text:
    H. L. McNORTON, Appellant, v. PAN AMERICAN BANK OF ORLANDO, N.A., Appellee.
    No. 79-633/T4-455.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.
    Rehearing Denied Sept. 9, 1980.

      David B. King of Peed & King, P. A., Orlando, for appellant.
    Frederic B. O’Neal of Johnson, Motsing- . er, Trismen & Sharp, P.A., Orlando, for appellee.
   COBB, Judge.

In this relief from forfeiture case, McNorton, plaintiff below, appeals from the order of the circuit court granting defendant Pan American Bank of Orlando’s motion to strike Counts I, II and III of his amended complaint, wherein the court also ruled that the motion to dismiss the amended complaint was moot and from entry of final judgment in favor of the Bank.

In March of 1977, McNorton and the Bank entered into an agreement whereby McNorton was to purchase the mortgage lien interest of the Bank in specified real property. The agreement stated in pertinent part:

2. That H. L. McNorton agrees to purchase and the bank agrees to sell the interest of the bank in the aforementioned mortgage to H. L. McNorton, or nominee, for the sum of ONE HUNDRED THOUSAND and No/100 ($100,000.00) DOLLARS payable as follows:
(a) Fifty Thousand Dollars upon the execution of this agreement; and
(b) Fifty Thousand Dollars due on the 27th day of April, 1977.
8. That the $50,000.00 paid to the bank by MeNorton, or nominee, upon the execution of this agreement shall be earned by the bank upon the execution of this agreement. In the event MeNorton fails to pay the balance of the funds due to the bank for the execution of this agreement by 5:00' P.M. on the 27th day of April, 1977, then this agreement shall be void and the bank shall be free to negotiate the sale of the mortgage lien to any other party whatsoever. The $50,000, having been earned upon the execution of this agreement, shall be the bank’s property completely and shall not be subject to any claim by MeNorton, or nominee, (emphasis added).

MeNorton did not pay the second $50,000 on time; the deal fell through and MeNor-ton was out $50,000. In May of 1978, MeNorton filed a three-count complaint against Pan Am Bank seeking damages in the amount of $50,000. Counts II and III of the complaint were dismissed. Defendant filed an amended motion to dismiss Count I of the complaint on the grounds that the complaint on its face showed that plaintiff had an adequate remedy at law against a third party, National Car Rental Systems, for wrongful garnishment or malicious prosecution; therefore, the court was without jurisdiction to grant equitable relief. The circuit court granted defendant’s amended motion to dismiss with leave to file an amended complaint. MeNorton filed an amended three-count complaint and in Count I alleged the payment of $50,000 contemporaneous with the agreement which was attached as Exhibit 1. MeNorton alleged that on April 27, 1977, he was unable to pay Pan Am Bank the remaining $50,000 because on April 26, 1977 a writ of garnishment was filed against his ComBank/Pine-castle account by National Car Rental Systems causing MeNorton to be deprived of the use of some $28,000 which he intended to use towards partial payment of the $50,-000 owed April 27, 1977; that he was still deprived of the use of the money due to the garnishment action at the time of filing the complaint, despite a directed verdict in his favor, due to a stay pending appeal; that he did not have the remaining $23,000 necessary to make the full $50,000 payment on Wednesday, April 27, but that he would have had the $23,000 on Friday, April 29, 1977, and had requested an extension; that if he had not been wrongfully deprived of the money in his ComBank account he would have paid the defendant $27,000 on April 27 and been granted the extension. Attached to the complaint as an exhibit was a letter from the Bank’s attorney claiming the $50,000 previously paid and terminating all further obligation on the Bank’s part by reason of the inability of MeNorton to pay the remaining $50,000 pursuant to the agreement. McNorton’s complaint further alleged that he negotiated with the Bank, but the negotiations were unsuccessful because he was unable to obtain a rapid dissolution of the writ of garnishment; that in August of 1977 the defendant Bank sold the two mortgages that it would have sold to the plaintiff, pursuant to an agreement attached as Exhibit 4, to National Car Rental Systems for $100,000; that as a result of this sale, the defendant Bank sustained no actual damages as a result of McNorton’s inability to consummate the purchase; that the $50,000 deposit paid by the plaintiff to defendant bears no relationship to any damages sustained by the Bank and constitutes an unconscionable penalty and a forfeiture; that he had made a demand for repayment of the $50,000, but that the defendant Bank refused his demand; and that he had no adequate remedy at law to recover the $50,-000 deposit. MeNorton prayed that the court declare the retention by the Bank of the $50,000 unconscionable and relieve plaintiff of the forfeiture which constituted 50% of the purchase price; that the court enter a judgment rescinding the agreement attached as Exhibit 1; and that the court enter a final judgment in favor of plaintiff for $50,000 plus costs and interest.

The primary issue before us is whether Count I of McNorton’s complaint stated a cause of action against the Bank for relief from forfeiture.

McNorton’s cause of action is based on the rule announced in Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972), an action by vendors to recover a cash deposit from defaulting purchasers, where the trial court’s dismissal of the complaint was reversed and the provision in a purchase and sale agreement for the vendor to retain a cash deposit was held not to be a penalty.

The Bank offers five reasons why McNor-ton’s complaint did not state a cause of action: first, that the equitable remedy is used to affirm and reinstate one’s rights under a contract and not to rescind; second, that since relief from forfeiture is a method of affirming rather than avoiding a contract, to state a cause of action plaintiff must allege that he tendered full performance; third, that the agreement between the parties is, as a matter of law, an option and not a deposit receipt or purchase and sale agreement; fourth, that plaintiff failed to allege that his timely performance was prevented by a misfortune beyond his control; and fifth, that plaintiff failed to allege facts which show no adequate remedy at law.

The Bank argues that Hutchison did not set out a rule for providing for relief from forfeiture in other cases or other situations; that the language on which plaintiff is relying is dicta, and cites for our consideration 2 Pomeroy, Equity Jurisprudence, §§ 448-460(d) (Fifth Ed. 1941). We believe the Hutchison case does set out a rule of law concerning relief from a forfeiture. So does the Fourth District Court of Appeal, which stated that Hutchison:

held that whether a clause in a contract is one for liquidated damages or a penalty depends upon whether or not the damages flowing from a breach are readily ascertainable at the time the contract is executed. If the damages are ascertainable on the date of the contract, the clause is a penalty and unenforceable; if they are not so ascertainable, the clause is [usually] one for liquidated damages and enforceable; however, if subsequent circumstances demonstrate it would be unconscionable to allow the seller to retain the sum in question as liquidated damages, equity may relieve against the forfeiture.

Bruce Builders, Inc. v. Goodwin, 317 So.2d 868, 869 (Fla. 4th DCA 1975). In Hutchison the Supreme Court was clarifying the test for determining when there would be a relief from a forfeiture, as well as how to determine whether liquidated damages were or were not a penalty. In Hutchison, the trial court’s dismissal of the vendor’s complaint on the grounds that the liquidated damages of approximately eight percent were by law a penalty was reversed since the trial court relied upon the rationale of Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538 (1948), which indicated that if damages are readily ascertainable at the time of breach then a liquidated damage clause may be construed as a penalty. According to Hutchison, the critical time for ascertaining damages for purposes of a liquidated damages clause was held to be at the time of the drawing of the contract. Although not specifically related to the facts before it, we believe the following language was intended for the instruction of the bench and bar:

The better result, in our judgment, as Hyman [v. Cohen, 73 So.2d 393 (Fla.)] contemplates, is to allow the liquidated damage clause to stand if the damages are not readily ascertainable at the time the contract is drawn, but to permit equity to relieve against the forfeiture if it appears unconscionable in light of the circumstances existing at the time of breach. For instance, assume a situation in which damages were not readily ascertainable at the time the contract was drawn, and the parties agreed to a liquidated damage provision of $100,000, Purchaser later repudiated the contract; vendor resold the land to another party, which because of fluctuations in the real estate market, resulted in a loss to himself of only $2,000. In such a case a court following the Hyman theory would allow the liquidated damage clause to stand, because damages were not readily ascertainable at the time of drawing the contract, but would, as a court of equity, relieve against the forfeiture as unconscionable.

Hutchison, 259 So.2d at 132. In Bruce Builders the Fourth District Court of Appeal specifically applied the rule set forth in Hutchison to a situation where purchasers in default sought successfully at the trial court level the recovery of their deposit. The district court first determined that damages were not readily ascertainable at the time the contract was executed and allowed a liquidated damages clause to stand. Second, the court looked to precedent to see what traditionally had shocked a court’s conscience before reversing and remanding with directions to award the deposit to the vendor. The court noted that in:

Beatty v. Flannery [49 So.2d 81 (Fla. 1950)], retention of a $3,000 deposit on a $30,000 contract created no pangs. And in O’Neill v. Broadview, Inc., [112 So.2d 280 (Fla. 2d DCA 1959)] forfeiture of a $1500 deposit on a $10,440 contract could be tolerated. However, in Hook v. Bowmar, 320 F.2d 536 (5th Cir. 1968), loss of a $30,000 deposit on a $95,000 contract was found unconscionable. In the case at bar, the contract was for $173,800, and the deposit was only slightly more than 4% of that sum. Thus, based upon precedent the amount is not shocking to “the court’s conscience.”

