author: SUNDBERG, Chief Justice.

text:
    BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Petitioner, v. Harry L. WILSON, Respondent.
    No. 59115.
    Supreme Court of Florida.
    July 25, 1980.

      Robert A. Ginsburg, Dade County Atty., Miami, for petitioner.
    Dennis M. O’Connor, Coral Gables, and Eugene M. Short, Jr., of Peters, Short, Maxey & Morgan, Coral Gables, for respondent.
   SUNDBERG, Chief Justice.

Section 7.01 of the Dade County Home Rule Charter provides that any county elector may seek the passage of an ordinance by means of initiative and referendum. An elector attempting to invoke the charter provision must submit his proposed ordinance to the Board of County Commissioners (the Board) in the form of a petition. Approval by the Board of the petition’s form is a prerequisite to the circulation of the petition for a specified number of signatures. If sufficient signatures are obtained, the Board must either adopt the petition or submit the matter to the electorate for a referendum.

Pursuant to the dictates of this charter provision, Harry L. Wilson requested that the Board “approve as to form” his initiative petition designed to set county millage for the 1980-81 fiscal year at four mills. The Board disapproved the form of Mr. Wilson’s petition, finding that the ordinance proposed in the petition was violative of the Florida Constitution. Mr. Wilson applied to the circuit court for a writ of mandamus and, finding that the proposed ordinance was not facially unconstitutional, the court issued the writ. Pursuant to this judicial action, which has not been stayed, the petition has been circulated, the requisite number of signatures obtained and a referendum election scheduled for September 9, 1980.

On appeal, the District Court of Appeal, Third District, determined that the proposed ordinance was not unconstitutional on its face and affirmed the trial court but, recognizing the issue as a persistent one, certified its decision to us as passing upon a question of great public importance. Board of County Commissioners v. Wilson, 382 So.2d 431 (Fla.3d DCA 1980). We have jurisdiction. Art. V, § 3(b)(4) Fla.Const. (1980). •

The question certified by the district court is as follows:

Whether the courts may pass upon the validity of an ordinance, fixing the millage rate of the county’s operating budget, prior to its adoption by the voters through the initiative and referendum process.

Mr. Wilson argues that this issue was raised in Wilson v. Dade County (Wilson I), 369 So.2d 1002 (Fla.3d DCA 1979), cert. denied, 373 So.2d 457 (Fla.1979), wherein the validity of a similar proposed ordinance was challenged by the Board. The district court’s decision in Wilson I, Mr. Wilson asserts, is dispositive of the present proceeding. We disagree. Courts may consider the constitutional validity of proposed ordinances. While recognizing this authority, the district court specifically stated that only the statutory validity of the ordinance was at issue. Courts may not rule upon the validity of a proposed ordinance challenged solely on nonconstitutional grounds. Since the Board is here challenging the constitutionality of Wilson’s proposed ordinance, we have the authority to inquire further into the validity of the ordinance.

In the present proceeding, the district court concluded that article VII, section 1(a), Florida Constitution, does not pose a constitutional impediment to a proposed ordinance designed to establish the millage rate for county taxation. We agree that the constitutional provision does not, in itself, prescribe the method and means by which taxes are to be imposed. As a consequence, where there is no legislative directive relating to a specific method or means of taxation, that procedure may be controlled by ordinance.

We find it unnecessary to decide whether an ordinance which is in direct conflict with a legislatively prescribed method of taxation would violate article VII, section 1(a). Rather, we turn our attention to the requirements of article VIII, section 6 of the 1968 Constitution relating to Dade County home rule. Article VIII, section 11 of the Constitution of 1885 authorized the creation of a metropolitan government for Dade County and granted to the electors of that county the power to adopt a home rule charter. Pursuant to this authority, the voters of Dade County adopted a home rule charter for the metropolitan government of the county. Article VIII, section 6(e) of the 1968 Constitution provides that article VIII, section 11 of the 1885 Constitution is to remain in full force and effect, and that:

All provisions of the Metropolitan Dade County Home Rule Charter, heretofore or hereafter adopted by the electors of Dade County pursuant to Article VIII, Section 11, of the Constitution of 1885, as amended, shall be valid, and any amendments to such charter shall be valid; provided that the said provisions of such charter and the said amendments thereto are authorized under said Article VIII, Section 11, of the Constitution of 1885, as amended.

(Emphasis supplied, footnotes omitted.) Hence the authorizing amendment of the former constitution has been incorporated by reference into the 1968 Constitution. The Dade County Charter has been given constitutional approval, but only to the extent that it is consistent with the former article VIII, section 11 (now in article VIII, section 6). If any provision of the Dade County Charter, or any action taken pursuant to the Charter, contravenes the limitations or prescriptions of article VIII, section 6 of the 1968 Constitution, it is necessarily unconstitutional and void. See State ex rel. Dade County v. Nuzum, 372 So.2d 441 (Fla.1979); Gray v. Golden, 89 So.2d 785 (Fla.1956).

The focus thus narrows to whether the proposed ordinance is authorized by the enabling constitutional language. Article VIII, section ll(l)(b) of the 1885 Constitution states that the charter “[m]ay grant full power and authority to the Board of County Commissioners of Dade County . to levy and collect such taxes as may be authorized by general law and no other taxes . . . .” The authority granted under the enabling section is circumscribed by subsections (5) and (6) of section 11:

(5) [T]he home rule charter provided for herein shall not conflict with any provision of this Constitution nor of any applicable general laws now applying to Dade County and any other one or more counties of the State of Florida except as expressly authorized in this section nor shall any ordinance enacted in pursuance to said home rule charter conflict with this Constitution or any such applicable general law except as expressly authorized herein .
(6) Nothing in this section shall be construed to limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties of the state of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida relating to county or municipal affairs and all such general laws shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith, and shall supersede any provision of any charter of any municipality in Dade County in conflict therewith.

Moreover, in subsection (9) of section 11 it is declared to be the intent of the legislature and the electors of Florida that

the provisions of this Constitution and general laws which shall relate to Dade County . . . shall be the supreme law in Dade County, Florida, except as expressly provided herein and this section shall be strictly construed to maintain such supremacy of this Constitution and of the Legislature in the enactment of general laws pursuant to this Constitution.

Clearly then, the provisions of the Home Rule Charter and the ordinances adopted pursuant thereto must be in accordance with general law unless there is express constitutional authorization otherwise.

Despite the above-quoted constitutional provisions, Mr. Wilson contends that this Court’s decision in Dade County v. Young Democratic Club, 104 So.2d 636 (Fla.1958), requires that we find the present ordinance to be valid. In Young Democratic Club, however, this Court found that, even though in conflict with general election laws, Dade County charter provisions dealing with the method of electing county commissioners were specifically authorized by the Constitution. Therefore, the charter provisions were constitutionally valid. There is, however, no similar constitutional authorization for the citizens or governing body of Dade County to devise its own method for levying taxes or establishing millage rates. As a consequence, the proposed ordinance at issue here will withstand constitutional scrutiny only if it does not conflict with general law. See Buckress Land Co. v. Metropolitan Dade County, 232 So.2d 384 (Fla.1970); Gray v. Golden, supra.

Applying the preceding analysis, we conclude that the proposed ordinance is unconstitutional. An ordinance will be declared unconstitutional because in conflict with general law if the ordinance and the legislative provision cannot coexist. State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969). Petitioner cites as conflicting a number of legislative provisions which delineate the manner in which a county commission is to determine the appropriate millage rate for ad valorem taxation purposes. In particular, section 200.191(l)(a)-(c) authorizes three categories of county wide millage rates:

200.191 Millages; definitions.—
(1) County millages shall be composed of three categories of countywide millage rates, as follows:
(a) General county millage, which shall be that nonvoted millage rate set by the governing body of the county.
(b) County debt service millage, which shall be that millage rate necessary to raise taxes for debt service as authorized by a vote of the electors pursuant to s. 12, Art. VII of the State Constitution.
(c) County voted millage, which shall be that millage rate set by the governing body of the county as authorized by a vote of the electors pursuant to s. 9(b), Art. VII of the State Constitution.

The rates are to be set under subsections (a) and (c) by the governing body of the county, and under (b) by the vote of the electors pursuant to article VII, Section 12, Florida Constitution (1968). We read these subsections to comprise the exclusive manner by which to set countywide millage rates. The proposed ordinance, which would set the millage rate through the initiative petition process, is thus in direct conflict with section 200.191.

Moreover, subsequent to the filing of this cause in the Supreme Court, petitioner brought to our attention a law passed by the 1980 session of the Florida Legislature which is in direct conflict with the present proposed ordinance. Section 27 of chapter 80-274, Laws of Florida, adding subsection (6) to 200.191, Florida Statutes, states:

(6) Millages shall be fixed only by resolution of the governing body of the taxing authority in the manner specifically provided by general law or by special act.

