author: PER CURIAM. FERGUSON, Judge

text:
    Peter John LAURENZANO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-425.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 28, 1981.
    Greene & Cooper and Sharon L. Wolfe, Ronald S. Guralnick, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed on authority of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); Sizemore v. State, 390 So.2d 401 (Fla. 3d DCA 1980).

FERGUSON, Judge

(dissenting).

The operative facts, in clear and unambiguous language, are as follows: narcotic officers assigned to Miami International Airport, observed appellant looking at a flight monitor and pacing. The officers also observed that appellant looked at people in the ticket line, that the ticket agent made a phone call when appellant was at the head of the line, that appellant attempted unsuccessfully to peel the adhesive flight sticker from his suitcase, and that appellant walked away without purchasing a ticket. The officers then, based on those admittedly innocent observations, stopped appellant in the airport lobby, identified themselves as police officers, requested appellant to identify himself, and sought permission to search his luggage. Appellant was informed that he could refuse. Without responding to the request for the luggage search, appellant quickly placed his suitcase on a lobby counter top, opened it, rummaged through the clothing hastily while responding that it contained only dirty clothes, then closed the suitcase. The officers, without further informing appellant of his rights, requested that he accompany them to the lower level baggage area where a trained dog would sniff the luggage. Appellant complied. Following denial of his motion to suppress, defendant was convicted.

I would reverse on the authority of Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (when officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure subject to Fourth Amendment requirements) and State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979) (issues concerning governmental restraint of individual liberty depend upon what an ordinary person, faced with a confrontation in the real world with persons who are asserting official authority, would reasonably believe the officers can do).

In United States v. Mendenhall, supra, a sharply divided court upheld an airport seizure on grounds which are not supportive of the States’ argument in this case. Two justices viewed the stop of the suspect as not offensive to the Fourth Amendment. Three justices were of the opinion that the seizure issue should not be considered because it had not been raised in the courts below, but that even if the stop constituted a seizure, the drug courier profile described by narcotic agents satisfied the articulable suspicion requirement. The four dissenting justices believed that even if the court assumed seizure, such seizure was not legal because there was not reasonable grounds for suspecting the defendant of criminal activity at the time of the stop. The single clear proposition that can be extracted from Mendenhall (by a vote of 7-2) is that a stop of this type constitutes a seizure for Fourth Amendment purposes and requires reasonable suspicion.

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), decided five weeks after Mendenhall, a majority of the court on facts almost identical, concluded that DEA agents acted unlawfully in approaching a suspect who fit part of the drug courier profile. There the agents approached the defendants in an airport and asked them to produce travel tickets and identification. The issue in Reid, supra, as it was for seven of the nine justices in Mendenhall, supra, was whether under the circumstances of the case, the officers could, as a matter of law, have reasonably suspected the petitioner of criminal activity. Despite the reservation of Justice Powell in his concurring opinion that the Court did not decide the issue of whether a stop for routine identification constitutes a seizure, the majority in both Reid and Mendenhall, supra, proceeded upon the assumption that a seizure had occurred. See Reid, supra at 448 U.S. 441, 100 S.Ct. 2754, 65 L.Ed.2d 894:

The agent’s belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an “inchoate and unparticularized suspicion or ‘hunch’ ” .. ., than a fair inference in light of his experience, is simply too slender a need to support the seizure in this case.

See also United States v. Coleman, 450 F.Supp. 433, 439 (E.D.Mich.1978) (Fourth Amendment stop occurs as soon as officers initially approach an individual, identify themselves, and begin to question him) and cases collected in State v. Frost, supra.

More particularly, the seizure of the person in this case is without a founded suspicion, as required in the federal cases discussed. In addition, the silent “consent” to a search of the luggage was given immediately after appellant was stopped. See State v. Frost, supra. Login v. State, supra, is distinguishable because there, narcotic agents had an articulable suspicion of criminal activity (cocaine residue around Login’s nostrils) before they requested identification, proof of destination, and consent to search. I would reject Sizemore v. State, supra, as having been incorrectly decided.

Because I believe the facts support finding a seizure of the persons not founded on a reasonable suspicion of criminal activity and that there was no break in the chain of illegality from the initial stop to the crucial “consent” I find it unnecessary to discuss the secondary issue whether the subsequent dog-sniff of the luggage was based on voluntary consent rather than a mere acquiescence to apparent authority. Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla.1978).

I share the concern of the majority that drug trafficking has had a deleterious effect on the quality of life in South Florida and that Miami International Airport is a primary point of entry for illegal drugs. Nonetheless, I am constrained to dissent. Affirmance of this seizure will tend to broaden police powers beyond that which is still considered minimal due process by federal constitutional standards. Laws subjecting all travelers to reasonable searches for contraband should emanate from the legislative branch of government. Such laws, enacted with safeguards against arbitrary and unreasonable application, and limited to travel terminals, could satisfy both public policy and constitutional dictate.

This court singularly, though a line of cases culminating in this one, has chipped away at the Fourth Amendment in a fashion that has implications far beyond airport terminals and drug couriers. That law enforcement officers may momentarily detain any citizen on the street, request identification, proof of destination, and permission to search for no reason whatsoever without offending the Fourth Amendment is not the rule of Mendenhall, nor is it yet the law of the land. I would further reject the argument that it makes' a legal difference whether the acts are done with a smile or a smirk.

      . The Attorney General would argue that appellant was not stopped but merely “contacted,” see State v. Frost, infra at 597, or that this was a “cooperative encounter,” see Schlanger v. State, 397 So.2d 1028 (Fla. 3d DCA 1981) at 1029, or a “pre-detention encounter” see Login v. State, supra at 186. I would reject these inventions as semantic corruptions which ignore reality and otherwise have no legal meaning.

      . Justice Rehnquist was the sole dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Salvador ARIAS and Marlene Arias—his wife, individually and as parents and next friends of Katherine Arias, a minor; R.H. Hammond Co., Inc., d/b/a Dixie Lily Southern Fair & Fiesta Macaroni, a corp., Jose Garcia and Travelers Insurance Co., a foreign corp., Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida; and City of Hialeah, a municipal corporation, and Westchester Fire Insurance Company, Appellees.
    No. 80-882.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 28, 1981.
    Greene & Cooper and Robyn Greene, Ro-senblatt, Greene & Arnowitz, High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellants.
    Robert Ginsburg, County Atty. and Roy Wood, Asst. County Atty., Goodwin, Rys-kamp, Welcher, Carrier & Donoff and Kenneth L. Ryskamp, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Review of the record supports the trial court’s finding that no negligent act of Metropolitan Dade County or City of Hialeah was a contributing cause to the automobile collision of appellant and defendant Garcia, and that both Dade County and City of Hialeah are entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

Affirmed.


text:
    Gloria LEWIS, Appellant, v. Keith E. LEWIS, Appellee.
    No. 80-1299.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 28, 1981.

      Silver & Levy and Jay M. Levy, Miami, for appellant.
    Norman Haft, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The wife appeals from a final judgment of dissolution of marriage.

Measured by the criteria enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we conclude that the permanent alimony award of $800.00 per month was unreasonable, and reverse and remand for an increase in this amount. Colucci v. Colucci, 392 So.2d 577 (Fla.3d DCA 1980); Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980). We also find that the court below erred in failing to grant the wife a special equity in the San Francisco and Massachusetts bonds which the court found were purchased, in part, with separate funds of the wife. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); Leonard v. Leonard, 389 So.2d 256 (Fla.3d DCA 1980). Finally, the division of marital property is reversed and remanded for further consideration of the wife’s property rights, which may require an award of lump sum alimony to equitably compensate the wife for her contribution to the marriage. Canakaris v. Canakaris, supra; Colucci v. Colucci, supra. In all other respects the judgment appealed is affirmed.

Affirmed in part; reversed in part, and remanded with directions.


text:
    ADOPTION HOT LINE, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, District XI, Max B. Rothman, as District Administrator, Appellee.
    No. 80-1859.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 28, 1981.

      ' Alan S. Kessler, Miami Beach, for appellant.
    Morton Laitner, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Adoption Hot Line, Inc. appeals from an order of permanent injunction after the trial court determined that Adoption Hot Line was acting in the capacity of an intermediary as defined by Section 63.032(8), Florida Statutes (1979) and was an unlicensed child placing agency in violation of Chapter 63, Florida Statutes (1979). The injunction provides:

That Adoption Hot Line, Inc. is permanently enjoined from, in any manner of advertising for parents for unborn children, for purposes of adoption or in any manner advertising or soliciting the offering of adoptive services until further Order of this Court.

We reverse on the grounds that this injunction is more extensive than is necessary to protect against any unlawful activity under Chapter 63, supra. We do not read Chapter 63 as prohibiting all unlicensed parties from referring children to licensed or authorized parties to place for adoption. Under the present injunction, however, Adoption Hot Line is permanently enjoined from any form of advertising any referral service, even services consistent with Chapter 63, supra. In an absence of a showing that a more limited injunction would be ineffective to preserve the governmental interest expressed in Chapter 63, and to prevent misleading advertising, we find the complete suppression of Adoption Hot Line’s advertising an impermissible violation of the First Amendment to the United States Constitution and Article I, Section 4 of the Florida Constitution (1968). See, e. g., Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). See also Metro-media, Inc. v. City of San Diego, - U.S. -, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (San Diego sign ordinance too broad); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (commercial speech may be limited as to time, place, and manner); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices is commercial speech protected by First Amendment). See also Aerosonic Corp. v. Trodyne Corp., 402 F.2d 223 (5th Cir. 1968) (under Florida law an injunction should never be broader than is necessary to secure the injured party without justice to the adversary); Pollgreen v. Morris, 496 F.Supp. 1042 (S.D.Fla.1980); Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979) (injunction overbroad). Cf. The Florida Bar v. Kaiser, 397 So.2d 1132 (Fla.1981) (attorney enjoined from any form of advertising by newspaper, television, or otherwise that would tend to mislead the public into believing he was a member of the Florida Bar authorized to practice law in this state).