Bruce Builders, 317 So.2d at 870. See also South Fla. Regional Planning Council v. Board of County Comm’rs. of Palm Beach County, 372 So.2d 1142 (Fla. 4th DCA 1979); Mori v. Bomac Indus., Inc., 358 So.2d 47 (Fla. 4th DCA 1978); Beatty v. Flannery, 49 So.2d 81, 82 (Fla.1950). Hutchison, Beatty, and Bruce Builders indicate that the concept of relief from forfeiture does not necessarily mean the plaintiff is affirming and attempting to reinstate rights under a contract. See 2 Pomeroy, Equity Jurisprudence, § 451, concerning forfeiture occasioned by accident, fraud, surprise, or ignorance. In addition, we hold that retention of 50% of the purchase price paid as a deposit by a vendee in default is sufficiently shocking to state a cause of action. See Haas v. Crisp Realty Co., 65 So.2d 765 (Fla. 1953). Although Haas was decided under the Pembroke rationale, the decision was based upon the relative size of the deposit, approximately 38% of the purchase price. In Haas, the court remanded to the trial court to determine whether or not the unjust enrichment exception to the rule of Beatty v. Flannery should have been applied and stated:

Nevertheless, it appears that the Chancellor, not having found it necessary to consider the rule at all, appears not to have considered or determined the nature of the purchasers’ default, that is to say, whether willful and capricious, or whether resulting from an unfortunate inability to perform. If the latter, he might well have considered the forfeiture of deposit the size of the one here, without a showing of actual damage, to be ‘shocking to the conscience of the court.’

Haas, 65 So.2d at 768.

Second, the Bank argues that McNorton failed to allege that he had ever tendered full performance and cites 30 C.J.S. Equity § 56(d) (1965); 2 Pomeroy, Equity Jurisprudence, § 436. However, Pomeroy in § 451 suggests that

if the party bound by it has been prevented from an exact fulfillment, so that a forfeiture is incurred, by unavoidable accident, by fraud, by surprise, or by ignorance, not willfull, a court of equity will interpose and relieve him from the forfeiture so caused, upon his making compensation, if necessary, or doing everything else within his power.

MeNorton argues that equity does not require appellant to perform a useless act and that the complaint alleged that the bank had already sold the mortgages to a third party. In addition, McNorton argues that under the rule of Hutchison and Bruce Builders, tender of performance is not required. We hold that under the present circumstances an allegation of tender of performance was not required, in order to assert the rule of Hutchison, Bruce Builders, and the unjust enrichment exception to the rule of Beatty v. Flannery. See also, Hook v. Bomar, 320 F.2d 536 (5th Cir. 1963).

Next, the Bank argues that as a matter of law the agreement was an option because McNorton was not obligated under the agreement to purchase the mortgage, and that McNorton only lost the purchase price of an option. See 33 Fla.Jur. Vendor & Purchaser, § 15 (1960). The Bank relies upon language in the agreement which states that should McNorton fail to pay the balance of the funds due, then the agreement shall be “void.” The Bank cites three cases which it asserts turned upon the use of the word “void”: McCall v. Carlson, 63 Nev. 390, 172 P.2d 171 (1946); Petitt v. F.V.H. Collins Co., 112 Mont. 12, 113 P.2d 340 (1941); Compton Land Co. v. Vaughan, 33 Cal.App. 130, 164 P. 610 (Cal.2d DCA 1917). McNorton argues that the agree ment does not refer to the term “option” on its face; that the terms of the agreement indicate the $50,000 was part of the purchase price and not the cost of an option; that it is unlikely a party would pay $50,000 for a one-month option to purchase property worth only $100,000; and that it is a question of fact whether this agreement is a purchase and sale agreement or an option which cannot be determined on a motion to dismiss. We hold that the agreement is uncertain enough to render the issue of whether it was an option a question of fact rather than a question of law. McCall and Compton Land Co. are distinguishable; the agreements therein were specifically entitled and understood to be option agreements. The payments for the options were not as disproportionate as in the present case. In Petitt the contract was specifically construed not to be an option due to language such as “the vendee hereby agrees to purchase from the vendor,” and “consideration for the sale and purchase.” Petitt, 113 P.2d at 343. Similar language of agreeing to purchase and sell is found in the agreement sub judice. Courts have even held contracts styled by the parties as an “option” to be a contract of sale and it has been said that a court will incline to construe an ambiguous contract as one of sale rather than an option where it has been treated by the parties as such. 77 Am. Jur.2d, Vendor & Purchaser § 28 (1975).

Next, the Bank argues that under +he unjust enrichment exception as articulated in Beatty v. Flannery, McNorton, to have stated a cause of action, must have alleged that his failure to make payment was due to a misfortune beyond his control. The bank argues that although McNorton may have arguably had a bona fide misfortune concerning the $27,000 wrongfully garnished, he alleged no reason why he did not have the other $23,000 on time. Assuming an allegation of misfortune beyond control is required, McNorton alleged eviden-tiary facts showing an ultimate fact of misfortune beyond his control. See Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 885 (Fla.1972). McNorton alleged that he would have received an extension on the $23,000 if he could have paid the $27,000. Thus, the misfortune as to the $27,000 controls. In addition, there is authority for finding that mere failure to raise the $23,000 would have been a misfortune beyond McNorton’s control, even if an extension were not available as alleged. In Haas, the plaintiffs’, purchasers in default, amended bill charged that their failure to consummate the purchase was due to circumstances of their income and assets which made them unable to qualify for an FHA mortgage as provided by the contract, in addition to the defendant realtor’s failure to procure such a mortgage for them. The Fifth Circuit Court of Appeal, applying Florida law in Hook v. Bomar, noted that the failure to perform was due to a lack of income and resources on the part of the purchaser.

Finally, the Bank argues that the face of the amended complaint reveals an adequate remedy at law which precludes equitable jurisdiction; that McNorton had an adequate remedy against National Car Rental for wrongful garnishment and that McNorton would be able to recover the $50,000 in a wrongful garnishment or malicious prosecution action for damages. Florida courts recognize the general rule that where a complaint shows on its face that there exists an adequate remedy at law, there is no jurisdiction in equity. E. g., Greenfield Villages, Inc. v. Thompson, 44 So.2d 679 (Fla.1950). McNorton argues that another general rule is that the remedy at law must exist against the same person from whom the relief in equity is sought. E. g., Hill v. Hill, 185 Kan. 389, 345 P.2d 1015 (1959); Mitchell v. Houstle, 217 Md. 259, 142 A.2d 556 (1958); Buttinghausen v. Rappeport, 131 N.J.Eq. 252, 24 A.2d 877 (1942); Barr v. Roderick, 11 F.2d 984 (N.D.Cal.1925); Middleton Bank v. Russ, 3 Conn. 135, 8 Am.Dec. 164 (1819); 30 C.J.S., Equity § 25 (1965). As a matter of first impression, we hold the “same person” rule is sound; therefore, the face of McNorton’s complaint does not reveal an adequate remedy at law. Alternately, there was a question as to the existence, as well as the adequacy, of the remedy of wrongful garnishment at the time McNorton’s amended complaint was dismissed. One of the elements of an action for malicious prosecution is termination of the prior action in favor of the plaintiff. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931). After judgment in McNorton’s favor in the prior case, National Car Rental Systems appealed. Commendators state that the better rule is that the pendency of an appeal precludes maintenance of a suit for malicious prosecution. Annot., 41 A.L.R.2d 863 (1955). The Bank argues for two other views discussed in the annotation: (1) that an appeal has no effect whatsoever on when an action for malicious prosecution may be brought; or (2) that an appeal does not preclude an action for malicious prosecution but only enables the defendant to raise the fact of the appeal as grounds for a stay. We do not decide whether a pending appeal of the prior action precluded a malicious prosecution action at the time McNorton sought equitable relief against the Bank. However, the pending appeal question does bear on the adequacy of the remedy at law question.

The mere existence of a legal remedy does not prevent a suit in equity unless the legal remedy be plain, certain, prompt, speedy, sufficient, full and complete, practical and efficient in attaining the ends of justice.

Citizens & So. Nat. Bank v. Taylor, 191 So.2d 866, 867 (Fla. 1st DCA 1966). The Florida Supreme Court in Ponce v. Demos, 159 Fla. 117, 31 So.2d 58 (1947) discussed the standard for determining adequacy of the remedy at law:

[T]he test of whether law or equity affords the most adequate remedy may be revealed by the answer to the question, which remedy will afford the most expeditious relief to the person wronged. . If the remedy at law is not as sensitive to the prompt administration of justice as the remedy at equity, then the latter should be adopted.

