author: PER CURIAM. PER CURIAM.

text:
    Linda McKinney AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1150.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Dec. 15, 1981.

      Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was tried by a jury and found guilty of second degree murder. On appeal she argues that the trial court erred in not instructing the jury, as required, upon the maximum and minimum , penalties for the offense charged and relies upon Tascano v. State, 393 So.2d 540 (Fla.1981). She contends that she preserved this point on appeal. We agree.

At trial appellant’s counsel stated:

Judge, we have submitted to the Court, we have requested the Court read two special instructions.
The first instruction has to do with penalties.
Our basis for that is Murray versus State, 378 So.2d 111; Rule 3.390, Florida Rules of Criminal Procedure.

In response, the trial court said:

That contradicts one of the instructions in the standard jury instructions which states you are not to consider the consequences of your verdict.
I do not see how they can—

In Williams v. State, 395 So.2d 1236, 1237 (Fla. 4th DCA 1981), this court said:

If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection on the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying purpose of Rule 3.390(d) has been met; the trial court is placed on notice that refusal to give the requested instruction may be error.

Here, appellant plainly verbalized to the trial court the basis for her request. Further, we hold that in this case the error was harmful and consequently need not consider whether the harmless error statute is applicable to the failure to instruct the jury upon the maximum and minimum penalties. Accordingly, we reverse and remand for new trial.

REVERSED AND REMANDED.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.

ON REHEARING

PER CURIAM.

Our original opinion reversed appellant’s conviction of second degree murder because the trial court refused to instruct the jury on the maximum and minimum penalties for the offense charged. Austin v. State, 406 So.2d 1128 (Fla. 4th DCA 1981). We have for consideration a motion for rehearing in that case.

We are once again confronted with the problem which results from the interaction between the supreme court’s opinion in Tascano v. State, 393 So.2d 540 (Fla.1980) and the requirement that an error resulting from the refusal to give an instruction must be appropriately preserved in the trial court to be considered on appeal. Since questions generated by the latter principle are not unique to Tascano situations but will continue to confront counsel in criminal appeals involving various legal issues, we will attempt to clarify what we believe to be the proper application of that principle.

Before doing so it is appropriate to summarize the rules emanating from Tascano in order to highlight the difficulties being encountered, so that application of the requirement of preservation of error may be viewed in proper perspective.

Rule 3.390(a) of the Florida Rules of Criminal Procedure provides:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.

Prior to July 1, 1977 the rule had provided that the presiding judge “must” include in the charge the penalty fixed by law for the offense charged. The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1261 (Fla.1977).

In Tascano v. State, supra, the court interpreted the change in language from “must” to “shall” as transforming the requirement from directory to mandatory.

In Welty v. State, 402 So.2d 1159 (Fla.1981), the trial court on several occasions during the trial had explained the penalties. Failure to repeat the penalties in an instruction was therefore not reversible error. This has been perceived by some as an indication that failure to give the penalties instruction may be considered harmless error under appropriate circumstances. In our view the case merely holds that it may not be reversible error not to repeat the penalties in a formal instruction where the jury has previously been advised of the appropriate penalties.

This view finds support in Murray v. State, 403 So.2d 417 (Fla.1981), in which the court noted that: “If this mandatory duty [to instruct on penalties] could be circumvented on the basis of the harmless error rule, the effect of the mandatory provision in the rule would be negated.”

Application of the harmless error doctrine to the Tascano situation was again strenuously rejected in Borden v. State, 402 So.2d 1176 (Fla.1981).

In summary, then, the penalty instruction must be given, if requested, and a refusal to do so may not routinely be considered harmless error.

Another aspect of Tascano was its limited retroactive application. The court held:

Under the circumstances we hold that this decision shall be prospective only and shall be applicable to all cases in which a jury trial is commenced on or after the effective date of this opinion. The defendant, as well as all others who have preserved this point on appeal, receive the benefit of this interpretation of the rule.

393 So.2d 540 at 541.

The second sentence of the foregoing quotation raises the question which frames the second phase of our consideration: how is this point on appeal to be preserved?

As a starting point, the applicable rule provides:

(d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.
(e) When an objection is made to the giving or failure to give an instruction, no exception need be made to the court’s ruling thereon in order to have such ruling reviewed, and the grounds of objection and ruling thereon shall be taken by the court reporter, and if the jury returns a verdict of guilty, transcribed by him and filed in the cause.

Rule 3.390, Fla.R.Crim.P.

In Williams v. State, 395 So.2d 1236, 1237-1238 (Fla. 4th DCA 1981), we said of the application of this rule:

If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying purpose of Rule 3.390(d) has been met; the trial court is placed on notice that refusal to give the requested instruction may be error. However, if, as in Smith [Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980)], a jury instruction is tendered without further explanation, the subsequent failure to object on specific grounds to its denial is fatal and the issue has not been preserved for review.
Rule 3.390(d) governs the preservation of error not only as to the court’s failure to give a requested instruction, but also as to the giving of an erroneous or inappropriate instruction. In either event, it is essential that at some point in the proceedings the trial court be informed of possible error. Thus, it is unnecessary to raise objections both at the charge conference and at the end of the court’s instruction to the jury. The primary reason that opportunity to lodge objections must be afforded after the jury has been instructed is so that possible errors in charging the jury may be brought to the court’s attention. Accordingly, when feasible, objections should be specified during the conference on instructions and when so indicated need not be repeated after the jury has been charged.

The difficulty we have explaining the proper application of Rule 3.390(d) results in part from the fact that while the rule treats the refusal to give an instruction on the same basis as the giving of an instruction which is objectionable, the mechanics of communicating disagreement to the trial court will necessarily vary depending upon which aspect of the problem is involved and the precise circumstances of the situation.

The rule is to be applied literally where the trial court expresses an intention to give an instruction which counsel believes should not be given. This would most often occur at a separate charge conference or, more often, at a side bar conference. Counsel is obligated to object and to state the specific grounds for objection. If objection is lodged in the appropriate manner it would be superfluous to require that the objection be repeated after the offending charge has been given to the jury. Such a redundancy would be in the nature of taking an exception which the rule specifically abolishes.

On the other hand, when the trial court misreads an instruction to the jury, fails to give a charge that had been agreed upon or gives a charge that was not agreed upon, strict compliance by way of objection with specific grounds, is required.

The situation is somewhat different, however, when a formal written request for a particular instruction, stating the legal basis for the request, is presented to and rejected by the trial court. Under such circumstances error is preserved, in the absence of some indication in the record of subsequent waiver. To require objection to rejection of the instruction would in essence be requiring an exception to the court’s ruling which, as previously noted, the rule specifically excuses. In our view, objection to the failure to give a requested instruction is implied in the request itself.

A slight variation on this sequence occurs where there is an oral request for a standard jury instruction, again with stated reasons, which the trial court rejects. An objection after the court’s specific ruling, would seem to be superfluous.

The trial court may waive the rule’s requirement that the request be in writing; however, counsel is then at jeopardy to ensure that the record clearly reflects (1) the precise language of the proffered instruction, (2) the specific grounds therefor and (3) the ruling of the trial court.

With these precepts in mind we revisit appellant’s motion for rehearing.

As pointed out in our original opinion there was a clear and specific request for maximum and minimum penalties. Both the rule and case law were cited as grounds for requiring that the instruction be given. Under the circumstances this was synonymous with “stating distinctly the matter to which he objects, and the grounds of his objection.”

The court responded that giving penalties contradicts another standard jury instruction. This was tantamount to a rejection of the proffered instruction, and the instruction was not, in fact, given.

To require more of appellant would indeed elevate form over substance. Accordingly, we adhere to our original opinion.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge. FRANK D. UPCHURCH, Jr., Judge.

license: Public Domain

text:
    DESERET RANCHES OF FLORIDA, INC., Petitioner, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Greater St. Johns River Basin, et al., Respondents.
    No. 80-1063.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    On Rehearing Dec. 2, 1981.

      Mary Patricia C. Fawsett of Akerman, Senterfitt & Eidson, Orlando, for petitioner.
    Egerton K. Van Den Berg of Van Den Berg, Gay & Burke, P. A., Orlando, and Herbert M. Webb, III, Gainesville, for respondents St. Johns River Water Management District and Greater St. Johns River Basin.
    Jim Smith, Atty. Gen., and Linda C. Proc-ta, Asst. Atty. Gen., Tallahassee, for respondent Dept, of Revenue.
   FRANK D. UPCHURCH, Jr., Judge.

