text:
    George McDONALD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-250.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Bennett H. Brummer, Public Defender and Gelber, Glass & Canal and Stephen A. Glass and John Lipinski, Sp. Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Hicks, 421 So.2d 510 (Fla.1982); Hoffman v. State, 397 So.2d 288 (Fla.1981); Gaines v. State, 406 So.2d 523 (Fla. 4th DCA 1981).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carlos Manuel DIAZ, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 82-308.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Samek & Besser, Miami, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellant.

      Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. See and Compare, State v. Spurting, 385 So.2d 672 (Fla. 2d DCA 1980); Crummie v. State, 367 So.2d 1106 (Fla. 3d DCA 1979); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).


text:
    Francis Robb FERGUSON, Appellant, v. Carmeline Agnes FERGUSON, Appellee.
    No. 82-526.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Gary N. Holthus, Miami, for appellant.
    Solomon & Mendelow, Miami, for appel-lee.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

The post-decretal order awarding attorney’s fees in this cause is affirmed upon a holding that: (a) the trial court specifically retained jurisdiction in the final judgment of marriage dissolution to set an attorney’s fee for the wife Carmeline Agnes Ferguson and determined thereby that the said wife was entitled to such a fee; and (b) the death of the wife subsequent to the entry of the above final judgment of marriage dissolution did not deprive the trial court of jurisdiction to take testimony as to the amount of the attorney’s fee owed and to enter the order appealed from. See Adler v. Adler, 418 So.2d 1007 (Fla. 3d DCA 1982); Becker v. King, 307 So.2d 855 (Fla. 4th DCA), cert. dism., 317 So.2d 76 (Fla.1975); see also Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA), cert. denied, 353 So.2d 678 (Fla.1977).

Affirmed.


author: FERGUSON, Judge.

text:
    STAR LAKE NORTH COMMODORE ASSOCIATION, INC., Appellant, v. Michael M. PARKER and Carmina M. Parker, his wife, Appellee.
    No. 82-551.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.

      Becker, Poliakoff & Streitfeld and Edward S. Polk and Alan Becker, Fort Laud-erdale, for appellant.
    Sheldon R. Rosenthal, Hollywood, for ap-pellees.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant’s Declaration of Condominium provides, inter alia:

16. Obligations of Members. In addition to obligations and duties heretofore set out in this Declaration, every condominum parcel owner shall:
N. Not allow any children under fourteen (14) years of age to reside on the premises except as permitted under the regulations established from time to time by the Association.

There is no showing here that any regulations have been established which would permit children to reside in the building.

Appellees moved into the condominium unit in 1975 with knowledge of the ban against small children. On February 7, 1981, a child was born to them and has continually resided in the unit in violation of the Declaration. Appellees’ sole defense to the complaint to enforce the age limitation provision of the Declaration of Condominium is that they began residing in the condominium under the mistaken belief they were physically unable to have children and therefore are innocent of any malicious motive or intentional or willful action to violate the Declaration of Condomi-num.

In holding the age restriction unenforceable against appellees, the trial court found:

5. Under White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979), a declaration of condominium containing a restriction against residency by children under a certain age is not constitutionally prohibited unless unreasonably or arbitrarily applied. In the present case, there is no allegation of arbitrary enforcement, nor has there been any evidence from which this Court can deduce that the restriction is being applied arbitrarily. This Court must, however, determine whether the restriction in question is necessary for the operation and protection of this Condominium Association, and whether the age restriction is reasonably applied to these Defendants. In making that determination, this Court has been guided by the analysis of the Fourth District in Monell v. Golfview Road Association, 359 So.2d 2 (Fla. 4th DCA 1978), and by Wilshire Condominium Association, Inc. v. Kohlbrand, 368 So.2d 629 (Fla. 4th DCA 1979).
6. In balancing the relative conveniences and equities of these parties, the Court finds that any good to be obtained by enforcement of Section 16(N) of the Declaration of Condominium would be wholly disproportionate to the harm which would be done to the Defendants. .. .

Neither of the cases relied upon by the trial court for guidance has any application to these facts. The Court in Monell v. Golfview Road Association, 359 So.2d at 2, applied the equitable principle “balancing of conveniences” to the classic situation where, allegedly, a party’s land improvements encroached technically and unintentionally on the land use rights of a neighbor. It was held that the Association’s construction of speed bumps on a roadway over which appellant had equal easement rights, and over his objections, rendered the road practically unusable. The Association was ordered to remove the speed bumps because the encroachments were both substantial and willful. The same court held reasonable a provision in the Declaration of Condominium which permitted purchasers of condominium units to keep small dogs which they owned at the time of purchase of the units, but prohibited replacement of the dogs “upon death or otherwise”. Wilshire Condominium Association, 368 So.2d at 630. Either case, though not on the point, is more supportive of appellant’s arguments. Even if it were appropriate to balance the equities — although in this case we think it is not — appellees’ violation of the age restriction limitation is not technical but substantial. The very purpose of provision 16(N) is to protect the “adult community” character of the facility. Further, as conceded, the rule prohibiting children under the age of fourteen is not arbitrary or capricious, either inherently or as applied.

White Egret Condominium, Inc. is dispos-itive of the issue raised by this appeal. It holds that age limitations or restrictions are reasonable means to accomplish the lawful purpose of providing appropriate facilities for the differing housing needs and desires of varying age groups. The showing that the birth of the child in this case was unexpected is not sufficient to justify not enforcing the restrictions. Appellees were required to demonstrate that the restriction was being enforced selectively or arbitrarily, or that as applied to them the restriction was oppressive, none of which is evidenced in the record before us.

Reversed.


text:
    Abbass KHONSARY, Appellant, v. John Mario PICCIOLO, Appellee.
    No. 82-579.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Manners, Amoon, Whatley & Tucker and James Whatley, Miami, for appellant.
    James H. Earnest, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Coleman v. Coleman, 191 So.2d 460 (Fla. 1st DCA 1966); Crudele v. Cook, 165 So.2d 424 (Fla. 3d DCA 1963).


text:
    The STATE of Florida, Appellant, v. Leonard CARNEY and Eugene Garcia, Appellees.
    No. 82-808.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.

      Jim Smith, Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and John H. Lipinski and Arthur E. Huttoe, Sp. Asst. Public Defenders, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

We affirm the order of the trial court granting appellees’ motion to suppress illegally obtained evidence.

On the points raised as error by the state we hold (1) the trial court’s finding of fact that there was no articulable suspicion to support the initial stop of the defendants is supported by the record and must be accepted. State v. Battleman, 374 So.2d 636 (Fla 3d DCA 1979), (2) neither the United States Supreme Court nor the Florida Supreme Court has yet recognized the so-called “good-faith mistake” exception to the rule which excludes as evidence any items or information illegally seized. Pesci v. State, 420 So.2d 380 (Fla. 3d DCA 1982) and, (3) the appellees’ grant of permission to “go aboard” his boat was not consent to conduct a detailed search of hidden compartments and containers. See Luxenbnrg v. State, 384 So.2d 742, (Fla. 1st DCA 1980); Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979); Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).

Affirmed.


text:
    ASSOCIACION FRATERNAL LATINOAMERICANA, INC. a/k/a Latin American Fraternal Association, Inc., Appellant, v. Angelina PEREZ, as personal representative of the Estate of Herminio Perez, deceased, on behalf of the Estate of Herminio Perez and his heirs, Angelina Perez, Richard Perez and Reinaldo Perez, Appellee.
    No. 82-1156.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Carlos M. Mendez, Hialeah, for appellant.
    Horton, Perse & Ginsberg, Gilmour, Morgan & Rosenblatt, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Atlantic Title Co., 158 So. 888, 118 Fla. 402 (1935); Ben-Hain v. Tacher, 418 So.2d 1107 (Fla. 3d DCA 1982); Damkohler v. Damkohler, 336 So.2d 1243 (Fla. 4th DCA 1976).


author: SHARP, Judge. DAUKSCH, Judge,

text:
    Jillette JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1463.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Jones argues there was not sufficient evidence to sustain the trial court’s judgment that he violated a condition of his probation by committing a sexual battery, kidnapping and robbery. We disagree and affirm.

At Jones’ probation revocation hearing, the evidence of his complicity in the sexual battery, kidnapping and robbery was primarily hearsay. However, some of the “hearsay” presented at this hearing consisted of Jones’ own statements which established his involvement in the crimes. Under the Evidence Code, sections 90.802 and 90.803, Florida Statutes (1981), admissions or declarations against interest are now labeled as “hearsay exceptions.”

It is well established, as Jones points out, that a revocation of probation cannot be based on hearsay testimony alone. But we cannot find any case which has so held where the defendant’s own admissions were used in evidence against him. Prior to the effective date of the Evidence Code in Florida, this court sustained the revocation of a defendant’s probation when the evidence establishing the probation violation was the defendant’s own admission made to his supervisor. Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980). In that case we said the defendant’s admission was not hearsay, citing Robinson v. Pepper, 94 Fla. 1184, 116 So. 4 (1928).

In Webb v. State, 392 So.2d 35 (Fla. 5th DCA 1980), this court also sustained the revocation of a defendant’s probation where the testimony offered in proof was the defendant’s own admission. This court did not expressly consider the effect of the Evidence Code’s definition of admissions as “hearsay” in Webb, although the Code was applicable to that case.