Id. 31 So.2d at 59. Thus, even if the same person rule were not sufficient for showing the inadequacy of the remedy at law, the likelihood of a court’s granting a stay or refusing to entertain a malicious prosecution action pending the result of the appeal of the garnishment action made the legal remedy inadequate for being least expeditious.

In summary, we hold the trial court erred in granting the motion to strike Count I of McNorton’s complaint and entering final judgment in favor of defendant Bank. McNorton did state a cause of action under the rule of Hutchison and Bruce Builders concerning relief from forfeiture and the unjust enrichment exception to Beatty v. Flannery. There was no adequate remedy at law against the Bank or against National Car Rental at the time McNorton sought to commence this equitable proceeding. Accordingly, the order of the circuit court striking Count I of McNorton’s amended complaint and the judgment in favor of the Bank are

REVERSED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . If the court did not err in dismissing McNor-ton’s complaint for failure to state a cause of action, then a motion to strike would have been proper. See Mack Roth, Inc. v. Gardiner, 96 Fla. 691, 118 So. 728, 730 (1928).

      . The garnishment appeal was recently decided in favor of McNorton. National Car Rental Systems, Inc. v. Bruce A. Ryals Enterprises, Inc., et al., 380 So.2d 529 (Fla. 5th DCA 1980).

      . The trial court’s dismissal of Counts II and III were not made points on appeal and, therefore, we do not consider the propriety of the trial court’s striking those counts in reaching our decision. See Jim Walter Corp. v. Bracht, 239 So.2d 643 (Fla. 1st DCA 1970).


source: Caselaw Access Project

author: DANAHY, Judge.

license: Public Domain

text:
    Margarete May FILLASTRE, Appellant, v. STATE of Florida, Appellee.
    No. 79-2218.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Rehearing Denied Sept. 9, 1980.
    Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hays & Hoft, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

On this appeal from an order of the trial court which modified the conditions of appellant’s probation, we find merit in one of the several points appellant raises. In the order the trial court added four additional conditions of probation including the following:

Special Condition (17) Subject, after release from the Polk County Jail, is to be fully employed for one year as an employee of one of the Agencies within the State of Florida to render services to “less advantaged” individuals which service is to be determined by her Probation Officer.

That requirement is expressly contrary to Section 948.031, Florida Statutes (1977), which provides:

Any person who is convicted of a felony or misdemeanor and who is placed on probation may be required as a condition of probation to perform some type of public service for a tax-supported or tax-exempt entity, with the consent, and under the supervision of such entity. Such public service shall be performed at a time other than during such person's regular hours of employment (Emphasis supplied)

In 1976 the legislature authorized trial judges to require public service as a condition of probation when it prescribed the manner of doing so in the above addition to our probation statute. The authority for other terms and conditions of probation is found in Section 948.03.

It is clear from this record that the trial judge was proceeding under the authority of Section 948.031 when he added the special condition and that he intended appellant to perform some type of community service on a full-time paid basis to, in his words, “render services to persons who are less advantaged than you in the hope that exposure to persons who have not had some of your advantages may cause you to develop a prospective [sic] about yourself and develop a sense of responsibility about yourself personally, develop a sense of sensitivity and empathy.” A worthy goal, indeed. However, the trial judge was without authority to require that appellant’s public service be on a full-time employment basis. We must, therefore, disapprove the condition as imposed.

This is not a case where the probationer is unemployed and is ordered to make a reasonable attempt to find work. Appellant is and has been for two years employed full time as a dental hygienist and has established regular patients. That is not the type of employment which can interfere with or hinder appellant in the adherence to any of the other conditions of her probation.

While we find the condition for full-time public service employment is contrary to the statute, nothing we have said is meant to prevent the trial judge from imposing a condition of public service if he chooses to implement that laudable rehabilitative purpose in the manner permitted by the statute.

We strike the special condition we have discussed and affirm the order modifying appellant’s probation in all other respects.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: COBB, Judge.

text:
    Renaldo JONES, Appellant, v. STATE of Florida, Appellee.
    No. 78-2583/T4-318.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.
    Rehearing Denied Aug. 28, 1980.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant was found guilty by a jury of grand theft, second degree, and sentenced as an habitual offender. He appeals on two grounds: (1) the sufficiency of the evidence to support conviction, and (2) the sufficiency of the trial court’s findings in support of its conclusion that defendant should be sentenced as an habitual offender.

The first point is wholly without merit. The evidence, although circumstantial, was conclusive and admitted of no reasonable hypothesis of innocence. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Smith v. State, 378 So.2d 313 (Fla.5th DCA 1980).

The second point warrants more extensive discussion. At the sentencing hearing held on November 16, 1978, it was stipulated that defendant had been convicted for heroin possession within five years of the two thefts for which he was sentenced. A document stating that he had not been pardoned was admitted into evidence. A probation officer, who had supervised the defendant for a three-year period following a conviction for unauthorized use of a motor vehicle in 1972, testified as to various of-'.enses committed by the defendant during the probationary period, which included possession of a deadly weapon, possession of a simulated weapon, public intoxication, and open profanity, and testified that the 1976 heroin arrest occurred three days after completion of his probation. There were sundry other convictions in 1971,1972, 1974 and 1975. The officer also testified that, in his opinion, the defendant could not be rehabilitated and was a danger to society. The defendant testified that he supported two minor dependents and had steady employment as a roofer.

At the conclusion of the hearing, the trial court found from a preponderance of the evidence, based upon the testimony, the files, and the presentence investigation, that the defendant previously had been convicted of a felony in this state within the five years preceding the instant theft offenses, and that it was necessary for the protection of society from further criminal activity by the defendant that he be sentenced to an extended term as provided by section 775.084, Florida Statutes (1977), as to each of the thefts. The trial court specifically found Jones to be an habitual felony offender.

The state contends on appeal that the defendant failed to specifically object to the enhanced sentence before the trial court, and therefore waived review by direct appeal. Smith v. State; Engel v. State, 353 So.2d 593 (Fla.3d DCA 1977). We believe that a fair reading of the sentence hearing transcript reveals objection by the defense to the enhancement procedure. The adequacy of the trial court findings and the propriety of an enhanced sentence, therefore, are properly raised by direct appeal. See Epps v. State, 365 So.2d 179 (Fla.1st DCA 1978).

It is the position of the appellant that the trial court merely incanted the words of the statute, but failed to recite specific factual findings to support the conclusion as is necessary for appellate review. Fry v. State, 359 So.2d 584 (Fla.2d DCA 1978); Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976).

The state argues that the trial court need not specifically itemize the reasons supporting its ultimate findings phrased in the language of the statute if the basis is evident from the record. McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978). In the instant case, the state cites the prior record of the defendant, revealed by the testimony and the presentence investigation, as affording a sufficient basis for the trial court’s finding that an enhanced penalty was necessary.

In Eutsey v. State, 383 So.2d 219 (Fla. 1980), the trial court had found that the defendant was a previously convicted felon and made specific findings in support of its enhanced sentence. Eutsey was given full access to his presentence investigation report and the opportunity to contest any part of its contents prior to sentencing. He did not dispute any particular information therein, but made only a general objection to its use in the sentencing procedure. The Florida Supreme Court, in reviewing the trial court’s reliance on the report, cited the McClain case.

In McClain the Third District Court, after noting that the trial judge had made con-clusionary findings by tracking the statutory language, said:

It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant’s prior criminal record reflects that he has been engaged in a lifetime of crime. Since the findings required by the statute are fully supported in this record, the judge was at liberty to impose the extended sentence.

356 So.2d at 1257.

The majority opinion in Eutsey held that the trial court findings of fact need not be in writing but may be reported in the transcript of the sentencing hearing. King v. State, 369 So.2d 1031 (Fla.4th DCA 1979). The findings there were held to be sufficient to make Eutsey’s appeal of his enhanced sentence meaningful.

In the instant case, the transcript of the sentencing hearing shows that the PSI was furnished to Jones in advance of the hearing, considered at the hearing without specific objection, and was received by the court and used as a basis for the enhanced sentence. That report showed criminal convictions of the defendant every year of his adult life, except for 1973, up to the instant thefts committed in 1977. The defendant’s “rap sheet” clearly reveals the threat to society that he represents.

The determination of the sentence to be imposed generally falls within the sound discretion of the trial court and should not be disturbed if the sentence is authorized by law. Holden v. City of Fort Lauderdale, 286 So.2d 218 (Fla.4th DCA 1973).

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Defendant was sentenced for theft in a separate case (#CR77-1385) at the same time.