Deseret Ranches of Florida, Inc. (Deser-et) petitions for a writ of common law certiorari to review a non-final order entered by the Circuit Court for Osceola County granting partial summary judgment in favor of the defendants below, the St. Johns River Water Management District (the District) and the Greater St. Johns River Basin (the Basin). Deseret owns land in Orange, Seminole and Osceola counties. It filed suit for declaratory relief on behalf of all persons against whom ad valorem taxes and permit application fees were assessed in Orange, Osceola, and Brevard counties by the District. It contended that the Greater St. Johns River Basin, created by Chapter 77-382, Laws of Florida, was unconstitutionally established, that the District is impermissibly levying state ad valo-rem taxes, and that the District has been improperly spending ad valorem tax revenues for its administrative and regulatory functions.

Petitioner seeks to invoke the jurisdiction of this court pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A). In Colonial Penn. Ins. Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980), we enunciated the three prerequisites necessary to invoke common law certiorari:

(1) the order sought to be reviewed does not conform to the essential requirements of law;
(2) material injury will result from the order; and
(3) remedy by appeal is inadequate.

In Janet Realty Corp. v. Hoffman’s Inc., 154 Fla. 144, 17 So.2d 114, 117 (1944), the Florida Supreme Court explained that common law certiorari is proper where:

[T]he judgment of the Circuit Court is rendered without or in excess of its jurisdiction; where [it] is a palpable miscarriage of justice; or where the result of such judgment would constitute a substantial injury to the legal rights of the petitioner; or where the judgment. . .is illegal or essentially irregular and viola-tive of established principles of law, the violation of which by the judgment has resulted, or reasonably may and probably will result, in substantial injury to the legal rights of the petitioner, and for which no other adequate remedy is afforded by law.

Petitioner contends that it will suffer material injury and that remedy by appeal is inadequate because respondents will continue to levy taxes and make expenditures in an unlawful manner. The mere possibility that the trial court is committing error which may require reversal of the case on appeal does not necessarily mean that appeal after a final judgment is inadequate. See Haddad, The Common Law Writ of Certiorari in Florida, 29 Fla.L. Rev. 207 (1977). See also Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). However, if the trial court’s order is one which would place the complaining party “beyond relief,” then appeal has been found to be an inadequate remedy. See Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957).

In the instant ease, petitioner may be viewed as being “beyond relief” if prompt review by certiorari is denied because respondents will continue to levy taxes and make expenditures in an allegedly unlawful manner. While it would be possible to pay the taxes under protest and recover those unlawfully collected, the challenge to respondents’ expenditures is on a different footing.

Additionally, where the trial court passes upon the constitutionality of a state statute which is vital to disposition of the cause, as occurred here, and the cause involves a question of great public interest, review by certiorari may be appropriate. See Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974). That case involved partial summary judgment whereby the trial court held a state statute to be unconstitutional. The Florida Supreme Court exercised its discretion to review the trial court’s action.

The Florida Supreme Court also has emphasized the need for a complete and expeditious remedy where a taxpayer seeks to procure refund of taxes. State v. Green, 88 So.2d 493 (Fla.1956). In Green, the petitioner sought via mandamus to force the state comptroller to refund to it taxes it had erroneously paid. The state argued that this was an inappropriate remedy but the court declared:

In this country where the citizen has paid good money illegally and has an election of remedies for recovery, he should be permitted to employ the most complete and expeditious remedy possible to recover; whether this be mandamus, certiorari or other complete remedy is not material.

88 So.2d at 495.

Since the preliminary elements of certio-rari jurisdiction are present, we shall proceed to determine whether the trial court’s order departed from the essential requirements of law.

In 1976, the voters approved an amendment to article VII, section 9, Florida Constitution, which provided in part that special districts may be authorized by law to levy ad valorem taxes for their respective purposes. This authorization for water management purposes was limited to 1.0 mill over most of the state including the areas which this case encompasses.

Prior to this, the Legislature had adopted the Florida Water Resources Act of 1972, chapter 373, Florida Statutes. Section 373.-069(1), Florida Statutes (1979), designates five water management districts and provides the boundaries for each. Section 373.-023, Florida Statutes (1979), provides that all waters within the state are subject to regulation under chapter 72-299, unless specifically exempted.

Chapter 76-243, Laws of Florida, provided for the creation of basins within the districts. See § 373.0693(1), Fla.Stat. (1979). It also amended section 373.503 and authorized the various governing boards of the districts, when appropriate, to separate the taxes levied into a millage necessary for the purposes of the district and a millage necessary for financing basin functions specified in section 373.0695. The total millage for district and basin purposes within the St. Johns River Water Management District was limited to 0.375 mill. Chapter 76-243 additionally transferred petitioner’s lands which had previously been located entirely within the South Florida Water Management District (SFWMD) into the St. Johns River Water Management District. It also created the Oklawaha Basin, the boundaries included four counties in the St. Johns River Water Management District.

Petitioner challenges the constitutionality of chapter 77-382 enacted in 1977. The effect of this law was to allow respondent District to levy an additional assessment of ad valorem taxes on lands within its jurisdiction which were not included in the Ok-lawaha Basin. This enactment designated the area of the District, less those areas in the Oklawaha Basin, as the Greater St. Johns River Basin (the Basin). It also provided that the governing board of the District would serve as the governing board of the Basin. In this respect, the Greater St. Johns River Basin is unique. In all other basins, the governing boards are composed of representatives from each of the included counties in the basin. The members of the governing boards of both the District and the Basin are not elected but rather are appointed by the governor subject to approval by the legislature.

Chapter 77-382 was enacted as a general law. Notice was not given as required for local or special laws by article III, section 10, Florida Constitution, and no referendum was held. Petitioner contends that notice was required because chapter 77-382, in creating the Basin, was a special or local law of limited application and subjected lands to taxation without the required notice.

Petitioner also contends that the St. Johns River Water Management District is, in effect, a state agency levying a prohibited ad valorem tax in violation of article VII, section 1(a) of the Florida Constitution, which provides that “no state ad valorem taxes shall be levied upon real estate or tangible personal property.” Petitioner reasons that the Department of Environmental Regulation has delegated practically all of its powers regarding enforcement and administration of state policy and is also specifically empowered by section 373.026 to exercise all powers of the St. Johns River Water Management District and to review, rescind or modify any policies, rules, regulations and orders of the District except those rules involving internal management. Petitioner submits that the Department effectively controls all aspects of the operation of the District.

Petitioner’s final challenge is that the District has been spending ad valorem tax revenues for regulatory and administrative purposes and that this violates the provisions of chapter 373 as a matter of law. We shall treat these issues seriatim.

Petitioner alleges that chapter 77-382, Laws of Florida, which amended section 373.0693(8), Florida Statutes, to establish the Greater St. Johns River Basin, was a special act necessitating the notice requirements of article III, section 10, Florida Constitution, and section 11.02, Florida Statutes. Respondents concede that chapter 77-382 was enacted without the notice required for a local or special act. The crucial question then is whether chapter 77-382 was a general or special act.

Respondents assert that the legislature adopted a general framework for creation of basins in chapter 76-243. This act, which transferred petitioner’s lands to the St. Johns River Water Management District and created numerous basins around the state, including the Oklawaha Basin, also amended section 373.0693(1) to read:

Any areas within a district may be designated by the district governing board as subdistricts or basins. The designation of such basins shall be made by the district governing board by resolutions thereof. The governing board of the district may change the boundaries of such basins or create new basins by resolution. No sub-district or basin in the St. Johns Water Management District other than established by this act shall become effective until approved by the Legislature.

Because the Basin was created via this statutory framework by chapter 77-382, respondents contend that it was merely an addition to the general statutory plan governing water management and is not a special or local law.

The purpose behind requiring notice of intention to enact special legislation is to:

[D]raw certain safeguards around the passage of local and special legislation by which the people of the locality to be affected would be given fair notice of the intention to get such legislation adopted, and of the substance thereof.