The rule requiring more than mere hearsay to sustain an order revoking a defendant’s probation was developed long before the effective date of the Evidence Code, and there is no indication that the Code’s mere labeling of “admissions” as “hearsay” was intended to have the result argued for by Jones in this case. In White v. State, 301 So.2d 464 (Fla. 1st DCA 1974), the court stated the rule as follows:

In other words, in order for a revocation judgment to be sustained there must have been adduced at the hearing evidence meeting the customary requisites of admissibility, exclusive of hearsay or other evidences not generally admissible under our rules of admissibility. (Emphasis supplied).

Id. at 465.

As demonstrated by Johnson and Webb, evidence which was admissible as an exception to the hearsay rule and which was valid substantive evidence, was always sufficient to sustain the revocation of a probation order. We think this principle continues to apply, even though such evidence may now be labeled a “hearsay exception” under the Evidence Code. Accordingly, the probation revocation judgment in this case is

AFFIRMED.

ORFINGER, C.J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

The evidence which was used to support the order revoking appellant’s probation was entirely hearsay evidence and a very equivocal “confession” to a deputy sheriff. There was no direct testimony from any witness to the crime; only a recapitulation by sheriff’s deputies about what the victim had said occurred and what statement the appellant had made during custodial interrogation. In my opinion this quality and quantity of evidence does not meet the standard of proof required by due process to support a felony conviction and a fifteen year prison sentence. I would reverse and remand for a proper, substantial hearing. Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977); Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977).

      . For example, the deputy testified that Jones told him the alleged rape victim “wanted to do it.” He also told the deputy where the victim’s stolen wristwatch was hidden, and he said Patrick Bryant was with him when the crimes took place.

      . See Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981) [Revocation apparently based solely on fact of arrest]; Clemons v. State, 388 So.2d 639 (Fla. 2d DCA 1980) [Probation officer’s testimony about what appellant’s employer had said]; Curry v. State, 379 So.2d 140 (Fla. 4th DCA 1980) [Revocation improper when based solely on third person hearsay reports of conduct]; Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977) [Only evidence of violation was police officer’s testimony regarding what a co-defendant had said]; Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977) [Only evidence of violation was supervisor’s statement that he had been informed of appellant’s arrest]; Wright v. State, 348 So.2d 412 (Fla. 2d DCA 1977) [Only evidence of violation of probation was supervisor’s statement regarding what someone had told him]; Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976) [Only evidence in violation of probation was contained in an unidentified written report]; Brown v. State, 338 So.2d 573 (Fla. 2d DCA 1976) [Probation improperly revoked solely on supervisor’s statement that he had been advised by unnamed advisor that appellant had been arrested and charged with burglary]; Turner v. State, 293 So.2d 771 (Fla. 1st DCA 1974) [Only witness’s testimony was based on what he had been told by a third person]; Hampton v. State, 276 So.2d 497 (Fla. 3d DCA 1973) [Nature of hearsay unknown]; Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969) [Hearsay that appellant, a minor, purchased alcoholic beverages with a fraudulent I.D. card],

      . Cf. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).


author: ORFINGER, Chief Judge.

text:
    Jillette JONES, Appellant, v. STATE of Florida, Appellee.
    No. 82-85.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The Public Defender moved to withdraw as counsel for defendant, citing irreconcilable conflict between defendant and a co-defendant represented by the same office. The trial court found that an irreconcilable conflict did exist, but ruled that the conflict could be cured if “both defendant and his co-defendant are represented by Assistant Public Defenders of the Fifth Judicial Circuit, as long as the Assistants work out of different counties within the Circuit.” Pri- or to trial, the Public Defender filed a written objection to his continued representation of defendant, and at trial again stated his objection on the ground that the court’s action denied appellant his Sixth Amendment rights to effective counsel. We reverse.

In Babb v. Edwards, 412 So.2d 859 (Fla.1982), the Supreme Court disapproved this procedure, holding that where a public defender determines that the interests of indigent co-defendants are so adverse or hostile that they cannot all be represented by him or by his assistants without conflict, the trial court shall, upon motion, appoint other counsel as provided by statute. Here, the court found conflict, based on the Public Defender’s motion, so it was necessary that other counsel be appointed. See also Foster v. State, 387 So.2d 344 (Fla.1980).

The judgment of conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


text:
    Anthony James JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1652.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of State v. Hicks, 421 So.2d 510 (Fla.1982) and Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982).

ORFINGER, C.J., and DAUKSCH and COBB, JJ., concur.


author: SHARP, Judge.

text:
    Curtis COLLINS a/k/a James Michael Collins, Appellant, v. STATE of Florida, Appellee.
    No. 81-64.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Collins appeals from a final judgment adjudicating him guilty of committing a robbery with a firearm and from the trial court’s denial of his motion for a new trial. We find no merit to appellant’s arguments for obtaining a reversal of his conviction. However, because of the cumulative effect of improper prosecutorial comment in the final argument, the inconclusive nature of the evidence identifying Collins as the person who committed the robbery, and the totality of the circumstances of this trial, we conclude that Collins did not receive an essentially fair trial. Therefore, his motion for a new trial should have been granted.

The appellant was charged by separate informations with robbing an ABC Liquor Store employee, Kevin Louis, on July 3 and July 17, 1981, and with using a firearm (shotgun) during the robberies. Pursuant to a motion by appellant the cases were consolidated for trial.

Louis and Hartman, the ABC employees who were robbed on July 3 and July 17, 1981, were unable to clearly identify Collins as the perpetrator of the crimes. They testified the assailant on July 3rd was about six feet tall, weighed 200 pounds, had long blond hair, and spoke with a southern accent. On July 17th, the assailant wore a mask, but otherwise appeared and sounded similar to the first robber. Both assailants ran or walked quickly away from the robbery scenes in a normal fashion, without any squeaking or clicking sounds, or limp. Lewis described the second robber as wearing a mask, a T-shirt, and jeans, and having a shotgun in hand.

Shortly after the second robbery, Collins was seen speeding on the Econolokahatchee Trail near the second robbery scene. When he ran a stop sign, sheriffs units gave chase and stopped and arrested him. He was wearing a blue shirt with a collar, no T-shirt, and jeans. He had short, dark brown hair. The police searched the car he was driving, and the highway along which the chase ensued, but found no trace of a shotgun, the money bag taken from the ABC employees, a T-shirt, or a mask. They did find in the back seat of the car sixty cents ($.60) and a pair of crutches.

Louis and Hartman were brought to the scene of the arrest. They said Collins had the same general build as the robber or robbers. Louis identified him as his assailant during both robberies because Collins has a distinctive southern accent. Hartman could not identify Collins as the robber and he testified there was nothing distinctive to him about the robber’s accent. After the trial Louis recanted his testimony identifying Collins as the robber. He was influenced by the fact that Collins had received a life sentence, and by his learning belatedly from McMurray, the manager of Sun State Prosthetics, the condition of Collins’ leg and prothesis in July 1981. A motion for new trial was made based on this recantation, but it was denied by the trial judge.

At the trial, McMurray testified that Collins is an amputee, having only four inches of bone below the knee on one leg. On July 3rd appellant came to his office, walking with a cane or crutch. The stabilizers had broken off Collins’ prosthesis, making it difficult to walk without assistance. McMurray observed that Collins’ stump was badly lacerated and in poor condition. He testified that due to the condition of Collins’ leg and prosthesis, his ability to walk unassisted was minimal, and his ability to run was “nil.” Collins did not get his new prosthesis made by Sun State until July 8, 1981. When walking with the prosthesis, there is a squeaking or clicking sound. Other witnesses testified that during July, Collins could not run without a marked limp or a very staggered gait.

At the close of the State’s case and after all the evidence was presented, Collins moved for a judgment of acquittal as to both robbery charges. The motions were not ruled on until after the prosecutor’s closing argument. Then, based on the prosecutor’s argument, the trial judge withdrew the first robbery from the jury's consideration and denied the motion for acquittal as to the second. These circumstances enabled the prosecutor to make a highly unusual closing argument which contributed to the unfairness of the trial. He magnanimously conceded that there was not sufficient evidence to convict Collins of the first robbery, and he asked the jury to return a not guilty verdict as to it. Yet he gave his personal opinion that the evidence was sufficient as to the second robbery, and bolstered it with references to the first robbery.

Finally, he told the jury if they were not satisfied with Collins’ explanation of why he was speeding on the highway on July 17th (he was going to visit his girl friend) and why he fled from the police (he had just been released from prison and was driving without a license), they should find him guilty.

None of the errors and failures of proof at trial alone would be persuasive, but their total effect convinces us there was here a miscarriage of justice that can only be remedied by requiring a new trial. We also think that without Louis’ recanted testimony, there would have been insufficient evidence to sustain Collins’ conviction for the second robbery. Only Louis linked Collins to the crimes. Collins’ general build, (which is not unusual for men in the general population), his southern accent (which is also commonplace for Central Florida) and his proximity in time and place to the crime scene, by themselves, were not sufficient to sustain his conviction. Therefore, the trial court should have ordered a new trial, when Collins made a motion based on Louis’ recantation of his key testimony.

REVERSED AND REMANDED FOR NEW TRIAL.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978).

      . Troop v. State, 98 Fla. 385, 123 So. 811 (1929).

      . Tibbs v. State, 397 So.2d 1120 (Fla.1981).

      . Collins made a motion for new trial after his conviction, and another one (which could have been deemed a petition for writ of coram nobis) after a witness recanted his trial testimony.