      . Part 2 of defendant’s presentence investigation considered by the trial court reads as follows:
      I. PRIOR ARRESTS AND CONVICTIONS: FDLE #0396156
      Place Date Charge Disposition
      SO, Orange Co., FI. 3-6-71 Allowing Unauthorized to Drive and Improper Display of License Tag Dismissed
      PD, Orlando, FI. 5-5-71 Breaking and Entering Dismissed 5-20-71
      SO, Orange Co., FI. 5-6-71 Breaking and Entering w/intent to Commit a Felony Consolidated with next case
      PD, Orlando, FI. 8-19-71 Breaking and Entering a Pin Ball Machine Not Guilty of Attempted Petit Larceny 8-20-71

        PD, Orlando, FI. 11-30-71 Carrying Simulated Weapon 4 days
      PD, Orlando, FI, 1-29-72 Grand Larceny Dismissed 1-30-72
      PD, Orlando, FI. 2-24-72 Sale of Narcotics Dismissed 5-1-72
      SO, Orange Co., 6-9-72 Auto Theft FI. Pled Guilty Unauth. Use of a Motor Veh. 3 yrs. probation 2-3-73
      PD, Orlando, FI. 7-4-72 Poss. of Obscene Material $35 fine suspended 3 days straight 7-7-72
      PD, Orlando, FI. 8-16-72 Capias, Failure to Appear Turned over to OCS
      PD, Orlando, FI. 9-20-72 No Fishing License 3 days 9-22-72
      OCSO 11-4-73 Assault W/l to Commit Murder Dismissed
      PD, Orlando, FI. 1-1-74 Poss. of Simulated Weapon $350 bond estreated capias ordered 2-26-74
      PD, Orlando, FI. 4-13-74 Poss. of Deadly Weapon (Knife) $75 fine 4-15-74
      PD, Orlando, FI. 4-9-74 Four Traffic Warrants 15 days on each to run consecutive
      PD, Orlando, FI. 12-23-74 Poss. of Marijuana under 5 grams Nolle Prossed 1-30-75
      SO, Orange Co., 9-25-75 Contempt of Court FI. (Traffic Charge) 8 days
      PD, Orlando, FI. 4-10-75 Drinking in Public 20 days suspended 4-11-75
      PD, Orlando, FI. 9-29-75 Open Profanity $200 suspended, $150 11-14-75
      PD, Orlando, FI. 11-21-75 Interfering with Police Officer Not Guilty 3-16-75
      PD, Orlando, FI. 2-5-76 Poss. of Heroin 5 yrs. DOR 7-30-76 (Released on Supersedeas Bond 6-1-77, Court of Appeal confirmed sentence on 12-8-77, Bond revoked 9-1-78)


author: HURLEY, Judge.

text:
    In the Interest of G. A. R., III, a child.
    No. 78-590.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.
    Rehearing Denied Oct. 1, 1980.

      Richard L. Jorandby, Public Defender, John M. Conway and Jorge Labarga, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Glen H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

This is an appeal from a judgement finding appellant delinquent and committing nim to the Department of Health and Rehabilitative Services for placement in an appropriate treatment program. Appellant suggests error in the denial of his motion to suppress evidence seized incident to his stop and temporary detention by police officers. We find that the police exceeded their authority under Section 901.151, Florida Statutes (1977), Florida’s stop and frisk law, and consequently we reverse.

The circumstances leading to appellant’s arrest occurred on a Saturday morning at approximately 11:00 A. M. An Oakland Park police officer received a BOLO (be on the lookout) which, in his words, was for

. a black male, maybe fifteen to twenty years of age, riding a green bicycle, wearing, I believe, dark pants and a dark shirt. . . . [T]his person appeared suspicious because of the way he was riding his bicycle, he was circling two or three times, looking into the various warehouses, which were open, although this was a Saturday.

The officer proceeded to an industrial area near 23rd Terrace and 30th Street which he characterized as a high crime area. There he observed appellant pedaling his bicycle very slowly along a public street. A circular saw was attached to the rack over the bicycle’s rear fender. The officer stopped appellant, asked him why he was there and where he got the saw. Appellant responded that he had picked it up off the corner, approximately ten feet from where he was stopped, and that he was bringing it home to his father who fixed broken saws. Within a few minutes back-up officers arrived and, while the first officer continued to talk with appellant, another officer took the saw to a nearby business. He plugged it in, found that it worked and, upon inquiry, determined that the saw was missing from that business. Appellant was then arrested and charged with petty theft.

Section 901.151, Florida Statutes (1977) authorizes law enforcement officers to temporarily detain a person if circumstances “reasonably indicate” that such person “has committed, is committing, or is about to commit” a crime. To justify temporary detention, “founded suspicion” in the mind of the detaining officer is required. State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978).

Since this case involves an anonymous tip, it constitutes an exception to the general rule that “[t]he circumstances surrounding a stop ‘are not to be dissected and viewed singly; rather they must be considered as a whole.’ ” United States v. Price, 599 F.2d 494, 501 (2d Cir. 1979); United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977). The tip’s anonymity requires that it be extricated from the admixture of information and be viewed independently. Only if found credible will it be returned to the amalgam and weighed with the whole. This approach is at odds with some of our earlier holdings and so we take this opportunity to revisit them.

In St. John v. State, 363 So.2d 862, 863 (Fla.4th DCA 1978), we discussed the weight to be ascribed to an anonymous tip and announced an all-embracing rule:

In order for a bolo to justify such a stop there must be some showing by the state at a suppression hearing that the information contained in the bolo was reliable. If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon.

St. John relied heavily upon State v. Hendry, 309 So.2d 61 (Fla.2d DCA 1975) and Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977), two eases which disallowed 901.151 detentions based solely on anonymous tips. This line of authority, however, was critically reevaluated in State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979), where, after a comprehensive review of stop and frisk case law, the court concluded “ . . . that an anonymous tip can provide the basis for a valid stop.” Id. at 838.

We acknowledged Hetiand and to some extent adopted its holding in Isham v. State, 369 So.2d 103 (Fla.4th DCA 1979). Isham involved an anonymous telephone call to the police advising them that the defendant was on a certain street corner attempting to sell drugs to two females. The caller gave a detailed description of the defendant and his clothing. Plainclothed detectives went to the scene and spotted the defendant walking toward them. When one officer identified himself, Isham attempted to flee, but was detained and searched by the police. Analyzing the facts, the court held that the anonymous call gave the police a right, and perhaps a duty, to respond and investigate. At a minimum, the court said, this included the right to seek an interview with the defendant. Next the court found that with all that had gone before, Isham’s attempt to flee created a founded suspicion sufficient to justify a stop. The search, however, was found to be unwarranted. Nonetheless, the court implicitly accepted the Hetland rationale and stated “. . . that had the anonymous tip included information that the appellant was armed, a frisk would have been justified.” Id. at 104.

The upgrading of a tip because of the mention of a gun is not new. One of the first cases to advance the proposition was People v. Taggart, 20 N.Y.2d 335, 283 N.Y. S.2d 1„ 229 N.E.2d 581 (1967), appeal dismissed, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968). The New York Court of Appeals noted its reservations in permitting the use of anonymous information, but found the existing balance of interests required its use in exigent circumstances where police must respond to matters gravely affecting personal or public safety or irreparable harm to property of extraordinary value. State v. Hetland, supra, carefully considered and then rejected the gun/grave danger test, finding that in the case by case evolution of stop and frisk law, “. . . the validity of a stop has not been measured in terms of the nature of the criminal activity involved, but rather on the information and circumstances known to the law enforcement officer.” Id. at 885.

We are persuaded that State v. Hetland is a correct formulation of the law and so we join our sister court in holding that an anonymous tip can provide the basis for a valid stop. We recede from the statement to the contrary in St. John v. State, supra, and from the suggestion in Isham v. State, supra, that the mere mention of a gun will justify an otherwise impermissible stop or frisk. At the same time, we emphasize that before an anonymous tip can figure in the information relied on to justify a 901.151 stop or frisk, it must contain sufficient indicia of reliability so that a reasonably prudent person would infer that its content is accurate. Each case will have to be evaluated on the basis of its own facts and ultimately the circumstances surrounding the stop will have to be considered as a whole.

Turning again to the facts of the case at bar, we find that the information given by the anonymous caller was sufficiently detailed to raise the inference that it was accurate. “Such detail carries a strong indication that the information is based on the personal observation of the informant.” State v. Hetland, supra, at 839. Thus the propriety of the investigatory stop and detention must be determined in light of all of the information known to the officer and with due regard for the maxim that a trained law enforcement officer may be “. . . able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Brown v. Texas, 443 U.S. 47, 52, n.2, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 358 (1979).

