch on Insurance 2d, Section 45:1052 (1965). (Emphasis supplied.) See also Annot., 86 A.L.R.2d 937 (1962).

In Schuitema, a customer (Schuitema) of an auto dealer (Wilson) was permissibly occupying a vehicle for which liability coverage had been purchased by Wilson, the named insured, when an accident occurred, injuring one of Wilson’s employees. The employee sued Schuitema, who requested Wilson’s insurer to defend him as an additional insured under the policy issued to Wilson. The company denied coverage and refused to defend. After settling with the employee, Schuitema brought suit against Wilson’s insurer.

At issue was the effect of a severability of interests clause upon a provision of Wilson’s policy which denied liability coverage to an employee of “the insured.” Both Wilson and Schuitema were “insureds” under the policy, but Wilson was also a “named insured.” The question to be answered was: When there is more than one “insured,” and claim is made against one of them, which one is the insured against whose employee the exclusion applies?

After noting that this was a situation in which the parties intended to furnish coverage to persons other than the named insured, the Schuitema Court held that the effect of the severability of interests clause in that situation was “to make it certain that, when a claim is asserted against one who is an insured under the policy, then that person becomes ‘the insured’ for the purpose of determining the insuror’s [sic] obligation with respect to that claim. The exclusion as to employees of the insured is thus . . confined to the employees of the employer against whom the claim is asserted.” 183 So.2d 571, at 574.

Schuitema is distinguishable from the instant cases in several respects, each of which convinces us that the application given to the severability of interests clause therein is not appropriate to the facts before us. First is that fact that in Schuite-ma, the vehicle involved in the accident was one for which premiums had been paid to provide liability coverage. This is not so in the instant cases.

Second, and most compelling, is the fact that the Schuitema Court applied the sever-ability of interests clause to segregate the category of insureds classified as “named insureds” from that classified as “additional insureds” in order to establish the fact that coverage existed for the customer. The actual severance effected was between a named insured, the dealer whose employees were excluded from liability coverage, and an additional insured, the customer whose employees would also have been excluded had one of them brought suit against Schuitema alleging liability coverage under Wilson’s policy. In sum, severance was not effected within a single category (named insureds) but between two different categories of insureds (named insureds and additional insureds).

We are asked to sever one named insured from another named insured, i. e., to effect a severance within an integrated class. The result of such a juristic act would be the circumvention of the plain language of the insurance contract under review. Our research reveals no instance in which reliance was placed upon Schuitema to achieve such a result.

Most cases in which Schuitema’s holding was applied to provide coverage to one of two insureds involved employee exclusion clauses, not exclusions premised upon ownership of the insured vehicle. E. g., McRae v. Snelling, 303 So.2d 670 (Fla. 4th DCA 1974); Cochran v. State Farm Mutual Automobile Insurance Company, 298 So.2d 173, at 175 (Fla. 4th DCA 1974) (Owen, C. J., dissenting); General Insurance Company of America v. Reid, 216 So.2d 41 (Fla. 4th DCA 1968). Cf. Liberty Mutual Insurance Company v. Sentry Insurance Company, 288 So.2d 556 (Fla. 2d DCA 1974), where Schuitema’s interpretation of a severability of interests clause was applied to an exclusionary provision other than an employee exclusion. However, it was applied to sever an employee (an additional insured) from his employer (a named insured) in order to establish that the relevant exclusion applied to the employer, not the employee, and to impose liability coverage on the insurer of an owned vehicle. And see Kohly v. Royal Indemnity Company, 190 So.2d 819 (Fla. 3d DCA 1966), wherein this court found Schuitema inapplicable to a situation where an additional insured sought to invoke its doctrine to provide uninsured motorist coverage after the named insured had specifically rejected such coverage. The Kohly Court pointed out that the term “named insured” has a restricted meaning and does not apply to any persons other than those named in the policy. Id. at 821.

As previously noted, Schuitema answered the question: When there are several insureds, which one is the insured against whom a claim is made for purposes of determining the applicability of an employee exclusion clause? We must answer a very different question: What is the coverage afforded by the subject policy to a named insured against whom a claim is made?