Section 64(1) of chapter 80-274 provides that the above section shall be effective for taxes levied for 1980 and each year thereafter, thus it applies to the proposed ordinance before us. And because the proposed ordinance, if approved by a majority of voters in the referendum election, would become law without the necessity of a resolution passed by the Dade County Commission, it flies directly in the face of general law as enunciated in section 27.

Respondent attempts to avoid the effect of section 27 by asserting first that section 27 is superseded by the Dade County Home Rule Charter, and second that the portion of the title of chapter 80-274 pertaining to the amendment of section 200.191, Florida Statutes, is constitutionally defective. His assertions are unpersuasive. As noted previously, subsection 6 of section 11, article VIII of the 1885 Constitution mandates that general laws enacted subsequent to the adoption of the Home Rule Charter “shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith . . .” Hence, it is the general law which supersedes the Home Rule Charter. With regard to respondent’s second argument, we believe that the portion of the title to chapter 80-274 with which we are here concerned does not mislead a person of average intelligence as to the scope of the enactment and is sufficient to put that person on notice and cause him to inquire into the body of the statute itself. See Williams v. State, 370 So.2d 1143 (Fla.1979) and cases cited therein.

Accordingly, the certified question is answered in the affirmative but the decision of the District Court of Appeal, Third District, is quashed. This cause is remanded to the district court with directions to remand to the trial court for entry of a judgment consistent with this opinion. Due to the exigent circumstances presented by the budgeting process of Dade County for the fiscal year 1980-81, no petition for rehearing will be entertained in this cause.

Respondent’s petition for attorney’s fees is denied.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

      .The proposed ordinance provides:
      Be it ordained by the people of Dade County, Florida:

        Section I. The county millage for the 1980-81 fiscal year shall be 4.00 mills on all property subject to ad valorem tax in Dade County, Florida, as the millage fixed and determined to be levied for all county operating purposes.

        Section 2. This ordinance does not determine the millage for county bonded debt service, or the library district fund, or other special district millages.

        Section 3. This ordinance shall be included in the Dade County Code.

        Section 4. This ordinance shall take effect at the beginning of the fiscal year commencing on October 1, 1980.

      . The district court made no ruling with respect to the proposition that the Board’s rejection of the proposed ordinance was based on its substance (that is, its constitutionality) rather than on its form. In light of this fact, we wait for another day to confront the question whether under the Board’s limited duty to scrutinize the form of an initiative petition proposal, it may consider the facial constitutionality of that proposal.

      . See e. g., City of Miami Beach v. Frankel, 363 So.2d 555 (Fla.1978); Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); Rivergate Restaurant Corp. v. Metropolitan Dade County, 369 So.2d 679 (Fla.3d DCA 1979).

      . For examples of instances in which we have determined that the Florida Constitution does provide the exclusive manner of performing an act, see Sullivan v. Askew, 348 So.2d 312 (Fla.1977), and Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253 (1927).

      . We will accept, without deciding, the district court’s conclusion that the proposed ordinance is authorized by the Dade County Charter. See § 7.01(6)(a), Home Rule Charter of Metropolitan Dade County.

      . Art. VIII, § ll(l)(a), Fla.Const. (1885).

      . §§ 129.01(1), 195.207, 200.011(1), 200.011(2), 200.191(l)(a) and (c), Fla.Stat. (1979); ch. 80-274 Laws of Fla.

      . We caution that our holding above is limited . to that part of the title dealing with “adding subsection (6) to s. 200.191, Florida Statutes; providing for fixing of millages.” We express no opinion as to the validity of the remainder of the title, nor as to any substantive provision in the enactment.


source: Caselaw Access Project

author: OVERTON, Justice. SUNDBERG, Chief Justice,

license: Public Domain

text:
    STATE of Florida ex rel. CITIZENS PROPOSITION FOR TAX RELIEF, Edward E. Havill, and Alphonso Bruno, Petitioners, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 59466.
    Supreme Court of Florida.
    July 25, 1980.

      J. Elliott Messer, John H. French, Jr. and James C. Hauser of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen. and Gerald B. Cur-ington, Asst. Atty. Gen., Tallahassee, for respondent.
   OVERTON, Justice.

By an original proceeding in mandamus petitioners seek relief from the provisions of section 100.371, Florida Statutes (1979), and Rule 1C-7.091, Florida Administrative Code. These provisions require any person desiring to place a constitutional amendment on the ballot by initiative to submit the required signatures of electors to the appropriate supervisors of elections no later than 122 days prior to a general election, rather than ninety days allegedly required in article XI, section 5, Florida Constitution. The asserted effect of the rule and the statute is to shorten the time available for obtaining the necessary signatures before the subject election.

The primary issue is the legal validity of the statute and rule, which mandate the submission of signatures for an initiative petition to place a constitutional amendment on the ballot thirty-two days prior to the ninetieth day prior to the general election, for the avowed purpose of verifying these signatures. We exercise our discretion to accept jurisdiction upon this constitutional question which requires no eviden-tiary findings or hearing. Art. V, § 3(b)(8), Fla. Const. We find the implementing rule unconstitutional to the extent it changes the date for filing an initiative petition.

The authority to amend the Florida Constitution by an initiative petition is contained in article XI, section 3, which provides:

Initiative. — The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment shall embrace but one subject and matter directly connected therewith. It may be invoked by filing with the secretary of state a petition containing a copy of the proposed revision or amendment, signed by a number of electors in each of one half of the congressional districts of the state, and of the state as a whole, equal to eight percent of the votes cast in each of such districts respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.

It is part of a constitutional design which prescribes four distinct and separate methods to amend the constitution.

In accordance with section 5 of article XI, a constitutional proposal by initiative petition as well as by the legislature or a constitutional convention “shall be submitted to the electors at the next general election held more than ninety days after” such a proposal “is filed with the secretary of state.” For clarity of discussion, article XI, section 5, is set forth in its entirety as follows:

SECTION 5. Amendment or revision election.—
(a)A proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than ninety days after the joint resolution, initiative petition or report of revision commission or constitutional convention proposing it is filed with the secretary of state, unless, pursuant to law enacted by the affirmative vote of three-fourths of the membership of each house of the legislature and limited to a single amendment or revision, it is submitted at an earlier special election held more than ninety days after such filing.
(b) Once in the tenth week, and once in the sixth week immediately preceding the week in which the election is held, the proposed amendment or revision, with notice of the date of election at which it will be submitted to the electors, shall be published in one newspaper of general circulation in each county in which a newspaper is published.
(c) If the proposed amendment or revision is approved by vote of the electors, it shall be effective as an amendment to or revision of the constitution of the state on the first Tuesday after the first Monday in January following the election, or on such other date as may be specified in the amendment or revision. [Emphasis added.]

In 1979 the legislature established procedures for placing constitutional amendments on the ballot by initiative petition, through the enactment of section 100.371, Florida Statutes (1979), which provides:

Initiatives; procedure for placement on ballot.—
(1) Constitutional amendments proposed by initiative shall be placed on the ballot for the general election occurring in excess of 90 days from the certification of ballot position by the Secretary of State.
(2) Such certification shall be issued when the Secretary of State has received verification certificates from the supervisors of elections indicating that the requisite number and distribution of signatures of electors have been submitted to and verified by the supervisors.
(3) The sponsor of an initiative amendment shall, prior to obtaining any signatures, register as a political committee pursuant to s. 106.03 and submit the text of the proposed amendment to the Secretary of State, with the form on which the signatures shall be affixed, and shall obtain the approval of the Secretary of State of such form. The Secretary of State shall promulgate rules pursuant to s. 120.54 prescribing the style and requirements of such form.
(4) The sponsor shall submit signed forms to the appropriate supervisor of elections for verification as to the number of registered electors whose signatures appear thereon. The supervisor shall promptly verify the signatures upon payment of the fee required by s. 99.097. Upon completion of verification, the supervisor shall execute a certificate indicating the total number of signatures checked, the number verified as being of registered electors, and the distribution by congressional district. This certificate shall be immediately transmitted to the Secretary of State. The supervisor shall retain the signature forms for at least 1 year.
(5) The Secretary of State shall determine from the verification certificates received from supervisors of elections the total number of verified signatures and distribution of such signatures by congressional districts. Upon a determination that the requisite number and distribution of signatures have been obtained, the secretary shall issue a certificate of ballot position for that proposed amendment and shall assign a designating number pursuant to s. 101.161. A petition shall be deemed to be filed with the Secretary of State upon the date of the receipt by the secretary of a certificate or certificates from supervisors of elections indicating the petition has been signed by the constitutionally required number of electors.
(6)The Department of State shall have the authority to promulgate rules in accordance with s. 120.54 to carry out the provisions of this section. [Emphasis added.]

We note that section (1) requires certification of the ballot position by the secretary of state “in excess of ninety days” from the general election. Further, in accordance with subsection (5), “certification” cannot be accomplished without verification of the electors who are signatories on the petition by the supervisors of elections in the identified congressional districts. It is uncontro-verted that the legislature has directed that an initiative petition may not be filed until the verification certificates have been received from the various supervisors of elections by the secretary of state.