      .Appellant also argues for the first time on appeal this cause should be reversed because the robbery information failed to allege intent to permanently deprive the victim of his property. Bell v. State, 394 So.2d 979 (Fla.1981). We think the information was not fundamentally defective in this regard as it alleged Collins “did, in violation of Florida Statute 812.-13(2)(a), by force, violence, assault or putting in fear, take away from the person or custody of Kevin Louis certain property . ... ” Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

      .The prosecutor said:
      I want you to ask yourselves why did the defendant do what he did? Why did he do it when he did it? And why did he do it where he did it? And I want you to search your mind and your reason and the evidence in this case and to go back there and to ask yourselves if you have a satisfactory answer, founded on evidence in this case to explain that. And if you do, find him not guilty.
      And if you don’t, return a verdict that speaks the truth.
      Record at 436.

      . See Smith v. State, 379 So.2d 996 (Fla.5th DCA 1980).

      . Cf. Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982).


text:
    CLERMONT BUILDERS SUPPLY, INC., Appellant, v. GENERAL CONSTRUCTION & DESIGN, INC., et al., Appellee.
    No. 81-1046.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.

      Dennis L. Horton of Dennis L. Horton, P.A., Clermont, for appellant.
    Thomas P. Moran and Ralph C. Losey of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellee.
   SHARP, Judge.

Clermont Builders Supply, Inc., appeals from the trial court’s dismissing with prejudice four counts of a multi-count second amended complaint, and the court’s striking of any demand for attorney’s fees in one count which remained for further disposition. We affirm in part and dismiss the balance of the appeal.

Counts V, VI, VII and IX were directed against the defendant C & H Construction, Inc. Clermont sought to recover money due for goods and materials delivered to General Construction & Design, Inc. but used by C & H. Counts V, VI and IX were dismissed with prejudice. Count VII alleged a claim against C & H for an amount due on a stated account, to which the defendant did not object. It was not dismissed, but appellant’s demand for attorney’s fees in Count VII was stricken. It appears from the exhibits and the allegations of the complaint that each of these counts claimed recovery under different theories of the same amount due for the same goods delivered to General Construction and used by C & H.

Although not raised by appellee, we dismiss this part of the appeal sua sponte because it is clearly not an appeal from a final order under Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). As long as Count VII remains for disposition, we do not have jurisdiction to consider dismissal of the other counts concerning C & H Construction Company. North Indialantic Homeowners Association, Inc. v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980).

Only one count (Count VIII) of the second amended complaint was directed at the defendant, Antonio Huerta. It was dismissed with prejudice by the trial court, thereby dropping Huerta as a party from this lawsuit. Case law establishes this is an exception to the nonappealability of a partial final disposition of a case. Niesz v. Morgan Building, Co., Inc., 401 So.2d 822 (Fla. 5th DCA 1981). Accordingly, we reach the merits of the lower court’s dismissal of this count.

Count VIII alleged Huerta was liable to Clermont because he signed a guaranty agreement for C & H which was attached to the complaint as an exhibit. The document lacks language which expresses liability for materials delivered to General Construction in the past. It speaks only of materials to be delivered to C & H in the future. No allegation in Count VIII attempts to alter the impact of this clear language, and there is no doubt the materials in this case had been delivered to General Construction before the guaranty was signed. We therefore accept the trial court’s construction of the document, particularly since Clermont provided this guaranty form to C & H and Huerta for use in this transaction. Therefore, we affirm the part of this appeal dealing with Huerta and Count VIII.

AFFIRMED AS TO APPELLEE HUERTA; APPEAL DISMISSED AS TO AP-PELLEE C & H CONSTRUCTION, INC.; AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      .The guarantee contained the following language:
      We hereby authorize materials ordered by any authorized buyer listed above to be delivered to the job site without signature if no one is on the job to sign when delivery is made.
      In the event credit is extended to the firm making this application, whether it be a corporation, partnership, proprietorship or other entity, the undersigned person or persons, individually, hereby personally guaranties payment in full of all accounts due for materials purchased from Clermont Builders Supply, Inc. by the above-named applicant, and in case it becomes necessary to place his account in the hands of an attorney for collection, I (or we) agree to pay a reasonable attorney’s fee for making such collection.

      . Elmore v. Enterprise Developers, Inc., 418 So.2d 1078 (Fla. 4th DCA 1982).

      . Hurt v. Leatherby, Ins. Co., 380 So.2d 432 (Fla.1980) (ambiguities in a written instrument are generally construed against the drafter).


author: COBB, Judge. COWART, Judge,

text:
    Rudy JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1448.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON EN BANC RECONSIDERATION OF MOTION TO DISMISS

COBB, Judge.

The State of Florida moved to dismiss the instant appeal on the ground that the appellant’s notice of appeal stated it was:

... to review the Order, Judgment or Decree of the Circuit Court of Orange County, Florida, bearing the date of the 17th day of September, 1981, and rendered on the 17th day of September, 1981. The nature of the order appealed from is the Order of denial on motion to suppress ....

The appellant, Rudy Jones, had been charged with carrying a concealed weapon; his motion to suppress the revolver as evidence was denied by an order dated September 17, 1981. Thereafter, he pled nolo contendere to the charge, stating that he was:

... specifically preserving his right to appeal the motion to suppress which was denied ... at an earlier date after a hearing on the matter.

The trial court rendered its order withholding adjudication of guilt and placing the defendant on probation on December 17, 1981. The state argued that the appeal should be dismissed for lack of appellate jurisdiction because under Florida Rule of Appellate Procedure 9.140(b)(1), the denial of a motion to suppress is not an appealable order. As contended by the state, the appeal should have been from the court’s order granting probation.

The appellant, on the other hand, while acknowledging that technically he should have appealed the final order, argued Rule 9.040(d), which provides:

At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.

The appellant pointed out that the appeal was timely, and also relied upon the case of Simpson v. State, 418 So.2d 984 (Fla.1982), wherein the Florida Supreme Court urged that the courts of this state “should seek to avoid, not foster a hypertechnical application of the law.” This court denied the motion to dismiss without prejudice. Now, pursuant to a unanimous vote of the assigned panel acting on its own motion, we reconsider this issue en banc in order to eliminate any lack of uniformity in prior orders or decisions of this court concerning the issue of defective notices of appeal.

The basic rules to be considered in respect to the question of whether or not to dismiss a defective appeal, whether such consideration is prompted by motion of the adverse party or is made sua sponte, have been delineated by decisions of the Florida Supreme Court. The purpose of the notice of appeal is to disclose to an adverse party that an appeal from an appealable order, judgment or decree of the trial court is intended. Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977). The test for determining the sufficiency of a notice of appeal is whether it gives the adverse party and the appellate court sufficient information to identify with a reasonable degree of certainty the order or judgment intended to be appealed. Seaboard Air Line R. Co. v. Holt, 80 So.2d 354 (Fla.1955). The party seeking dismissal must allege and show some prejudice or inconvenience caused by the deficiency in the notice. Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla.1972).

Basically, we are in agreement with the observation in the majority opinion in the recent case of Puga v. Suave Shoe Corp., 417 So.2d 678 (Fla. 3d DCA 1982):

... [I]n accordance with the welcome policy that appellate, like other judicial proceedings, should be determined on their merits, instead of upon irrelevant technicalities, our supreme court has determined — by both its decisions and its enactment of the governing rules of appellate procedure — that non-jurisdictional and non-prejudicial defects in the notice or other steps in the appellate process are not grounds for dismissal.

Puga, 417 So.2d at 679. We also concur with the Puga opinion’s approval of the commentary on Florida Rule of Appellate Procedure 9.110(d), to the effect that “the Advisory Committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.”

Nevertheless, we cannot agree with the sweeping dicta in the Puga majority opinion which would amend or abrogate Rules 9.110(d) and 9.900(a), as pointed out by the concurring opinion of Chief Judge Hubbart in that case. The Puga case dealt with post-judgment orders denying a motion for new trial and a renewed motion for directed verdict. As pointed out therein, the preferred course is to treat such technical errors as harmless where the appellee has not been prejudiced by the error, and to consider the appeal as if it were from the underlying judgment. See State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967). As pointed out by Judge Hubbart’s concurrence in Puga, it is “well-established Florida law that a notice of appeal, together with the supporting record, must reveal an intent to appeal from a particular appeala-ble trial court order — as opposed to a generalized intent to appeal something upon the filing of a notice of appeal and the payment of a filing fee.” See also Milar Galleries, Inc.; Robbins v. Cipes, 181 So.2d 521 (Fla.1966).

We believe that the same principles and the same reasoning that apply to notices of appeal erroneously designating a non-appealable post-judgment order rather than the underlying judgment should apply equally to pre-judgment orders where there is no prejudice to the appellee, and the notice, coupled with the supporting record, reveal the intent of a noticing party to appeal from an appealable order or judgment. In the instant case it is clear that the appellant seeks review of the final judgment resulting from his nolo conten-dere plea while reserving for appellate review the legal issues raised by the denial of his previous motion to suppress. No prejudice has been shown or claimed by the state.

In response to the dissent’s ad hominem indictment of this majority view on grounds of “intellectual integrity,” we merely observe that judicial integrity requires recognition of the doctrine of stare decisis (i.e., the decisions of the Florida Supreme Court are binding on this court) and Rule 9.040(d), which was promulgated by the Supreme Court. Moreover, it is intellectually inescapable that all parties to the instant appeal understood that the defendant’s plea, which terminated the proceedings below, was intended to facilitate an appellate determination on the merits of the issues raised by the trial court’s denial of the suppression motion. Disagreement with Judge Cowart does not reflect, ipso facto, a lack of integrity.