Irrespective of whether the first few moments of contact between appellant and the police are characterized as “citizen-police discourse” or as a 901.151 investigatory stop, it is clear that the situation quickly developed into an investigatory detention pursuant to section 901.151, Florida Statutes (1977). Its purpose was to ascertain appellant’s identity and the circumstances surrounding his presence in the area. If not sooner, then certainly at this point, the police effectuated a seizure of appellant’s person and implicated the requirements of the Fourth Amendment. “ ‘[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ . . . and the Fourth Amendment requires that the seizure be ‘reasonable’.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975), quoting in part, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).

Justice Powell, concurring in United States v. Mendenhall, - U.S. -, -, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980), indicated that

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), establishes that a reasonable investigative stop does not offend the Fourth Amendment. The reasonableness of a stop turns on the facts and circumstances of each case.

In our case the facts and circumstances which justify appellant’s detention are these: (1) the information contained in the anonymous telephone call; (2) appellant’s match-up with the description and mode of transportation mentioned in the telephone call; (3) the area’s high crime rate; (4) the circular saw, a piece of equipment likely to be used in manufacturing or fabricating, attached to appellant’s bicycle; (5) the nature of the neighborhood — it was an industrial as opposed to retail area, and thus it was unlikely that appellant could have purchased the saw; and (6) appellant’s highly suspicious explanation that he picked up the saw from the corner and was taking it home to his father to fix. Grouped together these facts fully constitute a “founded suspicion.”

Having concluded that the investigatory detention was warranted, we turn our attention to its scope. It is well to remember that the concept of investigatory stops received constitutional approbation because of the perceived need for an effective law enforcement tool which would not unduly interfere with the individual’s constitutionally protected right to be free from unreasonable searches and seizures. It grew from the balancing process between the public’s need for protection and the individual’s right to privacy. In striking an acceptable balance, precautions were legislatively instituted so that these stops would be confined to minimal intrusions with fixed limitations. Section 901.151(2), Florida Statutes (1977), delimits the acceptable activity:

[A]ny law enforcement officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

The statute neither contemplates nor approves the seizure of goods without probable cause. Indeed, subsection five expressly requires probable cause to believe that a detainee is armed before an officer may frisk for a weapon. Consequently, it is evident that the officers in the case at bar exceeded their authority under the statute when, during the course of the investigatory detention, they seized the saw and removed it for testing.

Stop and frisk is a pragmatic, yet constitutionally permissible response to the need for effective law enforcement. It asks that a citizen endure a modest intrusion so that an officer might pursue leads suggested by his training, knowledge and expertise. “In all situations the officer is entitled to assess the facts in light of his experience . .” United States v. Brignoni-Ponce, supra, 442 U.S. at 885, 95.S.Ct. at 2582. Once appellant was stopped, the police could have pursued several options. For example, Section 901.151(3) holds that a detention reasonably effected must also be .easonable in duration. So long as the delay was not unduly extended, there was nothing to prevent some of the officers from checking with nearby businesses while another officer continued to talk with appellant. In fact, the business from which the saw was taken was only 150 feet from where appellant was stopped. Instead, the police took the fatal shortcut of seizing the saw, an action which contravened the fundamental precept that a seizure of goods must be predicated on probable cause. Therefore, we are required to vacate appellant’s adjudication of delinquency and to reverse and remand for further proceedings.

DOWNEY and GLICKSTEIN, JJ., concur.

      . See also, People v. Mendoza, 87 Cal.App.3d 1008, 151 Cal.Rptr. 489 (1979).

      . See also, Sanders v. State, 385 So.2d 735 (Fla.2d DCA 1980); People v. Superior Court of Santa Clara County, 85 Cal.App.3d 1020, 149 Cal.Rptr. 349 (1978).

      . Compare United States v. Mendenhall, - U.S. -, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Stewart, J., plurality opinion), with Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 358 (1979).


author: GLICKSTEIN, Judge.

text:
    In re the ESTATE of Frank E. HAMMERMANN, Deceased.
    No. 79-47.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.
    Rehearing Denied Sept. 25, 1980.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., and Stafford & Wooten, Fort Lauderdale, for appellant, Esther Hammermann Ritchie.
    Jack M. Large, Fort Lauderdale, for ap-pellee, Alicia Zachman.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment entered by the trial court denying the appellant’s petition for revocation of the decedent’s will with prejudice. We affirm.

Appellant contends the trial court erroneously relied upon lay testimony in determining the decedent’s testamentary capacity in view of contrary medical testimony that the testator was of unsound mind when the will was executed.

Appellant is the testator’s only grandchild and had been the beneficiary of the testator’s earlier will. On February 7,1977, the same date appellant applied for a hearing seeking involuntary hospitalization of the testator under the Baker Act, the testator was in a lawyer’s office requesting that the lawyer — the appellee/personal representative of the estate — prepare a will for him leaving everything to the testator’s sister. That will was prepared but never signed. The testator did however sign a handwritten will the same day the circuit judge had ordered testator’s medical evaluation. The handwritten will, prepared by a friend of the testator, had the same disposi-tive provisions as that prepared by the lawyer.

Two psychiatrists examined the testator, one on February 11th and the other nine days later. In the opinion of the first, Dr. Isa A. Samad, the testator did not have sufficient mental capacity to execute a will. The second, Dr. Pedro Melchor, corroborated the testimony of Dr. Samad, having diagnosed the testator’s condition as organic brain syndrome with psychosis, a condition that had to exist for a considerable period of time prior to the examination. It is appellant’s contention that the lay testimony of the testator’s friends and lawyer was insufficient to controvert appellant’s medical testimony that the testator did not have sufficient mental capacity to execute the will.

Of the lay witnesses, Mary Elizabeth Ad-kinson, a woman 90 years of age, testified she had witnessed the will and had known the testator for forty or fifty years. She had never been concerned for his mental condition and it was her opinion that he had been capable of caring for himself.

Mary E. Adkinson, the daughter-in-law of the previous witness and a registered nurse, testified that she actually printed the will signed by the testator just before he went to the hospital on the night of February 10th. She stated she had seen the testator two or three times a week, had known him for 17 or 18 years, and had no reservations about his mental capacity. It was her testimony that he went through the will and read it all very carefully and that when he signed the handwritten will he knew what he was doing.

Alicia Zachman, the attorney visited on February 7th by the testator, stated that her practice was largely wills, trusts, probate and guardianship; that she had no reservations about the testator’s testamentary capacity; and that he was “very, very definite in what he wanted to do.”

Another witness to the will, Francis D. White, had known the testator for two years, and testified that on the night the will was signed, “he was mentally all right,” talked normally and was very unhappy about going into the hospital.

Appellant relies upon the adjudication of mental incompetency on March 14, 1977, together with the psychiatrists’ opinions upon which the adjudication was based. Appellant points out that by rejecting medical testimony in favor of lay witnesses, the trial court was accepting a medical diagnosis from persons unqualified to make such diagnoses.

The determination as to the competency of the decedent in his testamentary capacity was within the exclusive province of the trial court. An appellate court will not interfere with the trial court’s determination of the facts unless there is “an abuse of discretion, a legal insufficiency of the evidence, or a misconception of the probative effect of the evidence.” In re Estate of Burkhart, 204 So.2d 737, 740 (Fla.2d DCA 1967).

In re Zimmerman’s Estate, 84 So.2d 560, 562 (Fla. 1956), the supreme court stated:

A study of the pertinent cases reveals that the precise condition of the testator’s mental health at the time he executed his will may be established in more ways than one. It may be established by direct proof as to its condition when the will was executed or it may be established by inferences from proof of his mental condition leading up to and following the execution of the will when such proof is properly related and connected. .

Accordingly, it is our view that .he lay testimony was competent evidence of the testator’s testamentary capacity on February 10, 1977, and that the trial court was not obliged to reject that evidence in light of medical testimony to the contrary. We find ample support for the conclusion of the trial court and feel impelled to uphold that conclusion. Accordingly, the judgment is affirmed.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.


author: CAMPBELL, Judge.

text:
    ATLANTIC TRUCK LINES, INC., Herbert Greenlee and Cleo Allison and Bankers and Shippers Insurance Company of New York, Appellants, v. Sherry Lynn KERSEY and Howard Kersey, Appellees.
    No. 79-1375.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1980.
    Rehearing Denied Sept. 9, 1980.

      Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellants.
    John W. Boult, Tampa, for appellees.
   CAMPBELL, Judge.

This appeal raises the issue of whether, under the Interstate Commerce Commission regulations governing “equipment leases”, an interstate carrier is liable as a matter of law for the negligence of the owner-lessor, occurring some nine months after the carrier considered the lease terminated, merely because the carrier’s ICC identification placard had not been removed from the owner’s truck and the carrier had not obtained a receipt attesting to its relinquishment of possession of the truck. We answer in the negative and reverse.