To further clarify the distinction between the two situations and to underscore the reasons why the doctrine of Schuitema is inapplicable to the facts at bar, one might diagram the cases in the following manner:

SCHUITEMA CASE

ROJAS AND FONSECA CASES

Analysis of the above diagram makes it apparent that the severability of interests clause was applied in Schuitema to segregate two distinct classes of insureds, not to particularize within a single class.

Thus we return to the key question in the instant cases: What is the coverage afforded to Ada Rojas, the named insured against whom claim is made? Since she was not driving an “owned” vehicle as defined by the policy, she could only have been covered if she were driving a “non-owned” automobile. The policy defined a “non-owned” car as one not owned or furnished for the regular use of a named insured unless it was a temporary substitute automobile. But a temporary substitute was, by definition, also limited to an automobile not owned by a named insured. Having explained why the concept of severability does not apply to a single class of named insureds, we are left with the unambiguous language of the policy which defined “named insured” as including a resident spouse. We can only conclude that no liability coverage existed under the policy issued to Ada Rojas by F&C. The holding in Boyd is dispositive of this question.

The rationale underlying such inclusion of both resident spouses within the definition of a named insured is clear and reasonable. It was intended to protect the insurer from assuming risks for which premium payments- were not elicited in situations where such risks were likely to eventuate. Whether or not they actually use one another’s cars with any degree of regularity or frequency, husbands and wives who reside in the same household potentially have their spouse’s vehicles available for use on a regular basis. If inclusion of both spouses under the definition “named insured” were not given its plain meaning, two or more vehicles could be covered by payment of a single premium and the insurer would not only assume risks for which it was uncompensated, but also lose additional premiums it might otherwise receive. See Annot., 34 A.L.R.2d 936 (1954); Annot., 83 A.L.R.2d 926 (1962); 7 Am.Jur.2d, Automobile Insurance, Sections 103 and 107 (1963).

Accordingly, we hold that the subject policy was not intended to cover, and did not in fact cover, a vehicle which Mrs. Rojas potentially could use on a regular basis, and that, as a matter of law, the clear language of the policy excludes liability on the facts before us. Boyd v. United States Fidelity and Guaranty Company, supra; LaViolette v. Sapp, 278 So.2d 598 (Fla.1973).

Case number 77 — 1688 is affirmed. Case number 77-619 is reversed with directions to enter an order granting summary judgment for appellant therein, Fidelity and Casualty Company of New York.

      . Under the PIP provisions of the policy, the definition of a “named insured” also included the resident spouse of the individual named in the declarations. The PIP section of the policy further stated that the named insured would be excluded from coverage if an occupant of a vehicle of which the named insured was the owner if that vehicle were not an “insured motor vehicle.’’ An “insured motor vehicle” was defined therein as one to which the liability insurance of the policy applied. In this way the two sections of the policy, PIP and liability coverage, were interrelated, and the one depended on the other.
      While F&C asserts that it did not deny PIP coverage on the basis of provisions contained in the liability section of the policy, the record before us indicates that the language of the PIP provisions is such as to make determination of whether the liability provisions apply conclusive as to both appeals.
      Moreover, Appellant Rojas specifically adopted as grounds for reversal the arguments of Appellee Fonseca in the companion appeal, although she also asserted other grounds which we deem to be without merit.

      . As pointed out by F&C in its brief, it is likely that the policy at issue in Boyd did contain a severability of interests clause since such a clause is standard in most policies of relatively recent vintage. However, because the issue was not presented in Boyd, it becomes necessary to confront it here.

       A similar diagram would cover the initial suit in Boyd, for it was brought by a claimant who was injured when struck by the wife’s car which was being driven by the husband.