Housing Authority v. City of St. Petersburg, 287 So.2d 307, 310 (Fla.1973). See also Dickinson v. Bradley, 298 So.2d 352 (Fla.1974).

In Housing Authority v. City of St. Petersburg, the Florida Supreme Court, quoting from Carter v. Norman, 38 So.2d 30 (1945), defined local and special laws:

[A] statute relating to particular subdivisions or portions of the state or to particular places of classified locality is a local law. A statute relating to particular persons or things or other particular subjects of a class is a special law.

287 So.2d at 310.

In Cesary v. Second National Bank of North Miami, 369 So.2d 917 (Fla.1979), the supreme court explained that a general law is one which operates uniformly throughout the state, though this does not require universality of operation over the state. In other words, the legislature may classify according to subject matter and a statute which relates to subjects, persons or things as a class, based upon proper differences which are inherent in or peculiar to the class, is a general law. Id. at 921.

Respondents contend that the Everglades Drainage District enactment involved in Bannerman v. Catts, 80 Fla. 170, 85 So. 336 (1920) is similar to the enactment creating the Greater St. Johns River Basin. In Ban-nerman, the legislature, in 1913, and 1915, created the Everglades Drainage District which had the power to levy annual special assessments. The District lay within fixed boundaries encompassing 4,300,000 acres of land lying in all or parts of eight counties. The landowners in the affected area claimed they were entitled to notice prior to enactment of the law but the court rejected this stating:

There is no provision of the law whereby the Legislature was required to give the owners any notice before enacting the law.
* * * * ^ #
The question is not one of a delegation of authority by the Legislature to some board or commission to levy the assessment, for under a delegation of the power to some other instrumentality or board it is probable that notice would have been necessary to the owners; but where the district was created by the Legislature, and the assessment was made by the Legislature, and all things done directly by the lawmaking body, as was done in this case, the legislative will is supreme and there can be no question of failure to give notice.

85 So. at 344.

The reason notice was not required was apparently based upon the principle enunciated in State v. Stoutamire, 131 Fla. 698, 179 So. 730, 733 (1930), wherein the court, in discussing local or special laws, recognized that the term usually refers to:

[L]aw[s] relating to entities, interests, rights and functions other than those of the state, since the organic law does not contemplate or require previous publication of notice of proposed laws for the exercise of state powers and functions though they may be more or less local or special in their operation or objects. (Emphasis added.)

For instance, in State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla.1955), the court upheld the Turnpike Act from a claim that it was a local or special law. The court stated that the Turnpike Authority was a state agency and that its operation affected traffic statewide. See also Cantwell v. St. Petersburg Port Authority, 155 Fla. 651, 21 So.2d 139 (1945).

As for the Everglades Drainage District, the supreme court, in Martin v. Dade Muck Land Co., 95 Fla. 530, 116 So. 449 (1928) specifically declared that the District was a state agency.

In the instant case, chapter 77-382 applies only to a relatively small geographical area and subjects real property within that area to ad valorem taxation pursuant to the creation of the Greater St. Johns River Basin. The act does not operate uniformly throughout the state; i. e., it is not potentially applicable to other areas of the state, but rather applies only to those inhabitants of the St. Johns River Water Management District who were not within the Oklawaha River Basin.

The trial court found that the District and Basin are not state agencies and this conclusion is correct in light of article VII, section 9, Florida Constitution, which provides for local governmental entities known as special districts and authorizes them to levy ad valorem taxes for their respective purposes. Therefore, the rationale in Bannerman v. Catts is inapplicable to sustain the enactment of chapter 77-382 without notice.

Respondents contend that the amendato-ry nature of 77-382 is sufficient to sustain it as a general law and rely on Stone v. State, 233 Ala. 239, 171 So. 362 (1936). In Stone, however, the court, construing the state constitutional requirement that notice be provided prior to enactment of local legislation, rejected a claim that an act could be sustained as a general law because of its amendatory nature. Respondents note that the Stone court commented that the local law made no reference to the general law dealing with the subject and argue that here chapter 77-382 made reference to a general law enactment (chapter 76-243). While we do not decide whether 76-243 is a general law, the rationale of the Stone court appears just as applicable: to permit a local or special law to be enacted without notice because a general law on a related subject exists would emasculate the policies behind the constitutional provision.

For instance, in Housing Authority v. City of St. Petersburg, 287 So.2d 307 (Fla.1973), the court was confronted with a statutory scheme which created housing authorities in heavily populated cities and counties throughout the state. In 1963 and 1972, two acts were passed which were applicable only to Pinellas County and restricted operation of the housing authority within that county.

The court found that these were special laws and declared:

[T]hey restrict, in Pinellas County only, the powers granted housing authorities throughout the entire state, thereby creating in Pinellas County housing authorities with powers different from all others. The people of Pinellas County were afforded no notice of the intent to enact these restrictions on housing authorities located within their county only.

287 So.2d at 311. The court did not discuss the fact that these two acts were promulgated in reference to existing general law regarding housing authorities.

We conclude that chapter 77-382 cannot be sustained as a general law. The act applies only to one clearly defined area (the area of the St. Johns River Water Management District less those lands in the Oklaw-aha Basin). It has no application outside the District. By creation of the Greater St. Johns River Basin, lands encompassed within its boundaries were subjected to taxation without notice.

The purpose behind article III, section 10, Florida Constitution (1968), is to inform local citizens of the intended enactment of a law whose applicability will be limited to them. Chapter 77-382 as it applies to creation of the Greater St. Johns River Basin does not operate uniformly throughout the state but rather applies only to those inhabitants and property owners in the St. Johns River Water Management District who were not within the Oklawaha Basin. Therefore, we hold that chapter 77-382 is a local law and without the notice required by article III, section 10, Florida Constitution, was unconstitutionally enacted.

The second point we will discuss is whether ad valorem taxes levied by the District are unconstitutional state ad valo-rem taxes.

The trial court found that St. Johns River Water Management District was a “special district” as provided by article VII, section 9(a), Florida Constitution, and thereby authorized to levy ad valorem taxes. Article VII, section 9(b), specifically authorizes levying of ad valorem taxes for water management purposes. Section 373.503, provides the implementing legislation for ad valorem taxation to finance the works of the districts. Article VII, section 1(a), Florida Constitution, prohibits the levying of state ad valorem taxes and effectively limits this method of revenue raising to local governments.

Petitioner contends that the District, rather than levying ad valorem taxes for local or district purposes, is in actuality the alter ego of the Department of Environmental Regulation and is levying taxes for the purpose of funding state functions of the Department in violation of article VII, section 1(a), Florida Constitution.

Water management problems around the state are varying and interrelated and of necessity the districts and the Department of Environmental Regulation have an extensive working relationship. Under section 373.016, the Department has the power and responsibility of managing the waters of this state and may delegate “appropriate powers” to the various water management districts. Many of the functions delegated to the districts by the Department are largely of a local nature over which the state has chosen to retain supervisory authority to assure uniformity and maximum effectiveness among districts. In addition, the powers and duties granted to water management districts by law, which are independent of the Department are extensive. See, e. g., §§ 373.047, 373.0693, 373.0697, 373.083-.099, 373.106, 373.119, 373.129, 373.139, 373.171, 373.1961, 393.409-416, 373.423, 373.429, Fla.Stat. (1979).

Section 373.016 defines the legislative policy regarding the state’s water resources. The State of Florida has been blessed with abundant water supplies but because of a lack of conservation and control and an exploding population that abundance is presently threatened. The fact that conservation and maintenance of water resources is a matter of state policy and concern does not mandate expenditures for such purposes only by the state. For example, the development of higher educational institutions is of state and legislative concern but this has been held the proper subject of ad valorem taxation by the counties. See Board of Public Instruction of Brevard County v. State Treasurer, 231 So.2d 1 (Fla.1970). In that case, the legislature had enacted laws which removed the operation, control and supervision of junior colleges (community colleges) from local school boards, established the junior colleges as state institutions, and required the local school boards to contribute ad valorem taxes toward support of the state’s junior college system. The Florida Supreme Court stated:

[Jjunior colleges serve a state function. So do the universities. So do the free public schools. Junior Colleges also serve a distinctly local function.... Ad valo-rem taxes levied by school districts for support of such institutions are local taxes levied for local purposes.
While the legislature may not circumvent the prohibition of state ad valorem taxation by any scheme or device which requires local ad valorem taxes and then channels the proceeds into essentially state functions which are not also local functions no such situation is here presented.