Mrs. Kersey was severely injured in a collision in July, 1975, with a tractor-trailer rig owned by Herbert Greenlee and being driven by his employee, Cleo Allison. At the time of the accident, Allison was driving the empty trailer to Belle Glade to pick up a load of tomatoes, which as will be more fully discussed, is an agricultural commodity exempt from the requirements of a permit from either the Florida PSC or the ICC. A state trooper who investigated the accident cited Allison for reckless driving and for operating the rig without a valid driver’s license. At the time of the collision, Greenlee’s truck was bearing an ICC placard which prominently displayed Atlantic’s corporate name and ICC identification .lumbers.

The Kerseys instituted an action for personal injuries in February, 1978, naming Greenlee, Allison, and Atlantic and its insurer as defendants. Atlantic is a Florida corporation. Greenlee was apparently a resident of New York, although his tractor-trailer registration at the time of the accident showed a Belle Glade, Florida, address. Allison was also a New York resident. Service of process on Greenlee and Allison was properly made in New York, but neither filed any response, resulting in a default judgment being entered against them in May, 1978.

The matter came on for trial in February, 1979. The only evidence presented by Atlantic was the brief testimony of its traffic manager at the time of trial, the sole purpose of which was to identify the manifest which represented the last trip made by Greenlee for Atlantic in September, 1974. All other evidence at the trial was offered by the Kerseys’ witnesses, including the testimony of Atlantic’s traffic manager who signed the lease with Greenlee for Atlantic. That evidence showed that in May, 1974, Atlantic entered into a lease agreement with Greenlee in New York whereby the latter agreed to lease his tractor-trailer (then registered in New Jersey) to Atlantic and to provide drivers. This is a common practice in the industry and is referred to in the ICC regulations as “augmenting equipment.” See 49 C.F.R. § 1057.4. The lease in question complied with the applicable ICC regulations in every crucial respect. It provided that Greenlee leased the equipment to Atlantic for Atlantic’s “exclusive possession, control, use and responsibility” for the duration of the lease. The duration of the lease was to be for at least thirty days and would “continue in effect until breached by either party or until terminated in accordance with the provisions of this paragraph.” (Emphasis added.) That paragraph went on to provide:

Either party shall have the right to terminate this Lease at any time . by mailing or delivering to the other party at the address listed below, two copies of a written notice of termination. Termination shall be effective either upon receipt of the notice of termination from the other party or upon such later date as may be specified in the notice. The party receiving the notice of termination shall receipt the copy of such notice and return such receipted copy to the other party. Without excluding other breaches, any use of Equipment by OWNER or by any person other than CARRIER prior to written termination of this lease is specifically designated a breach of this lease which prevents and therefore terminates CARRIER’S exclusive possession, control and use of said Equipment and in such event CARRIER’S responsibility for said Equipment shall thereupon cease. (Emphasis supplied.)

Greenlee made several trips for Atlantic during the summer of 1974. In September, 1974, however, Greenlee failed to appear in New York to pick up a load which had been designated for Greenlee by Atlantic. Atlantic never heard from Greenlee again and had no knowledge of the truck’s whereabouts. When Greenlee failed to appear, Atlantic in October, 1974, notified him by telephone and by mail at the address specified for notices in the lease that the lease was terminated and that the ICC placard should be returned. Atlantic also subsequently sought to reach Mr. Greenlee by telephone but was unsuccessful. This evidence came by way of the deposition of Atlantic’s former dispatcher and bookkeeper and was submitted by the Kerseys. The letters which he testified had been sent to Greenlee prior to the accident were not produced, nor was any explanation offered for their nonavailability. There was received into evidence, however, a letter sent some six months after the accident (but two months before the Kerseys’ complaint was filed) which referred to the previous attempts to terminate the lease. Furthermore, the Kerseys did not contend at trial, nor do they on appeal, that Atlantic knew where the truck was or that it ever had any dealings with Greenlee after September of 1974, some ten months prior to the collision. Neither do they contend that Atlantic did not notify Greenlee of its intent to terminate the lease.

Their sole contention was based on the continued possession of Atlantic’s ICC identification placard by Greenlee after Atlantic lost contact with him. Thus, it was argued that Atlantic was absolutely liable under the ICC regulations to third persons for the actions of Greenlee because Atlantic had failed to obtain a receipt and the return of its identification placard. Unless and until that was done, the Kerseys contended that the lease remained in effect. Atlantic, on the other hand, argued in its motion for directed verdict, as it does on appeal, (a) that there was no evidence that the truck was being used in interstate commerce at the time of the accident, but, to the contrary, was operating intrastate in Florida for the purpose of transporting an exempt agricultural commodity; (b) that the evidence showed without contradiction that the lease had been terminated; and (c) that the truck was not being operated in Atlantic’s business, or in furtherance thereof, at the time of the collision.

Rhetorically inquiring whether a lease would remain in effect forever merely because the owner’s truck continues to display an ICC placard and the carrier has not obtained a receipt for return of the truck, even where the carrier never sees the owner or his truck again, the trial judge seemed initially inclined to deny the Kerseys’ motion for directed verdict made at the close of all the evidence. At that point, however, the Kerseys’ attorney referred the court’s attention to Section 323.02, Florida Statutes (1975), which provided that motor carriers were prohibited from operating on the highways in Florida without “having obtained from the Public Service Commission a certificate of public convenience and necessity or a permit . or a certificate of registration of Interstate Commerce Commission authority . . . .” Since Green-lee was shown not to have had a certificate of public convenience and necessity from the PSC, counsel for the Kerseys seemed to assert that the only authority which Green-lee had for operating on the highways of Florida was Atlantic’s ICC certificate. From the record before us, the trial court seemed persuaded by this argument and granted the Kerseys’ motion for directed verdict. In doing so, the court never specifically stated that it was ruling that the display of Atlantic’s ICC identification placard in and of itself created liability on the part of Atlantic as a matter of law when considered in light of the other undisputed *acts.

Neither of the parties’ counsel directed the trial judge’s attention to Section 323.29, Florida Statutes (1975), which exempts, inter alia, the transport of agricultural products from any certification requirements. It was undisputed that the Greenlee truck was en route to pick up a load of tomatoes when the collision occurred. Hence, the truck had authority to be on the highway without Atlantic’s ICC certificate. But even if Greenlee had been carrying a nonexempt commodity and, therefore, would have been without state authority to be on the highway, we fail to comprehend why the factual question concerning termination of the lease after an apparent breach and repudiation by Greenlee by his failure to pick up a designated load should recede to a position of irrelevancy and liability be automatically visited upon Atlantic.

If that was the basis for the granting of the Kerseys’ motion for directed verdict, the trial court may have been influenced by cases containing language similar to that in Cosmopolitan Mutual Insurance Co. v. White, 336 F.Supp. 92, 96-7 (D.Del.1972):

Establishing a mandatory requirement upon ICC authorized carriers to remove placards and to obtain receipts . may impose a substantial burden upon such carriers since , the [owners] are not likely to cooperate after termination. However, the ICC placard and lease agreement are the equipment’s authoriza tion for being on the road, and when not removed upon cancellation of a lease, subject the public to the evils which Congress attempted to eliminate . (Emphasis added.)

See also Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir. 1961). As previously indicated, Greenlee’s truck did not need Atlantic’s ICC placard or the lease agreement as authorization to be on the road. Had the trial court’s attention been drawn to the exemptions contained in Section 323.29, it is likely that the Kerseys’ motion for directed verdict would have been denied.

That would have been the proper procedure, for we are of the opinion that whether a lease such as the one involved here is terminated is a question to be answered by the trier of fact. We refuse to subscribe to the view that a lease can only be cancelled, after an apparent breach by the owner-lessor, by the carrier’s obtaining its ICC placard and a receipt showing that the owner has retaken possession of the equipment. In our view, Section 1057.4(b) (“Receipts for Equipment to be specific”) and Section 1057.4(d)(1) (“Identification to be removed when lease terminated”) do not specify the means by which an equipment lease must be terminated. Rather, those sections indicate that if the carrier has its placard and a receipt, then that is conclusive of the question of whether the equipment lease, and the carrier’s exposure to liability, was terminated. On the other hand, the carrier’s failure to obtain the placard and the receipt after breach by an owner-lessor is not conclusive evidence that the lease has not been terminated. If the carrier has not complied with the ICC regulations, at most a presumption is created that the lease remains in effect, but is rebuttable by evidence that the lease was in fact breached and/or terminated and that the carrier diligently endeavored to comply with the regulations. See e. g., Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968).

We recognize contrary language such as the following:

Obtaining a receipt for the return of the vehicle and removing the ICC placard are prerequisites to termination of an ICC lease.

Cosmopolitan Mutual Insurance Co. v. White, 336 F.Supp. at 96. See also Bankers & Shippers Insurance Co. of New York v. Watson, 216 Va. 807, 224 S.E.2d 312 (1976); Mellon National Bank & Trust Co. v. Sophie Lines, Inc., supra. As indicated, we do not agree with that proposition. Moreover, the facts in the above cited cases did not compel utterance of such a proposition. In Bankers & Shippers Insurance Co. of New York v. Watson, for example, the owner disputed having received a letter of termination which the carrier claimed it had sent two days before the accident. Furthermore, the carrier had not made “a single effort’ to comply with the ICC regulations. And in Mellon, it was undisputed that the lease was still in effect, and the issue was whether the carrier was liable for the owner’s negligence while the owner was hauling, apparently with the carrier’s knowledge and to its benefit, for a third party.