      . We are constrained to point out that dictum in Boyd might be construed as implying that one spouse’s car could qualify as a temporary substitute automobile under certain circumstances.
      After pointing out that the automobile in question was owned at the time of the accident by a named insured and hence could not qualify as a non-owned automobile under the policy definition, the Boyd Court went on to say: “Nor can Wife’s car qualify as a temporary substitute automobile since Husband’s car was in good working order at all [pertinent] times . . . 256 So.2d 1 at 4.
      We note first that this statement referred to a hypothetical situation, not before the court. Second, any inference that, if the husband’s car had been out of service the wife’s car could have qualified as a temporary substitute must be discounted for two reasons, both evident from the opinion itself. (1) The Boyd Court made it clear that the unambiguous language of the contract of insurance controls, and that a vehicle owned by a named insured “cannot qualify as a non-owned automobile within the policy definition.” (2) The rationale of Boyd depended on a consideration of the purpose of the exclusion at issue, which was stated as prevention of “a situation in which members of one family . may have two or more automobiles actually or potentially used interchangeably but with only one particular automobile insured.” Id. at 5.
      Both reasons compel our conclusion that the dictum from Boyd should not be construed to infer that one spouse’s car may be a temporary substitute for the car of the other spouse when both are defined as named insureds by the insurance contract. See Couch on Insurance 2d, § 45:235 (1964); Campbell v. Ryan, 342 So.2d 912 (Sup.Ct.Ala.1977); Cotton States Mutual Ins. Co. v. Bowden, 136 Ga.App. 499, 221 S.E.2d 832 (1975); Illinois National Insurance Co. v. Trainer, 1 Ill.App.3d 34, 272 N.E.2d 58 (1971), all of which make it clear that under the provisions of a policy which defines a temporary substitute automobile as one not owned by the named insured, and defines a named insured to include a resident spouse, a car owned by one resident spouse cannot qualify as a temporary substitute vehicle for the other spouse.


text:
    The STATE of Florida, Appellant, v. Ronald D’AMATO, Randall F. Quick, Linnard Broom and Douglas Ghiloni, Appellees.
    No. 77-2127.
    District Court of Appeal of Florida, Third District.
    May 4, 1978.

      Janet Reno, State’s Atty., and Paul M. Rashkind, Asst. State’s Atty., for appellant.
    Eugene P. Spellman and Denis Dean, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal by the State of Florida from an order granting defendants’ motion to suppress defendants’ depositions upon which a charge of perjury had been brought by the State.

A person (not a party to this appeal), Mitchell Dale Wilkey, was arrested by the defendant police officers. Subsequently, Wilkey was charged by the State with aggravated battery and driving while intoxicated. The State deposed two persons as witnesses. These witnesses gave testimony and supplied pictures which refuted the police officers’ version of events which led to Wilkey’s arrest. Wilkey, thereafter, subpoenaed the police officers and deposed them. Present at the depositions were representatives of the state attorney’s office and Wilkey’s attorney. During the depositions, the State sought to bolster the witnesses’s (police officers) testimony by asking them questions which would clarify or correct answers they had given during direct examination. The State did not inform the police officers of their Miranda rights prior to the questioning. Four months after the taking of the depositions, each of the police officers was charged with the crime of perjury, pursuant to Section 837.-02, Florida Statutes (1975). In addition, one of the police officers was charged with improper exhibition of a firearm and aggravated assault.

The police officers, through their attorney, filed a “Motion to Suppress Defendants’ Statements (Depositions).” The burden of this motion was that the statement obtained from the defendants was obtained ip violation of defendants’ rights against self-incrimination, and that the use of these statements would be contrary to the due process clauses of the federal and state constitutions. A third ground was denied by the court and is not a subject of this appeal.

The State urges a single point on appeal which is that the suppression of the deposition testimony of the defendants was erroneous in that no constitutional right of the defendants had been violated. The defendant police officers, upon the other hand, urge that the depositions were, in fact, a part of an ongoing investigation concerning the conduct of the officers and that inasmuch as the defendants were not advised of their right to remain silent, the defendants were, in fact, required to testify against themselves; that is, they were thus induced to make the statements upon which the charge of perjury is now levied. Basic to this argument is the contention that the police officers were, in fact, coerced to testify in the case against Wilkey. The defendants testified before the trial judge on the hearing on the motion to suppress that they were aware of an administrative order which, in actuality, required them to attend the deposition.

As recited in the trial judge’s order, extensive testimony was taken before her. Based upon this testimony, she made her finding of fact that the investigation of the officers was under way at the time the deposition was taken. In other words, the trial judge found that the purpose of taking the depositions was not to further the prosecution of Wilkey, but rather to secure evidence to be used against the police officers in a subsequent proceeding. The State has failed to point out, upon the record, any way in which this finding of fact is not supported by the record. This court will not reverse a finding of fact of the trial judge when there is competent, substantial evidence to support that finding. Carroll v. State, 186 So.2d 834 (Fla. 4th DCA 1966).