This statute was implemented by the department of state in its promulgation of rule 1C-7.091, Florida Administrative Code, which provides:

Constitutional Amendment Initiative Petition. Submission Deadline; Checking Electors’ Signatures.
(1) Initiative petitions containing signatures proposing constitutional amendments to the Florida Constitution shall be submitted to the Supervisor of Elections in the county in which they were circulated to be checked.
(2) Petitions submitted pursuant to subsection (1) shall be provided to the appropriate Supervisors of Elections no later than 5 p. m. of the 122nd day prior to the General Election in which the constitutional amendment is to be placed upon the ballot.
(3) Upon receipt of initiative petitions the Supervisor shall check the signatures on each petition to insure that each person signing said petition is a registered elector in that county.
(4) Upon completion of the verification as set forth in subsection 1C-7.091(3), a certificate shall be submitted to the Division of Elections of the Department of State by the Supervisor of Elections certifying the total number of signatures checked, the number verified as registered electors and the distribution by congressional district. The certificate shall be submitted no later than 5 p. m. of the 92nd day preceding the General Election. Any certificate received later than that time will not be eligible to be counted toward the required number of elector’s [sic] signatures for any congressional district or the State as a whole. The Department will provide appropriate forms to the Supervisor of Elections to be used for transmission of the required information. In conjunction with the certificate submitted, each Supervisor of Elections shall submit a copy of one petition showing the text of the constitutional amendment to which the certified signatures relate.
(5) Upon receipt of a certificate from the Supervisor of Elections, the Department shall compile the total number of signatures verified as being registered electors to determine whether the requisite number of signatures has been obtained with respect to each constitutional amendment, by each political committee, for each congressional district and the State as a whole. Upon completion of the compilation, a certification of ballot position shall be issued by the Secretary of State to an appropriate political committee which has obtained the constitutionally required number of signatures. Any political committee which has not obtained the require [sic] number of signatures will be so notified.
(6) Any initiative petitions submitted by a political committee which do not obtain the requisite number of signatures may not be utilized in any future initiative petition effort. [Emphasis added.]

This rule requires all initiative petitions to be “submitted” 122 days prior to the general election, and the department of state asserts that the rule was necessary to comply with the legislative mandate set forth in section 100.371, Florida Statutes (1979). The rule prohibits the receipt of any initiative petition or additional electors’ signatures by the supervisors of elections after the 122nd day preceding the general election.

Critical dates under the 1980 election process as established by the identified constitutional provisions, statutes, and rules are:

(1) July 7, 1980, 122nd day preceding the general election;
(2) August 4, 1980, deadline for supervisors to submit verified petitions to secretary of state;
(3) August 6, 1980, ninetieth day preceding general election;
(4) August 26 commences the tenth week;
(5) September 23 commences the sixth week;
(6) November 4, 1980, general election.

The petitioner committee alleges that pri- or to July 7,1980, it had submitted petitions to supervisors of elections but that the “petitions will fail by a narrow margin” to obtain the necessary signatures to place the proposed constitutional amendment on the ballot. Petitioner Bruno, in his individual capacity, alleges that the supervisor of elections in Palm Beach County refused to accept on July 10, 1980, a petition containing his signature as an elector of that county. The petitioners maintain that the various supervisors of elections must be allowed to accept signatures for verification up to the last possible moment that verification and certification are possible prior to the August 6 deadline, reasoning that the July 7 date set by the rule constitutes a deprivation of a petitioner’s constitutional initiative petition rights as set forth in sections 3 and 5 of article XI.

In his response on the merits, the secretary of state contends that the statute and rule procedure is necessary to ensure the orderly and complete verification of the 255,653 signatures which are needed to support all initiative petitions in 1980 and to ensure that the initiative petition be given ballot access in the time mandated by the constitution. The secretary of state further asserts the acceptance of petitions up until the last day would create chaos at the verification stage and contends the rule provides a reasonable means to put an initiative petition on the ballot, since the thirty-day verification period allows supervisors sufficient time to conduct an orderly and accurate check of the signatures and resolve any challenges that might arise. The secretary of state acknowledges that the initiative petition method to amend the constitution is a fundamental right and any rule or statute which regulates this initiative process must not unduly burden the petitioners’ initiative access, but argues that the subject rule and statute are reasonable means to protect the integrity of the ballot process and provide sufficient time for an accurate and orderly verification of the signatures. The secretary of state concludes that a reasonably diligent person can comply with the rule and the statute.

The initiative petition provision of article XI provides in part that “The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people” and directs that “It may be invoked by filing with the secretary of state a petition containing a copy of the proposed revision or amendment” signed by the requisite number of electors.

The questions we must decide are (1) whether “filing” as used in this constitutional provision may be construed and interpreted by the legislature to require as a prerequisite to acceptance for filing the verification of the electors’ signatures to ensure ballot integrity, and (2) whether the secretary of state has the authority under this statute to require initiative petitions to be filed 122 days preceding the next general election. We answer the first question in the affirmative and the second question in the negative.

The constitution by its express terms provides that an initiative petition should be “filed” with the secretary of state and that the proposal “shall be submitted to the electors at the next general election held more than ninety days after the . initiative petition ... is filed with the secretary of state.” Nothing is said in the constitution concerning verification. The constitution further mandates that “once in the tenth week and once in the sixth week immediately preceding the week in which the election is held” the proposed amendment must be published in one newspaper in each county. The time constraints are set forth expressly in the constitution.

This is a self-executing constitutional provision. It clearly establishes a right to propose by initiative petition a constitutional amendment which may be implemented without the aid of any legislative enactment. Gray v. Bryant, 125 So.2d 846 (Fla.1960). In this regard, this initiative process has already produced a constitutional amendment which was adopted without the benefit of the subject statute or rule. Art. II, § 8 (Ethics in Government).

The four methods of amending our constitution must be considered as a whole to effect their overall purpose. Smathers v. Smith, 338 So.2d 825 (Fla.1976). They are delicately balanced to reflect the power of the people to propose amendments through the initiative process and the power of the legislature to propose amendments by its legislative action without executive check. Only these two methods can produce constitutional amendment proposals at each general election. The power to propose amendments to the electorate by the constitution revision commission or a constitutional convention procedure is substantially restricted by their ability to exist. In considering any legislative act or administrative rule which concerns the initiative amending process, we must be careful that the legislative statute or implementing rule is necessary for ballot integrity since any restriction on the initiative process would strengthen the authority and power of the legislature and weaken the power of the initiative process. The delicate symmetric balance of this constitutional scheme must be maintained, and any legislative act regulating the process should be allowed only when necessary to ensure ballot integrity. We do, however, recognize that the legislature, in its legislative capacity, and the secretary of state, in his executive capacity, have the duty and obligation to ensure ballot integrity and a valid election process. Ballot integrity is necessary to ensure the .effectiveness of the constitutionally provided initiative process.

We conclude that verification is an element of ballot integrity and a task which the legislature may require to be accomplished as a prerequisite to filing an initiative constitutional proposal with the secretary of state.

In implementing section 100.371, Florida Statutes (1979), the department of state has determined by its rule 1C-7.091 that no initiative petition can be received subsequent to 122 days preceding the next general election. Although we agree that verification is essential to ballot integrity and the legislature and the secretary may prescribe reasonable regulations to ensure an expeditious and proper verification process, we reject the 122-day cutoff date established by the secretary of state in this rule. We find no constitutional or statutory authority for this rule limitation upon the initiative process. It is our view that the secretary of state has no authority to adopt by rule different time periods for receipt of an initiative petition for filing.

Under the constitutionally established initiative procedure as implemented by the subject statute, it is properly the responsibility of the proposer not only to obtain the necessary signatures of the electors but also to cause them to be verified prior to filing with the secretary of state. We expect both the proposer and the supervisors of elections in the various counties to act reasonably in the verification process. The proposer must afford the supervisors reasonable time to verify the signatures, and the supervisors must not unduly delay the verification process. From the rule adopted by the secretary of state, it is apparent that thirty days is the outer limit of time reasonably necessary to verify electors’ signatures by supervisors of elections. If the proposer has a sufficient number of verified signatures on an initiative petition ninety-one days prior to the general election, the secretary of state must, under the constitution, accept the petition for filing since it has been submitted to him for “filing” more than ninety days from the date of the next general election.

We caution that those who seek to place an initiative petition on the ballot are best advised to submit petitions for verifications sufficiently in advance of the last date for filing to afford an adequate time for proper verification of electors. No correction may be allowed less than ninety-one days prior to the general election, and, further, neither verification by the supervisors nor certification by the secretary of state immunizes the proposal from a judicial action claiming the necessary constitutional requirements have not properly been met.

For the reasons expressed, we find that rule 1C-7.091, Florida Administrative Code, is unconstitutional to the extent it prohibits the filing of a verified, initiative petition through the ninety-first day preceding the next general election.

The petition for writ of mandamus is granted, but, because we believe the secretary of state will comply with this decision, we withhold our writ at this time. Due to the exigencies of the situation, rehearing will be dispensed with.

It is so ordered.

ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

At the risk of appearing antipopulist I must respectfully dissent from the majority opinion. I do so because I believe there is a fatal flaw in the majority’s basic premise. The premise is that article XI, section 5 of the Florida Constitution establishes a date upon which a proposed amendment to or revision of the constitution is to be filed in order to be placed on the ballot at a general election. Hence they conclude that initiative petitioners under article XI, section 3, have the inalienable right to file petition signatures with the secretary of state on any date up to ninety-one days preceding a general election.

The majority construes the language of article XI, section 5, as if it read:

A proposed amendment to or revision of this constitution, or any part of it, may be submitted by its proposers at any time up to 90 days prior to the general election at which it is submitted to the electors.

A plain reading of article XI, section 5, however, refutes this premise. In pertinent part it reads:

A proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than 90 days after the . . . initiative petition . . . proposing it is filed with the secretary of state .

(Emphasis supplied.) Rather than guaranteeing proposers of a constitutional amendment or revision an irreducible date by which they are entitled to file a proposal, the above provision guarantees only that no such proposal will be entitled to consideration by the people unless it is filed in proper form with the secretary of state more than ninety days before the election at which it will be voted upon.

To me it is clear that the thrust of article XI, section 5 is to protect the integrity of the ballot process. The state has a legitimate interest in protecting the integrity of its political process by regulating the number and kind of candidates as well as the issues on the election ballot. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). Access to the ballot is an important constitutional right. It is no less laudable an objective to ensure an orderly ballot process which eliminates confusion as to the issues which may be properly presented and the clarity of those properly initiated issues. I submit that the only reasonable interpretation of article XI, section 5 is that the framers and adopters of that section sought to ensure that propositions would be adequately framed and certain in advance of an election so that there would be ample opportunity for the electors to be informed as to their content and merit. Ballot position was to be determined and certain on a date more than ninety days preceding the election at which the people would be called upon to exercise a judgment.

Furthermore, the history leading to the adoption of the 1968 Constitution augurs against the majority’s interpretation. The predecessor Constitution of 1885 had been repeatedly and persistently amended by inclusion of matters which did not rise to fundamental constitutional dignity. A major objective of the original Constitutional Revision Commission was to impose a more orderly and stringent process for amendment of the 1968 Constitution to curb the excesses which beset the 1885 Constitution. Article XI reflects this deliberative scheme. Section 5 in particular reflects the philosophy that ample opportunity for study and reflection by the electorate is to be afforded before our fundamental document is “tinkered with.” Hence, I cannot but conclude that section 5 is aimed at ballot integrity as opposed to ballot access. That is not to say, of course, that ballot access is unimportant. It is a fundamental right also, but it is to be measured by a rule of reasonableness. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974).

Since article XI, section 5 establishes no specific date in advance of an election by which a proposed amendment or revision must be filed with the secretary of state (more than ninety days prior to a general election is not a specific date), I perceive it to be the function of the secretary of state to establish that date consistent with orderly ballot preparation, provided the date established is not unreasonable. So too does the legislature have a field of operation in prescribing reasonable procedures to implement the ballot process. The legislature has acted through enactment of section 100.371, Florida Statutes (1979).

Pursuant to section 100.371(6), the Department of State had promulgated rule 1C-7.091, Florida Administrative Code. Without benefit of any evidentiary hearing the majority has evidently concluded that the rule is unreasonable. The view is taken that the secretary of state has no constitutional authority to “extend” the ninety-one-day period. This ignores, of course, the fact that the constitution does not speak in terms of ninety days or ninety-one days or any other specific date. The totally unsupported date for filing established by the majority is purely and simply the result of judicial fiat. Without the filing date judicially constructed today, there can be no assertion that the secretary of state has “extended” any filing date.

To sum up, I would hold the following: (1) article XI, section 5, imposes no specific date before which initiative petitions must be filed with the secretary of state. In fact, it only designates the general election at which an initiative amendment may be considered on the ballot — one which occurs more than ninety days after such proposed amendment is properly filed; (2) the legislature by statute and the Department of State by rule promulgated pursuant to that statute may establish reasonable procedures for verification of compliance with the constitutional criteria for placement of an initiative amendment on the ballot for a general election, including the date by which petition signatures must be submitted to place a proposed amendment on the ballot for each general election; (3) the question of the reasonableness of the procedures established is a proper subject for judicial scrutiny to ensure ballot access. Since the reasonableness of rule 1C-7.091, Florida Administrative Code, can only be determined in an evidentiary proceeding, mandamus is an improper remedy. Brown v. Firestone, 382 So.2d 654 (Fla.1980).

Accordingly, I would deny the petition for writ of mandamus.

      . Section 1 of article XI provides the method for the legislature to submit proposals to the electorate without any executive branch involvement or check. Section 2 of article XI provides for a constitution revision commission every twenty years to submit proposals to the electorate. Section 4 of article XI prescribes a method to call for a constitutional convention, a means to elect its members, and the subsequent submission of its work product to the electorate for adoption.


author: PER CURIAM.

text:
    Altamese JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-669/T4-464.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Richard L. Jorandby, Public Defender, Lorrie Robinson, Legal Intern and Tatjana Ostapoff, Chief, App. Division, Public Defender’s Office, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from an order withholding adjudication of guilt and placing appellant on probation entered by the Circuit Court of Orange County, Florida. The Notice of Appeal states it is an appeal from the sentence. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. This court gave the appellant thirty (30) days within which to file a brief on his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the sentence is hereby

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM. MILLS, Chief Judge.

text:
    Willie M. COLLINSWORTH, Appellant, v. Ilena W. COLLINSWORTH, Appellee.
    No. PP-154.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1980.
    Rehearing Denied April 10, 1980.

      Clayton J. M. Adkinson of Thompson, Ad-kinson & Beasley, DeFuniak Springs, for appellant.
    E. Allen Ramey, DeFuniak Springs, for appellee.
   PER CURIAM.

In the final judgment of dissolution of marriage the trial court awarded the wife 43 acres and the marital home, which were held as a tenancy by the entireties, and household furnishings as lump sum alimony. We affirm.

Appellant urges that under this Court’s ruling in Cornelius v. Cornelius, 382 So.2d 710 (Fla. 1st DCA 1979), the award could not be alimony unless it was based on one spouse’s needs and the other spouse’s ability to pay. We hereby recede from that portion of the opinion in Cornelius which receded from the earlier ruling in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975). In Cornelius, having noted that alimony was a creature of statute, we asserted:

“Brown represents an eloquent recognition of the homemaker’s contributions to the marital home. It must be rejected, however, as an unacceptable deviation from that which we understand to be the traditional equation by which all alimony is measured. Until the legislature sets aside that equation, we have no choice other than to follow it.” (382 So.2d at 715).

What the Court overlooked and what the parties failed to call to the Court’s attention in briefs, oral argument, and the petition for rehearing was that the legislature had acted and had changed that equation in Chapter 78-339,1978 Fla. Laws, codified at 61.08(2), Florida Statutes (1978). That statute provides as follows:

“(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of both parties.
(d) The financial resources of each party.
(e) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.
The court may consider any other factor necessary to do equity and justice between the parties.”

By the time the Court took note of Chapter 78-339, it had lost jurisdiction of Cornelius to the Supreme Court. We welcome the opportunity to revisit the issue and to correct our earlier oversight.

In view of § 61.08(2), we find that the trial court did not abuse its discretion in the award of the acreage, the home, and the household furnishings. The other issues raised by appellant are without merit.

AFFIRMED.

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

ON PETITION FOR REHEARING DENIED

MILLS, Chief Judge.

In his petition for rehearing appellant again, as he did in his initial argument, focuses his claim on the question of propriety of the trial court’s award of certain property to the wife on the basis of special equity and fails or refuses to concede that the judgment appealed awarded the property as lump sum alimony because of the wife’s special equity.

It is, as the Supreme Court recently pointed out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla., 1980), unfortunate that the courts in this state have used the term “special equity” both in identifying vested property interests of marital partners and in justifying awards of lump sum alimony. The mere fact, however, that a final judgment uses the term “special equity” when the record does not establish a vested property right does not invalidate the award. Note, for example, the result in Duncan v. Duncan, 379 So.2d 944 (Fla., 1980).

In support of his petition for rehearing, petitioner urges that a review of the final judgment at issue here reflects that prior to the language awarding the property, the trial judge recites facts in support of the vested-property-right meaning of the term “special equity.” Although it is true that in the relevant section of the final judgment the judge does find that one-half of the land at issue was given to the parties by the wife’s parents and one-half was purchased from her brother, the judge also made findings of fact concerning the duration of the marriage; the number of children; the contribution of each party to the marriage relative to homemaking and child care, education and career building, and financial contributions to the family; and the use of the proceeds from mortgages taken on the jointly owned property. All of these factors are proper considerations in making an award of alimony.

Since we find that the award made by the judge was in the nature of lump sum alimony; that it was within his discretion under Section 61.08(2), Florida Statutes; and, furthermore, that our earlier decision is consonant with the cases recently announced by the Florida Supreme Court, we adhere to that decision.