Reversed for proceedings consistent with this opinion.

FERGUSON, Judge

(dissenting).

I believe that the Legislature intended by enactment of Chapter 63, Florida Statutes (1979), to bring to an end the profiting by unlicensed entities in the transfer or arranging for transfer of children, whether born or unborn, from the natural parents to other persons. Protection of the well-being of persons to be adopted, as well as protection of natural and adoptive parents, is a legitimate State interest to which any First Amendment privilege of commercial speech should yield. By permitting advertising such as is done here, the unlicensed business may establish contact between natural parents and couples or individuals seeking to adopt, arrange for the transfer of custody to take place beyond the jurisdiction of this State, and thus defeat the purpose of the Statute.

I would affirm.

      . The essential facts of this case are set out in Adoption Hot Line, Inc. v. State, Department of Health and Rehabilitative Services, 385 So.2d 682 (Fla. 3d DCA 1980) where we upheld a temporary injunction issued against appellants.

      . The order appealed from is, in fact, much broader than the statement of the trial judge at the close of proceedings below:
      ... [Tjhis Court enters its permanent injunction against Adoption Hot Line from any manner, any operation dealing with the placement of children or attempting to place children or running any ads or, in any manner, counseling expectant mothers or mothers with children or parents with children and attempting to find, suitable homes for them or to send them to attorneys of prospective adoptive parents, in any manner that would involve the operation that is usually and ordinarily limited to licensed child placing agencies, responsible attorneys and responsible physicians, (emphasis added)
      We note, however, that unless the words “usually and ordinarily” were changed to “legally,” this statement would also be too extensive.


author: NESBITT, Judge.

text:
    Steve OPLER, as Trustee, Appellant, v. Joel F. WYNNE, Trustee, Appellee.
    No. 80-2245.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 21, 1981.

      Myers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman, Miami, for appellant.
    Howard J. Hollander, Miami, for appel-lee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

This is an appeal from a summary final judgment entered against the buyer of a landlocked parcel of land. The parties entered into a land sale contract for a small irregular parcel of land situated in unincorporated Dade County. The contract contained the following clause:

F. INGRESS AND EGRESS: Seller covenants and warrants that there is ingress and egress to said property.

The parties did not agree to a conveyance of an express easement of way. The seller’s closing attorney caused a title insurance policy to be issued specifically exempting ingress and egress. At closing, the seller delivered and the buyer accepted a deed which did not grant any easement of way to the buyer. The deed contained a clause which provided that the conveyance was “[s]ubject to conditions, restrictions and limitations of record .... ”

After the buyer went into possession, his attempt to develop the property was frustrated because the parcel was landlocked. The buyer then commenced an action for declaratory judgment against the seller for damages for breach of the express warranty and against adjacent and peripheral landowners for a declaration of his entitlement to ingress and egress. The seller filed an answer containing a general denial as well as the affirmative defenses of merger, waiver, and estoppel. The seller then perfected a motion for summary judgment in support of his affirmative defenses upon which he procured a favorable final judgment, which the buyer now appeals.

The principal contention on appeal is whether the buyer’s acceptance of the deed of conveyance, under these circumstances, precludes his action for damages under the doctrine of merger. The general rule is that all preliminary agreements and understandings relative to the sale of land usually merge into the deed of conveyance. Milu, Inc. v. Duke, 204 So.2d 31 (Fla. 3d DCA 1967). The same rule applies to covenants contained in a land sale contract. Stephan v. Brown, 233 So.2d 140 (Fla. 2d DCA 1970). However, there is a clear exception as to covenants in a land sale contract, which are outside of, collateral to, or independent of the provisions of the deed; they survive delivery and acceptance of the deed of conveyance and remain enforceable. Soper v. Stine, 184 So.2d 892 (Fla. 2d DCA 1966) and cases cited therein. Accord, Campbell v. Rawls, 381 So.2d 744 (Fla. 1st DCA 1980); 33 Fla.Jur. Vendor and Purchaser § 95. This is precisely such a case. The buyer’s acceptance of the seller’s deed as well as his acquiescence to the remainder of the seller’s performance did not constitute a merger because the seller’s covenant expressly warranted that there was ingress and egress to the land.

Likewise, we do not find merit in the defendant’s affirmative defense of waiver. Waiver is the intentional relinquishment of a known right. Firemen’s Fund Insurance Company v. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967). Absent knowledge, waiver will not arise. City of North Miami Beach v. Flora, 315 So.2d 12, 15 (Fla. 3d DCA 1975). In this case, the buyer’s knowledge that the seller did not convey an easement of way, the buyer’s acquiescence to the title insurance policy, and his acceptance of the deed subject to conditions, restrictions, and limitations of record were extrinsic to the express covenant warranting ingress and egress. The buyer was entitled to accept the deed and acquiesce in the seller’s performance secure in his knowledge that he was protected by the seller’s express warranty of ingress and egress.

Lastly, the seller was not in position, based upon his own proofs, to claim the affirmative defense of estoppel. As grantor, he could not claim detrimental reliance upon his own willful act. Palatka Federal Savings and Loan Association v. Raczkowski, 263 So.2d 842 (Fla. 1st DCA 1972). A party’s wrongful act cannot ordinarily serve as the basis for a claim of estoppel against another. Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207 (Fla. 3d DCA 1972), cert. denied, 277 So.2d 536 (Fla.1973). Here, the seller’s willful act was the breach of a covenant warranting ingress and egress.

For the foregoing reasons, the summary final judgment in favor of the seller was erroneous. Upon this record, the buyer, even as non-moving party, was entitled to partial summary judgment imposing liability upon the seller.

The final judgment in favor of the seller, including attorney’s fees, is reversed and remanded with directions: (1) to enter a partial final summary judgment determining liability in favor of the buyer; and (2) for further proceedings with respect to the assessment of damages including the seller’s affirmative defense as to the buyer’s alleged failure to mitigate damages.

Reversed and remanded.

      . A summary judgment may be entered for a non-moving party where the other party moves for summary judgment and the record discloses the non-moving party is entitled to summary judgment. Carpineta v. Shields, 70 So.2d 573 (Fla.1954); King v. L & L Investors, Inc., 133 So.2d 744 (Fla. 3d DCA 1961), cert. denied, 142 So.2d 93 (Fla.1962). See, Jockey Club, Inc. v. Blake, 297 So.2d 44 (Fla. 3d DCA 1974).

      . Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla. 3d DCA 1979).


text:
    Ronald RIDGE, Appellant, v. Norman RADEMACHER and Hazel Rademacher, Appellees.
    No. 81-108.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 21, 1981.
    Ress, Gomez, Rosenberg & Howland and Miguel A. Orta, North Miami, for appellant.
    Michael Lechtman, North Miami Beach, for appellees.
    Before BARKDULL, SCHWARTZ, and FERGUSON, JJ.
   PER CURIAM.

We hold that an unsworn statement to a municipal police officer in regard to an alleged crime is not accorded an absolute privilege which will bar, as a matter of law, a subsequent action for slander based on such a statement, particularly when it is alleged to have been maliciously made. Such a statement partakes of a qualified privilege and is a mixed question of law and fact, depending on the actual malice established. Hartley & Parker v. Copeland, 51 So.2d 789 (Fla.1951); Axelrod v. Califano, 357 So.2d 1048 (Fla.1st DCA 1968); Glynn v. City of Kissimmee, 383 So.2d 774 (Fla.5th DCA 1980).

Therefore, the final order dismissing the last amended complaint is reversed, with directions to require an answer by the defendants within an appropriate time.

Reversed and remanded, with directions.

      . Pleadings or sworn statements in judicial proceedings may be “absolute”. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897); Fiore v. Rogero, 144 So.2d 99 (Fla.2d DCA 1962); McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Farish v. Wakeman, 385 So.2d 2 (Fla.4th DCA 1980). Unsworn statements in legislative and executive proceedings may also be “absolute”. Robertson v. Industrial Insurance Company, 75 So.2d 198 (Fla.1954); McNayr v. Kelly, Supra; Stone v. Rosen, 348 So.2d 387 (Fla.3d DCA 1977); Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla.4th DCA 1979); Mueller v. The Florida Bar, 390 So.2d 449 (Fla.4th DCA 1980); Kohn v. Davis, 390 So.2d 1246 (Fla.1st DCA 1980).