We, therefore, conclude that the order under review must be affirmed.

Affirmed.

      . See § 924.071, Fla.Stat. (1967).

      . “THIS CAUSE having come on to be heard pursuant to motions filed on behalf of the Plaintiff and Defendants, and the court having heard testimony from witnesses, argument from counsel for the respective parties, having reviewed memorandums of law and being otherwise fully advised in the premises, it is hereby,
      “CONSIDERED, ORDERED AND ADJUDGED:
      “Defendants’ motion to suppress Defendants’ statements (depositions), be and the same is hereby GRANTED on the first two grounds alleged therein (coercion and denial of due process) and is DENIED as to the third ground (depositions not submitted to witnesses).”
      ******

      .Administrative Order No. 2-74 pertains to the appearance of public safety officers at depositions and provides as follows in Section III(A):

        “Failure to appear may result in exclusion of testimony, unnecessary continuances, or case dismissal.”
      More importantly, Section 111(D) provides: “Failure to appear for a deposition may constitute contempt of court and may result in disciplinary action by the Department.” Further, Section IV(H) provides:
      “Employees must answer their subpoeanes and will sign in and out with the Court Liaison Officer.”
      In addition to the above Order, the defendants, at the time of the depositions in question, were governed by the Dade County Public Safety Department Rules and Regulations Manual, which provides in Section 2-200.09, as follows:
      “Employees shall perform duties as required or directed by law; departmental rule, policy, or order; or by order of a superior.”


text:
    James Matthew WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 77-910.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978), opinion issued April 4, 1978.

CROSS, LETTS and MOORE, JJ., concur.


author: HENDRY, Judge.

text:
    Armando GARRIDO and Teresa Garrido, his wife, Appellants, v. MARKUS, WINTER & SPITALE LAW FIRM, and as Attorneys at Law, and Stuart A. Markus, Individually, and Leonardo Spitale, Individually, Appellees.
    No. 77-412.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      William Huggett, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for ap-pellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   HENDRY, Judge.

Appellants, plaintiffs below, appeal from a “partial final summary judgment” entered in favor of appellees, defendants below, which, inter alia, denied appellants’ motion to substitute parties defendant because of the running of the statute of limitations.

Appellants filed an action for legal malpractice against the partnership law firm of Markus, Winter and Spitale. An amended complaint, filed beyond the applicable statute of limitations governing professional malpractice, sought to add the individual lawyers comprising the partnership as parties defendant. The individual attorneys moved for summary judgment on the ground that the statute of limitations had run prior to the filing of the amended complaint. On October 20,1976, the trial judge entered an order denying the motion, however, upon further argument offered in response to a second motion for summary judgment, the trial judge granted the summary judgment as to the individual attorneys.

Subsequently, appellants filed a “motion to substitute parties or, in the alternative, petition for rehearing.” By this motion, appellants attempted to substitute the individual attorneys for the partnership, in deference to the court’s rationale that the addition of parties defendant would be barred by the statute of limitations.

Rejecting this tact, the trial judge entered a partial final summary judgment, denying both appellants’ petition for rehearing and motion to substitute, and adopting the prior order of the court which granted final judgment as to the individual partners. From that partial final summary judgment, this appeal follows.

The sole issue for our determination is whether the amended complaint relates back to the original complaint so as to toll the statute of limitations. After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that, based upon the facts sub judice, the statute of limitations bars both the addition of the individual partners as defendants in this lawsuit and the substitution of said partners for the partnership. We explain.

First, as applies to the addition of parties defendant after the statute of limitations has run, we quote from 51 Am. Jur.2d Limitation of Actions, § 282 (1970), which succinctly states the general rule as follows:

“Corporations, partnerships, and associations and members thereof. Where a suit is timely brought against a corporation, partnership, or association, and after the period of the statute of limitations has elapsed, officers of the corporation, individual partners, or members of the association are brought in by amendment, or vice versa, the statute constitutes a bar as to the added defendants.”