Thus, although those cases could have turned on the factual question of whether or not the termination provisions of the leases had been complied with, the courts determined that the carriers were liable as a matter of law for failure to comply with the ICC regulations. Under such an interpretation of the regulations, a lease could be terminated by a carrier because the owner breaches the agreement by never appearing to pick up a designated load, yet despite its best efforts to locate the truck or its owner, the carrier would still be liable as a matter of law if it failed to obtain the placard and receipt. Such a result would offend even the most cynical, and we do not think that it was intended by Congress. Rather, we are of the view that Congress sought to prevent, among other abuses, ICC certified carriers from avoiding tort liability to the public by entering into single trip leases with independent contractors. Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 234, 46 L.Ed.2d 169, 177 (1975); Simmons v. King, 478 F.2d 857, 865-67 (5th Cir. 1973); Brannaker v. Transamerican Freight Lines, Inc., supra. The regulations promulgated by the ICC were designed to place ultimate responsibility on the carriers for the duration of the lease agreement. As long as the lease remains in effect and the owner displays the carrier’s placard, the carrier will be deemed to be in possession of the equipment and responsible for the torts of the owner and his agents and employees. We do not believe that the regulations were intended to impose tort liability upon carriers in cases such as the one sub judice.

Having reached our conclusion that the uncontroverted evidence indicates both a breach by Greenlee and subsequent attempts by Atlantic to terminate the lease as a result thereof and to reacquire its ICC identification placards, we cannot hold Atlantic liable to the Kerseys as a matter of law because of Greenlee’s continued display of Atlantic’s ICC identification placard. Since the evidence is uncontroverted and there are no factual disputes, we must therefore reverse with instructions to direct a verdict for Atlantic. Having reached our conclusion on the basis stated, we are not required to and do not address the issues of whether, absent a breach or termination, Atlantic would have been excused from liability because Greenlee’s truck was not being used in interstate commerce or was not being used in Atlantic’s business or in furtherance thereof.

OTT, Acting C. J., and DANAHY, J., concur.

      . The text of the ICC Regulations pertinent to this appeal, 49 C.F.R. § 1057.4, provides as follows:
      § 1057.4 Augmenting equipment.

      Other than equipment exchanged between motor common carriers in interchange service as defined in § 1057.5, authorized carriers may perform authorized transportation in or with equipment which they do not own only under the following conditions:

        (a)Contract requirements. The contract, lease, or other arrangement for the use of such equipment:
      (1) Parties. Shall be made between the authorized carrier and the owner of the equipment.
      (2) Written contract required. Shall be in writing and signed by the parties thereto, or their regular employees or agents duly authorized to act for them in the execution of contracts, leases, or other arrangements.
      (3) Minimum duration of 30 days when operated by lessor. Shall specify the period for which it applies, which shall be not less than 30 days when the equipment is to be operated for the authorized carrier by the owner or employee of the owner; excepting:

      (b) Where the motor vehicle so to be used is one which has completed a movement covered by section 203(b)(6) of the Act and such motor vehicle is next to be used by the motor carrier in a loaded movement in any direction, and/or in one or more of a series of movements, loaded or empty, in the general direction of the general area in which such motor vehicle is based; and
      (c) Provided. In either instance that prior to the execution of the lease, the authorized carrier receives and retains a statement signed by the owner of the equipment, or someone duly authorized to sign for the owner, authorizing the driver to lease the equipment for the movement or movements contemplated by the lease, certifying that the equipment so leased meets the qualifications enumerated in (a) or (b) of this subsection, and specifying the origin, destination, and the time of the beginning and ending of the last movement which brought the equipment within the purview of this subsection.

      (4) Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement except:

      (7) Copies of lease and their distribution copy to be carried on vehicle. Shall be executed in triplicate; the original shall be retained by the authorized carrier in whose service the equipment is to be operated, one copy shall be retained by the owner of the equipment, one copy shall be carried on the equipment specified therein during the entire period of the contract, lease, or other arrangement, unless a certificate as provided in paragraph (d)(2) of this section is carried in lieu thereof.

      (b) Receipts for equipment to be specific. When possession of the equipment is taken by the authorized carrier or its regular employee or agent duly authorized to act for it, said carrier, employee or agent shall give to the owner of the equipment, or the owner’s employee or agent a receipt specifically identifying the equipment and stating the date and the time of day possession thereof is taken; and when the possession by the authorized carrier ends, it or its employee or agent shall obtain from the owner of the equipment, or its regular employee or agent duly authorized to act for it, a receipt specifically identifying the equipment and stating therein the date and the time of day possession thereof is taken.
      (c) Safety inspection of equipment by the authorized carrier. It shall be the duty of the authorized carrier, before taking possession of equipment, to inspect the same or to have the same inspected by a person who is competent and qualified to make such inspection and has been duly authorized by such carrier to make such inspection as a representative of the carrier, in order to insure that the said equipment complies with the Motor Carrier Safety Regulations of the Federal Highway Administration of the Department of Transportation. The person making the inspection shall certify the results thereof on a report in the form hereinafter set forth, which report shall be retained and preserved by the authorized carrier .

        (d)Identification of equipment as that of the authorized carrier. The authorized carrier acquiring the use of equipment under this rule shall properly and correctly identify such equipment during the period of the lease, contract, or other arrangement in accordance with the Commission’s requirements in Part 1058 of this chapter (Identification of Vehicles). If a removable device is used to identify the acquiring authorized carrier as the operating carrier, such device shall be on durable material such as wood, plastic, or metal, and bear a serial number in the acquiring authorized carrier’.s own series so as to keep proper record of each of the identification devices in use.
      (1) Identification to be removed when lease terminated. The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment.

      . Atlantic does not dispute the trial court’s finding that Allison’s negligence was the sole cause of the accident, nor does it contest the $585,000 in damages awarded to Mrs. Kersey and her husband.

      . This oversight is to some extent understandable in light of the failure of Section 323.02, Florida Statutes (1975), to alert a reader to the existence of any exceptions to its prohibition. That section has since been amended, however, to specifically provide that a motor carrier may also operate on the public highways in Florida if it qualifies for “an exemption as hereinafter provided.” See Ch. 77^434, Sec. 3, Laws of Florida.


author: WENTWORTH, Judge.

text:
    Jerry R. MYERS, Appellant, v. CARR CONSTRUCTION CO. and Michigan Mutual Ins. Co., Appellees.
    No. PP-373.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Rehearing Denied Sept. 22, 1980.

      Clair F. White for Reed A. Bryan, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    Gerald T. Nolan, Fort Lauderdale, for appellees.
   WENTWORTH, Judge.

Pursuant to Fla.R.App.P. 9.331(b), on motion of a member of the court, we have considered the present case en banc.

Claimant has appealed a workers’ compensation order denying interest for past due benefits which were properly awarded. Interest should also have been awarded, payable from the date claimant should have received benefits. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955).

As to the applicable rate of interest, the statutory provision in effect at the time of claimant’s accident established a rate of 6%. § 687.01, Florida Statutes (1974); and former Rule 21, W.C.R.P.1974. However, Chapter 78-300, Laws of Florida, amended § 440.20, Florida Statutes (1978 Supp.), to provide in subsection (7) an interest rate of 12%. Chapter 78-300 also provides, in Section 25, that the act shall apply to claims arising out of injuries occurring on or after July 1, 1978. While E & A Concrete v. Perry, 379 So.2d 1015 (Fla. 1st DCA 1980), indicates that Section 25 precludes the application of the 12% interest rate on any delinquent compensation for injuries which occurred prior to July 1,1978, we now qualify that view in the case of interest on delinquencies accruing after that date. Under ordinary principles of construction, Section 25, Chapter 78-300, Laws of Florida, does not restrict application of provisions of the act which are remedial or procedural in character. We find no basis in the act or its history to indicate Section 25 was intended to alter the usual rule that after their effective date remedial enactments apply to remedies then invoked for currently accruing liability arising out of earlier events or claims. See, e. g., Tel Service Co. Inc. v. General Capital Corp., 227 So.2d 667 (Fla.1969); National Bank of Jacksonville v. Williams, 38 Fla. 305, 20 So. 931 (1896); see also Walker & LaBerge Inc. v. Halligan, 344 So.2d 239 (Fla.1977).