      . This opinion and decision will not foreclose the trial court, upon an appropriate motion, from considering either the entry of a summary judgment in favor of the defendants or a directed verdict at the close of the plaintiffs case, in the event that the record in either of such instance will not permit the plaintiff to go forward.


author: DOWNEY, Judge.

text:
    Benito A. GORDILS, Appellant, v. David H. DeVILLIERS, Jr., and C. Dennis Webster, d/b/a Orleans Inn and Ronald Davis, Appellees.
    Nos. 80-1566, 80-2195 and 81-529.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Sept. 22, 1981.
    Martin J. Sperry of Krathen & Sperry, Fort Lauderdale, for appellant.
    Alan L. Landsberg, Miami, and Larry Klein, West Palm Beach, for appellees, David H. DeVilliers, Jr., and C. Dennis Webster.
   DOWNEY, Judge.

Appellant, Benito A. Gordils, sued David H. DeVilliers, Jr., and C. Dennis Webster (doing business as Orleans Inn) and Ronald Davis in three counts, 1) assault and battery, 2) negligence, and 3) negligent hiring of an employee. From final summary judgments on all three counts (and a cost judgment) in favor of appellees DeVilliers and Webster, Gordils has perfected these appeals.

The facts are set forth in the deposition of appellee Davis and Gordils’ answers to interrogatories. It appears that Davis was a musical entertainer at a night club known as the Orleans Inn, owned by appellees DeVilliers and Webster. Davis and his group of musicians were employed under an oral contract pursuant to which they were paid $600 per week. The musical group was required to work by the employers’ guidelines. The employers set the dates and hours of work and specified certain dates for certain shows. They required Davis to mingle with the customers in various ways. On occasion Davis helped prepare meals, greet customers, and generally promoted the good will of the establishment. On July 23,1978, Gordils was a customer at Orleans Inn, sitting at a table with several women. During the show Davis invited song requests from the customers, and one of the women at Gordils’ table made a request. The woman had a speech impediment and Davis began to mimic her impediment. Gordils became angry over this incident and approached Davis during the show. There is a conflict as to what happened thereafter between Davis and Gor-dils.

Davis’s version is that he was performing his duties as a musician when Gordils came up to the stage and insisted Davis apologize to the lady at Gordils' table. Davis was unsure of what it was Gordils wanted, but told him to wait until the musical set was over and they could talk. When the set ended, the two went to the kitchen area to talk because the juke box was too loud in the customer area. Then Gordils began berating Davis, using foul language and poking Davis with his finger. Davis tried to leave but Gordils would not let him do so. Davis testified that he told Gordils he had to go and get ready for his next act. Gor-dils raised his arms as though to hit Davis, and Davis raised his hands to defend himself and apparently a large ring on his finger hit Gordils over the eye.

Gordils’ answers to interrogatories describe the incident differently. In those answers he says he approached Davis for an apology on behalf of the lady. Initially, Davis did nothing, but he “called me back later and started arguing. As I walked away he called me, I turned and he struck me.”

The foregoing statement of the facts does not establish as a matter of law that Davis was not an employee of Orleans Inn or that he was acting outside the scope and course of his employment. Thus, on motion for summary judgment the trial court was presented with genuine issues of material fact: (a) was Davis an employee of Orleans Inn, and (b) if he was an employee was he acting within the course and scope of his employment at the time of the incident with Davis? In this state of the record these are jury questions. Goldie v. Dillon, 140 So.2d 81 (Fla. 2d DCA 1962); 57 C.J.S. Master and Servant § 617(2); Tuberville v. Concrete Construction Company, 270 So.2d 431 (Fla. 1st DCA 1972); Saudi Arabian Airlines Corp. v. Dunn, 395 So.2d 1295 (Fla. 1st DCA 1981); Alsay Pippin Corporation v. Lumbert, 400 So.2d 834 (Fla. 4th DCA 1981). Thus, the entry of summary judgment in favor of appellees DeVilliers and Webster constituted reversible error as to Count I. However, our review of the record reveals no evidence that would create a genuine issue of material fact regarding Counts II or III, and so the summary judgments on those counts were proper.

Accordingly, the summary judgment on Counts II and III is affirmed, the summary judgment on Count I is reversed, as (of necessity) is the cost judgment; and the cause is remanded for further proceedings. Pursuant to appellees’ concession in this court, the trial court, on remand, shall (a) permit appellant to amend his complaint to include appellees’ insurance carrier as a defendant; and (b) strike appellees’ affirmative defense of assumption of the risk.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

MOORE and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    DELRAY ASSOCIATES LIMITED, etc., Appellant, v. SABAL PINE CONDOMINIUMS, INC., etc., Appellee.
    No. 80-1865.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Sept. 21, 1981.

      Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale and Larry Klein, West Palm Beach, for appellant.
    David St. John and Rod Tennyson of Powell, Tennyson & St. John, P. A., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from the dismissal of appellant’s third party complaint with prejudice. We affirm. The developer of a condominium sued the condominium association for failure to pay escalated rent pursuant to a recreation lease. The association filed an answer and counterclaim admitting the escalated rent had not been paid. In the counterclaim, the association asserted secret self-dealing by the developer which allegedly bound the association to pay escalated rent above the fair market value for the leasing of similar recreation facilities. The association alleged that the developer’s secret self-dealing constituted a breach of a fiduciary duty to the association for which the association sought damages. Although the counterclaim is not clear, it appears to seek past damages. The developer answered the counterclaim and also filed a third party action against each of the individual unit owners in the condominium. The third party action, the subject of the instant appeal, sought indemnity from each of the unit owners for the amount of any judgment which might be rendered against the developer and also sought rescission of all sales of the condominium units. The trial court dismissed the third party action with prejudice.

At the time of oral argument, we were advised by counsel for appellee of several major changes in the status of the suit. Apparently, the condominium association has now paid the escalated rent and intends to do so in the future. Further, the association seeks future, rather than past, damages. These changes have occurred without an amendment to the counterclaim, and we do not consider them.

We conclude that the dismissal of the third party action with prejudice was proper for two reasons. First, the third party complaint seeks indemnity based upon a specific provision contained in a warranty deed. We have reviewed the provision and find that it does not support a cause of action for indemnity.

Second, the third party action also seeks rescission of the sales of all condominium units. Third party liability is founded upon a right to contribution, subrogation, or indemnification. VTN Consolidated, Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla.2d DCA 1976). This is an improper third party complaint; the action for rescission may not be brought as a third party action under our rules of procedure. See Rule of Civil Procedure 1.180. We stress that this is a procedural ruling only. The counterclaim seeks damages on behalf of the Association for an alleged wrongful act by the developer. The third party action is in the nature of a defense to the damage claim and is certainly not a claim within the appropriate theories of third party practice. In affirming the dismissal of the third party action, we take no position as to the legal viability of the counterclaim. This issue is not before us.

AFFIRMED.

DOWNEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . The provision from the warranty deed upon which the claim for indemnity by the developer is based is as follows:

        ACKNOWLEDGEMENT AND ACCEPTANCE BY GRANTEE(S)
      Grantee(s) acknowledges that he has read the Declaration of Condominium, Articles of Incorporation, By-Laws and Recreational Area Land Lease described in the foregoing Warranty Deed; understands that each and every provision of the foregoing documents is made for the benefit of all owners of the Condominium and essential to the successful operation and management of said condominium property; covenants for himself, his heirs, successors and assigns forever to abide by each and every provision of said Declaration, Articles of Incorporation, By-Laws and Recreational Area Land Lease; agrees to pay all assessments made by SABAL/PINE CONDOMINIUMS, INC., including assessments to pay rent under the Recreational Area Land Lease; and further agrees to pay the mortgage described in the foregoing deed.


author: HERSEY, Judge.

text:
    F. Lawrence WOODS, Appellant, v. LUBY CHEVROLET, INC. and Precision Engine Company, a Division of Kool-Woods Engine Corp., Appellees.
    No. 80-2048.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Sept. 24, 1981.

      Robert J. Hunt of Bond, Schoeneck & King, Fort Lauderdale, for appellant.
    John D. Kehoe of Noreiga, Chopp & Schatz, Miami, for appellees.
   HERSEY, Judge.

By this appeal, appellant challenges the trial court’s exercise of jurisdiction over him and its interpretation of a stipulation for settlement.

In December 1979, appellee Luby Chevrolet, Inc. sued Precision Engine Company for damages resulting from Precision’s failure to pay for goods sold and delivered to it by Luby Chevrolet.

Prior to trial, Luby and Precision entered into a stipulation for settlement. In the stipulation, Precision admitted that it was indebted to Luby. The parties then agreed that a final judgment in favor of Luby should be entered but that the issuance of a writ of execution should be withheld pending Precision’s performance of the stipulation. The terms to be preformed by Precision are paraphrased as follows:

1) As collateral security for its agreement to pay Luby, Precision was to deliver an endorsed (in blank) original Certificate of Title for a certain boat hull, free and clear of all encumbrances.
2) Precision agreed to use its best efforts to sell the boat hull on or before August 15, 1980 and pay Luby an amount equal to the entire indebtedness at which time title to the hull would be redelivered to Precision for delivery to the purchaser.
3) In the event the boat hull was sold for less than the amount of indebtedness, Precision’s principal, appellant Larry Woods, agreed to pay any deficiencies.
4) If the boat hull was not sold by August 15, 1980, Precision agreed to pay a sum equal to 25% of the total amount due to Luby on August 15, 1980; 25% on September 15, 1980; 25% on October 15, 1980 and the balance on November 15, 1980.
5)If Precision failed to meet any of the above described payments within 10 days of the date specified, then Luby could, at its option, liquidate the collateral security or obtain a Writ of Execution for the full amount owed.