231 So.2d at 4.

The fact that water resource conservation, control, planning and development are state functions does not make them exclusively so. The availability of adequate fresh water supplies is of critical local interest. The interrelations of various areas of the state mandates supervision of the various water management districts to assure that they do not operate at cross purposes. It is clear that simply because a water management district furthers a state function, policy, or purpose does not prevent it from levying ad valorem taxes where the local function, policy, or purpose is similarly vital to the local district area.

The third question raised by petitioner is whether the expenditure by the St. Johns River Water Management District of its ad valorem tax monies for administrative and regulatory expenses violates chapter 373 as a matter of law.

The trial court found that the use of ad valorem revenues for administrative and regulatory expenses of the District was authorized by section 373.503(3) and chapters 25270 and 61-691, Laws of Florida, as amended. The District admits that some of its ad valorem revenues are spent for its regulatory and administrative expenses.

Petitioner bases its contention on section 373.503(1) which provides:

It is the finding of the legislature that the general regulatory and administrative functions of the districts herein authorized are of general benefit to the people of the state and should substantially be financed by general appropriations. Further, it is the finding of the legislature that water resource programs of particular benefit to limited segments of the population should be financed by those most directly benefited. To those ends, this chapter provides for the establishment of permit application fees and a method of ad valorem taxation to finance the works of the district. (Emphasis added.)

Section 373.503(1) was enacted in 1972 as-part of the Water Resources Act. It is a declaration of legislative intent rather than a substantive provision and, by its terms, does not require regulatory and administration functions of the districts be funded solely from general appropriations. Section 373.495 did create an account known as the Water Resources Development Account from which, pursuant to section 373.498, a district could recover monies for

[Cjonstructing the works of said district, for the acquisition of lands for water storage areas, for highway bridge construction, and for administration and promotion. (Emphasis added.)

These provisions, however, do not prohibit expenditure of district ad valorem tax revenues for administrative purposes. The legislative intent of this statutory framework is made clearer by chapter 80-259 (amending section 373.508(1), effective July 1, 1980) which, while not applicable to this case, reads as follows:

It is the finding of the Legislature that the general regulatory and administrative functions of the districts herein authorized are of general benefit to the people of the state and should fully or in part be financed by general appropriations. Further, it is the finding of the Legislature that water resources programs of particular benefit to limited segments of the population should be financed by those most directly benefited. To those ends, this chapter provides for the establishment of permit application fees and a method of ad valorem taxation to finance the activities of the district. (Emphasis supplied.)

In addition, section 373.6161 demands that chapter 373:

[B]e construed liberally for effectuating the purposes described herein, and the procedure herein prescribed shall be followed and applied with such latitude consistent with the intent thereof as shall best meet the requirements or necessities therefor.

In sum, the statutory scheme does not prohibit expenditure of District ad valorem tax revenues for administrative purposes. To accept petitioner’s premise that the District cannot use ad valorem tax revenues for administrative purposes would force a conclusion that all administrative functions cease if an inadequate amount was appropriated by the state. This we cannot accept.

At the time this opinion is being written, the state is experiencing a drought of alarming proportions. Each day brings reports of record low water levels in the rivers, lakes and underlying aquifers. Our decision that chapter 77-382 is unconstitutional was not achieved without grave concern as to the consequences on water management and conservation in the St. Johns River Water Management District. The unbridled growth and development of this state has apparently matched and possibly surpassed nature’s ability to sustain the demand on the state’s resources. However, as critical as this condition may be, we are compelled to rule as our constitution mandates despite our great concern for the cause of conservation.

We therefore GRANT CERTIORA-RI and hold chapter 77-382, Laws of Florida, to be unconstitutional. Paragraph one of the order of the trial court dated August 8, 1980, holding chapter 77-382 to be a general law is hereby QUASHED and is of no further force or effect.

DAUKSCH, C. J., and COWART, J., concur.

FRANK D. UPCHURCH, Jr., Judge.

ON MOTIONS FOR REHEARING AND CLARIFICATION

Both petitioner, Deseret Ranches of Florida, Inc., and respondents St. Johns River Water Management District and Greater St. Johns River Basin, have petitioned for rehearing and clarification.

The parties have pointed out that certain factual statements contained in the opinion issued August 12, 1981, should be revised. The statement that Deseret Ranches owns land in Seminole County is incorrect. Des-eret owns land in Orange, Brevard and Osceola Counties. Also our statement that in all basins other than the St. Johns River Basin, the governing boards are composed of representatives from each of the included counties in the basin was overly broad. This statement should have been limited to those basins created pursuant to chapter 72-299, Laws of Florida.

An issue which requires clarification is whether the decision of this court holding that chapter 77-382, Laws of Florida, which created and provided the ad valorem taxing mechanism for the Greater St. Johns River Basin, is unconstitutional, should operate prospectively from the date the opinion becomes final.

In Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976) and Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973), the supreme court enunciated the principle that a decision holding a taxing enactment invalid may operate prospectively from the date the opinion becomes final where persons relying on the statute did so assuming it to be valid. This is in keeping with the general rule that an act of the Legislature is presumed constitutional until invalidated by a final appellate decision. 336 So.2d at 1166.

In the Deltona case, appellant corporation filed suit on December 5, 1974, contending that the county tax assessor erred in not applying the “Rose law” to its 1974 assessment. The trial court ruled that the “Rose law” was inapplicable to the 1974 assessment but on appeal the supreme court found this conclusion was erroneous. The supreme court noted that in Interlachen it held the “Rose law” violated the constitutional requirement of just valuation of all property for ad valorem tax purposes and that it specifically stated that “this decision operates prospectively from the date the opinion becomes final .. . . ” Interlachen at 435. The Interlachen decision became final only when the motion for rehearing was disposed of, on December 9, 1974. Since ad valorem taxes for 1974 became a lien on the property on January 1, 1974, the Deltona court held that appellant was entitled to the benefit of the law for 1974, despite the fact that it was found to be constitutionally infirm.

In Gulesian v. Dade County School Board, 281 So.2d 325 (Fla.1973), the court likewise found that the decision holding invalid a statute which attempted to authorize school districts to levy ad valorem taxes in excess of 10 mills without a vote of the electors was entitled to prospective operation only. The Dade County School Board, operating under the statute, collected from taxpayers .82 mills over the 10 mill limit and this amounted to $7.3 million dollars. The court, in refusing to apply the decision retroactively or to require a refund, relied upon the equitable considerations enunciated by the trial judge who found:

(1) that the .82 mills represented $7,300,-000 that had been collected and expended for school purposes and to require refund thereof in small amounts to over 350,000 Dade County taxpayers would impose an intolerable burden on the School Board; would result in great expense; further complicate its budgetary problems and cause immense administrative difficulties; (2) that the School Board in adopting the .82 mill excess levy acted in good faith in reliance on a presumptively valid statute (F.S. Section 236.25, F.S.A. as amended by Ch. 71-263, Laws of Florida), and has since faced increasingly critical budgeting problems and a refund would greatly compound these problems, (emphasis added)

281 So.2d at 326.

Here the District, in levying the Basin tax, acted in good faith reliance on a presumptively valid statute. The situation is unlike that in Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), where there was evidence that the county in assessing certain taxes in excess of the statutory property tax ceiling operated contrary to the obvious intent of the Legislature. Rather, here, the Legislature, pursuant to chapter 77-382, Laws of Florida, created the Basin and the District was charged with the responsibility of levying an ad valorem tax sufficient to fund its operations. See §§ 373.0695, 373.0697, Fla.Stats. (1979). The District was not interpreting or construing its duties under the statute but was merely following the legislative mandate.

In summary, we hold that our decision finding chapter 77-382 to be unconstitutional shall operate prospectively from the date hereof.

Petitioner has also filed a petition for issuance of a writ to enjoin the District from further assessment, levy, collection, or expenditure of ad valorem taxes under chapter 77-382 pending further judicial review. This petition is denied.