At this time we expressly do not consider the difficult related problem presented by a purported appeal from a non-judicial act, and do not reaffirm or recede from that line of cases represented by our recent decision in McAllister v. State, 418 So.2d 1203 (Fla. 5th DCA 1982). We also note, of course, that the principles discussed in this opinion do not relate to purported appeals wherein the notice of appeal is untimely.

Accordingly, upon en banc reconsideration of the state’s motion to dismiss, the same is

DENIED.

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

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I cannot agree that a notice of appeal filed on November 12, 1981, and clearly describing an “order of denial on Motion to Suppress” dated and rendered September 17, 1981, is a timely and proper notice of appeal of an “Order Withholding Adjudication of Guilt and Placing Defendant on Probation” dated October 26,1981, and rendered December 17, 1981, nor that it complies with the appellate rules requiring the notice of appeal to be filed within thirty days of rendition of the order to be reviewed and to contain the date of rendition and the nature of the order to be reviewed. This appeal is patently an appeal from a non-appealable order and is untimely both as to the non-final order which appellant erroneously seeks to have reviewed and as to the order granting probation which is appealable under Rule 9.140(b)(lXB). Under any fair statement of the principle of the majority holding any notice of appeal filed which describes a non-appealable order is sufficient any time later as to the next appealable order or judgment rendered in that case. I cannot go that far.

Certainly it is good policy that all judicial proceedings should be determined on their merits, but I do not consider rules adopted pursuant to the exclusive authority given by the Florida Constitution to the Florida Supreme Court to “adopt rules for the practice and procedure in all courts including the time for seeking appellate review” to be “irrelevant technicalities.” Puga v. Suave Shoe Corp., 417 So.2d 678, at 679 (Fla. 3d DCA 1982) (quoted with approval in the majority opinion). To me, it is not a question of whether the notice of appeal is effective or erroneous or whether such defects and errors are grounds for dismissal; rather, it is a matter of jurisdiction of this court and of intellectual integrity.

The Florida Constitution provides that district courts of appeal have jurisdiction to review interlocutory orders to the extent provided by rules adopted by the supreme court. Notwithstanding this provision, that court has not provided for direct review of interlocutory (non-final) orders by defendants in criminal cases. Therefore, we lack jurisdiction to entertain the instant appeal. However, the rules do permit that a defendant may appeal from an order granting probation entered upon a plea of nolo contendere expressly reserving the right to appeal a prior interlocutory non-final order. It is obvious to all that this is what appellant’s trial counsel should have done; but what trial counsel should have done or “intended” to do is not the issue. Obviously, defense counsel always intends to do what is necessary to have the appellate court review “something,” and from the defendant’s initial brief the State can sufficiently figure out what that “something” is in order to file an answer brief; hence there may never be prejudice or harm to the state from the failure of a defendant in a criminal case to identify in his notice of appeal a particular appealable trial court order. Determining jurisdiction should be a simple, clear task based on concrete facts; whether or not this court has jurisdiction in a particular case should not depend on such an obscure and nebulous matter as trial counsel’s “intent.”

Since defense counsel so clearly described the order denying the motion to suppress in the notice of appeal, it is obvious that order is what he intended to, and attempted to, appeal. If counsel intended to appeal from the order granting probation, it is obvious that is not what he did. The notice of appeal in this case does not contain a “nonprejudicial defect” (Paga, 417 So.2d at 679) or a harmless technical error as it is called in the majority opinion. In fact, the notice of appeal is neither defective, nor erroneous; it is in the form prescribed by rule 9.900(a) as is required by rule 9.110(d). However, in substance, the notice of appeal is insufficient to commence an appeal and insufficient to invoke the jurisdiction of this court because it clearly identifies “the order to be reviewed” and that order is a non-ap-pealable interlocutory order in a criminal case and this court has no jurisdiction to be invoked to review that order. Frankly, the discussion of a “non-prejudicial defect” and a “harmless technical error” constitute but skillfully contrived and written arguments to direct attention away from the real issue of jurisdiction. Whether or not we agree or disagree with the rules, and regardless of our sympathy for the plight of a client whose lawyer has struck out, we should keep the playing field level and make an honest call on each play.

This case is but another example of the trend of appellate courts to not require criminal defendants to follow rules of practice and procedure for various philosophical reasons. A well-known lawyer once wisely said, “The best way to get rid of a bad law is to strictly enforce it.” I believe that also applies to court rules of practice and procedure. If notices of appeal serve no purpose and utter failure to comply with rules requiring them is harmless and non-prejudicial, then the rule should be abolished and replaced by a rule that can be held to mean what it says without the necessity of torturing or twisting the truth as to the contents of any particular notice or other paper. Until the supreme court changes the rule, district courts ought to fairly follow it so that from their decisions the wisdom of the rule itself, or the need to revise it, will become apparent to those who have the proper authority to change it.

      .Fla.R.App.P. 9.110(b) and (d).

      . Art. V, § 2(a), Fla. Const.

      . Art. V, § 4(b)(1), Fla. Const.

      . See Fla.R.App.P. 9.130(a)(2) and 9.140(b); cf. R.J.B. v. State, 408 So.2d 1048 (Fla.1982) (where juvenile attempted to appeal interlocutory order in juvenile criminal case, court specifically noted it had the authority to allow such an appeal, but had declined to do so).

      . Fla.R.App.P. 9.140(b).


text:
    Lynn Edward RIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1525.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982).

ORFINGER, C.J., and DAUKSCH and COBB, JJ., concur.


author: COWART, Judge.

text:
    TUCKER CONSTRUCTION COMPANY, Appellant, v. MICHIGAN MUTUAL INSURANCE COMPANY, United States Fidelity and Guaranty Company and Michigan Mutual Insurance Company, et al., Appellees.
    No. 81-1608.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.

      Lee S. Damsker of Maney & Damsker, Tampa, for appellant.
    Lamar D. Oxford and Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellee Michigan Mut.
   COWART, Judge.

This case involves the construction of a comprehensive general liability insurance policy.

Appellant, a general contractor and the insured under the insurance policy in question, contracted with a property owner to construct a building on State Road 17-92 south of Sanford, Florida, known as Judy’s Restaurant. Appellant hired a soil testing firm which conducted soil borings on the proposed building location, reported its findings and recommended that the building foundation be built on pilings. Due to zoning regulations the building was actually constructed fifty feet west of the originally proposed and tested location.

Prior to construction, appellant purchased a general liability insurance policy with United States Fidelity and Guaranty Company (USF & G) and that policy provided coverage until February 23, 1979, although the restaurant was completed in October of 1978. Thereafter, on April 2, 1979, appellant obtained from appellee Michigan Mutual Insurance Company the comprehensive general liability insurance policy now in question.

The problem in this case arose when, after completion, the floor began to settle. Appellant, general contractor, blamed the construction defect on its subcontractor, the soil testing firm, which disputed its responsibility on the basis that the general contractor had placed pilings only under the foundation under the walls and not under the floor slab and because the building had not been constructed over the tested site. Some flow settlement occurred during the time the USF & G policy was in force and USF & G paid for some repair efforts; but when the flow further settled during the period covered by the Michigan Mutual policy, Michigan Mutual filed a declaratory action as to its rights and liabilities under its policy. The contractor appeals a summary judgment finding that the policy in question does not provide coverage for the damages to the restaurant. We affirm.

A manufacturer or a contractor or other person performing services for others faces two types of potential liability. One is contractual liability for failure to perform the contractual obligation and to deliver a product or service as agreed. The other is the usual potential tort liability attendant to all activity that results when one fails to use due care and thereby causes others personal injury or property damage. As a practical matter the potential for tort liability is different and greater during the manufacturing or service performing activity than it is thereafter and different liability insurance coverage applies while the work is in progress than applies after the work is completed; but in either event, liability coverage does not cover the contractual liability involved.

Liability insurance protection for a manufacturer arising out of the process of producing or manufacturing goods is generally termed “premises liability” while liability protection coverage for the manufacturer once the goods are finished and moved away from the manufacturing premises is called “products liability.” Similarly, a person who performs a service on the premises of others, such as a building contractor, can obtain coverage while his work is in progress in the form of an “operations liability” insurance policy and, after work is completed, by a “completed operations” policy. Since a “premises liability” policy provides a manufacturer with the same type of coverage that an “operations liability” policy provides the service performer, some policies lump such coverage together as “premises/operations” coverage. Likewise, “products liability” for manufacturers equates with “completed operations” coverage for the service performer. However the “premises/operations” coverage and the “products liability/completed operations” coverage are mutually exclusive, each coverage protecting against a separate liability situation and each carrying a separate premium. Where tort liability results from poor workmanship or other activity on the contractor’s part, whether the contractor’s liability policy provides coverage or not depends on which of the two coverages is carried and when the injury or damage occurs. A premises/operations policy does not provide coverage as to an incident or accident giving rise to injury or damages which occurs after the work is completed. Of course, even if a policy appropriate to the particular liability is had, the incident or accident must occur during the policy period to be covered by the policy.