The petition for rehearing is DENIED.

McCORD and BOOTH, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    ROMAR TRANSPORTS, LTD., INC., a Florida Corporation and Romar Transports, Ltd., a Foreign Corporation, Petitioners, v. IRON AND STEEL COMPANY OF TRINIDAD AND TOBAGO, LTD., a Foreign Corporation, Respondent.
    No. 79-1955.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Sept. 2, 1980.

      Craig B. Sherman of Broad & Cassel, Bay Harbor Islands, for petitioners.
    Frank J. Marston of Fowler, White, Burnett, Hurley, Banick & Knight, P. A., Miami, for respondent.
   GLICKSTEIN, Judge.

Petitioners, Romar Transports, Ltd., Inc., a Florida corporation, and Romar Transports, Ltd., a foreign corporation, bring this timely petition for writ of certiorari to review that portion of the trial court’s order which reads:

That Defendant’s Motion to stay this litigation pending arbitration in Trinidad be and the same is hereby granted.

Action was filed by petitioners against respondent, Iron and Steel Company of Trinidad and Tobago, Ltd., a foreign corporation, for breach of contract and for the reasonable value of services performed. The nature of the contract was the receiving, inspection, documentation, warehousing, loading, ocean freight and offloading of respondent’s cargo, originating in the United States and Canada, and being delivered to Trinidad.

Respondent filed no answer to the complaint and undertook no discovery but did file a counterclaim to recover property worth over $200,000 held by petitioners. Respondent sought to avoid waiver by asserting:

By the filing of this Counter Claim said Counter Plaintiff does not waive nor relinquish any rights which it has to arbitration and this Counter Claim is being filed solely for the purpose of obtaining possession of the property referred to.

Based on the counterclaim, the trial court issued an order to show cause and an order directing the clerk to issue a writ of replev-in. The writ was issued and the property was delivered to respondent.

Two days after obtaining the rule to show cause from the trial court, respondent filed a motion to dismiss or to stay proceedings pending arbitration, or in the alternative, to dismiss the complaint, based on clause 28 of the “General Conditions of Contract,” which provided:

CLAUSE 28 ARBITRATION

If any questions, difference, controversy, disagreement or dispute shall arise between the parties or with respect to the interpretation construction or application of. any clause or term in this Contract concerning the rights, duties, or liabilities of the parties, under this Contract or in any other way touching or arising out of this Contract the same shall be referred to the determination of two arbitrators, one to be appointed by each party to the dispute and an umpire to be appointed by the two arbitrators. The proceedings shall be in accordance with the Arbitration Ordinance of Trinidad and Tobago, Chapter 7, No. 1, or any statutory reenactment or modification thereof for the time being in force.

Petitioners unsuccessfully argued two points in the trial court: that respondent waived any right of arbitration by filing its counterclaim and that the “General Conditions of Contract,” were a separate, nonbinding document. In their petition for writ of certiorari, they again assert waiver and in their reply to response assert for the first time that the agreement to arbitrate is not enforceable in Florida.

Upon the point of waiver, clause 28 provided for arbitration of all controversies “touching or arising . . . out of their contract.” The subject of respondent’s counterclaim was such a controversy. The replevied property was in petitioners’ possession because of the contract. By filing a counterclaim, respondent waived its right to arbitrate. Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla. 1973), cert. denied 414 U.S. 1181, 94 S.Ct. 869, 38 L.Ed.2d 775 (1974). Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966). Moreover, as earlier pointed out, respondent obtained substantial affirmative relief based on the counterclaim.

Although the first point is dispositive of the case in favor of petitioner, a second issue raised by petitioner warrants discussion.

Petitioner contends that an arbitration agreement cannot be enforced in Florida unless the agreement providing for arbitration applies the Florida Arbitration Code. Knight v. H. S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973). Therein the court said:

Where it is stipulated that an agreement to arbitrate and its enforcement are governed by the laws of another state, such agreement does not comply with Chapter 682 and is not specifically enforceable in this state. 280 So.2d at 459.

In Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1975), the Supreme Court held:

. that an agreement to arbitrate future disputes in another jurisdiction is outside the authority of the Florida Arbitration Code, Chapter 682, Florida Statutes, and such a provision renders the agreement to arbitrate voidable at the instance of either party. 324 So.2d at 82.

Thus, it clearly appears that Florida has adopted the rule that a provision of a contract requiring arbitration pursuant to the laws of a foreign jurisdiction is not enforceable in Florida if either party objects prior to an arbitration award.

Unfortunately for petitioner, it did not urge upon the circuit court the foregoing rule as a basis for denying a stay in this cause so that there would be no foreign arbitration proceedings. Petitioner first raised the argument relative to the foregoing rule before this court during this certio-rari proceeding. Petitioner thus seeks to avoid the long-standing rule of appellate procedure that one may not argue on appeal that which was not presented to the trial court by suggesting that the question is one of fundamental error, or alternatively, that petitioner’s argument deals with subject matter jurisdiction. We reject both contentions. Although such an arbitration provision is not enforceable in Florida if either party objects, the unenforceability does not result from lack of subject matter jurisdiction over arbitration proceedings. Damora, supra, held that an agreement to arbitrate under the laws of a foreign jurisdiction is voidable. If the court lacked subject matter jurisdiction to enforce such an agreement the agreement would be void rather than voidable.

Therefore, in this proceeding in this court petitioner may not rely upon the rule that such a provision is unenforceable.

The petition for writ of certiorari is granted, and the order staying these proceedings pending arbitration is quashed.

DOWNEY and ANSTEAD, JJ., concur.


author: COBB, Judge.

text:
    Dr. Edward SWAN, Appellant/Cross-Appellee, v. Avery WISDOM, Appellee/Cross-Appellant.
    No. 79-1336/T4-604.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.
    Rehearing Denied Aug. 12, 1980.

      Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant/cross-appellee.
    Maurice Wagner of Wagner & Bertone, Holly Hill, for appellee/cross-appellant.
   COBB, Judge.

This is a medical malpractice action. Avery Wisdom was a twenty-nine-year-old man when he dislocated his right clavicle while playing football. He was treated by Dr. Swan, who repositioned Wisdom’s arm and stabilized it with a pin. The pin migrated and punctured the right lung. This caused blood and air to accumulate in the cavity between the lung and chest wall. Further surgery was required to drain the cavity.

At trial, the defense presented evidence that the pin fractured out of the bone while Wisdom was working on his truck without an arm immobilizer on his right arm, contrary to Dr. Swan’s instructions. The jury found Wisdom to be 90% negligent and Dr. Swan to be 10% negligent.

The standard jury instructions on personal injury damages found in Florida Standard Jury Instruction 6.2 were given. In accordance with Section 768.48, Florida Statutes (1977), the jury verdict form divided the possible damages to be awarded into: (1) past medicals, (2) future medicals, (3) lost income, (4) lost earning capacity, (5) past pain and suffering, and (6) future pain and suffering. Dr. Swan did not object to any of the jury instructions on damages or to any of the damages listed on the verdict form that went to the jury. He did object to the mortality tables, which went into evidence over his objection.

The jury’s awards of damages totaled $250,000.00. Dr. Swan moved for a new trial and for a remittitur. The trial court denied the motions and entered a judgment against Dr. Swan for $25,000.00 (10% of the total verdict) plus costs. Dr. Swan appeals the denial of his motions for new trial and remittitur. Wisdom moved to interview the jurors on the allegation that the jury got the liability percentages reversed. The trial court denied that motion. Wisdom cross-appeals. The cross-appeal is without merit and we affirm the denial of the motion to interview the jurors.

Mortality tables are not admissible in evidence in the absence of evidence of permanent injury. Seaboard Air Line R.R. Co. v. Ford, 92 So.2d 160 (Fla.1957); Atlanta & St. Andrews Bay Ry. Co. v. Pittman, 130 Fla. 624, 178 So. 297 (1938). We have examined the evidence on future damages and although it may have sustained an award for a continuing injury, we do not think the plaintiff carried the burden in showing permanency. Since there is no way to ascertain the extent to which the future damages awards may have been increased by the jury’s consideration of the plaintiff’s life expectancy, a new trial on damages rather than a remittitur is indicated. See Seaboard Air Line R.R. Co. v. Ford, supra. However, we do not think that a new trial should be limited only to damages. The pleadings and evidence raise issues so interrelating liability and damages that we think justice would best be served by a new trial on both liability and damages. See Remsberg v. Mosley, 58 So.2d 432 (Fla.1952); 1661 Corp. v. Snyder, 267 So.2d 362 (Fla. 1st DCA 1972).

The denial of the motion for new trial is reversed and this cause is remanded to the trial court for a new trial on all issues.

REVERSED.

FRANK D. UPCHURCH, Jr., J., concurs.

SCHWARTZ, ALAN R., Associate Judge, dissents without opinion.