See also Annotation: 8 A.L.R.2d Bringing in Party-Limitations, § 63 (1949).

In Florida, the above general rule has been applied in Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977). For comparison purposes, see our holding in Smith v. Metropolitan Dade County, 338 So.2d 878 (Fla.3d DCA 1976), where in a medical malpractice action, plaintiff sought to add Dade County and an individual physician as defendants by the filing of a motion for leave to amend with the attached amended complaint just prior to the running of the statute of limitations. The trial judge was of the view that the statute barred the addition of the two defendants and dismissed those parties from the lawsuit. We, however, reversed the order of dismissal, opining as follows:

“The better rule is that a motion for leave to amend with the amended complaint attached joining additional defendants filed within the statutory period stands in the place of the actual amendment which is filed with leave of court subsequent to the running of the statute of limitations. See Rademaker v. E. D. Flynn Export Co., 17 F.2d 15 (5th Cir.1927). Plaintiff having filed her motion for leave to join additional parties before the running of the statute of limitations, it follows that the amended complaint related back to the time of the filing of her motion to amend so as to defeat a defense based on the statute of limitations relating to the time in which an action must be filed. Cf. Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970).” Supra, at 879.

While factually, the above case is not controlling, it logically follows that had the plaintiff in Smith filed her motion for leave to amend after the running of the statute of limitations, dismissal would have been proper as to the added parties.

Likewise, the Fifth Circuit Court of Appeals has ruled harmoniously with the above principle of law in Porter v. Hardin, 164 F.2d 401 (C.A. 5th 1947). The facts of that case are particularly applicable sub judice. There, a complaint naming a partnership and partner as defendants was timely filed. After the expiration of the statute of limitations, however, an amended complaint was filed naming other partners as parties defendant. The court ruled that the statute of limitations barred the addition of the newly added partners.

Our research has led us to two other cases which, because of the similarity of facts to the case sub judice, require comment. The first case is another Fifth Circuit opinion reported as Taormina Corporation v. Escobedo, 254 F.2d 171 (C.A. 5th 1958). There, in apparent conflict with its earlier holding in Porter v. Hardin, supra, the court allowed a post-statute of limitations amendment to the pleadings adding various partners, as well as the partnership, as party defendants to a lawsuit for personal injuries. The two decisions are in complete congruity, however, in that the Taormina Corporation case was based upon the fact that the original party defendant, a corporation, “studiously avoided disclosure” of its status as a partnership.

The other case we mention is I. Epstein & Bro. v. First Nat. Bank of Tampa, 92 Fla. 796, 110 So. 354 (1926), wherein the Florida Supreme Court opined that an amendment to the pleadings after the running of the statute of limitations which changed the capacity of a defendant-partner from representative status to individual status would be permitted. There, the partners had, pri- or to the limitation period, been served with process and had appeared in court and filed pleadings.

In contrast to the Taormina case, the record reflects a total absence of covert behavior on the part of appellees. On the contrary, there was ample testimony to the effect that on several occasions, long before the running of the statute of limitations, appellees advised appellants’ counsel that any alleged negligence on the part of one of the individual partners would have, in fact, been committed prior to the time that said individual actually became a partner in the law firm. As such, it would appear that appellants should have been forewarned of the possibility that a cause of action for negligence might be maintainable only against one of the partners, in his individual capacity, rather than the partnership.

As far as the I. Epstein & Bro. case is concerned, the clearly distinguishable characteristic differentiating that case from the case at bar is the fact that in the former case, the partners had each been personally served and were before the court prior to the running of the statute of limitations, albeit in a representative capacity. Sub judice, the record does not reflect which, if any, of the partners were actually served with process prior to the statute’s running. See Strauss v. Rex, 191 F.Supp. 128 (W.D.Pa.1960). In addition, sub judice, there were no pleadings filed on behalf of any of the partners in their individual capacities, as was the case in I. Epstein & Bro., supra.

We therefore hold that, as to the addition of parties defendant to a lawsuit after the running of the statute of limitations is concerned, the trial judge was correct in dismissing those parties from the lawsuit. The second, and more difficult question requiring an answer is, however, whether the trial judge should have allowed appellants to substitute the individual attorney-partners in place of the partnership. Again, based upon the record, we believe the trial judge was correct in denying substitution.