Florida case law recognizes a difference between liability for injuries to the person or property of others caused by the negligent acts of the insured and damages to the product being constructed or on which the contracted services are being performed. As stated by the Florida Supreme Court in LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980):

The majority view holds that the purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.
To interpret the policy as providing coverage for construction deficiencies, as asserted by the petitioners and a minority of states, would enable a contractor to receive initial payment for the work from the homeowner, then receive subsequent payment from his insurance company to repair and correct deficiencies in his own work. We find this interpretation was not the intent of the contractor and the insurance company when they entered into the subject contract of insurance, and the language of the policy clearly excludes this type of coverage. Rather than coverage and payment for building flaws or deficiencies, the policy instead covers damage caused by those flaws. Id. at 326.

Appellant, the insured contractor, argues that his original (operations) coverage covered all damages except for property damage to work performed by, or on behalf of, itself as insured and that the emphasized phrase excluded work done by subcontractors but that when its new (completed operations) coverage was added, the phrase excluding damage caused by subcontractors was eliminated. Appellant concludes that if, as appellant contends, the damages to the restaurant were caused by the negligence of the soil testing subcontractor, then the new coverage should cover the damages resulting to the restaurant from the soil settlement. We cannot agree. Both exclusion (o) of the original premises-operations liability policy and exclusion (VI A3) [which replaced (o) ] of the added coverage for completed operations, exclude property damage to work performed by the named insured. The deletion of the phrase relating to subcontractors in the exclusion in the completed operations policy makes sense because the insured contractor has presumably accepted the subcontractor’s work as his own (at least so far as its potential tort liability is concerned), and has turned the completed work over to the owner by the time such a completed operations policy is operative.

In effect the applicable exclusion provides that the “completed operations” hazard coverage does not apply “to property damage to work performed by the named insured arising out of such work or any portion thereof.” The words “work performed by” in this context in the policy mean the same as “the restaurant constructed by” the insured and was intended to exclude coverage of the insured’s contractual liability for damages to the “work” caused by the insured’s neglect or failure to complete and deliver the completed “work” in accordance with his contractual undertaking with the owner. The question of the contractor’s contractual undertaking with the property owner, insofar as it relates to responsibility for settlement damages to the restaurant in question, is not before this court. Since the insurance policy in question specifically excluded property damage to work performed by the named insured, damages to the restaurant are not covered by this “completed operations” liability policy and the trial court correctly entered the summary judgment which is

AFFIRMED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      .See, e.g., Prieto v. Continental Ins. Co., 358 So.2d 851 (Fla. 3d DCA 1978) (where building collapsed after completion, damages to third parties were not covered by contractor’s premises-operations liability coverage); Sandpiper Constr. Co. Inc. v. United States Fidelity and Guar. Co., 348 So.2d 379 (Fla. 2d DCA 1977) (where roof collapsed after building was completed, damages to third parties were not covered under contractor’s premises-operations liability coverage). Cf. Florida Farm Bureau Mut. Ins. Co. v. Gaskins, 405 So.2d 1013 (Fla. 1st DCA 1981) (where the negligent substitution of herbicide for insecticide occurred on premises of store, damages to third party’s crops were covered by store owners premises-operations liability coverage); Greenway Village South Condominium Assoc., I, II, III and IV, Inc. v. Roach, 397 So.2d 954 (Fla. 4th DCA 1981) (where contractor negligently installed gutters and down spouts so that the seals between the roof and walls were destroyed thus allowing water to cause damage inside the building, the damage to the third parties’ walls occurred during construction and therefore were covered by premises-operations liability provisions of the contractor’s liability insurance; however, damage to the inside of the building caused by rain occurred after construction was completed and were not covered by premises-operations liability provisions nor otherwise recoverable since the contractor did not carry completed operations coverage). See also Annot., 58 A.L.R.3d 12 (1974) [Construction and Application of Clause Excluding From Coverage of Liability Policy “Completed Operations Hazards”].

      . See, e.g., Travelers Ins. Co. v. C.J. Gayfer’s & Co., 366 So.2d 1199 (Fla. 1st DCA 1979) (where roof drainage system installed by contractor failed after contractor’s insurance [including premises-operations coverage and completed operations coverage] expired, insurance company was not liable for the loss).

      . See, e.g., American States Ins. Co. v. Villegas, 394 So.2d 222 (Fla. 5th DCA 1981); Shelby Mut. Ins. Co. v. LaMarche, 371 So.2d 198 (Fla. 2d DCA 1979), aff'd, 390 So.2d 325 (Fla.1980). Cf., C.A. Fielland, Inc. v. Fidelity and Casualty Co. of New York, 297 So.2d 122 (Fla. 2d DCA 1974), cert. denied, 309 So.2d 6 (Fla.1975) (where contractor negligently constructed walls such that brick veneer on the wall began to fall and collapse, the owner was entitled to recover any damages it sustained from the wall having fallen or threatening to fall, including the cost of demolishing the wall and the rental of the parking lot during demolition).

      . To illustrate this distinction, the Florida Supreme Court quoted from the New Jersey Supreme Court case of Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (1979), where it was stated:
      An illustration of this fundamental point may serve to mark the boundaries between “business risks” and occurrences giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case. 405 A.2d at 791-92.
      390 So.2d at 326-27.


text:
    Frank James WAITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1631.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief Asst. Public Defender, and Brian R. Hanson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

See Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981).

AFFIRMED.

COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    The CITY OF DeLAND, Florida, a municipal corporation; and Francis G. Doolittle, Appellants, v. The STATE of Florida ex rel. C. Allen WATTS, Appellee.
    No. 82-226.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.

      Charles J. Cino, DeLand, for appellant City of DeLand.
    Mark A. Zimmerman of James, Zimmerman, Paul & Clayton, DeLand, for appellant Doolittle.
    C. Allen Watts, for appellee.
   ORFINGER, Chief Judge.

The City of DeLand, as respondent below, and Francis G. Doolittle as intervenor below, appeal a peremptory writ of mandamus entered on the petition of appellee Watts. We reverse.

In his petition for the alternative writ, appellee contended that a building permit for a single family residence issued to Doolittle violated the City’s zoning ordinances, and that he, as a neighbor and citizen, had a clear legal right to the cancellation of that permit by the City. Alleging that he had been denied administrative relief by the City’s Board of Adjustment, he sought the issuance of an alternative writ directed to the City, requiring it to cancel the permit. Doolittle was not made a party to the action. The City answered, contending that the building permit was properly issued in full compliance with all city ordinances. After hearing on the alternative writ and the City’s answer, the trial court issued the peremptory writ commanding the City “to suspend any building permit and to refrain from approving the continuation of any construction” on Doolittle’s property. Doolittle was not a party and had been given no opportunity to be heard on the issues raised in the petition.

After the peremptory writ was issued, Doolittle sought leave to intervene, filed a motion to quash the peremptory writ and a motion for rehearing. Without a further hearing, Doolittle’s motion to intervene was granted, but his motion to quash and his motion for rehearing were denied. The City’s motion for rehearing was also denied. This appeal follows.

The City raises eight points on appeal and Doolittle raises eleven. For the reasons expressed, we need consider only one, Doolittle’s contention that he has been denied due process of law when his property rights are taken away without notice or any opportunity to be heard. We hold that under the facts of this case, mandamus was inappropriate.

It has long been the law of this state that where it appears that real and substantial interests of third parties not before the court are involved, mandamus will not lie, unless the claims appear unreal and imaginary. G & J Corp., Inc. v. Smith, 398 So.2d 844 (Fla. 5th DCA 1981), citing State ex rel. Harrington v. City of Pompano, 136 Fla. 730, 188 So. 610 (1938); State ex rel. McKinnon v. Wolfe, 58 Fla. 523, 50 So. 511 (1909). In Smith, a landowner filed a petition seeking a writ of mandamus to command the City of Ormond Beach and its building inspector to order the removal of four radio towers, which he did not own but which were on his land, because they allegedly violated the city’s zoning ordinances. The circuit court entered a final order quashing the writ, and this court affirmed, holding, inter alia, that it was not error to require that the owners of the towers be joined as parties to the petitioner’s action, as their interests in the action were real and substantial. By comparison, there is no doubt that Mr. Doolittle has similar real and substantial interests which would require that he be joined in any action involving his property and his property rights.

It is well settled that mandamus is a discretionary writ that is awarded, not as a matter of right, but in the exercise of a sound judicial discretion and upon equitable principles. If the issuance of the writ will not promote substantial justice or would lend aid to the effectuation of a probable injustice, the court may properly decline to grant the writ. State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970).

It is obvious that unless Doolittle, as owner of the property involved, is properly before the court at a time before the writ issues, a complete determination of the equities, rights and liabilities of the parties is not possible. The record shows that Doolittle had commenced construction of his residence based on the building permit which the City contends was properly and legally issued. Doolittle’s rights are not protected unless he is made a party, given an opportunity to fully respond and to present such evidence as may be relevant. The opportunity to be heard must be full and fair, not merely colorable or illusive. State Plant Board v. Smith, 110 So.2d 401 (Fla.1959). One of Doolittle’s contentions is that in light of the issuance of the building permit and his commencement of construction in reliance on it, an issue of equitable estoppel could be raised in his favor. While the facts of the case may or may not support that theory, see Florida Companies v. Orange County, Florida, 411 So.2d 1008 (Fla. 5th DCA 1982), there was no way to raise that issue here. Doolittle was entitled to a forum where he could be heard on that or any other proper issue.