Respondents have filed a similar petition, informing this court that the tax collectors of Orange, Brevard, and Osceola Counties have or will receive ad valorem taxes on behalf of the Greater St. Johns River Basin and that they intend to hold such monies until an order directing distribution is entered. Respondents request an order requiring the tax collectors to pay over these amounts. We do not believe any such order will be necessary in view of this clarification. Because application of this court’s decision is prospective only, the Basin will be entitled to receive ad valorem taxes for the year 1981, which accrued on January 1, 1981.

DAUKSCH, C.J., concurs.

COWART, J., dissents without opinion.

      . This rule provides that certiorari jurisdiction of district courts of appeal may be sought to review “non-final orders of lower tribunals other than as prescribed by Rule 9.130. ...”

      . Petitioner’s request for a temporary injunction on the issue of the District’s alleged unauthorized expenditure of ad valorem taxes was denied by the trial court.

      . See chapter 72-299, Laws of Florida.

      . It is well established that a special law enacted without compliance with the notice requirement of article III, section 10, Florida Constitution, is a nullity. Housing Authority v. City of St. Petersburg, 287 So.2d 307 (Fla.1974); City of Hialeah v. Pfaffendorf, 90 So.2d 596 (Fla.1956).

      . While the Everglades District was authorized to levy annual special assessments on property within the District (denoted as a “special assessment ad valorem tax” in Martin v. Dade Muck Land Co.), this did not run afoul of the constitutional proscription against state ad va-lorem taxes since that prohibition did not come into effect until December 31, 1940. See art. IX, § 2, Fla.Const. (1885) (as amended).

      . Respondents correctly point out that taxing authority was already in place when chapter 77-382 was enacted. § 373.0697, Fla.Stat. (1979). However, it was only pursuant to 77-382 that the Greater St. Johns River Basin was created and the real property subject to the tax designated.

      . The second and third points involve ad valo-rem tax levies and expenditures by the St. Johns River Water Management District and are unaffected by the constitutionality of chapter 77-382 which merely created the Greater St. Johns River Basin.

      . “No state ad valorem taxes shall be levied upon real estate or tangible personal property.”

      . Section 373.016 vests in the Department the power to delegate “appropriate powers” to the various water management districts. Section 373.103 allows the Department to specifically authorize district boards to exercise certain powers, such as operation of administrative permit systems, cooperation with the U.S. government in flood control and other activities. By Rule 17-1.04(8)(a), Florida Administrative Code, the Department has delegated to the District and other districts the authority to exercise all powers enumerated in section 373.-103, save certain exceptions. The Department also retained general supervisory authority over the districts, as provided for in section 373.026(7). This latter provision also permits the Department to review and rescind or modify any policy, rule, regulation or order of a district, except those relating to the internal management of the district, to insure compliance with chapter 373.

      .For instance, under section 373.103 and through the Department’s delegation to districts, the respondent District is authorized to administer and enforce permit systems (which are generally self-supporting due to the collection of permit fees, see section 373.109), establish and control water levels in canals, rivers and lakes throughout the District, and prepare the portion of the state water use plan applicable to the District.

      . It should also be noted that section 373.-503(2)(a) is specific in its admonition that only water management districts may levy the millage authorized by the constitution for water management purposes. Therefore, only the districts, and not the Department, determine whether, or in what amount, such levies will be made.

      . The record indicates that District ad valo-rem revenues were used to provide essential support services to the basins, over and above the amounts charged to basin budgets and for maintenance of structures in the upper Greater St. Johns River Basin. This indicates that ad valorem monies are being used to finance “the works of the district” as contemplated by section 373.503(1).

      . See § 197.056(1), Fla.Stat. (1979).


author: BOARDMAN, Acting Chief Judge.

text:
    Raymond SAVIGNAC, guardian of Gary Daniels, Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Appellee.
    No. 80-1561.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    As Corrected on Denial of Rehearing Dec. 4, 1981.

      Joel D. Eaton of Podhurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, for appellant.
    John R. Bush and Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Raymond Savignac, guardian of Gary Daniels, plaintiff in the trial court, appeals a final summary judgment against him and in favor of defendant/appellee Florida Department of Transportation. We reverse.

Appellant filed a complaint against Paul Smith Construction Co. (Smith) and Burnup & Simms Co. for damages arising out of injuries sustained by appellant’s ward, Gary Daniels, in diving off the Buffalo Avenue Bridge into the Tampa Bypass Canal, the defendants then having been in the process of performing dredging operations on the canal. An amended complaint adding ap-pellee as a defendant was subsequently filed. Appellant subsequently dismissed Burnup & Simms as a party defendant, and Smith’s motion for summary judgment was granted.

Appellee’s motion to dismiss was granted with leave to amend, and appellant filed a second amended complaint and a third amended complaint against appellee only. Appellee filed an answer and subsequently filed a motion for summary judgment and affidavits and other documents in support of its motion followed by an amendment to the motion. After hearing, the trial court entered final summary judgment in favor of appellee. This timely appeal followed.

The facts in this case are that on June 11, 1975, Daniels, then eighteen years old, dove off the Buffalo Avenue Bridge, which spans the Tampa Bypass Canal. The water was shallow, and Daniels sustained severe injuries; he was permanently paralyzed from the neck down by the accident. He testified on deposition and by interrogatory answers that he had been swimming off that bridge for three or four years, ever since it had been built, and had been swimming in the canal itself nearly all his life. Furthermore, as stated in the answers to interrogatories, “[t]he day he dove off that bridge they had no signs at all indicating that there had been dredging.”

The Buffalo Avenue Bridge was reconstructed by appellee as part of the Four Rivers Flood Control Basin project, jointly sponsored by the Southwest Florida Water Management District (SFWMD) and the United States Army Corps of Engineers (the Corps). Part of the project required ■expansion of Six Mile Creek into a canal, to be known as the Tampa Bypass Canal. The expansion necessitated the replacement of the existing Buffalo Avenue Bridge.

As a cosponsor of the project, the SFWMD was responsible for providing the necessary easements, removal of utilities, and payment of a percentage of the costs.

As the other cosponsor, the Corps was responsible for expansion of Six Mile Creek into the Tampa Bypass Canal. For this purpose, the Corps entered into three contracts, one of which was with White Pollution Control Construction Company (White) for excavation of the creek in an area approximately half a mile south of the bridge, and another of which was awarded to Smith for diversion of the creek around the construction site of the bridge and into the waterway to be constructed south of the bridge.

Part of Smith’s responsibility was to remove from the portion of the creek around the construction site any shoaling- — defined as any material which drifts or washes naturally into one area, including one recently excavated from another area. Such shoaling would affect the water level. Smith eventually met this obligation approximately two years after Daniels’ injury.

The shoaling at the bridge site at Six Mile Creek could not have been caused by tidal action, because there was none in so small a body of water. It might have been caused in part by the clearing and removal activity of Ticon, Inc., still another company involved in the project. However, it was alleged, “in this case, the major part of the shoaling was caused by heavy rain that eroded the left bank ... on the northwest side of the bridge.”

The bridge itself was owned by appellee. In addition, appellee owned a right-of-way extending from fifty to seventy-five feet from the roadway on both sides of the bridge out over the creek and down into the creek itself.

Appellee granted to the SFWMD an easement across its right-of-way, “[f]or any and all purposes necessary or in connection with the construction, maintenance and operation of the Tampa Bypass Canal,” but granted no access to the bridge itself. Ap-pellee also granted an easement to Smith permitting it to enter appellee’s right-of-way for the purpose of performing its contractual obligation.

Appellee was responsible for any excavation to be performed within its right-of-way, and this work it delegated to Cone Brothers, Inc. It was Cone Brothers’ excavation which was to meet and join south of the bridge with that performed by White. It was Cone Brothers’ excavation into which Smith was to divert the creek during construction of the bridge, and it was the left bank of the creek built up by Cone Brothers’ excavation which in all likelihood created the shoaling after a heavy rain.

Robert F. Grimsley, a maintenance engineer employed by appellee, testified on deposition that the Florida Secretary of Transportation has the authority to order signs erected on bridges warning against any diving or swimming, and when he does so, a violation of the warning is a misdemeanor. Upon the complaint of a property owner that young people were parking on his property before diving off the bridge, the secretary had recently ordered the placement of such a sign on a bridge in the same general area as the Buffalo Avenue Bridge.