The stipulation was signed by appellant Woods as president of Precision Engine Company and in his individual capacity.

The certificate of title to the boat hull was never delivered and none of the payments required by the terms of the stipulation were made. Accordingly, the trial court, pursuant to Luby’s request, entered final judgment against Precision and appellant Woods, individually, jointly and severally for the full amount owed. Thereafter, appellant Woods entered a special appearance and filed a motion for rehearing and to vacate final judgment.

Although a rehearing was granted, the trial court declined to vacaté the final judgment. Rather, it determined that since there was no sale of the boat hull, the deficiency was the total amount of the original judgment and, under the stipulation, Woods was individually responsible for that deficiency.

Appellant Woods first asserts that the trial court never acquired jurisdiction over him because he was not a party defendant in the original action and never received service of process.

While service of process is ordinarily essential to in personam jurisdiction, a court may obtain jurisdiction over an individual or entity by consent. That consent need not always be specifically expressed. For example, by executing and filing a bond in a pending action the sureties voluntarily bring themselves within the jurisdiction of the court. Archibald v. Donald, 98 Fla. 698, 124 So. 175 (1929). Similarly, a person who executes a stipulation for settlement which is filed with and ratified by the trial court, as in the instant case, voluntarily submits himself to the jurisdiction of that court. Thus, the trial court acquired and properly exercised jurisdiction over appellant.

Appellant Woods also contends that the trial court erroneously construed the “deficiency” paragraph of the stipulation which states:

If said boat hull is sold for an amount less than the total sum due to Plaintiff [Luby Chevrolet] then the Defendant and Defendant’s principle [sic], Larry Woods, hereby agrees [sic] to pay any such deficiencies to Plaintiff along with the proceeds of said sale and Plaintiff shall redeliver the Certificate of Title of said boat.

According to appellant, this provision becomes operative only if the boat hull is actually sold for a price less than the amount owed. We agree. It is clear that, under the language of the stipulation, appellant obligated himself individually only to pay the deficiency, if any, resulting from a sale of the boat hull. It matters not that there was no attempt by Precision to comply with the terms of the stipulation. Appellant’s liability was not predicated upon such action. Rather, his liability was contingent upon a sale of the boat hull, an event that never occurred.

Accordingly, we vacate that portion of the final judgment imposing liability upon appellant Woods and affirm the final judgment as modified.

MODIFIED AND, AS MODIFIED, AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    David Wayne GIBSON, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Barbara Greadington, Commissioner-Chairperson; Anabel Mitchell, Commissioner; Jack V. Blanton, Commissioner; Charles Scriven, Commissioner; Kenneth Simmons, Commissioner; Maurice Crockett, Commissioner; Ray E. Howard, Commissioner; Louie L. Wainwright, Secretary, Department of Corrections, etc., et al., Respondents.
    No. 81-1339.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.
    David Wayne Gibson, in pro. per.
    No appearance for respondents.
   PER CURIAM.

The petition for writ of habeas corpus is denied. Petitioner’s remedy is by way of appeal from the order of the circuit court denying his “motion” for writ of habeas corpus. Mitchell v. Wainwright, 155 So.2d 868 (Fla.1963).

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


author: THOMPSON, Judge.

text:
    CITY OF JACKSONVILLE, a consolidated municipality of the State of Florida, Appellant, v. NICHOL’S ALLEY OF JACKSONVILLE, INC., a Florida Corporation, Appellee.
    No. SS-177.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1981.
    Rehearing Denied Sept. 18, 1981.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Gen. Counsel, Jacksonville, for appellant.
    Homer H. Humphries, Jr., of Grissett, Humphries & Kellogg, Jacksonville, for ap-pellee.
   THOMPSON, Judge.

The City of Jacksonville appeals from a final judgment which declared that §§ 708.-906, 708.907 and 708.910 of the City of Jacksonville Ordinance Code (relating to liquor license distance requirements) were arbitrarily discriminatory, unconstitutional, and void. The City contends that the distance requirements and the manner of computing distances are not arbitrary or discriminatory, but instead, are valid exercises of its police power. We agree and reverse in part.

The challenged ordinances provide as follows:

708.906 Distance Limitations. Except as provided in Sections 708.909 and 708.910, no location shall be approved for a liquor license unless such location is not less than:
(1) 1,500 feet from any other location where there exists a current liquor license, or
(2) 1,500 feet from any established school or church.
708.907 Measurement of Distances. All distances provided in this part shall be measured as follows:
(a) With respect to the distance between a location for which a liquor license is proposed and a location where such a license exists, the distance shall be measured by following a straight line from the nearest point of the building or portion of a building which is the proposed licensed premises to the nearest point of the building or portion of a building which is the existing licensed premises.
(b) With respect to the distance between a location for which a liquor license is proposed and an established church or school, distance shall be measured by following a straight line from the nearest point of the grounds used as part of the proposed location to the nearest point of the grounds used as part of the church or school facilities.
708.910 Existing Conditions.
(a) Establishments in locations where a current valid liquor license existed on September 1, 1976, shall not in any manner be affected by this part, nor shall any right of renewal of such licenses be changed by the distance limitations or any provisions of this part; except as provided in this Section.
(b) Notwithstanding the limitations of this part, any location shall be approved for a liquor license if in compliance with other parts of this Zoning Code and such license is being transferred or moved from a location where a current valid liquor license existed on September 1, 1976; provided such new location is not more than 1,500 feet from the old location; and further provided that the new location is not closer than eight hundred (800) feet to an existing church, school or location where another liquor license exists; which, without the provisions of this subsection, would be within a prohibitive distance. The number of times such license may be transferred or moved shall not be limited so long as each new location meets the requirements of this subsection with respect to locations of churches, schools or existing licenses, and with respect to the location of such liquor licenses on September 1, 1976.

There is a church located 1,057 feet from the nearest point of the appellee’s property measured by a straight line basis and 1,725 feet utilizing the pedestrian travel method of measurement. There is an existing liquor license premise located 1,144 feet from the appellee’s property utilizing the straight line method of measurement, and 2,230 feet utilizing the pedestrian travel method of measurement. The appellee’s request for a license was refused because of its failure to meet the distance requirements set forth in § 708.906, and because the transfer of its license would not meet the distance limitation of 1500 feet set forth in § 708.910(b). The appellee contended, and the trial court found, that these, ordinances were arbitrarily discriminatory and unconstitutional. The court held that § 708.906 and § 708.910(b) established two different and unequal distance limitations in the City of Jacksonville within a single zoning classification, and are therefore arbitrary, discriminatory, and void under the decision of this court in City of Jacksonville v. Goodbread, 331 So.2d 350 (Fla. 1st DCA 1976). The court then held that § 708.910(a) was also void. The court further found that the straight line method of measurement required by § 708.907 changed a prior ordinance, under which distance was measured by the most direct pedestrian route of travel from front door to front door. The court also found that § 708.907 imposed a new method of measurement from closest property line to property line. This ordinance was held to be more restrictive, and therefore arbitrarily discriminatory and void.

Each of the three ordinances under attack are separate and distinct, with § 708.910 having two distinct subsections. Section 708.906 simply requires that the location of the premises of an applicant for a liquor license be no closer than 1500 feet from the premises of any other valid existing liquor license holder, church or school. Disregarding the exceptions contained in § 708.910(a) and (b), this provision is uniformly applicable to the entire city and to all applicants. Therefore, it is nondiscriminatory. The other complaint that the distance of 1500 feet is arbitrary is not supported by law. The right of a municipality to regulate the distance between owners of liquor licenses and other holders of licenses, schools or churches, is authorized by law and has for its basic purpose the protection of the health and morals of the general public. Distance limitations between applicants and schools, churches and other liquor licensees up to 2500 feet have been authorized or approved in other instances. See Former Section 561.44, Fla.Stat.; Somlyo v. Schott, 45 So.2d 502 (Fla.1950). The ordinance in question does not have the infirmity of establishing different distance limitations within the city, as did the ordinance under attack in Goodbread, supra. The courts should not substitute their judgment for that of the legislative body as to the reasonableness of the 1500 feet distance limitation. It is neither arbitrary nor discriminatory, and it is a valid exercise of the City’s police power for the protection of the health and morals of the general public.

Section 708.907, which requires that the distance limitation be measured in a straight line from the closest property line to the closest property line, admittedly increases the actual distance requirement between an applicant and another liquor license holder, church or school from that required by the prior ordinance, which measured distances by the pedestrian travel method. But the fact that the ordinance is more restrictive than the old ordinance is not a basis for saying that the new ordinance is not fairly debatable or that it is arbitrarily discriminatory and void. See Glackman v. City of Miami, 51 So.2d 294 (Fla.1951). Additionally, in the case of State v. Permenter, 59 So.2d 773 (Fla.1952), the court held that if the ordinance did not specify the method of measurement then distance must be measured in a straight line. Thus, if § 708.907 was declared to be void, the straight line method of measurement would still be required under that decision.

We have determined that the trial judge correctly held that § 708.910(b) was arbitrary, discriminatory and void. This determination eliminates any conflict between this subsection and § 708.906.

The decision of the trial court declaring § 708.910(b) unconstitutional and void is affirmed. The decision of the court declaring §§ 708.906, 708.907 and 708.910(a) unconstitutional and void is reversed.

ROBERT P. SMITH, Jr., C. i\, and JOA-NOS, J., concur.