Mandamus not being an appropriate remedy here, the peremptory writ is reversed, and the cause is remanded with directions to discharge the alternative writ.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . Appellee asserts that Doolittle, although not made a party nor served with process, nevertheless was furnished a copy of the petition and “invited” to participate. Such invitation does not provide due process, certainly confers no standing on Doolittle, and does not guarantee that he will be heard, even if he accepts the “invitation.”


text:
    In re The ESTATE OF John W. KENTON, Jr., Deceased, John W. Kenton, Sr., Appellant, v. Mary Ann KENTON, Appellee.
    No. 82-751.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.

      Jerry H. Trachtman of Bross, Trachtman & Henderson, P.A., Indialantic, for appellant.
    Elting L. Storms, Melbourne, for appel-lee.
   ORFINGER, Chief Judge.

This is an appeal from an order appointing decedent’s widow the personal representative of his estate. We affirm.

In his will, John W. Kenton, Jr., named his wife, Mary Ann Kenton, as the personal representative of his estate, and named his father, John W. Kenton, Sr., as the alternate personal representative if his wife predeceased him or was otherwise unable to act in that capacity. Marital problems between the decedent and his wife produced a separation agreement in contemplation of a divorce, in which it was provided that “each party waives and releases all rights and claims of every nature whatsoever to the other’s estate.” Approximately 45 days later, decedent was killed in an automobile accident, without any change in his will, and with no proceeding filed to dissolve the marriage. Decedent’s father presented the will for probate and requested appointment as personal representative, contending that the wife was no longer eligible because of the separation agreement; the court ruled that the wife was entitled to appointment as the primary nominee under the will. The father appeals.

It is a well recognized principle of law that a testator has the right to name the person who shall administer his estate after his death, provided such person is not disqualified by law. Ordinarily, courts have no discretion but to issue letters testamentary to the person nominated in the will, unless such person is expressly disqualified or such discretion is granted by statute. State v. North, 159 Fla. 351, 32 So.2d 14 (1947).

Appellant asserts, however, that the release of rights contained in the separation agreement and signed by the wife, when read in conjunction with section 732.702, Florida Statutes (1981), constitutes a renunciation by the wife of her right to serve as personal representative of the estate. We find nothing in the statute to support that position. The privilege of serving as personal representative of a testator’s estate is neither an “elective share, intestate share, pretermitted share, homestead property, exempt property ...” nor is it a “benefit that would otherwise pass to [the wife] by intestate succession or by the provisions of [decedent’s] will ... ”. Had the legislature intended the statute to cut off the right of a nominated personal representative to serve in that capacity because of the execution of a property settlement agreement, it would have said so.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . § 732.702 Fla.Stat. (1981):
      (1) The right of election of a surviving spouse, the rights of the surviving spouse to the homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement.

      . Appellee is contesting the validity of the property settlement agreement, but the decision here would be the same if the agreement is valid or invalid.


author: COBB, Judge.

text:
    Thomas A. PANNIER, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 82-1440.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    Thomas A. Pannier, in pro. per.
    Enoch J. Whitney, Gen. Counsel, Florida Parole & Probation Commission, Tallahassee, for respondent.
   COBB, Judge.

The petitioner, Pannier, seeks habeas corpus relief, alleging in his petition that the Florida Parole and Probation Commission (FPPC) has illegally added an aggravation factor in determining his presumptive parole release date. He contends that the Commission originally established his presumptive parole release date without any aggravating factors, and thereafter added such a factor without a written statement as required by section 947.172(3), Florida Statutes (1981), and without good cause, contrary to section 947.173(3). Pannier argues that the only explicitly stated exceptions to the binding effect of a presumptive parole release date, once set, are: (1) institutional misconduct and (2) new information not available at the time of the initial interview. See Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA 1982). As Pannier computes his time, excluding consideration of the aggravation time, he maintains he should have been paroled more than four months ago and is entitled to the issuance of a writ of habeas corpus.

This court ordered a response to the petition. That response has not come from Louie Wainwright, as custodian of the petitioner, but from the FPPC, together with a motion from the Commission to be joined in the cause as an indispensable party. For reasons hereinafter explicated, we grant the motion for joinder and consider the proffered response from the FPPC.

The FPPC response notes that Pannier previously has enjoyed full appellate review of the action by the FPPC which he seeks to challenge here by habeas corpus. See Pannier v. FPPC, No. XX-207 (Fla. 1st DCA Nov. 10,1981). We would be justified in denying the instant petition on the ground that habeas corpus cannot be used to review matters reviewed or reviewable by appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980). Moreover, this is the second attempt at habeas corpus relief by petitioner in this court. In Pannier v. Wainwright, No. 82-1121 (Fla. 5th DCA, Sept. 1, 1982), we denied his habeas corpus petition seeking immediate relief on allegations similar to those in the instant petition. Therefore, as urged by the respondent, FPPC, this petition is barred by the principle of res judicata. See Faverbo v. Cochran, 128 So.2d 884 (Fla.1961).

The petitioner has relied strongly on our opinion in the case of Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982). Therein, we granted habeas corpus review of an allegedly erroneous computation of a presumptive parole release date by FPPC and ordered release of the petitioner. In Taylor we requested a response to the sworn petition and the custodian, Wainwright, filed a motion to dismiss primarily directed to the question of proper parties. No response was forthcoming, either from the Secretary of the Department of Corrections, the named respondent, or from FPPC as an intervenor, directed to the substantive allegations of the petition. There was no negation of the factual allegations of Taylor’s petition and assertion of his right to immediate release.

To the extent that Taylor may imply that the proper procedural attack upon the computation of a presumptive parole release date is by habeas corpus, we recede therefrom and reaffirm our holding in Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981), that the appropriate remedy for challenging presumptive parole release dates is by a writ of mandamus directed against the FPPC. See also Moore v. Fla. Parole & Probation Commission, 289 So.2d 719 (Fla.1974). Habeas corpus would be the proper remedy only after an effective parole release date established pursuant to sections 947.174(6)(b) and 947.18, Florida Statutes (1981), has passed. Cf. Demar v. Wainwright, 354 So.2d 366 (Fla.1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). We agree with the Third District that there can be no administrative appeal from the determination of a presumptive parole release date. Roberson v. Fla. Parole & Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981).

For the foregoing reasons, the petition for writ of habeas corpus is DENIED.

ORFINGER, C.J., and COWART, J., concur.


author: GLICESTEIN, Justice.

text:
    In re FORFEITURE OF ONE 1973 MERCEDES BENZ MOTOR VEHICLE V.I.N.: # 10806712020253.
    No. 81-1494.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Larry A. Earns of Lunny, Tucker & Earns, Fort Lauderdale, for appellant.
    Bernard Berman of Roderman & Berman, P.A., Fort Lauderdale, for appellees.
   GLICESTEIN, Justice.

This is an appeal arising out of sections 943.41-943.44, Florida Statutes (Supp.1980), known and to be cited as the Florida Contraband Forfeiture Act. The trial court’s order being appealed granted (a) appellees’ motion to dismiss appellant’s complaint for rule to show cause and for final order of forfeiture and (b) their motion to quash the rule to show cause issued thereon by the trial court. Appellant thereafter filed a motion for leave to file amended complaint for rule to show cause and for final order of forfeiture, attaching its proposed pleading thereto. The trial court entered a subsequent order, denying that motion. Appellant’s notice of appeal makes no mention of the subsequent order; however, appellees have not objected thereto and, in fact, have restated the point on appeal as follows:

A TRIAL COURT’S DENIAL OF A MOTION TO PERMIT THE FILING OF AN AMENDED COMPLAINT IN A FORFEITURE PROCEEDING AGAINST A MOTOR VEHICLE PURSUANT TO SECTION 943.43(1), FLA.STAT., WHERE THERE HAS BEEN A FAILURE TO PROMPTLY PROCEED WITH THE FORFEITURE PROCEEDINGS, AND WHERE THERE WAS NO CONTRABAND ARTICLES AS DEFINED IN SECTION 943.41(2)(a)-(d), FLA. STAT., LOCATED IN OR ON THE MOTOR VEHICLE IN QUESTION, IS NOT AN ABUSE OF DISCRETION.

The trial court did not err in granting the appellees’ motion, but did err in refusing to allow appellant to amend its complaint, as it referred to inapplicable subsections of section 943.41(2) in its reference to subsections (a) through (d). There was, however, nothing wrong with the affidavit of the arresting officer, which was attached to the complaint as an exhibit. It recited in great detail that the officer had been in an unmarked vehicle in the north parking lot of the Holiday Inn in Plantation, Florida, surveying the motel because of a rash of burglaries. He observed a white male, female and infant who appeared to be the residing parties of Room 115 leave at 6:10 p.m. on January 26, 1981. At 6:20 he saw a Mercedes Benz being driven into the parking lot and stationed in front of Room 115. He watched as a black male alighted from the vehicle, walked away from Room 115, and then back to it. At 6:23 he observed the black male enter the room and, at 6:25, exit with an attache case.

The police officer then followed the male as he drove off in the Mercedes Benz — recklessly and with the lights off — stopped him and observed the attache case. The affidavit then recites that the officer confirmed with the manager of the motel that the white family was renting Room 115. Inventory of the vehicle turned up several credit and identification cards registered to victims of previous burglaries at the motel.