      . The validity of this statute has not been challenged on this appeal by either plaintiff or defendant. But see, Article I, Section 2 and Article V, Section 2(a), Florida Constitution.


text:
    Laverne PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-79.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Rehearing Denied Aug. 27, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have read the briefs filed by counsel and reviewed the record and it appears to us that the trial court was presented with reasonable grounds to believe that appellant was not mentally competent to stand trial or be adjudicated in violation of her probation. Accordingly, the, trial judge should have granted the motion for continuance and, upon receipt of the report of the third psychiatrist appointed to examine appellant, the trial judge should have held an evidentiary hearing to determine if appellant was competent to proceed with a hearing on charges of violating her probation.

Accordingly, in accordance with the procedure suggested in United States v. Boca-Alvarez, 451 F.2d 843 (5th Cir. 1971), this cause is remanded for further proceedings. If, upon an evidentiary hearing, the trial court determines nunc pro tunc that appellant was competent at the time of the hearing on December 8,1978, then the adjudication and sentence appealed from shall stand affirmed. On the other hand, if the court determines the appellant was incompetent at the time of her probation violation hearing, then the adjudication and sentence should be vacated and the appellant dealt with according to law.

REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: NESBITT, Judge.

text:
    Jerome C. BERLIN, Appellant, v. Dawna Michele BERLIN, Appellee.
    Nos. 79-1722, 79-1723.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Rehearing Denied Aug. 28, 1980.
    Cypen & Nevins and Wayne Cypen, Miami Beach, for appellant.
    Brumer, Cohen, Logan & Kandell, P. A., and Kenneth R. Duboff, Miami, for appel-lee.
   NESBITT, Judge.

This is a consolidated appeal from a judgment entered on a petition for change of custody which transferred custody of two minor children from their father to their mother. We find error and reverse.

This is the second appearance of this case before this court. On April 10, 1979, this court affirmed an order changing custody of the minor children from the mother to the father. On April 23, 1979, the mother filed a petition for change of custody which alleged that: (a) there was “new evidence” and a “new status” since the previous modification award entered on January 18,1978; (b) she had “maintained a stable life”; (c) she had been evaluated by a psychiatrist who found her to be “normal, stable, and capable of caring for her children in a proper way”; (d) the best interests of the children would be served by returning them to the mother since the court had already determined in a prior hearing that the father was only to have temporary custody of the children; and (e) the children had expressed their preference to live with the mother.

HISTORY OF THE CASE

The parties’ marriage was dissolved by a judgment entered on February 8, 1974. That judgment incorporated a separation agreement which granted permanent custody of the children to the mother while reserving reasonable visitation rights for the father.

In April of that year, the mother moved with the children from Miami to a motel in Orange Park, Florida (a suburb of Jacksonville) where her family lived. This was the first in a series of relocations which the mother embarked upon, each time uprooting the children, which the trial court later found to have a detrimental effect upon them. The mother remained in Orange Park until early 1975 when she moved with the children to Colorado. In the summer of 1975, they returned to Miami where they stayed until September, at which point they again moved back to Orange Park. In June of 1976, they once again returned to Miami. The mother placed the children in day care centers while she worked.

In March of 1977, the mother learned of the father’s plans to remarry and, once again, moved back to Orange Park. The father filed an injunction to prevent the mother from moving the children to Orange Park during which proceeding the mother was examined by a court-appointed psychiatrist. This examination revealed that the mother had serious psychological and emotional problems. The psychiatrist directed the mother to a psychologist where she underwent psychotherapy. As a result of the proceedings and the results of the examination, the court ordered a modification of custody and visitation. Additionally, the court required the mother to reside in either Dade, Monroe, Collier, or Broward County and to receive psychotherapy at the father’s expense. In compliance, she moved to Bro-ward County.

The mother then engaged in a series of activities that displayed a vindictive effort to frustrate the father’s visitation rights. Ultimately, the father filed a petition to modify the custody rights which culminated in the order entered January 18, 1978 changing permanent custody of the minors to the father. That order appears to have been entered because of the mother’s mental health and because in the past she had effectively frustrated the father’s visitation rights and proposed to drastically curtail the father’s future visitation rights by moving to and living in the Jacksonville area. The mother was required to submit to additional psychiatric examination by a court-approved psychiatrist, apparently as a condition to the exercise of her visitation privileges.

THE MOTHER’S MENTAL HEALTH

The record demonstrates that the mother was seen by the court-approved psychiatrist on four occasions between January and June of 1978. At the final hearing, conducted on August 30, 1979, her court-approved psychiatrist testified, by way of deposition, that he could find no reason for her to continue psychotherapy based upon his evaluation of the mother as of February 2, 1978 (some two weeks after the order changing custody which required the mother to undergo psychotherapy and nineteen months prior to the final hearing). The remaining visits to the court-approved psychiatrist were made by the mother to comply with the court’s order.

The court-appointed psychiatrist, who had also examined the parties, testified at the final hearing that there had been no change in the mother’s mental health. His observations were also based upon documentary evidence generated through her court-approved psychiatrist. Like our colleagues in Ashleman v. Ashleman, 381 So.2d 364 (Fla.4th DCA 1980), we find the circumstances here strongly suggest that a current psychiatric evaluation of the mother would have been in order. Nonetheless, we accept as an established fact that the mother’s mental health was normal.

THE MOTHER’S STABILITY

At the final hearing, the mother testified that her attitude had changed because she had learned to cope with stress. She also testified that she was employed weekdays between the hours of nine and five as a controller of a motel in Orange Park; that she had joined organizations, made friends, and was beginning to date; and that she desired to care for the children.

THE PREFERENCE OF THE CHILDREN

At the time of the underlying evi-dentiary hearing, the parties’ son was ten years old and their daughter was eight. Neither of the children appeared in court. The mother’s court-approved psychiatrist testified, through deposition, based upon conversations with the mother, that the children desired to live with her. The court-appointed attorney ad litem for the children also reported that the children preferred to live with the mother. However, the court-appointed psychiatrist, as well as the children’s attending psychiatrist, testified that the children were not of sufficient maturity and wisdom to make an intelligent choice between their parents. A child must be of sufficient intelligence, understanding, and experience to express preference for a custodial parent. § 61.13(3)(i), Fla.Stat. (1979). Only the desire of a child mature enough to make a reasonable choice between competing custodial parents is entitled to any weight. Marshall v. Reams, 32 Fla. 499, 14 So. 95 (1893); Goldstein v. Goldstein, 264 So.2d 49 (Fla.3d DCA 1972).

FRUSTRATION OF THE MOTHER’S VISITATION RIGHTS

In the order appealed from, the court found that both parties exhibited an intransigent behavior with respect to the visitation rights of the other. In particular, the court found the father had denied the mother reasonable visitation with the children on one occasion when he unexpectedly took them on a two-week holiday to Switzerland. The only other support in the record for a showing of frustration of the mother’s visitation rights was the testimony by the maternal grandmother (who also lived in Orange Park) that the children seemed oblivious to her during visitation when formerly they had enjoyed a close relationship.

During the twenty-month interval between the separate custody orders involved, the mother rarely visited the children in Miami. She admitted that she and the father did not discuss the children. She was aware that the children were seeing a psychiatrist but had not attempted to contact him about the children’s mental health or progress.

A custodial parent’s frustration of visitation rights of the noncustodial parent may warrant a change in custody where there are aggravating circumstances, such as: alienation of affection, Brust v. Brust, 275 So.2d 598 (Fla.1st DCA 1973); or where such frustration is accompanied by a vengeful attitude of the custodial parent, Stewart v. Stewart, 261 So.2d 864 (Fla.3d DCA 1972). No suggestion is made nor does the record disclose such aggravating factors in this case.

THE BEST INTERESTS OF THE CHILDREN

Of all the criteria prescribed by Section 61.13(3), Florida Statutes (1979), the best interests of the child, is the polestar in a child custody dispute. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Although there is a paucity of evidence of other relevant factors which are needed to support a change in custody, the trial court’s finding and ruling that: “there had been a material and substantial change of circumstances” since the entry of the order on January 18, 1978, which would benefit the children, is unsupported by the record. There is no direct testimony in this record to show that a change in custody from the father to the mother will promote the best welfare and interests of the Berlin children. Sayward v. Sayward, 43 So.2d 865 (Fla.1949); Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (Fla. 1947); Adams v. Adams, 385 So.2d 688 (Fla.3d DCA 1980); Walfish v. Walfish, 383 So.2d 274 (Fla.3d DCA 1980). The only evidence this record demonstrates in support of a substantial change in circumstances arises inferentially from the mother’s normal mental health and stability. That inference, standing alone, falls far short of a showing of substantial or material change in circumstances which will directly inure to the benefit of the children.

In awarding custody, “the father of the child[ren] shall be given the same consideration as the mother . . . ,” Section 61.-13(2)(b), Florida Statutes (1979), except where the children are of tender age, Dink-el v. Dinkel, supra. A trial court does not enjoy the same degree of discretion when modifying custody as it does in awarding custody in the initial decree. Jacobs v. Ross, 304 So.2d 542 (Fla.3d DCA 1974); Frye v. Frye, 205 So.2d 310 (Fla.4th DCA 1967).