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    ACOSTA ROOFING COMPANY and Lumbermens Mutual Casualty Company, Appellants, v. Gussie GILLYARD, Appellee.
    No. ZZ-200.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1981.
    Rehearing Denied Sept. 18, 1981.

      Summers Warden, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, and R. Cory Schnepper of Ser, DeCardenas, Levine, Busch & Allen, P. A., Miami, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The only colorable issue raised by the employer/carrier’s appeal in this workers’ compensation case is whether we should reverse the deputy’s award of temporary total disability benefits during the period between the date of the industrial accident, October 2, 1979, and April 15, 1980, the declared date of maximum medical improvement. The deputy is said to have erred in fixing the latter date by inadvertently inserting in his order the date of the treating physician’s written medical report, rather than the date of the last medical examination to which the report related, namely, February 29, 1980. This error might readily have been corrected by application to the deputy during the 20 day period before it became final. Section 440.-25(4)(a), Florida Statutes (1979). Claimant concedes the error now and we will not suppose he would have resisted its correction at that earlier, more appropriate time. We therefore treat the error as inconsequential in order to discourage substantially groundless and unnecessary appeals to this court which serve to delay payment of benefits and unjustifiably tax the limited resources of the judicial system.

AFFIRMED. Appellee’s motion for attorney’s fee is GRANTED in the amount of $1,500.

JOANOS and THOMPSON, JJ., concur.


text:
    Ralph James HUMPHRY, Appellant, v. STATE of Florida, Appellee.
    No. XX-425.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory S. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Humphry appeals his judgment and sentence assigning four points as error. We affirm in part and reverse in part.

We affirm on the appellant’s first two interrelated points since the trial court had before it competent substantial evidence to find that appellant was not “incompetent” within the meaning of Florida Rule of Criminal Procedure 3.210(b). See Walker v. State, 384 So.2d 730 (Fla. 4th DCA 1980); Green v. State, 377 So.2d 193 (Fla.3d DCA 1979). Therefore, the trial court did not err by refusing to grant the appellant’s motion which requested that the trial court appoint at least two experts to determine appellant’s competency to stand trial pursuant to Rule 3.210(b).

However, we agree with appellant’s contentions raised in points III and IV that the trial court erred in sentencing the appellant. The appellant was convicted of three felonies: robbery with a firearm, and two counts of attempted first degree murder. A 30-year sentence for the robbery conviction was imposed upon him, and jurisdiction over one-third of the sentence was retained without the trial court specifying any reasons for so doing. Reasons must be articulated by a trial court once it has decided to retain jurisdiction. Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980); Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981).

The trial court also erred by sentencing the appellant as an adult on all three convictions even though the record established that the appellant met all of the requirements of the Youthful Offender Act, Section 958.04(2), Florida Statutes (1979). The record reveals that the appellant was first adjudicated guilty on all three felonies and then sentenced for each felony at the same proceeding. Therefore, the appellant should have been sentenced as a youthful offender on the first sentence imposed and then sentenced as an adult on the other two convictions. Abram v. State, no. TT-193 (Fla. 1st DCA, April 14, 1981) [1981 FLW 879].

However, as in Abram, we certify the following question to the Supreme Court of the State of Florida as one of great public interest:

Is a person excluded from a mandatory classification under Section 958.04(2)(a), Florida Statutes (Supp.1978), when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

This case is reversed and remanded for the trial court to resentence the appellant in a manner consistent with this opinion.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.

      . Although this issue was not ruled on by the lower court, and normally the error should be corrected pursuant to Florida Rule of Criminal Procedure 3.850, see Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981), we allow for its correction on direct appeal as the cause must be remanded for resentencing in accordance with the Youthful Offender Act.


text:
    MARTIN MARIETTA CEMENT CORPORATION, Appellant, v. COUNTRY CLUB ASSOCIATES, INC., Adobe Building Centers, Inc., General Portland, Inc., L. D. Reynolds, etc., et al., Appellees.
    Nos. 78-1458, 78-1519.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 24, 1981.

      Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart and Jeanne Heyward, Miami, for appellant.

      Chad P. Pugatch of Houston, Faireloth, Cooper, Easthope & Kelley, Fort Lauder-dale, for appellee-Adobe Bldg. Centers, Inc.
   HERSEY, Judge.

These consolidated appeals respectively concern an original Order and an Amended Order Concerning Motion For Judgment in Accordance With Motion For Directed Verdict, Or In The Alternative, Motion For New Trial. In essence, appellant appeals the granting of a new trial after a jury verdict in its favor.

The trial court’s order found that the jury verdict for appellant was against the manifest weight of the evidence, assigning some eighteen grounds for that conclusion.

No useful purpose would be served by a lengthy recitation of each of those grounds and an analysis of the arguments of counsel with respect to them. A review of those portions of the extensive record called into controversy reveals that this Court is not in a position to hold that reasonable men could not differ as to the reasonableness of the trial court’s action in granting a new trial. The test approved in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) was met here. That test, first enunciated in Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959) provides:

When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record....

The trial judge is in the best position to determine whether or not the jury has been misled. A cold record renders that task awesome for an appellate court. Only where a clear abuse of discretion can be made to appear should the task even be attempted. We find no such showing here and therefore we affirm,

AFFIRMED.

MOORE and HURLEY, JJ., concur.


author: LETTS, C. J.

text:
    Craig William NEILSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2342.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 30, 1981.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, C. J.

This is an appeal from the judgment and sentence of the Circuit Court imposing a sentence for a term of ten years and retaining jurisdiction over the sentence. We reverse and remand.

The defendant claims that the trial court erred in refusing his request to instruct the jury as to the maximum and minimum penalties which may be imposed upon conviction. Since the defendant preserved this point on appeal, he is entitled to the benefit of the Supreme Court’s resolution of this issue in Tascano v. State, 393 So.2d 540 (Fla. 1980) and Murray v. State, 403 So.2d 417 (Fla. 1981).

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


author: LETTS, Chief Judge.

text:
    PENINSULAR LIFE INSURANCE COMPANY, employer, and Commercial Union Assurance Companies, workers’ compensation carrier, Appellants, v. Harry Hansel PICKLESIMER and Eloise R. Picklesimer, his wife, Lee Brock and Phillip M. Baker and Ohio Casualty Insurance Company, Appellees.
    No. 80-1220.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 17, 1981.
    Harry D. Robinson, P.A. and Edna L. Caruso, West Palm Beach, for appellants.
    C. R. McDonald and Curtis J. Grodin of McDonald, Gonano & Associates, P. A., Fort Pierce, for appellees.
   LETTS, Chief Judge.

Involved here is an appeal by a Workers’ Compensation Carrier, denied equitable distribution which it claimed under Section 440.39(3)(a), Florida Statutes (1977). We reverse.

Briefly, we reiterate what many decisions have already held. Section 440.-39(3)(a), Florida Statutes (1977) permits the carrier to recover “100 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage & collectibility.” (emphasis supplied).

In this case, the Plaintiff presented no evidence whatever to demonstrate that he was unable to collect any part of his damages from the individual assets of the tort-feasor. Therefore, the trial judge was in error. See Safeco Insurance Company v. Sarkisian, 389 So.2d 1088 (Fla. 4th DCA 1980); Maryland Casualty Co. v. Whitley, 375 So.2d 18 (Fla. 1st DCA 1979); Edmondson v. Swope, 395 So.2d 553 (Fla. 5th DCA 1981); Ramar-Dooley Construction Company v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977).

There is another facet to this appeal however. The plaintiff also argues that the governing edition of the subject statute was the 1974 statute which allowed only a 50 percent recovery rather than the 1977 version which increased it to 100 percent, effective July 1st, 1977. As the plaintiff notes, the accident occurred at the end of May 1977 approximately one month prior to the effective date of the current amendment. However, in the case now before us, the suit was first filed in 1979 long after the 100 percent amendment.

The wording of the latest statutory amendment is certainly susceptible to the interpretation that the controlling date was intended to be that on which suit is first filed. Yet the language employed is far from unequivocal and as Judge Downey said in Martel v. Gibeaut, Inc., 330 So.2d 493 (Fla. 4th DCA 1976) “... statutes are not generally applied retrospectively unless that is the clear intention of the legislature.” Moreover in this very same Martel v. Gibeaut case, the opinion, quoting our own Supreme Court, said:

It is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee. Id. at 494, emphasis supplied.

We therefore conclude that because the accident occurred prior to the 100 percent statutory amendment, the previous 50 percent statute is applicable to the case now before us.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.

      . The previous 1974 statute permitted a 50 percent recovery, as will be more fully discussed hereafter.


text:
    WATERFORD POINT CONDOMINIUM APARTMENTS, INC., Appellant, v. Elizabeth Susan FASS, a single woman, Appellee.
    No. 80-2213.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 17, 1981.

      Mark B. Schorr of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellant.
    Hans C. Feige of Patterson, Maloney & Feige, Coral Springs, for appellee.
   LETTS, Chief Judge.

Continuing with the plethora of litigation pertinent to long-term recreational leases, comes now a unit owner claiming that the governing association had no power to buy out a recreational lease and assess her for her proportionate share of the purchase price. The trial judge agreed, but we do not.