In its proposed amended complaint appellant alleged that the Mercedes Benz was being used in violation of section 943.42 and was a “contraband article” within the meaning of section 943.41(2)(e). It also alleged, as it had in its original complaint, that:

On or about the 26th day of January, 1981, the City of Plantation seized the property described in paragraph 3 above at or near 600 block of University Drive, City of Plantation, Broward County, Florida, within the jurisdiction and geographic confines of the City of Plantation under circumstances set forth under the Affidavit of the arresting officer attached hereto as Exhibit A. Such property was or had been actually employed as an instrumentality in the commission of, or in aiding or abetting the commission of a felony, to wit, Section 810.02, Fla.Stat. (burglary), SEction [sic] 817.60, Fla.Stat. (possession of two or more cards in different names), Section 811.16 and 811.17, Fla.Stat. (receiving stolen property) and Section 817.60(2) Fla.Stat. (possession of a stolen credit card).

The trial court unquestionably perceived correctly that subsections (a) through (d) plainly would not apply to such allegations. However, subsection (e) would apply; and appellant should have been given the opportunity to make that change by amended complaint.

Appellees’ basic argument in their brief, which apparently was the basis for the trial judge’s dismissal of the complaint, is that in accordance with section 943.43(1) the only occasion on which a vehicle is contraband and subject to forfeiture is when there has been a seizure “[i]n any incident in which possession of any contraband article defined in s. 943.41(2)(a)-(d) [found in or on the vehicle] constitutes a felony... . ” § 943.-43(1), Fla.Stat. (Supp.1980). They go on to say that because no contraband article defined in subsections (a) through (d) was found in or on the vehicle, it could not be lawfully seized.

In 1980, the Legislature amended section 943.41(1) to read as follows:

Sections 943.41-943.44 shall be known and may be cited as the “Florida Contraband Forfeiture Act.”

§ 943.41, Fla.Stat. (Supp.1980). It overhauled much of the Act, from title to text, and added subsection 943.41(2)(e) which expressly provides an additional basis on which to seize a motor vehicle. Appellees accurately point out, however, that the legislature neglected to include any reference in section 943.43(1) to the newly added subsection 943.41(2)(e). They argue that such omission is fatal. While we concur in recognizing the omission, we find such to have been cured by section 943.44(1), Florida Statutes (Supp.1980).

Finally, appellees contend the trial court correctly refused to permit amendment to the complaint because the forfeiture was not instituted “promptly” as a matter of law. The issue has been considered in a number of forfeiture eases by the federal courts. In United States v. One 1978 Cadillac Sedan De Ville, 490 F.Supp. 725 (S.D.N.Y.1980), the owner’s vehicle allegedly was used in furtherance of a gambling operation and the government sought its forfeiture by commencing proceedings four and one-half months after having seized it on September 17,1978. In holding that the delay was not per se unreasonable, the court said:

In several decisions under 21 U.S.C. § 881 (which requires that forfeiture actions be instituted “promptly”), periods of delay similar to the one that Levine experienced have been held not unreasonable. See, e.g., United States v. One 1978 Buick Riviera Automobile, 560 F.2d 897 (8th Cir.1977) (five-month delay not unreasonable); United States v. One 1977 Cadillac Broughm-Elegance, No. 77 C. 2306 (E.D. N.Y., April 1979) (Neaher, J.) (five-month delay not unreasonable); United States v. One 1973 Dodge Van, 416 F.Supp. 43 (E.D.Mich.1976) (six-month delay not unreasonable when Government unable to serve claimant and when delays caused by ongoing criminal investigation); United States v. One Volvo Sedan, 393 F.Supp. 843 (C.D.Cal.1975) (two-month delay not unreasonable).

Id. at 732.

Section 943.44(2), Florida Statutes (Supp. 1980), provides:

If the property is of a type for which title or registration is required by law, or if the owner of the property is known in fact to the seizing agency at the time of seizure, or if the seized property is subject to a perfected security interest in accordance with the Uniform Commercial Code, chapter 679, the state attorney, or such attorney as may be employed by the seizing agency, shall give notice of the forfeiture proceedings by registered mail, return receipt requested, to each person having such security interest in the property and shall publish, in accordance with chapter 50, notice of the forfeiture proceeding once each week for 2 consecutive weeks in a newspaper of general circulation, as defined in s. 165.031, in the county where the seizure occurred. The notice shall be mailed and first published at least 4 weeks prior to filing the rule to show cause and shall describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the proceeding will be filed and the anticipated date for filing the rule to show cause. However, the seizing agency shall be obligated only to make diligent search and inquiry as to the owner of the subject property, and if, after such diligent search and inquiry, the seizing agency is unable to ascertain such owner, the above actual notice requirements by mail with respect to perfected security interests shall not be applicable.

In this case the seizure was on January 26, 1981. Appellant obviously had to determine to whom notice was to be given before the publication thereof, which occurred on March 3 and 10, 1981. Suit was filed on April 3,1981, not on May 12,1981, as asserted in appellees’ brief.

Based on all of the foregoing we reverse the trial court’s order and remand with directions to grant appellant leave to file an amended complaint.

LETTS, C.J., and WALDEN, J., concur.

      . In 1981 the Legislature transferred the Act to sections 932.701-932.704.

      . We relinquished jurisdiction to the trial court for entry of an order, nunc pro tunc, granting the motion to dismiss with prejudice, if that were the intention of the trial court by its earlier order. Such order was thereafter entered by the trial court, giving this court jurisdiction to consider the appeal. Cordani v. Roulis, 395 So.2d 1276 (Fla. 4th DCA 1981).

      . Subsections (a) through (d) define “contraband article” as:
      (a) Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange which has been, is being, or is intended to be used in violation of any provision of chapter 893.
      (b) Any gambling paraphernalia, lottery tickets, money, and currency used or intended to be used in the violation of the gambling laws of the state.
      (c) Any equipment, liquid or solid, which is being used or intended to be used in violation of the beverage or tobacco laws of the state.
      (d) Any motor fuel upon which the motor fuel tax has not been paid as required by law.

      . We do not pass judgment on the merits of the allegations, as appellee, Larry Joe Walker, testified in his behalf at the hearing following which the Rule to Show Cause was issued.

      . Section 943.42, Florida Statutes (Supp.1980), provides:
      Unlawful to transport, conceal, or possess contraband articles; use of vessel, motor vehicle, or aircraft. — It is unlawful:
      (1) To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
      (2) To conceal or possess any contraband article in or upon any vessel, motor vehicle, or aircraft.
      (3) To use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
      (4) To conceal or possess any contraband article.

      .Subsection (e) includes as a “contraband article”:
      Any personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.

      . In Town of Micanopy v. Connell, 304 So.2d 478, 480 (Fla. 1st DCA 1974), the court said:
      Rule 1.190, F.R.C.P., provides that leave to amend a pleading shall be freely given when justice so requires. This is generally interpreted to allow a plaintiff to at least amend his complaint one time in an attempt to state a cause of action unless, of course, it is clear that a plaintiff will not be able to state a cause of action. As this court stated in Brown v. Montgomery Ward and Company, Fla.App. (1st), 252 So.2d 817, doubts should be resolved in favor of allowing amendments unless and until it appears that the privilege to amend will be abused.
      In Reid v. Reid, 396 So.2d 818, 819 (Fla. 4th DCA), pet. for rev. denied, 402 So.2d 612 (Fla. 1981), this court said:
      It is clearly an abuse of discretion to refuse leave to amend except under very limited circumstances.

      . Prior to the amendment, subsection (1) provided:
      Sections 943.41-943.44 shall be known and may be cited as the “Florida Uniform Contraband Transportation Act.”
      § 943.41, Fla.Stat. (1979). As pointed out in State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981), the amendment was made, in part, ostensibly in response to the decision in Griffis v. State, 356 So.2d 297, 302 (Fla.1978), which had held:
      vehicle forfeiture pursuant to Sections 943.41 through 943.44, Florida Statutes (1975), is permitted only upon a showing of “a nexus between the illegal drugs found in the car and the furtherance of an illegal drug ‘operation’.”

      . Ch. 80-68, Laws of Fla.

      . Section 943.44(1) provides:
      The state attorney within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband, or such attorney as may be employed by the seizing agency, shall promptly proceed against the contraband article, vessel, motor vehicle, aircraft, or other personal property by rule to show cause in the circuit court within the jurisdiction in which the seizure or the offense occurred and may have such contraband article, vessel, motor vehicle, aircraft, or other personal property forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the contraband article, vessel, motor vehicle, aircraft, or other personal property was being used in violation of the provisions of such law. The final order of forfeiture by the court shall perfect the state’s right and interest in and title to such property and shall relate back to the date of seizure.
      See, also, the analysis of our sister court in Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982).


text:
    George P. JOYCE, Appellant, v. Jean LEMIGNOT and Norma Lemignot, his wife, and Le St. Tropez, Inc., a Florida corporation, Appellees.
    No. 81-1519.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Herman Grayson, Miami Beach, and Michael Joyce, Coral Gables, for appellant.
    Mitchell B. Luber of Mitchell B. Luber, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. See Allen v. Laybourne, 190 So.2d 825 (Fla.3d DCA 1966).

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: GEIGER, DWIGHT L., Associate Judge.

text:
    FIRE CONTROL TAX DISTRICT, NO. 7, TRAIL PARK, et al., Appellants, v. PALM BEACH COUNTY, Florida and Reservation Fire Control Tax District No. 8, et al., Appellees.
    No. 81-2188.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.

      William P. Jacobson, West Palm Beach, for appellants.
    Clifford I. Hertz, and William R. Staab, West Palm Beach, for appellees.
   GEIGER, DWIGHT L., Associate Judge.