In this case, the trial court made findings which directly contravened its order when it found:

The Court has heard the testimony of the children’s school teachers as well as the custodial father and his present wife. From their testimony, the Court finds that the children are well adjusted, at home and in school with excellent grades.

As confirmed by the previous opinion of this court, the evidence before the trial court demonstrated that the children were thriving in the father’s custody and that they had adjusted to and become engaged in cultural, religious, and athletic activities with other children outside the home. The court-appointed psychiatrist testified that the children needed a constant, consistent environment and that continuity with their father and stepmother was fulfilling that need. The children’s psychiatrist testified that it was becoming increasingly important for the boy to be with his father at his particular stage of development. He further testified that to uproot the children would be extremely disruptive. He told the court that the children had become attached to the new baby born to the father and their stepmother. Although the mother took issue with the testimony, she did not present any evidence at trial to contravene it.

Moreover, the mother made no showing that the children’s need for frequent and regular contact with the father had diminished or that that demand could be met by moving the children to Orange Park. There was no showing that the father’s custody of the children was unsatisfactory in any way; nor was there any showing made that a change of custody from the father to the mother would directly inure to the benefit of the children. The most suggestive evidence the mother could muster to fault the custodial father was his lack of discipline of the children. Otherwise, she admitted the children had a good relationship with their father and stepmother.

The mother also attempted to fault the father by showing that while under his custody the children were being over-medicated with Mellaril by their attending psychiatrist. The evidence demonstrated that the children were receiving small doses of Mellaril but there was virtually no evidence that it had any adverse effect upon them. Furthermore, the psychiatrist, previously engaged by the mother when she was the custodial parent, testified that some type of psychiatric intervention was indicated for the children. The mother failed to present evidence which would indicate that the father’s custody and care of the children was detrimental to their well-being.

CONCLUSION

We are not unaware that the trial judge was in a superior position to observe the parties and their witnesses and feel the forces and powers and influences that cannot be discerned by the reading of the cold record. Grant v. Corbit, 95 So.2d 25 (Fla.1957). Nonetheless, when the statutory criteria enumerated for determining child custody, as prescribed by Section 61.13(3), Florida Statutes, are assayed against the record, it becomes clear that the trial court’s order was not supported by competent, substantial evidence to show that there had been a substantial or material change in circumstances. Adams v. Adams, supra; Walfish v. Walfish, supra.

In this case, the twenty-month interval in which the children had been with their father (a time when they rapidly developed, both physically and emotionally, and established close ties with their father and stepmother), militated strongly in favor of continuity of that relationship. § 61.-13(3)(a) and (d), Fla.Stats. (1979).

Again, we stress that upon the most critical factor in a custody proceeding; i. e., the best interests of the children, there was virtually no direct testimony presented by the mother to support her defense of the order changing custody. At most, there is an inference which arises in her favor, based on her normal state of health and stability. There is then an absence of competent, substantial evidence to show that a change in custody would promote the best interests and welfare of the Berlin children. Bennett v. Bennett, 73 So.2d 274 (Fla.1954); Belford v. Belford, supra; Adams v. Adams, supra; Walfish v. Walfish, supra; Sanders v. Sanders, 376 So.2d 880 (Fla.1st DCA 1979).

Accordingly, the judgment modifying custody, entered August 30, 1979, is reversed; the order awarding permanent custody to the father, entered January 18, 1978, is reinstated.

Reversed.

      . Berlin v. Berlin, 369 So.2d 434 (Fla.3d DCA 1979).

      . Allegations with respect to a temporary custody award to the father were subject to a motion to strike. On the father’s cross-appeal presented in the first appearance of this case (see note 1), this court determined that the trial court was without jurisdiction to modify the previous order of January 18, 1978 and award temporary custody to the father without that issue being raised by the pleadings or new evidence.

      . See note 1.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Spencer Denis STOLPEN, Appellee. STATE of Florida, Appellant, v. Randy DE LUCA, Martin Taccetta and Daniel Ricciardi, Appellees. STATE of Florida, Appellant, v. Victor DAVANZO and Henry Santa Lucia, Appellees. STATE of Florida, Appellant, v. Dario HERRERA, Appellee.
    Nos. 79-753, 79-834, 79-929 and 79-981.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Rehearing Denied Aug. 27, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert J. O’Toole, Fort. Lauderdale, for appellee, Spencer Denis Stolpen.
    Kerry J. Nahoom, Fort Lauderdale, for appellees, De Luca, Taccetta and Ricciardi.
    Sheldon Golding, Fort Lauderdale, for ap-pellees, Davanzo and Santa Lucia.
    Miguel Del Aguila of Law Offices of Robert F. Garcia, Miami, for appellee, Herrera.

       Not participating in oral argument.

   BERANEK, Judge.

This is an appeal by the State from an order granting appellees’ motions to suppress oral and wire communications. The content of these communications were seized by the State pursuant to a prior wiretap authorization. We affirm.

In pursuing an investigation surrounding a conspiracy to smuggle marijuana, the State applied to the Circuit Court for a wiretap authorization. The wiretap authorization was issued on the basis of a police officer’s affidavit. The primary basis for the authorization was a prior wiretap allegedly ordered by a trial court in the State of New Jersey in criminal proceedings there. The affidavit supporting the Florida application stated that the New Jersey court order was attached as an exhibit. In fact, the New Jersey court order was not attached as an exhibit. Instead, through an admitted error, an application for a tap on some different phone in the State of New Jersey was attached.

After the Florida tap was authorized and certain conversations recorded, the defendants moved to suppress on grounds that probable cause had not existed to issue the tap authorization in the first place due to the absence of the New Jersey court order. The trial court granted the motion to suppress after a hearing in which the State conceded that the New Jersey court order had mistakenly been omitted from the application. The State called no witnesses at the hearing on defendants’ motion to suppress and merely argues on appeal that the mistake was inadvertent. We do not find anything in the record on the question of inadvertence and certainly, after admitting the mistake, it was the State’s burden to show how it occurred and to cure what is now urged to have been a clerical error.

There is no evidence regarding how or why the mistake occurred. At no time has the State ever introduced the New Jersey court order in question. To this date; we are not aware that such an order even exists. There was more than adequate evidence presented by appellee before the trial court that the initial issuing judge would have ruled differently if the mistake as to the exhibit had been pointed out.

We conclude that the Florida wiretap authorization was based on the New Jersey Court order. The affidavit erroneously stated this order was attached. Since the record does not even reflect the existence of such an order, the trial court properly suppressed the evidence seized pursuant to the authorization. See Hudson v. State, 368 So.2d 899 (Fla. 3d DCA 1979), cert. denied 378 So.2d 345 (Fla.1979). This situation is to be distinguished from State v. Brainard, 376 So.2d 864 (Fla. 2d DCA 1979), where the missing information had little to do with the substance of the affidavit, and State v. Buffa, 347 So.2d 688 (Fla. 4th DCA 1977), where a one digit error in a defendant’s street address was held to be insufficient. Here, the New Jersey court order was crucial to issuance of the authorization.

The evidence presented at the hearing on the motion to suppress adequately supports the trial court’s finding that the documentary basis before the issuing judge was insufficient to establish probable cause. Thus, the motion to suppress was properly granted and the trial court’s ruling is affirmed.

AFFIRMED.

LETTS, C. J., and SIMONS, STUART M., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Jerry L. WRIGHT, Appellee.
    No. 79-2379.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Rehearing Denied Aug. 27, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Donald A. Wich, Jr., of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellee.
   PER CURIAM.

Appellee, charged with committing an armed robbery, filed a sworn motion to dismiss. The state filed the following traverse to the motion:

1. The State specifically denies that there are no material disputed facts in this case.
2. The State specifically denies paragraph two (2) of Defendant’s Sworn Motion to Dismiss and further states and alleges that paragraph two (2) is a self-serving statement and that the question of intent is a factual question for jury determination.
3. The State specifically denies paragraph three (3) and further states and alleges that Defendant was a participant in the robbery and did flee with the Co-Defendant after the robbery took place. The State further alleges that paragraph three (3) is a factual question for jury determination.
4. The State specifically denies paragraph four (4) of Defendant’s Sworn Motion to Dismiss.

The trial court granted the motion to dismiss and this appeal ensued.

We reverse the order granting the motion to dismiss. Rule 3.190(d) of the Florida Rules of Criminal Procedure requires only that the traverse deny, with specificity, the material facts alleged in the motion to dismiss. Here the material facts stated in the motion to dismiss are specifically denied. “If material factual allegations of a (c)(4) motion are denied or disputed in the traverse, denial of the motion to dismiss is mandatory.” State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980).

The order is therefore reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Irene BROWN, Appellant, v. Kenneth SORENSEN, Secretary, Broward Correctional Institution, Appellee.
    No. 80-551.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Rehearing Denied Aug. 27, 1980.
    Stephen J. Press, and Alexander J. Rer-ing, Lighthouse Point, Legal Aid Service of Broward Co., Inc., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon the authority of Swarez v. Wainwright, 363 So.2d 833 (Fla. 1st DCA 1978).