This particular declaration of condominium encompasses 237 unit owners, 78% of whom approved the buy-out of the subject long-term recreational lease. Included in the terms of said declaration was the power to enter “into a 99 year lease of certain lands as described in said lease a copy of which is attached hereto as Exhibit D.” Reference to the lease, so attached reveals that the lessee association had, by way of an option, the stated power to purchase the leasehold, exercisable at any time after five years for a price no greater than twelve times the annual total rental for the year preceding the exercise of the option. Pursuant thereto, the association, some several months after the passage of the five years, entered into an agreement to purchase the lease for a price conceded to be less than the allowable twelve times figure and admitted to be in conformity with the provisions of the option.

Nonetheless, the complaining unit owner reasons that the buy-out was invalid and unenforceable, advancing as her principal argument, failure of the instant declaration to conform to the provisions of Section 718.-114, Florida Statutes (1979) which provide in pertinent part as follows:

718.114 Association powers. — An association has the power to enter into agreements, to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities such as country clubs, golf courses, marinas, and other recreational facilities. It has this power whether or not the lands or facilities are contiguous to the lands of the condominium, if they are intended to provide enjoyment, recreation, or other use or benefit to the unit owners. All of these leaseholds, memberships, and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration. Subsequent to the recording of the declaration, the association may not acquire or enter into agreements acquiring these leaseholds, memberships, or other possessory or use interests except as authorized by the declaration. The declaration may provide that the rental, membership fees, operations, replacements, and other expenses are common expenses and may impose covenants and restrictions concerning their use and may contain other provisions not inconsistent with this chapter. (Emphasis supplied.)

Pursuant to the foregoing statutory language, the unit owner insists that the power to acquire the lease is neither expressly stated nor fully described in the actual declaration, but only in the recreational lease attached to it, which method falls short of the statutory requirement that it must be in the actual declaration itself. We do not agree with the unit owner’s narrow interpretation of the statute.

Within the last several weeks, in Cole v. Angora, 403 So.2d 1010 (Fla. 4th DCA 1981) this court stated that “one cannot issue forth with language . .. such as ‘which long-term lease is attached to this Declaration and made a part hereof’ and then argue that that same lease is not a part thereof pursuant to the condominium act.” We believe the foregoing quote from Cole v. Angora, supra, also applies here.

The subject declaration sets forth that its condominium documents include “the exhibits attached hereto” and that “... the association shall have the power to and has entered into a 99 year lease ... a copy of which is attached hereto.” As we see it, the lease so attached is “obviously intended to be an integral part of the whole” Cole v. Angora, supra, and this being so, a specific power to exercise an option to purchase being set forth in the lease so attached, is in our opinion sufficient to satisfy the statutory requirement that the power be stated and fully described in the accompanying declaration. Further, an interpretation to the contrary would make a nonsense of the option to purchase clause in the lease. It simply cannot be that an option to purchase in a lease attached to a declaration is unex-ercisable because it is not reiterated in so many words in the actual declaration to which it is attached. Surely the very purpose of attaching the lease to the declaration is to obviate laborious repetition of all of its terms and conditions in the declaration.

Next, the unit owner argues and the trial judge agreed, that even if the power to purchase is valid, any special assessment as to her is “void and a nullity” inasmuch as the acquisition of a recreational lease “is not a common expense for which an assessment is proper.” To this end the unit owner cites us to the recent Third District case of Tower House Condominium, Inc. v. Millman (Fla. 3d DCA, Case No. 80-1468, Opinion filed May 5, 1981), which held that the acquisition of adjoining land for increased parking, required the consent of all the unit owners.

Suffice it to say, we need not agree or disagree with the Third District because in the case before us now, the acquisition of the recreation lease was specifically contemplated in the original documents, a factor apparently not present with regard to the parking lot in the Third District case. Indeed, in the instant declaration all expenses “which the Association, as lessee, has obligated itself to pay under said lease shall be common expenses of the Association . ...” Moreover our version of common sense dictates that a power to purchase granted to an association must, subject to statutory or contract limitations to the contrary, include the right to assess in the manner provided elsewhere in the declaration, otherwise how could the power ever be exercised? Under the provisions of Section 718.401(6)(C), Florida Statutes (1979), all that is needed to exercise an otherwise valid option to purchase a recreational lease is the approval of 66.66% of the unit owners. Here the approval came from 78% thereof.

All this being so, we hold the association had the power to purchase the recreational lease under the particular facts of this case and the power to require this particular unit owner to buy her pro rata share thereof by way of assessment.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

MOORE, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . This provision in the declaration is authorized by Section 718.114.


text:
    STAN MUSIAL & BIGGIE’S, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. II-391.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1981.
    Julius F. Parker, Jr., and Susan Potter Whisenand of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Patricia S. Turner, Asst. Atty. Gen., John D. Moriarty, Tallahassee, for respondent.
   UPON REMAND FOR RECONSIDERATION

PER CURIAM.

Pursuant to the Supreme Court’s opinion in Department of Revenue of the State of Florida v. Stan Musial & Biggie’s, Inc., 387 So.2d 365 (Fla.1980), this Court has reconsidered its opinion in Stan Musial & Biggie’s, Inc. v. State Department of Revenue, 363 So.2d 375 (Fla. 1st DCA 1978), and upon reconsideration reverses its prior decision and adopts the opinions of the Supreme Court in Roger Dean Enterprises, Inc. v. State, etc., 387 So.2d 358 (Fla.1980), and Department of Revenue v. Brunner Enterprises, Inc., 390 So.2d 713 (Fla.1980). Accordingly, the final order of the Department of Revenue is AFFIRMED.

MILLS, McCORD, and ERVIN, JJ., concur.


author: McCORD, Judge.

text:
    Carl Ray STONE, Appellant, v. STATE of Florida, Appellee.
    No. YY-406.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1981.

      Michael Allen, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of trafficking in cocaine and sentenced to three years in prison. He appeals the judgment and sentence contending that the trial court erred in denying his motion to dismiss based upon his assertion that § 893.135, Florida Statutes, is unconstitutional and also erred in denying his motion to suppress evidence found in his home upon execution of a search warrant. We affirm.

As. to appellant’s argument that his motion to dismiss should have been granted because § 893.135(3) is unconstitutional, we find no error in the trial court’s denial of the motion. That statute provides as follows:

The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

In Stehling v. State, 391 So.2d 287 (Fla. 1st DCA 1981), this Court found that the foregoing statute does not unconstitutionally burden an accused’s privilege against self-incrimination, secured by the Fifth Amendment to the United States Constitution. In State v. Benitez, 395 So.2d 514 (Fla.1981), the Supreme Court ruled that the foregoing statute was not unconstitutional on the theory that it denied equal protection of law to defendants who could not provide substantial assistance to law enforcement officials; that it is not unconstitutional on the theory that it coerces a defendant into relinquishing his Fifth Amendment privilege against self-incrimination by denying him sentencing leniency unless he cooperates with authorities; that the statute does not violate constitutional separation of powers; and the phrase “substantial assistance” in the statute was not unconstitutionally vague or violative of due process. In State v. Werner and Carlson, 402 So.2d 386 (Fla.1981), the Supreme Court ruled that the term “may” in the foregoing statute is not unconstitutionally vague in vesting the prosecutor with unbridled discretion when engaging in so-called “post-conviction information bargaining.”

The appellant in the case sub judice presents a somewhat different twist in his argument of unconstitutionality. He points out that a co-defendant who was charged in the same information with trafficking in drugs was allowed to plead to a lesser offense of possession for which he received an 18-month sentence with no mandatory minimum; that he (appellant) tried to cooperate with the state through his attorney, but his offer of assistance was turned down, and he received the mandatory three years imprisonment and the $50,000 fine dictated by statute. Appellant contends that the facts of this case show that the statute violates the constitutional separation of powers in that the ultimate sentencing decision rests with the prosecution and not with the trial judge; that in Benitez, the court concluded that the ultimate decision on sentencing resides with the trial judge because he exercises his discretion under the statute to grant or deny the motion for reduction or suspension of the sentence of a defendant who has cooperated with the state attorney; that under the facts of the case sub judice, the court had no discretion but to impose upon him the mandatory minimum sentence because the state attorney did not accept his cooperation, and, therefore, the ultimate sentencing decision in this case rested with the prosecution and not with the trial judge. We cannot agree with appellant’s argument. The legislature determines the range of sentence for a particular crime, and the judge has the discretion to impose a sentence within that range. The court has the final discretion to impose sentence in each particular case. For a defendant who has cooperated with the state, the state attorney under the foregoing statute may move for reduction or suspension of sentence. The court is given the authority to grant or deny the motion. It has the final discretion. The statute does not grant to a defendant a right to cooperate or, having cooperated, a right to mitigation. As the Supreme Court said in State v. Werner and Carlson, supra:

State attorneys are “the prosecuting officer[s] of all trial courts” under our constitution, and as such must have broad discretion in performing their duties. Discretion to initiate the post-conviction information bargaining process is inherent in the prosecutorial function. Absent a clear constitutional violation in a particular factual context, we refuse to intrude on the prosecutorial function by holding subsection (3) unconstitutional on its face.

Appellant has no more cause to complain than he would have had if the state attorney had elected to prosecute him and not prosecute his co-defendant or had he elected initially to prosecute his co-defendant for a lesser offense. These are matters which properly rest within the discretion of the state attorney in performing the duties of his office. By the statute, the legislature has merely enlarged the range of sentence which the judge may give a defendant who has cooperated with the state to the extent that the state attorney moves for reduction or suspension of sentence. We find no constitutional infirmity in the statute.