However, Grimsley averred in a subsequent affidavit that the only Florida law giving a governmental entity the discretion to erect signs is Section 339.27, Florida Statutes (1975), which authorizes the Board of Highway Secondary Trust Fund Trustees to investigate and determine whether it is detrimental to traffic safety and dangerous to human life for any person to fish from any state road bridge, giving the Board discretion to erect appropriate signs and providing that fishing where it is prohibited is a misdemeanor; that there is no corresponding law concerning diving or swimming from bridges nor any law making the posting of such signs enforceable; and that appellee has many bridges which span waterways in Florida, and it would be impossible to monitor them if signs were posted.

There has never been a no swimming or no diving sign posted on the subject bridge. However, appellant alleged in his complaint that appellee had actual knowledge of the fact that people were diving from the Buffalo Avenue Bridge and of the fact that the depth of the water adjacent to the bridge had been substantially reduced due to shoaling, and these allegations were not satisfactorily refuted by appellee.

Ordinarily, we would not hold that appellee has a duty to warn of a danger in diving from a bridge due to shallow water. First, as appellee points out, the bridge in question was obviously not designed or erected for diving purposes. Under such circumstances, where a person uses property for purposes for which it was not intended, the owner generally has no duty to warn of dangers on the property, and those who so use the property do so at their own risk. Dranstadt v. City of West Palm Beach, 81 So.2d 484 (Fla.1955); Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla. 3d DCA 1961), cert. discharged, 154 So.2d 825 (Fla.1963). The owner is required only to maintain the facilities in question “in a reasonably safe condition for the purposes to which they are adapted and apparently designed to be used.” Ramaden v. Crowell, 192 So.2d 525, 528 (Fla. 2d DCA 1966).

Second, as appellee also points out, a property owner generally cannot be held liable for dangerous conditions which exist in natural or artificial bodies of water unless they are so constructed as to constitute a trap or unless there is some unusual danger not generally existent in similar bodies of water. 65 C.J.S. Negligence § 63(100) (1966); Allen v. William P. McDonald Corp., 42 So.2d 706 (Fla.1949). Shallow water, insufficient for diving, does not constitute a trap. Switzer v. Dye, 177 So.2d 539 (Fla. 1st DCA 1965). Moreover, it is common knowledge that the depth of a small body of water varies with the rainfall. Id.

However, we have a situation here in which, it is alleged, the injured boy had been diving off the bridge for several years. It is reasonable to infer, for purposes of summary judgment, that the depth of the water in the Tampa Bypass Canal was ordinarily sufficient for safe diving and would have been sufficient on the date young Daniels was injured had it not been for the shoaling caused by Cone Brothers’ excavation — at the behest of appellee — after a heavy rain (a rain which one would ordinarily assume had, if anything, increased the depth of the water in the canal). Shoaling involves elevation of the bottom of a body of water, American Heritage Dictionary of the English Language (1976), and is thus not apparent upon visual observation, in contrast to a significant lowering of the water level, which would be apparent upon visual inspection. Consequently, we conclude that the alleged lowering of the depth of the canal here as a result of Cone Brothers’ excavation, under the allegations in the complaint here, would amount to a trap.

We also have a situation here in which, it is alleged, appellee was aware that people were regularly diving from the Buffalo Avenue Bridge and was further aware that the depth of the water beneath the bridge had been substantially reduced due to the shoaling. When a landowner knows of the continued existence of previous trespassers over a substantial period of time, a trespasser who is injured on the land becomes elevated to the status of a licensee. Libby v. West Coast Rock Co., Inc., 308 So.2d 602 (Fla.2d DCA), cert. denied, 325 So.2d 6 (Fla.1975). Thus, under the facts alleged, Daniels was a licensee, even if he might otherwise have been considered a trespasser.

The duty owed a licensee is to refrain from wanton negligence or wilful misconduct which could injure him and to warn him of a defect or condition known by the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, 261 So.2d 146 (Fla.1972); NcNulty v. Hurley, 97 So.2d 185 (Fla.1957); Libby v. West Coast Rock Co., Inc., supra. We conclude for purposes of summary judgment that some sort of warning, such as erection of a warning sign, would have been appropriate under circumstances such as those alleged here.

While we have found no Florida law specifically authorizing appellee to post warning signs, neither have we found a law proscribing the posting of such signs. Chapter 334, Florida Statutes (1979), the Florida Transportation Code, gives appellee broad authority to administer the transportation system of this state, and public safety is one of the elements with which the legislature was concerned in enacting this chapter. § 334.02(1). Even were this not so, a duty of reasonable care in carrying out a governmental agency’s function is implied. See Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979); Mathews v. City of St. Petersburg, 400 So.2d 841 (Fla. 2d DCA 1981); Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981). Finally, a warning sign need not be backed by a statute or ordinance making a disregard for the warning a criminal offense. We are concerned here with attempting to avoid injury to people, not with punishing them should they act with disdain for our attempts. If a person ignores a warning, the natural consequences of doing so may well be much more severe than any criminal punishment he might be subject to, as they certainly were here.

Sovereign immunity is not applicable here. This decision is limited to its facts and is not to be construed as imposing a general duty upon appellee or any other governmental entity to post signs prohibiting diving or swimming in waters which merely may be dangerous, depending on variable circumstances not under the control of the governmental entity involved, particularly in the absence of knowledge on the part of the government agency that people are regularly diving or swimming in the waters involved. We appreciate the fact that appellee has neither the funds nor the manpower to post and maintain such signs on all bridges in the state of Florida, as the trial court pointed out in its ruling. Nevertheless, where, as alleged here, (1) a governmental agency creates, either directly or through action of its agents, a danger not readily apparent to one who could be injured as a result of that danger, (2) that agency has actual knowledge of the danger that has been created, and (3) that governmental agency has actual knowledge of the presence of people likely to be injured as a result of that danger, that agency “must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense,” Collom v. City of St. Petersburg, supra, at p. 508, and must take steps either to avert the danger or to warn those at risk that the danger exists. Once appel-lee made the discretionary planning level decision to expand Six Mile Creek into a canal and undertook to do so, it could not negligently ignore the dangers to a known segment of the public that were created by the operations involved in implementing that decision. See Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981). We hasten to emphasize, however, that all of the material allegations we have identified in this opinion must be proven by appellant at trial in order to hold appellee liable in this case.

Accordingly, the final summary judgment in favor of appellee is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

OTT and DANAHY, JJ., concur.

      . Since the bridge here is state property, and is open to the public, however, we are inclined to the view that Daniels would be classified as a licensee in any event.

      . See Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979) for a discussion of the difference between planning level decisions, for which a governmental entity retains sovereign immunity, and operational level decisions, for which Florida governmental agencies are no longer immune from tort liability.


text:
    Jerry GREEN, Appellant, v. STATE of Florida, Appellee.
    No. VV-260.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.
    Rehearing Denied Dec. 9, 1981.
    Joe Farley of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Defendant Green appeals from his convictions of and sentences for burglary with the intent to commit an assault [§ 810.02, Fla. Stat.] and sexual battery with the use of or threat to use a deadly weapon [§ 794.011(3), Fla.Stat.].

The primary issue presented for our consideration is whether Green understood his guilty plea or its consequences. The facts regarding this issue are essentially undisputed. Green’s initial counsel, an assistant public defender, negotiated a plea whereby the State agreed to drop other charges pending against Green in return for his plea of guilty to the burglary and sexual battery charges. At the change-of-plea hearing Green was advised that he could be sentenced to up to life on each count with the possibility that the sentences could be consecutive. Green had previously signed a form which stated, among other things, that he had been advised of the nature of the charges, the statutory defenses included in the charges, and the range of possible punishments. At the hearing he affirmatively stated that he did indeed understand these aspects of his plea. Upon accepting the plea, the trial judge ordered a presen-tence investigation and adjourned the hearing. Several weeks later at the sentencing hearing, the assistant state attorney advised the trial judge of the possibility of sentencing to a lengthy term of years and retaining jurisdiction over the sentence. The trial judge admitted that he planned to impose two consecutive life sentences. He then called a recess to study the retention of jurisdiction question.