LETTS, C. J., BERANEK, J., and WES-SEL, JOHN D., Associate Judge, concur.


text:
    Aldo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1303.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Aug. 25, 1980.
    Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971), approved and adopted by the Supreme Court of Florida at 273 So.2d 753 (Fla.1972); Albo v. State, 379 So.2d 648 (Fla.1980); Horton v. State, 375 So.2d 1112 (Fla. 3d DCA 1979).


author: BASKIN, Judge.

text:
    Hector Jose RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1566.
    District Court of Appeal of Florida, Third District.
    July 30, 1980.

      Harlan Street, North Miami and William S. Isenberg, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

In this appeal from defendant’s conviction for unlawful possession of cocaine, we are asked to determine whether the evidence presented at the non-jury trial was sufficient to support that conviction. We find the trial judge erred in his assessment of the evidence. Accordingly, we reverse the defendant’s conviction.

Defendant and his brother were driving in two cars, one following the other, when defendant’s brother was stopped by a police officer for driving with an expired tag. Defendant stopped his car nearby and raised the hood. Defendant’s brother received permission to walk over to defendant and the two conversed in Spanish until stopped by the police officer. At this point, the police officer noticed that the defendant’s car had an invalid temporary tag. Neither defendant nor his brother could produce valid driver’s licenses or registration papers. On the front seat of the car driven by the defendant’s brother was an attaché case. Both men denied ownership of the attaché case and said they had never seen it before.

The two brothers were then placed under arrest for traffic violations and taken to the police station where they again denied knowledge or ownership of the case. The police opened the case with a screwdriver noting defendant’s initials, HJR, on the corner of the case. Inside the case, police found: the cocaine on which the charge was based; emeralds defendant eventually acknowledged to be his; defendant’s American Express card and passport; and a card and identification belonging to defendant’s brother. The case proceeded to non-jury trial and the court found .the defendant guilty of unlawful possession of cocaine.

In order to convict defendant Ramirez, who did not have actual exclusive possession of the cocaine, the state was required to prove that defendant had constructive possession of the cocaine in the attaché case. Constructive possession is based upon knowledge of the presence of the drug coupled with ability to maintain or exercise control. Medlin v. State, 279 So.2d 41 (Fla. 4th DCA 1973); Briggs v. State, 262 So.2d 451 (Fla. 3d DCA 1972). Both elements must be proved.

Facts which establish knowledge on the part of the defendant are: that defendant was driving in tandem with his brother’s car containing cocaine; the attaché case in the brother’s car contained defendant’s passport, American Express card, and emeralds defendant admitted were his; and defendant admitted the case was his while denying knowledge of it at the scene. The state has failed to prove, however, whether defendant knew of the contents of the case prior to the conversation he had with his brother after the police stopped him. The state has failed to prove defendant knew of the cocaine at the time the cocaine was put into the attaché case.

Absent also is proof that defendant had the ability to exercise or maintain control of the cocaine. Defendant was travelling in a separate car; the cocaine was not only in a different car, it was also in a locked case. The state did not establish that defendant had any means of opening the case. The state, therefore, failed to prove a material element necessary to establish constructive possession. Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979); Falin v. State, 367 So.2d 675 (Fla. 3d DCA 1979); Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972). The state failed to prove defendant guilty of the offense charged beyond and to the exclusion of every reasonable doubt.

In view of our disposition of this question, we need not reach other issues raised on appeal.

The judgment below is, therefore, reversed and the cause remanded with directions to discharge the defendant.

Reversed and remanded.


text:
    DEEL COMPANY LIMITED, etc., Appellant, v. Theodore JENDRY and Henry Kluhy d/b/a K Construction Company, Appellees.
    No. 79-2165.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Underwood, Gillis, Karcher, Reinert & Valle and David P. Karcher, Miami, for appellant.
    Philip Auerbach, Greene & Cooper and Marc Cooper, Miami, Jesse W. Miller, Hialeah, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Wood v. Camp, 284 So.2d 691 (Fla.1973); The Improved Benevolent & Protected Order of Elks of the World, Inc. v. Delano, 308 So.2d 615 (Fla. 3d DCA 1975).


text:
    CITY OF MIAMI, Appellant, v. Lidia MALDONADO and Idelfonso Maldonado, her husband, Appellees.
    No. 79-1864.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      George F. Knox, Jr., City Atty. and Mik-ele S. Carter and Steven A. Edelstein, Asst. City Attys., for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by the City of Miami from a final judgment entered pursuant to a jury verdict in the amount of $8,000.00 in favor of plaintiff, Lidia Maldonado. The judgment arose out of her suit against the city in which it was alleged that it negligently allowed a piece of metal to protrude from its sidewalk causing plaintiff to fall and break her arm.

Appellant contends that the trial court erred in, (1) denying it the right to mention Dade County ordinances giving the county exclusive jurisdiction. over traffic control devices (2) refusing to instruct the jury concerning the existence of such ordinances, (3) failing to allow the jury to determine whether the metal “stub” was a traffic device and (4) striking answer to interrogatory which referred to the county’s responsibility over traffic control devices.

We have carefully considered the record, briefs and arguments of counsel in the light of the several grounds relied upon for reversal by appellant and have concluded that the rulings of the trial court challenged by appellant do not on the record and under the law constitute reversible error.

Therefore the judgment appealed is affirmed.

Affirmed.


text:
    James HAMPTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-936.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal and Andrew Kassier, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that: (1) the trial court improperly admitted in evidence a statement made by the defendant to the police while under arrest as it was fatally tainted by prior statement made by the defendant to the police, which latter statement was properly suppressed by the trial court under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Harney v. United States, 407 F.2d 586 (5th Cir. 1969); and (2) the above error, however, was harmless in the context of this case because (a) the improperly admitted statement was exculpatory in nature, (b) the improperly admitted statement was similar to a properly admitted statement of the defendant made prior to being taken into police custody, and (c) an unimpeached eye witness positively identified the defendant at trial as the perpetrator of the crimes for which he stands convicted. Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979); Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); § 924.33, Fla.Stat. (1979).

Affirmed.


text:
    Oleanga GIBSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1683.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Bennett H. Brummer, Public Defender and Clark D. Mervis and Alan R. Dakan, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The defendant appeals from a conviction entered on a nolo plea, in which the right to review the denial of his motion to suppress his confessions was specifically reserved. Under Brown v. State, 376 So.2d 382 (Fla. 1979), we are required to dismiss the appeal. As did the court in Brown, however, we direct that, after remand, the defendant shall be permitted to withdraw his plea and to plead anew, provided that the state does not establish that it has been prejudiced by the subsequent delay. See, Basten v. State, 382 So.2d 1362 (Fla. 2d DCA 1980); Pittman v.State, 382 So.2d 1227 (Fla. 2d DCA 1980); McCowen v. State, 381 So.2d 284 (Fla. 3d DCA 1980).

Appeal dismissed.


text:
    SUNRISE POINT, INC., Appellant, v. Jeffrey M. FARO and Carol M. Faro, his wife, Conald M. Ferraiolo: Thomas F. De Vita and Donna De Vita, his wife; Leon Doan and Joseph Doan, Appellees.
    No. 79-2033.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    David A. Freedman, Miami, for appellant.
    Charles J. Pasek, Miami, for appellees.
    Before BARKDULL and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962), cert. denied, 146 So.2d 378 (Fla.1962).


text:
    INTERNATIONAL CENTER OF the AMERICAS, INC., a Florida Corporation, Sol W. Meyerson and Bernice Ann Meyerson, Appellants, v. CHEMICAL BANK, a Banking Corporation, Appellee.
    No. 80-1089.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    See also, Fla.App., 384 So.2d 725.
    William J. Berger, Greene & Cooper, Miami, for appellants.
    Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is a companion case to International Center of the Americas, Inc. v. Chemical Bank, 384 So.2d 725 (Fla.3d DCA 1980) wherein we reversed a final judgment foreclosing a mortgage. The present appeal is from a deficiency judgment entered on supplemental complaint after entry of the final judgment of foreclosure. The reversal of the judgment in the primary case automatically entitles the appellants to reversal of the deficiency judgment. Southeastern Home Mortgage Company v. Old Republic Insurance Company, 239 So.2d 505 (Fla.2d DCA 1970); see also Sundie v. Haren, 253 So.2d 857 (Fla.1971).

The deficiency judgment is reversed.


text:
    Jesse F. DIAZ a/k/a George N. Feder, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1479.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Jesse F. Diaz, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that 'it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Ben D. WILDER, trading as Southland, Appellant, v. Aquilino FLORES, and Ronelujo Enterprises, Inc., Appellees.
    No. 80-204.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Ira M. Witlin, Miami, for appellant.
    Luis Fernandez, Miami, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Salter v. Knowles, 97 So.2d 138 (Fla. 2d DCA 1957); cf. National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964).