As to the trial court’s denial of his motion to suppress, appellant contends that because probable cause for the search was based entirely upon evidence allegedly illegally seized from his garbage in violation of the Fourth Amendment of the United States Constitution and Article I, Section 12, of the Florida Constitution, the trial court erred in denying his motion. Appellant maintains that he had a reasonable expectation of privacy when he placed items in a sealed opaque trash container on his own property. Under the circumstances of this case, we disagree.

The record shows that the Gainesville Police Department received an anonymous telephone tip that appellant was trafficking in cocaine. On February 5,1980, Investigator Roger Crase accompanied the garbage collectors on their regular run to appellant's house. The front of the house was approximately 50 to 75 feet from the street and upon Crase’s arrival with the garbage collectors, appellant’s garbage, which was contained in opaque garbage bags with twist ties, was sitting just inside of appellant’s property three to four feet from the street curb and five to six feet from the driveway. Crase himself removed the garbage bags from this location and took them to the police station for inspection. Residue from controlled substances was found therein. Crase in the same manner, on February 29, 1980, removed appellant’s garbage bags and more residue from controlled substances was found. The findings formed the basis for the search warrant which led to appellant’s arrest.

In State v. Schultz, 388 So.2d 1326 (Fla. 4th DCA 1980), the court upheld a trash seizure where the container was placed in the swale area in front of Schultz’ house. There the court held that one who places his trash in the swale area in front of his home for collection in accordance with applicable city ordinances governing trash collection does not maintain a reasonable expectation of privacy in the trash; that such action constitutes an abandonment of the personal property contained in the trash. The court said:

Abandonment of personal property is the intention to part with the property forever. While an individual may demonstrate an intention to forever part with his trash by placing it in a container at the rear of his home or in a garage or carport, he may still harbor a reasonable expectation óf privacy in it in the sense that it is retrievable. We are of the view, however, that once the trash is deposited on the swale for collection it is unreasonable to expect that its security will remain inviolate until it is commingled with all other trash. As the Court stated in United States v. Mustone, supra, “Implicit in the concept of abandonment is a renunciation of any ‘reasonable’ expectation of privacy in the property abandoned. The contrary suggestion strikes us as anomalous.” 469 F.2d at 972.

Appellant distinguishes Schultz by arguing that the swale area referred to in Schultz reflects the drainage area on the street right of way and not private property. While the Schultz majority opinion does not mention whether or not this swale area is in the street right of way or on Schultz’ property, the dissenting opinion of Judge An-stead states that it was on the owner’s property — just as was the trash in the case sub judice. We agree with the reasoning and decision in Schultz, and it is our view that it makes no difference whether the trash is placed for collection on the street right of way or just inside the property line from the right of way. In either case, the trash has been abandoned, and there is no reasonable expectation of privacy therein.

In United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979), the United States Court of Appeals, Fifth Circuit, after pointing out that the rule in California state courts is contrary to its ruling, said:

We prefer the view adopted by every United States Court of Appeals to consider the issue, that the act of placing garbage for collection is an act of abandonment which terminates any fourth amendment protection because, “absent proof that a person has made some special arrangement for the disposition of his garbage inviolate, he has no reasonable expectation of privacy with respect to it once he has placed it for collection.” United States v. Crowell, 586 F.2d 1020, 1025 (4 Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979).

We also prefer that view.

AFFIRMED.

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

      . The co-defendant’s appeal was disposed of in St. John v. State, 779 So.2d 400 (Fla. 1st DCA 1981).


author: BOARDMAN, Acting Chief Judge. GRIMES, Judge,

text:
    STATE of Florida, Appellant, v. Bill M. GARNER, Appellee.
    No. 81-119.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 1981.

      Jim Smith, Atty. Gen. and Sydney H. McKenzie, III, Chief Trial Counsel, Tallahassee, for appellant.
    Mark S. London, Barton S. Strock and Robert W. Weiss, Hollywood, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals a county court order finding the enhanced penalty provisions of section 318.18(3), Florida Statutes (Supp. 1980) unconstitutional and directing the clerk of the court not to accept or collect the enhanced fines imposed by that section. We hold that the challenged subsection is constitutional; we therefore reverse.

Appellee Bill M. Garner was given a traffic citation for traveling 70 miles per hour in a 55 mph zone on October 2, 1980. He argued that the amended portion of section 318.18(3) (the amended portion took effect on October 1, 1980) was unconstitutional.

Section 318.18 provides in pertinent part: The penalties required for a noncriminal disposition pursuant to s. 318.14(1), (2), and (4) shall be as follows:
(3) Twenty-five dollars for all moving violations not requiring a mandatory appearance. In addition to this $25 fine, when the lawful speed limit is 55 miles per hour, a fine of $25 is imposed on any person convicted of exceeding such speed limit by more than 10 miles per hour and less than 25 miles per hour, and a fine of $50 is imposed on any person convicted of exceeding such speed limit by 25 or more miles per hour, including those persons convicted under the provisions of s. 318.-19(3). Whenever the court imposes the penalty of attending a driver improvement school under the provisions of s. 318.15 or s. 322.291 and the fine is waived, the added fine of $25 or $50 shall not be waived but shall be paid to the Traffic Violations Bureau and distributed as provided in ss. 34.191 and 316.660.

(Italicizing indicates new language.)

The trial court agreed and found the portion of section 318.18(3) italicized above unconstitutional. Therefore, although the court found appellee guilty, it fined him only $25. This appeal by the state followed timely.

The rule in Florida has long been that when the constitutional validity of a statute is under attack, “the statute stands unless it conclusively appears that there are or can be no conceivable circumstances upon which it can validly operate or that under no circumstances can it operate or be effective to accomplish the intended purpose, without violating organic rights.” Hunter v. Owens, 80 Fla. 812, 828, 86 So. 839, 844 (1920); Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). A classification that is based on a real difference which is reasonably related to the subject and purpose of the regulation will be upheld even if another classification or no classification might appear more reasonable. Finlayson v. Conner, 167 So.2d 569 (Fla.1964).

The trial court recognized both fuel conservation and public safety as justifiable public policy bases for the statutory amendment in question. However, the trial court concluded that the amendment was unconstitutional because it addressed only the circumscribed situation where the posted speed limit is 55 mph, commenting:

[T]he same car will burn the same amount of gasoline if it’s going 85 miles per hour on 1-75 with its 55 mile per hour zones, as it will across Crayton Road in the City of Naples, with its 30 mile per hour speed zones. .
Likewise, ... [as to public safety] the enhanced penalty does not apply to any other posted zone, conspicuously absent being school zones, residential neighborhoods or hospital zones where the posted speeds are most often in the 25 mile per hour category.

While the trial court’s reasoning is not without logic, the court overlooked the well-known precept that the legislature may attack any part of an evil without addressing the entire problem. As the Florida Supreme Court stated in Pacheco v. Pacheco, 246 So.2d 778, 781 (Fla.1971), “It is sufficient to satisfy the constitutional requirement of equal protection if the statute applies equally and uniformly to all persons similarly conditioned.” See also Haber v. State, 396 So.2d 707 (Fla.1981).

Anyone speeding in excess of 65 mph in a 55 mph zone is subject to the additional fine.

Clearly, the increased penalty here would create a circumstance where fewer persons would speed in excess of 65 mph in situations where such speeds might otherwise be likely. This would accomplish both of the valid intended purposes of fuel conservation and highway safety.

The legislature chose to attack the evil of excess speeding in zones where high speeds already existed. It is conceivable that the legislature felt that speeds over 65 mph were more likely to occur in zones where 55 mph speeds were already allowed and, therefore, chose to legislate against only this evil.

The trial court additionally felt that there was a conflict between sections 318.-18(3) and 318.14(5), stating: ■

[T]he enhanced penalty section can be totally evaded should the driver elect to appear before the official hearing the case [since section 318.14(5) provides]:
Any person electing to appear before the designated official or who is required so to appear shall be deemed to have waived his right to the civil penalty provisions of 318.18. (emphasis added).
Thus, there appears to be a conflict or inconsistency between the language of F.S. 318.18(3) and 318.14(5), because the person not electing to appear can pay a greater penalty than one who does elect to appear. This is due to the fact that the hearing official now has the discretion to not charge any penalty, even if the driver was adjudicated guilty, the hearing official could withhold adjudication or, of course, the hearing official could fine up to $500.00. There is no requirement under these circumstances that the hearing official impose any enhanced penalty.

We disagree with the trial court’s construction of these statutes. While it is true that there is an apparent conflict between the two sections, it is our obligation to harmonize them if possible. State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68 (Fla.1975). As stated in Curry v. Lehman, 55 Fla. 847, 854-55, 47 So. 18, 21 (1908):

It is to be presumed that different acts on the same subject passed at the same session of the Legislature are imbued by the same spirit and actuated by the same policy, and they should be construed each in the light of the other. The legal presumption is that the Legislature did not intend to keep really contradictory enactments in the statute books, or to effect so important a measure as the repeal of a law without expressing an intention to do so. An interpretation leading to such a result should not be adopted, unless it be inevitable. The rule of construction in such cases is that if courts can, by any fair, strict, or liberal construction, find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is their duty to do so.