The general rule on the “relation back” of substituted party defendants, as far as partnerships are concerned, has been summarized in 51 Am.Jur.2d Limitation of Actions, § 295 (1970) as follows:

“Corporations, partnerships, associations or individuals. Generally, whether an amendment of process or pleading, or both, will be allowed which changes the description or characterization of a party after the statute of limitations has run, from a corporation to an individual, partnership, or other association, or vice ver-sa, seems to depend upon whether the misdescription or mischaracterization is interpreted as merely a misnomer or defect in the description or characterization, or whether it is deemed a substitution or entire change of parties; in the former case an amendment will be held to relate back to the commencement of the action, while in the latter the amendment will be held to amount to the institution of a new action . . .”

The premier case in Florida, Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.1956), has followed the general rule enunciated above. In that case, a plaintiff was permitted to amend its complaint, substituting the pre-statute of limitations defendant, “Clearwater Construction Company, a corporation organized and existing under the laws of the State of Florida” for “Robert M. Snyder, d/b/a Clearwater Construction Company.” In so ruling, the Florida Supreme Court discussed the “relation back” doctrine, as it applies to substitution of defendants, as follows:

“Admittedly, there are two opposing lines of authority on the propriety of permitting an amendment after the running of the statute of limitations which changes the description of the defendant from that of a corporation to an individual. A number of states lean to the view that such an amendment works an entire change of the parties and is tantamount to asserting a new cause of action. These authorities require the filing of an entire new complaint. On the contrary, there is an equally respectable line of cases which hold that if the basic cause of action is not changed and the amendment merely corrects a misnomer or description of the party-defendant, then it is not tantamount to a new cause of action. Most of the Federal cases appear to be aligned with the latter view. It is our view that since the adoption of our New Rules of Civil Procedure on January 1,1950, Florida can more appropriately align itself with the more liberal view in allowing amendments of this nature. Prior to that date Florida pleading and practice was governed almost entirely by the strict rules and formalities of the common law.
“Admittedly, prior to our new rules, ' the trial judge in this case would have been on very sound ground in denying the requested amendment. This is so because the common law required that the writ strictly follow the declaration or complaint. Our above quoted rules governing amendments, however, as well as other related rules, have introduced much greater liberality into our system of pleading and practice. Now the objective of all pleading is merely to provide a method for setting out the opposing contentions of the parties. No longer are we concerned with the ‘tricks and technicalities of the trade.’ The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.
“There are many cases which hold to the rule that the amendment of a complaint by describing a defendant as an individual or as a partnership rather than as a corporation as in the original complaint is merely a change in the description of the party-defendant to speak the truth. These cases stand firm on the proposition that such an amendment is not objectionable as working an entire change of parties. These authorities go on the notion that the new rules and statutes allowing amendments are broad and liberal and must be administered with liberality.” Supra, at 664.

This court has followed the Cabot reasoning in Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967). There, plaintiffs filed a personal injury action against “J. M. Fields Co., a New Jersey corporation” when the correct defendant was “J. M. Fields of East Florida, Inc., a Florida corporation.” Both corporations possessed the same directors, president, vice presidents and resident agents within this state. In that the New Jersey corporation had misled plaintiffs into thinking that it was the proper defendant, both corporations had •notice of the action and no prejudice was shown by an amendment to the pleadings substituting the Florida corporation for the New Jersey corporation, we permitted the post statute of limitations amendment to relate back to the time of the original pleading. See also B & H Sales, Inc. v. Fusco Corporation, 342 So.2d 105 (Fla. 2d DCA 1977) wherein plaintiff was permitted to substitute The Fusco Corporation d/b/a Sunshine Associates, Inc., for Sunshine Associates, Inc., the substitution amounting to “no more than a correction of a misnomer.” Supra, at 107.

Likewise, in Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970), our sister court, utilizing a misnomer theory, permitted a substitution of a “president,” individually, in place of his “shell” corporation, the latter being originally named in the complaint as defendant. There, the court emphasized that, by virtue of his being served as “president,” the substituted defendant was fully cognizant of the lawsuit and the mistake that had been occasioned by serving him as president of a “shell” rather than in his individual capacity.