This is an appeal from an order entered by the Circuit Court of Palm Beach County, on November 5, 1981, dismissing Appellants’ action with prejudice. The issues presented for review deal with the inter-relationships of Chapter 63-1747, Laws of Florida, with Article VIII, Section 4, of the Florida Constitution (1968 as amended), and with Chapter 165, Florida Statutes (1974). Chapter 63-1747 is a Special Act which authorizes the Palm Beach County Commission to create, establish and abolish fire control districts and to fix boundaries for those districts. Article VIII, Section 4, of the Constitution provides a method for the transfer of powers or functions between or among local government entities, including special districts. According to Section 4, any transfer of powers or functions must be approved by the voters of the two districts involved or as otherwise provided by law. Chapter 165, Florida Statutes (1974), entitled “Formation of Local Governments,” provides the procedure of formation, dissolution and merger of municipalities or special districts.

Pursuant to Chapter 63-1747, the Palm Beach County Commission established fire control districts, among them Fire Control District Number 7, Trail Park. This was done prior to 1968. On December 21, 1976, the Commission passed a resolution modifying the boundaries of two fire districts, 7 and either 8 or 10 (although the resolution refers to District Number 10, all of the documents filed with the court refer to District Number 8). District Number 7 was made smaller and the other district larger. Neither the Board of Fire Commissioners for either district nor the voters were consulted. Subsequently, the County Commission passed a resolution in 1979 merging the two districts. The other district filed a complaint for injunctive relief to prevent the effectuation of this merger. The County Commission rescinded the 1979 merger resolution in June, 1981. District Number 7 then filed a complaint in that same month seeking declaratory relief claiming the 1976 resolution modifying the boundary was null and void. The suit for declaratory relief alleged that Chapter 165 was the exclusive procedure for boundary changes and that the statute had been violated. The County moved to dismiss the complaint for failure to state a cause of action and because the action was barred by the Statute of Limitations. The trial court granted the motion with leave to amend. District Number 7 filed a second amended complaint which the County moved to dismiss on the same grounds as previously. The trial court granted the motion to dismiss with prejudice stating that the District failed to state a cause of action because Chapter 165, Florida Statutes, “does not embrace the boundary change which petitioners seek to set aside herein.” This appeal followed.

Appellant contends three points on appeal:

1. A boundary change of one district with another district constitutes a transfer of powers and functions of a special district under Article VIII, Section 4, Florida Constitution (1968 as amended) invoking the procedural requirements established therein.
2. The provisions of Chapter 165, concerning procedure for forming and dissolving special districts in Florida supersedes the provisions of Chapter 63-1747, Laws of Florida, which establish fire taxing districts in Palm Beach County, Florida.
3. A boundary change of a special district falls within the statutory meaning of “formation”, including incorporation, creation, dissolution and merger as provided in Chapter 165, Florida Statutes (1974).

Dealing with Appellant’s contentions as a whole, this court is of the opinion that Article VIII, Section 4, Florida Constitution (1968 as amended) and Chapter 165, Florida Statutes (1974) do apply to this situation and that therefore any provision of Chapter 63-1747, Law of Florida, inconsistent with either, is invalid. Specifically the portion of Chapter 63-1747 which allows the Board of County Commissioners of Palm Beach County, Florida to create, establish and abolish Fire Control Tax Districts and fix the boundaries thereof in Palm Beach County without a resolution by the governing body of the areas to be affected or petition of ten percent of the qualified voters in each area is invalid as contrary to Article VIII, Section 4, of the Florida Constitution and Chapter 165 of the Florida Statutes. We find specifically that the statutory definition of “formation” found in Chapter 165 does include a merger such as we have here dictating that Chapter 165 does establish the procedure to be used in these types of situations.

For the above reasons, we find as a matter of law that Appellants’ complaint does state a cause of action and reverse the trial court’s dismissal of Appellants’ complaint. We order this cause remanded for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    William Boone DARDEN as Chief of Police, City of Riviera Beach; William Wilkens as City Manager, City of Riviera Beach, and the City of Riviera Beach, Appellants, v. POLICE AND FIRE CIVIL SERVICE BOARD, CITY OF RIVIERA BEACH, Appellee.
    No. 82-34.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.

      Allan V. Everard, Riviera Beach, and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

On July 2, 1981, the Police and Fire Civil Service Board of Riviera Beach, appellee herein, filed a Petition for Enforcement, pursuant to section 120.69, Florida Statutes (1981) against the city, as well as the city manager and chief of police, all of whom promptly filed an answer, including an affirmative defense based on the board’s lack of capacity to sue. Notwithstanding a stipulated order, dated August 13, 1981, which recited the petitioner was not properly designated in the caption of the pleadings, a first amended complaint was filed in the identical style, including mention in the body that it was constituted of named members, many of whom signed it. The “petitioner/plaintiff” now alleged that its members’ terms expired in 1984; but that the city had passed an ordinance which terminated their terms in August, 1981. It asked the trial court to declare the ordinance unconstitutional. On August 14, 1981, the board filed an amended motion for emergency temporary injunctive relief; and the hearing was held thereon four days later. Although the city had earlier raised the issue of capacity to sue, adequately or otherwise, at the hearing on the board’s motion the two attorneys who were representing the city said nothing about it. The following day the trial court entered an order, granting a temporary injunction and determining the ordinance to be unconstitutional.

On September 17, 1981, the original defendants filed a notice of interlocutory appeal from the trial court’s order; but on October 16, 1981, they filed a notice of dismissal. Subsequently, they moved to dissolve the temporary injunction and sought to argue at the hearing all of the matters that could have been presented to the trial court at the hearing on the board’s earlier motion or to this court in the interlocutory appeal which was dismissed. The trial court denied the motion. We affirm.

On remand the trial court should consider the adequacy of the pleadings as to the issue of capacity; and if properly raised, make a determination of that issue. In the event capacity is then found to exist, the matter should proceed to final hearing on the merits.

DOWNEY and DELL, JJ., concur.

      . In Keehn v. Mackey & Co., 420 So.2d 398 (Fla. 4th DCA, 1982) we discuss the concept of capacity to sue and the procedures governing the issue thereof.

      . We have today also denied appellants’ petition for writ of certiorari, in Darden, et al. v. Police and Fire Civil Service Board, 423 So.2d 543 (Fla. 4th DCA 1982).


text:
    William Boone DARDEN, Chief of Police, City of Riviera Beach; William Wilkins, City Manager, City of Riviera Beach; and City of Riviera Beach, Petitioners, v. POLICE AND FIRE CIVIL SERVICE BOARD, CITY OF RIVIERA BEACH, constituted by its members, Japeth Bowman, James Andrews, Rude Jackson, Vincent Goodman, Edward Crowley, Richard Lyles, James Fitzgerald and Lenny Cottrell, as alternate, Respondents.
    No. 82-257.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Allan V. Everard, Riviera Beach, and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for petitioners.
    No appearance on behalf of respondents.
   PER CURIAM.

Petitioners, who were defendants in the trial court, seek a writ of certiorari directed to the trial court’s order denying their motion for summary judgment, which they sought upon the ground that the respondent board lacked capacity to sue. The petition must be denied because of the procedural posture in which petitioners are placed. On January 4, 1982, when petitioners filed a notice of appeal from the trial court’s order denying their motion to dissolve the temporary injunction, petitioners divested the trial court of jurisdiction to enter a final order disposing of the cause. Fla.R.App.P. 9.130(f); Carter v. Dorman, 385 So.2d 740 (Fla. 3d DCA 1980). A summary judgment concluding that the respondent board lacked capacity to sue would have illustrated such an order. Therefore, it cannot stand.

The appendix reflects that the trial court’s order denying summary judgment was entered on January 8, 1982, four days after the filing of the appeal. At that time, the trial court was without jurisdiction to enter summary judgment in favor of petitioners. For this reason alone, the order denying petitioners’ motion for summary judgment does not constitute a departure from the essential requirements of law.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.

      . Florida Rule of Appellate Procedure 9.130(f) provides:
      Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

      . A similar situation occurred in Zuckerman-Vernon Corp. v. Zelikoff, 323 So.2d 585 (Fla. 3d DCA 1975), which was decided prior to the adoption of present Rule 9.130(f), but the principle recited therein is still applicable. While an interlocutory appeal was pending upon the severance of the third party complaint, the trial court entered summary judgment upon the issue of liability in favor of the plaintiff against the initial defendant. The District Court of Appeal reversed the summary judgment, without prejudice to the renewal of the motion, when all parties were properly before the court.


text:
    Bianca GERONAZZO, Appellant, v. Arthur SAVIANO, Patricia Saviano, and Ciro Gentile, Appellees.
    Nos. 82-78, 82-260.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    William C. Purcell, Fort Lauderdale, for appellant.
    Charles A. Goff of Casoria, Goff & Freid-man, Fort Lauderdale, for appellees Savi-ano.
    William H. Kilby, Fort Lauderdale, for appellee Gentile.
   PER CURIAM.

These are consolidated appeals from a final summary judgment denying the appellant’s action to foreclose a chattel mortgage. We reverse. There is evidence in the record that the appellees violated the terms of a security agreement which prohibited the sale of the secured property without the consent of the appellant. The appellees, in this court and below, have raised issues as to the enforceability of this provision under the factual circumstances of this case and as to waiver and estoppel. However, on the present record we cannot say that the appellees are entitled to prevail as a matter of law. Rather, the record reflects triable issues as to the entitlement of appellant to foreclose and the theories of defense asserted by the appellees. See, e.g., Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).

Accordingly, this cause is reversed for further proceedings consistent herewith.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.