It is true that the person not electing to appear in court may end up paying a greater penalty then one who does appear. However, the provisions of section 318.14(5) that one charged with a traffic infraction enumerated therein may either pay the civil penalty established in section 318.18 or request a full hearing to contest the citation and that, if commission of the infraction is proven, the official may impose a civil penalty not to exceed $500 or require attendance at a driving school or both has been held constitutional. Levitz v. State, 339 So.2d 655 (Fla.1976). Contrary to the trial court’ assumption, moreover, under section 318.18(3) as amended, a person who contests a charge of speeding over 65 mph in a 55 mph zone and is found guilty must pay the enhanced penalty ($25 for a speed between 65 and 80 mph, and $50 for a speed of 80 mph or higher) even if the $25 fine prescribed in section 318.18(3) for moving violations in general is waived. While this provision might at first glance seem to conflict with the absolute waiver of the civil penalty provisions of section 318.18 set forth in section 318.14(5), it is readily apparent that there is no real conflict. The clear intent of section 318.14(5), as evidenced by the use of the language that a person electing to appear in court waives his right to the civil penalty provisions, is that such a person gives up his right to be fined only a nominal sum (no more than $25) and takes the risk of being fined up to $500, as well as the risk of being required to attend a driver improvement school. In other words, section 318.14(5) was clearly not intended to prohibit the assessment of a fine in the amount of the prescribed civil penalty provisions against a person who appears in court, but only to afford the hearing official the discretion to vary the amount of the fine either up or down. The fact that this discretion has now been limited so that a minimum fine of $25 or $50 must now be imposed on anyone convicted of speeding in excess of 65 mph in a 55 mph speed zone creates no conflict between the statutes.

Accordingly, the trial court’s order ruling section 318.18(3), Florida Statutes (Supp. 1980) unconstitutional is REVERSED and the cause REMANDED. However, the trial court is not required by our mandate to increase the amount of the fine against appellee; the court may, in its discretion, choose to treat the $25 fine originally imposed as the additional fine required by the amendment to section 318.18(3) and to waive any further fine.

RYDER, J., concurs.

GRIMES, J., concurs in part and dissents in part, with opinion.

GRIMES, Judge,

concurring in part, and dissenting in part.

I concur with the majority opinion in all respects, except the conclusion that a minimum fine of $25 or $50 must now be imposed upon anyone convicted of speeding in excess of sixty-five miles per hour in a fifty-five mile per hour speed zone. If the person charged elects to appear in court, all penalties prescribed by section 318.18 including the additional $25 and $50 fines are inapplicable except in one particular. Only if the court requires the attendance at a driver improvement school and waives a fine does the added fine of $25 or $50 under section 318.18(3) have to be paid.


author: SCHWARTZ, Judge.

text:
    R. A. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1526.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Rehearing Denied Sept. 28, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen. and Joseph Corey, Legal Intern, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

The adjudication of delinquency under review is reversed with directions to discharge the appellant. Just as in A. R. v. State, 393 So.2d 1174 (Fla.3d DCA 1981), the respondent’s unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped — that he bought it at a flea market — rendered the state’s case, which was based solely on the inference provided by Section 812.022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt. Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); A. R. v. State, supra, and cases cited; Schectman v. State, 220 So.2d 657 (Fla.3d DCA 1969); see State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969); compare Burroughs v. State, 221 So.2d 159 (Fla.2d DCA 1969); Borghese v. State, 158 So.2d 785 (Fla.3d DCA 1963).

Reversed.

      . (2) Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen, [e. s.]


text:
    Andres F. RODRIGUEZ and Haydee Rodriguez, his wife, Appellants, v. Isaac RATTAN, Appellee.
    No. 80-2164.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Richard N. Friedman, Miami, for appellants.
    DuFresne & DuFresne and William Du-Fresne, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See: Pan American Bank of Tampa v. Sullivan, 375 So.2d 338 (Fla. 4th DCA 1979); Frank v. Intercontinental Bank of Miami Beach, 372 So.2d 543 (Fla. 3d DCA 1979); Curr v. Helene Transportation Corp., 287 So.2d 695 (Fla. 3d DCA 1973); Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Economy Plumbing Co., Inc. v. Charles Sales Corp., 204 So.2d 348 (Fla. 3d DCA 1967); Dunscombe v. Smith, 139 Fla. 497, 190 So. 796 (1939); Treadwell v. Exchange National Bank of Tampa, 127 Fla. 40, 172 So. 914 (1937); Franklin Phosphate Company, a Corporation v. International Harvester Company of America, 62 Fla. 185, 57 So. 206 (1912); Padgett v. Lewis, 54 Fla. 177, 45 So. 29 (1907); Sections 673.3-408 and 673.3—415, Florida Statutes (1979). Compare: Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980); King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980); Kramlich Associates, Inc. v. Robins, 312 So.2d 543 (Fla. 1st DCA 1975); Mr. Land, Inc. v. Rabinowitz, 134 So.2d 859 (Fla. 3d DCA 1961).


text:
    Alfonso ANSOLA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1836.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Alfonso Ansola, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, Alfonso Ansola, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Henry J. MARTOCCI, Appellant/Cross-Appellee, v. Frances Marie MARTOCCI, Appellee/Cross-Appellant.
    No. 80-139.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 1981.

      Henry J. Martocci, Cocoa, pro se., and James Theriac, III, Merritt Island, for appellant/cross-appellee.
    Peter Haddad and Carl W. Pearson, Ti-tusville, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal from a final judgment in a marriage dissolution action. It is affirmed in all respects except the requirement that the husband make car and rent payments for the wife’s benefit. These payments were not terminable upon the wife’s remarriage or the husband’s death, as periodic alimony must be. Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980).

We vacate that portion of the judgment requiring the car and rent payments and remand this cause to the lower court in order to permit it to reconsider the amounts of periodic alimony and child support awarded, in view of this opinion. Remanding and allowing reconsideration of the alimony and child support awards by the trial court is particularly indicated in this case because the judge clearly conceived of the rent and car payments as forms of alimony and child support.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The following dialogue took place at the trial:
      THE COURT: ... Let me talk about the car. I’ve kind of got it down to what she needs. She needs a house and she needs a car. So, if somebody can figure out what I ought to call it, I’m also going to provide that Mr. Martocci pay for the car that he has provided for his wife, on two or three theories. One is that he bought it and furnished it to her, and it’s certainly not unfair, she’s entitled to a car, needs one to take care of the children, for her to earn money, which will reduce his responsibility for her anyway; because if she doesn’t earn any money, he’s going to have to pay a higher support.
      MR. MARTOCCI: Pay the monthly note, Your Honor; is that it?
      THE COURT: Whatever is owed on it. I don’t know how you owe the money thing on it, it’s just that she won’t have to pay any money for a car. So that leaves her for herself, for food, all the utilities, gas, and all of her other necessities of life, minus her earnings; and I’m talking about those things in keeping with your earning ability here, she’s entitled to have alimony set as everybody else is, in keeping with your ability, with your ability minus her ability, considering the fact that the kids are contributing their share to keep up with it.
      MR. HADDAD: So, it’s the house payment and the car payment?
      THE COURT: That’s correct. And whatever it is, it’s just so she won’t have the obligation.
      MR. THERIAC: Would that be characterized as alimony?
      THE COURT: Yeah, I think he needs to. Yeah, why don’t you do that ....


text:
    Raleigh James BLUE, Appellant, v. STATE of Florida, Appellee.
    No. WW-233.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.

      Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
    Michael E. Allen, Public Defender, Margaret Good and Melanie Hines Alford, Asst. Public Defenders, for appellant.
   PER CURIAM.

Appellant seeks review of a judgment of conviction and sentence for the offense of robbery with a firearm, alleging that he was erroneously denied classification as a youthful offender pursuant to Chapter 958, Florida Statutes. We agree that appellant was entitled to youthful offender classification.

Classification as a youthful offender is mandatory when a juvenile meets the requirements of § 958.04(1) and (2). Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980). Although appellant had previously been placed on probation by the juvenile court for an offense which would have been a felony if committed by an adult, § 958.-04(2)(b) disqualifies the offender from mandatory youthful offender classification only when the juvenile has been adjudicated delinquent for an offense which would be a first degree, or more serious, felony if committed by an adult. The present case involves a prior offense of a lesser degree, and § 958.04(2)(b) is thus inapplicable. While § 958.04(2)(a) requires also that the offender has “not previously been found guilty of a felony” without qualification as to degree, we conclude that this provision clearly does not refer to proceedings in juvenile court because to so construe it would render § 958.04(2)(b) entirely superfluous, a nullity. In addition, the provision must be read in the context of a statutory scheme which differentiates juvenile offenses from criminal convictions generally for felonies or misdemeanors. § 39.10(4), Florida Statutes.

Since appellant has “not previously been found guilty of a felony” as that term is used in the statute to refer to trial as an adult, and has not been adjudicated delinquent in juvenile proceedings for an offense which would be a first degree, or more serious, felony if committed by an adult, and since appellant otherwise qualifies for Chapter 958 youthful offender classification, he should have been so classified and sentenced pursuant to Chapter 958. See Goodson v. State, supra. The sentence imposed is accordingly reversed and the cause remanded for resentencing.

SHAW and WENTWORTH, JJ„ and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.

      . 958.04 Eligibility for youthful offender; classification.—
      (1) The court may classify as a youthful offender any person:
      (a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
      (b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
      (c)Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
      (2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
      (a) Has not previously been found guilty of a felony whether or not the adjudication of guilt has been withheld; or
      (b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.