Sub judice, appellants attempt to bring the facts within the ambit of a “misnomer” situation. In support of their position, appellants urge us to consider the following portions of their original complaint:

The Caption:

“ARMANDO GARRIDO and

TERESA GARRIDO, his wife,

Plaintiffs,

“vs.

“MARKUS, WINTER and SPITALE,

Attorneys at Law,

Defendant.”

Paragraph Two (2)

“Defendant, MARKUS, WINTER and SPITALE, is a law firm practicing law in Miami, Dade County, Florida, and is comprised of the following individual lawyers: Stuart A. Markus, Robert L. Winter and Leonardo Spitale.”

The WHEREFORE clause:

“Wherefore, the plaintiffs sue and demand judgment against the defendant law firm and the lawyers individually for damages in excess of THIRTY-TWO THOUSAND, SIX HUNDRED EIGHTY-EIGHT DOLLARS AND TWENTY THREE CENTS ($32,688.23) and demand a trial by jury.”

Appellants claim that however “inartfully drawn,” the complaint sought to sue both the partnership and the partners, individually. Based upon the fact that throughout the complaint, with the sole exception of the WHEREFORE clause, the term “defendant” refers to the single entity, i. e., the partnership, and not to the individuals comprising the partnership, as well as the fact that appellants never sought to timely serve the individual attorneys, even when they were on notice that such a service might be necessary for a possible recovery, it is our opinion that the “misnomer” theory cannot be applied so as to permit the relation back of the amended complaint to undermine the defense of the statute of limitations.

Black’s Law Dictionary, revised fourth edition, defines “misnomer” as: “mistake in name; giving an incorrect name to person in accusation, indictment, pleading; deed or other instrument.” We are convinced that no “mistake” occurred, or rather, the only mistake occurring was that of judgment. To permit a substitution at this point would be tantamount to introducing “new parties" into the lawsuit and, as has been cited above, such is not the nature of the “relation back” doctrine. See Strauss v. Rex, supra, Cabot v. Clearwater Construction Company, supra, and Argenbright v. J. M. Fields Co., supra.

In so ruling, we are particularly attracted to the strong, yet apropos language of then Associated Judge Ben F. Overton in his dissenting opinion in Galuppi v. Viele, supra at 411, which in part reads as follows:

“The general rule is that the amendment does not relate back to the date of filing the original complaint when new parties are added or substituted for those before the court by the original pleadings. There is an exception to this rule when the movant demonstrates that the new and old parties have such an identity of interest that the relation back is not prejudicial. This portion of the exception was relied on by the majority. However, this is not the only element that the movant must establish. As stated in 3 Moore’s Federal Practice, Section 15.15, page 1046:
“ ‘In addition to demonstrating this absence of prejudice, to qualify under the exception to the general rule, the plaintiff had to show that his failure to join the correct parties at the outset had not been due to his own inexcusable neglect. (Emphasis supplied.)’ (Citations omitted.)
“Any misrepresentation of identity that occurred was corrected six months before the statute of limitations expired. The record fails to establish any excusable reason for the plaintiff-appellant’s delay in naming the proper parties defendant after they had due actual notice thereof.”

Accordingly, the judgment appealed from is hereby affirmed.

Affirmed.

      . Fla.R.Civ.P. 1.190 provides in part,
      “(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”
      Fed.R.Civ.P. 15 provides, in part,
      “(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

      . It appears from our research that a more liberal attitude has been afforded the substitution of parties plaintiff after the running of the statute of limitations. See Staren v. American National Bank and Trust Company of Chicago, 529 F.2d 1257 (C.A. 7th Cir. 1975); Griffin v. Workman, 73 So.2d 844 (Fla.1954); Lindy's of Orlando, Inc. v. United Electric Company, 239 So.2d 69 (Fla. 4th DCA 1970); Haines v. Leonard L. Farber Company, 199 So.2d 311 (Fla. 2d DCA 1967).
      The above cases, and authorities cited within the above cases, appear to hold that as long as the cause of action is not changed by the substitution of the parties and the defendant is not compelled to answer to a new cause, amendments substituting party plaintiffs filed after the running of the statute of limitation will be allowed as relating back to the original pleading.