When the sentencing hearing was reconvened later that day, the trial judge sentenced the defendant to 90 years for the sexual battery and 50 years for the burglary, the terms to be served consecutively. Further, he retained jurisdiction over the first one-third of the cumulative sentences.

Defendant then filed a motion to vacate and set aside his sentence, alleging, among other things, that there had been no indication regarding the maximum sentence to be given. Upon questioning by his counsel, Green admitted that he knew he could be sentenced up to life. However, he stated that he did not know that the trial judge could retain jurisdiction over his sentence and that he could not be released on parole without the trial judge’s permission. He further noted that, had he known of that possibility, he would not have entered the plea of guilty. The trial judge stated, for the record, that Green had not been informed of the maximum possible sentence, i. e., that the trial judge could retain jurisdiction over one-third of the stated sentence. (TR: 59-60) Nevertheless, he denied the motion to vacate.

Upon these facts, the issue squarely before this court is whether the trial judge is required to advise a defendant of the possibility of the trial judge’s retaining jurisdiction over a part of the defendant’s sentence. Florida Rules of Criminal Procedure, Rule 3.172(c)(i) specifically provides •that:

Except where a defendant is not present for a plea, pursuant to the provisions of Rule 3.180(c), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands the following:
(i) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law . . .

Prior to 1977, the applicable rule required the trial court to determine “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness.” Fla.R.Crim.P. 3.170(j) (1972). However, as noted above, the presently effective rule requires a specific determination that the defendant understands both the mandatory minimum penalty, if any, and the maximum possible penalty. The courts of this State have routinely held that the failure to advise a defendant of a mandatory minimum sentence prevents the defendant from being properly apprised of the significance of his or her plea. E. g. Norris v. State, 343 So.2d 964 (Fla. 1st DCA 1977). Under such circumstances, the defendant should be afforded the opportunity to withdraw his or her plea of guilty. Id.; See Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970). It logically follows that, since it is error to fail to advise the defendant of a mandatory minimum sentence, it is also error to fail to advise defendant of a maximum possible sentence. Under such circumstances, Green’s sentence was not what he bargained for. See also Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979). Accordingly, we find that the defendant was not properly apprised of the true significance and consequences of his guilty plea. We therefore remand this cause to the trial court for the purpose of allowing the defendant to withdraw his guilty plea, should he so desire.

For purposes of any subsequent proceeding, we also note that the trial judge may not retain jurisdiction over the defendant’s sentence for burglary. § 947.16(3), Fla. Stat. See Robinson v. State, 368 So.2d 638 (Fla. 2d DCA 1979). We have considered Green’s remaining points on appeal and find them to be without merit. See Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.

ON MOTION FOR REHEARING

PER CURIAM.

We have considered appellee’s motion for rehearing and in lieu of remanding this cause to the trial court for the purpose of allowing the defendant to withdraw his guilty plea should he so desire, we remand with directions that the trial court either strike the retention of jurisdiction and let the original plea stand or that appellant be allowed to withdraw his guilty plea should he so desire. The motion for rehearing is in all other respects denied.

We do certify that our ruling in this cause passes upon a question of great public interest as follows:

Where the requirements of Florida Rule of Criminal Procedure 3.172 are otherwise met but the trial judge does not advise a guilty pleading defendant that the trial judge might retain jurisdiction over a part of his sentence, must the defendant be allowed to withdraw his guilty plea if the trial judge thereafter determines to retain such jurisdiction where the defendant testifies that he did not know that the trial court could retain jurisdiction over his sentence and there is no evidence that he did have such knowledge?

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

MILLS, McCORD and SHIVERS, JJ., concur.


author: HERSEY, GEORGE W., Associate Judge.

text:
    Delores Rubel GERSCOVICH, Appellant/Cross-Appellee, v. Eugenio Alberto GERSCOVICH, Appellee/Cross-Appellant.
    No. 81-129.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    As Clarified Dec. 7, 1981.

      James A. Lowe and James E. Taylor, Jr., Orlando, for appellant/cross-appellee.
    Meredith J. Cohen, Orlando, for appel-lee/cross-appellant.
   HERSEY, GEORGE W., Associate Judge.

Delores Rubel Gerscovich appeals and Eugenio Alberto Gerscovich cross-appeals from the final judgment in a dissolution of marriage proceedings.

The issues raised relate to child custody and child support, rehabilitative alimony, permanent alimony and property interests, costs and attorneys’ fees. We will treat the issues in that sequence.

CUSTODY

Custody of the two minor children, Gabrielle, age eleven and Mark, age fifteen, is to be rotated or alternated between the parents on a yearly basis. Mother had custody during the separation and dissolution proceedings and father took custody on August 1,1981. Mother will again have custody on August 1, 1982 for one year. This is sometimes referred to as split custody. For clarity it is preferable to reserve use of that term for the situation where custody of one or more children is awarded to one parent and the remaining children to the other parent. Joint custody and divided custody are also inexact and therefore troublesome terms. For present purposes we will speak of rotating or alternating custody.

It has been correctly pointed out that the weight of precedent disfavors rotating custody. The factors which have been deemed important by courts which have considered the question are the ages of the children, the length of each period of custody, and the disruptive influences created by differing surroundings in alternate custody periods. The distance between the two places of custody is one element of this latter factor. Another relevant and rather important consideration is the attitude of the parents toward one another, or at least how that attitude will be perceived by (and thus induce and influence upon) the children.

In Hurst v. Hurst, 158 Fla. 48, 27 So.2d 749 (1946) the custody of a child three years of age was to be rotated every six months. On the assumption that a child of tender years needs its mother, both parents having been found fit, the court struck down rotating custody. The tender years doctrine was again applied to invalidate rotating of custody every six months in Wonsetler v. Wonsetler, 240 So.2d 870 (Fla.2d DCA 1970).

Custody of a two year old child to the father on weekends arid to the mother on weekdays was reversed in Rudolph v. Rudolph, 146 So.2d 397 (Fla.3d DCA 1962). The court reiterated the time honored rule that “it is not the rights of the parties which are of paramount importance, but the best interests of the minor.” Id. at 399. The court further pointed out:

Divided custody which involves periodic removal from familiar surroundings is not desirable nor conducive to a child’s welfare [citations omitted]. Since there is nothing in the record to demonstrate that the wife is not a proper person to have the custody of the young child of the parties, the decree should award full custody to her with reasonable rights of visitation in the father [citation omitted]. Id. at 399, 400.

Rotating custody of a four year old child on the basis of agency reports made from time to time was disapproved in Unger v. Unger, 306 So.2d 540 (Fla.3d DCA 1975).

Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla.3d DCA 1980) struck down an attempt to rotate custody of children aged two and four between the mother in Florida for five and three-quarter months and the father in Louisiana for five and three-quarter months.

Despite this awesome array of judicial disfavor, the prohibition against alternating custody is not absolute.

In the following cases some form of alternating custody was permitted: Hare v. Potter, 233 So.2d 653 (Fla.4th DCA 1970); Lindgren v. Lindgren, 220 So.2d 440 (Fla.2d DCA 1969); Bolton v. Gordon, 201 So.2d 754 (Fla.4th DCA 1967); Hutchinson v. Hutchinson, 127 So.2d 136 (Fla.3d DCA 1961); and Metz v. Metz, 108 So.2d 512 (Fla.3d DCA 1959).

Even in some of those cases where an award of alternating custody was reversed, the courts expressed approval of it in certain situations. In Wonsetler v. Wonsetler, supra, the court said: “split custody [referring to rotating custody] can be condoned if there are special circumstances or legally unequal facts present to support such an arrangement.” The court, in Bienvenu v. Bienvenu, supra, also observed that rotating custody was not totally abhorrent to our judicial system:

This is not to say that a divided-custody arrangement may not be approved when justified by some particular circumstances which would tend to ameliorate its undesirable effects. Such factors might include, for example, older and more mature children, parents who live near each other or are willing to cooperate in lessening the impact of the changes in custody, and a division of periods of custody which is related to actual events in the children’s lives, such as between school and holiday periods, [citations omitted]. Ibid. at 380 So.2d at 1165.

We look, then, to the “particular circumstances” of the Gerscovieh situation, after making preliminary observations.

Regardless of the number of adverse precedents it cannot be said that a rule of law is involved in awarding custody of the Gerscovieh children in rotating fashion. Rather the award is an exercise of discretion by the trial court. We are therefore bound to apply the test that if reasonable men could differ as to the appropriateness of the trial court’s ruling then we are not at liberty to disturb it. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We may not ask whether it is the best result; only whether it is reasonable.

On the other hand, we are compelled to consider whether the result is in the best interest of the children.

Balancing the two tests we conclude that our task is to determine whether reasonable men could differ as to whether or not rotating custody, under the circumstances of this case, is in the best interest of the children.

(1) Age. The children are not infants nor “of tender years.” They are eleven and fifteen years of age respectively. We are therefore not called upon to determine what effect the provision of Section 61.-13(2)(b) Florida Statutes (1979) that: “Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody. . . . ” has upon the rule that “other things being equal, . . . the mother of infants of tender years [is] best fitted to bestow the motherly affection, care, companionship, and early training suited to their needs.” quoted and specifically adopted as the Florida view in Hurst v. Hurst, 27 So.2d 749, 750 (Fla.1946) from an Alabama case previously cited and quoted from with approval in Fields v. Fields, 143 Fla. 886, 197 So. 530 (1940).

(2) Stated preference of the children (taking into account their stage of maturity). The children were consulted and favored the change in custody which, at the time of the hearing, was prospective and which has now taken place, as of August 1, 1981.

(3) Proximity of custodial domiciles. As originally contemplated by the parties and enshrined in the final judgment, possession of the marital residence was to alternate in the same fashion as custody of the children, so that there would have been no disruption of their physical surroundings by changes of custody. By subsequent order, also on appeal here, father-appellee was permitted to take custody in August and to remove the children to a new home now occupied by him and a new wife, which is located three miles from the marital residence.

The effect is to intensify, to some degree, the impact on the children of changes in custody, but we do not see the effect as sufficiently drastic to require a different result. We were comfortable with a continuation of custody of the children in their homeplaee regardless of the parent in residence. We are less so under the revised arrangement. Our reticence to give wholehearted approval to the change is not, however, sufficiently intense to justify a finding of abuse of discretion. The community is the same; schools are the same; friends no doubt may remain substantially the same; and visitation rights are not hampered by the change.

(4) Reasonableness of periods of alternating custody. The use of one calendar year would seem to be the least disruptive interval that could be selected for rotating custody. Certainly an appellate court is in no position to hold that six months or any other time period would be “more reasonable” in the absence of particular adverse circumstances and none appear in this record.

The trial court found both parents fit to have custody of the minor children. There can be no question that a child benefits from the influence of both a father and a mother in making the varied and at times stressful adjustments imposed by adolescence and its transformation to adulthood. Where circumstances warrant, as here, the best interest of minor children may well be served by alternating custody between parents and we therefore affirm that aspect of the final judgment.

CHILD SUPPORT

The judgment appealed from requires the father to pay certain expenses of the children and, in addition, to pay child support in the amount of $2,000 per month until the younger child attains the age of eighteen or becomes self-supporting or emancipated. The mother complains that this is not enough. The father requests a technical revision to provide for $1,000 per month per child in order to avoid the consequence that he will be obligated to pay $2,000 per month even after one child attains the age of eighteen years while the other child remains a minor.

The parties offer differing versions of the amount needed for support of the children. They agree, however, that private schools and other amenities that would have been supplied but for the breakup of the family are to be enjoyed by the children in any event. It is only the method of computing the cost of these amenities that is in dispute.

The trial court found that $2,000 per month would be required to meet the mutual expectations of the parties for their children. The record supports that determination.

While the final judgment is not explicit in that regard we have assumed that the child support payments are to be made only in months during which the mother has custody. On remand the judgment shall be modified to expressly so provide and to require the payment of $1,000 per month per child.

REHABILITATIVE ALIMONY

The wife was awarded $1,000 per month for a period of five years as rehabilitative alimony. Before the marriage, wife was a registered nurse with a specialty in surgery. There was testimony that by reading and studying she had maintained her academic proficiency in this specialty. To counterbalance this evidence, it was shown that the wife lacked recent practical experience, having been engaged for fifteen years as wife, mother and homemaker, and that she suffered under a slight medical disability. An employment agent testified that she could be immediately employed as a surgical nurse at a salary between $12,000 and $20,000 per year. There was also some evidence that the medical problem would not substantially interfere with the duties of a surgical nurse. The wife, however, would like to go back to school to obtain a PhD degree in psychology in order to establish a new career.

The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974).

Canakaris v. Canakaris, supra, at 1202. Generally speaking, an award of rehabilitative alimony to provide a college education will invite particular scrutiny. See Murray v. Murray, 374 So.2d 622 (Fla.4th DCA 1979). It is our view, however, that the trial court could have found, on the evidence presented, that the wife would require some amount of retraining and practical experience before she could become self-supporting. In addition, the question of whether the medical disability might have an adverse effect on the wife’s ability to reenter the nursing profession has not been foreclosed by anything in the record. On that basis the award of rehabilitative alimony seems justified. Particularly is this true when the award is considered as simply one element of the total alimony picture.

PERMANENT ALIMONY AND PROPERTY INTERESTS

Both parties are dissatisfied with the awards related to alimony and property interests. Not surprisingly, the opposing briefs present a picture of the respective assets and liabilities of the husband and wife that are in stark contrast to one another. It is most difficult for a trial court to effect equitable distribution of a fortune which is made to appear ephemeral; it is next to impossible for an appellate court to do so. Appellant-wife represents that the husband has assets in his own name of roughly $450,000; that assets in joint names total $210,000; and that wife has assets of $14,500. Liabilities of $150,000 complete the net worth picture. The answer brief of appellee-husband takes a slightly different approach, suggesting that under the Final Judgment the husband retains assets of $205,000 whereas the wife ends up with $400,000. Appellant-wife then responds by maintaining that “by virtue of the trial court’s ruling, the Husband receives assets of $554,293.00 while the Wife receives assets totaling $121,253.00.”

In a similar vein, the amount of husband’s annual net income is in serious dispute.

The wife is awarded one-half of the marital residence and other joint interests, right to possession of that residence in alternating years, plus $500 per month as permanent periodic alimony. We can do no better, in weighing the relative merits of the parties’ respective positions than the supreme court did in Canakaris v. Canakaris, supra, which is to quote the sine qua non of equitable distribution enunciated by Judge Rawls:

How shall the material wealth of a marriage which is being dissolved be divided when one partner, the wife, has contributed her time to the marital home and children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. Either spouse may contribute either by working in the market place or by working as a homemaker. The fact that in one marital venture a spouse is gainfully employed in the market place and pays a housekeeper to rear the children and keep house is not distinguishable from the spouse who devotes his or her full time to the profession of homemaker. The primary factual circumstance is each spouse’s contribution to the marital partnership.

Brown v. Brown, 300 So.2d 719, 726 (Fla.1st DCA 1974).

The Canakaris court, referring again to the Brown opinion, reiterated the pole star of judicial discretion in the area of equitable distribution:

The court emphasized that its policy was not grounded upon principles of community property, but on basic fairness; a dissolution award should be sufficient to compensate the wife for her contribution to the marriage.
We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.” 382 So.2d 1197 at 1204.

It is our view that the final judgment comports with basic fairness to both parties and that the record supports the final judgment in all important respects. With the following minor exceptions we therefore affirm:

1. Child support in the amount of $1,000 per month per child shall be payable during minority in months in which the wife has custody;

2. The judgment shall confirm the 0.5% Limited Partner Ownership interest in wife’s name; and

3. The wife shall be indemnified for the $90,000 business loan to the limited partnership on which she is apparently jointly and severally liable.

4. On remand it will also be necessary for the trial court to revisit the question of possession of the marital residence since that will no longer follow custody of the children.

We otherwise affirm the awards of custody of the children, child support, interest in jointly owned assets, rehabilitative and permanent periodic alimony and costs and attorneys’ fees.

As hereinabove specified, we AFFIRM IN PART; REVERSE IN PART; and REMAND for appropriate further proceedings.

DOWNEY, JAMES C., and HURLEY, DANIEL T. K., Associate Judges, concur.