The opinion in E & A Concrete v. Perry, supra, does not indicate that the parties presented or that the court addressed the issue of whether § 440.20(7), Florida Statutes (1978), is a remedial or substantive provision. We conclude that this subsection is remedial insofar as it alters the interest rate on compensation improperly withheld after the amendment, and that the ruling in E & A Concrete v. Perry, supra, was correct only insofar as it involved interest on benefits which became delinquent before July 1, 1978. Interest payable for delinquencies accruing on or after July 1, 1978, is governed by § 440.-20(7), Florida Statutes (1978), and is properly awarded at a rate of 12%.

The order appealed is hereby amended to award interest as indicated above, and is affirmed as so amended.

ROBERT P. SMITH, Jr., ERVIN, BOOTH, SHIVERS and SHAW, JJ., concur.

MILLS, C. J., and McCORD and LARRY G. SMITH, JJ., dissent.


author:
ERVIN, Judge.
      WENTWORTH, Judge,

text:
    James E. GRADY et al., Appellants, v. DIVISION OF RETIREMENT, Appellee.
    No. PP-208.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Rehearing Denied Sept. 11, 1980.
    Warren S. Schwartz, Miami Beach, and Joseph C. Segor, Miami, for appellants.
    Kathleen Villacorta and Stephen S. Ma-thues, Tallahassee, for appellee.
   ERVIN, Judge.

Grady and other investigators of the Public Defender’s Office for the Eleventh Judicial Circuit appeal a final order of the Retirement Commission holding them no longer eligible for special risk membership in the Florida Retirement System. Because we find they did not acquire vested rights for such membership, we affirm.

When appellants first applied to the Division in 1972 for special risk membership, and were approved, they generally described their job duties as requiring them to interview witnesses day and night in high crime areas, as well as defendants and other witnesses within places of correction. Chapter 121 did not then, unlike its present provisions, e. g., Section 121.0515, Florida Statutes (1979), specify the criteria which applied to special risk membership. Instead its definition of special risk included the enumeration of certain positions — none of which applied to appellants’ employment— and its placement of discretionary authority in the Division to approve as special risk “any other job in the field of law enforcement * * * if the [job’s] duties are certified as hazardous by the employer.” Section 121.021(15). Florida Statutes (1971). Unquestionably the investigators’ applications, supported by their employer’s certification, complied with the law then in effect, and the Division possessed discretionary authority to approve their .positions for membership. Later, during the active employment of all appellants, the Division requested them to submit updated applications showing their continuing eligibility. After reviewing the supplemental applications, the Division concluded that appellants’ job duties met none of the criteria in the current rules, and entered an order on February 1, 1978 disapproving their classifications, later affirmed by the State Retirement Commission.

Appellants, relying upon Florida Admin. Code Rule 22B-1.04(7)(b), providing that once an employee has been approved for special risk membership, he shall remain so classified unless his duties and responsibilities change, argue that because the Commission found their present duties did not differ from their duties when the classifications were approved, its reclassification was a violation of its own rule. An agency should of course comply with its rule until it is repealed, cf. Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). Nevertheless, Section 121.0515, Florida Statutes (1979), enacted effective October 1, 1978, Ch. 78-308, § 2, Laws of Fla., explicitly limited special risk membership to certain positions other than public defender investigators, and authorized the Division to review designations of members previously classified to determine whether they continued to meet the criteria required for such membership. Simultaneously with the passage of Section 121.-0515, the prohibitive language of Rule 22B-1.04(7)(b) was removed, thus freeing the Division to reclassify as of October 1, 1978. Although it appears the Division was without authority on February 1, 1978 to disapprove the special risk designations, it clearly possessed such power when it entered its final order on August 14, 1979 because agencies, as well as courts, are required to apply the law as it exists at the time of the appeal. Cf. Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1967).

Appellants next argue that even if the statute empowered the Division to so act, such legislation impaired the obligations of their contracts, contrary to both the United States and Florida constitutions. They argue that because their participation in special risk membership is voluntary by law, their contractual rights vested at the time their applications were approved, and the subsequent legislation could not abridge rights secured to them under the terms of the earlier legislation.

Before the Supreme Court’s opinion in City of Jacksonville Beach v. State, 151 So.2d 430 (Fla.1963), affirming State v. City of Jacksonville Beach, 142 So.2d 349 (Fla. 1st DCA 1962), the rule in Florida as to what rights vest in a public employee who contributes to a pension plan was unclear. The court’s approach to the problem was to distinguish between whether the employee’s participation was voluntary or compulsory, and then apply different rules to each. See Annotation, 52 A.L.R.2d 437, 442-443 (1957). If the employee’s participation was voluntary, Anders v. Nicholson, 111 Fla. 849, 150 So. 639 (1939), has generally been cited as holding that the employee’s acceptance of the terms of the statute fixing the conditions of the plan creates a contractual relationship between him and the public body which entitles him to receive the benefits specified in the statute, and once his contractual rights are fixed, they cannot be abrogated by subsequent legislation. See, 52 A.L.R.2d at 452. This, however, is not the actual holding of Anders. It stated that the provisions of a special act in effect at the time the employee agreed to join the plan fixed the conditions of the contract only as to contributions made by him before the act’s amendment, thereby entitling him to be fully reimbursed all such amounts, in accordance with the terms of the original statute, but as to amounts contributed by him following its amendment, the unamended act did not vest in the employee the right to be wholly refunded so that the amended statute could validly reduce the sums which the employee, later discharged, was entitled to receive.

Even if the Anders rule has continuing efficacy, which it does not, as discussed infra, it is inapplicable to the facts in this case for two reasons: First, Anders pertained only to the issue of a discharged employee’s vested right to a refund of contributions — not retirement benefits, which appellants urge vested when they elected to apply for special risk membership and were accepted. Second, the appellants make no showing that at the time their applications were approved they satisfied any of the minimum statutory conditions required by Section 121.021(29)(c), Florida Statutes (1971), i. e., length of service, age, disability, etc., entitling them to eligibility for pension benefits available to special risk members. And it is generally held that in the absence of such a showing, an employee does not acquire a vested right to them. See 60 Am.Jur.2d, Pensions and Retirement Funds, § 46 at 918 (1972). Therefore none can realistically claim his rights to pension benefits vested prior to the statute’s amendment.

The rule as to what rights vested in a public employee who was compelled to contribute to a pension system was no more clear than that involving the employee’s rights under voluntary plans. For example, the court held that once a fireman retired, his rights to a pension vested in the sense that the legislature could not entirely deprive him of his pension rights; nevertheless it could enact a statute following his retirement reducing the amount of the pension payable to him. State ex rel Holton v. Tampa, 119 Fla. 556, 159 So. 292 (1934). Accord, McNulty v. Blackburn, 42 So.2d 445 (Fla.1949).

Acknowledging the lack of clarity in its prior opinions, the court in City of Jacksonville Beach v. State, supra, found it unnecessary to distinguish between mandatory and voluntary retirement plans and emphasized, as it had previously in Greene v. Gray, 87 So.2d 504 (Fla.1956), that regardless of the category of the employee contribution system, all such systems have the same object: to provide security to employees and efficient service to the public by trained personnel. Because the goals were identical for all systems, the same rule would be applied to all: A member of any plan has at the time of retirement a vested right of contract and all benefits accrued to him by the law then in effect. City of Jacksonville Beach, supra, at 432. Accord, Arnow v. Williams, 343 So.2d 1309 (Fla. 1st DCA 1977), applying the same rule even though it appears from the opinion the employee’s participation in the plan was optional.

As stated, none of the appellants had either retired or satisfied those conditions of the law authorizing a member’s entitlement to pension benefits before legislation was enacted empowering the Division to review special risk designations. Therefore, none has any vested right to retirement benefits which are available to those who meet the current criteria applicable to such classifications.

AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

WENTWORTH, J., specially concurred with opinion.

WENTWORTH, Judge,

specially concurring.

I concur in the conclusion reached by the majority, i. e., that the appellants have no vested right to any Chapter 121, Florida Statutes, retirement benefits. This result is required, in my opinion, because the appellants have not satisfied the requirements necessary for retirement eligibility as established by § 121.021(29) or § 121.021(30), Florida Statutes. State v. Lee, 147 Fla. 37, 2 So.2d 127 (1941), indicates that the right to retirement benefits vests upon eligibility for retirement, and City of Jacksonville Beach v. State, 151 So.2d 430 (Fla.1963), does not suggest a contrary rule by its conclusion that vesting had occurred in the case of one who had already retired.

      . If the plan calls for no contributions from the employee, the courts generally hold that because there is no contract on the part of the governmental body to continue the payment of a benefit, a change in the law affecting such benefit does not impair the obligation of a contract. 60 Am.Jur.2d, Pensions and Retirement Funds, § 48 (1972).

      . The court’s opinion focused upon an employee’s rights vesting only upon retirement. It is possible the court did not intend to permit a public body to modify an employee’s rights to retirement benefits before he retires if he has satisfied all the conditions of the law then in effect. See State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.2d 127, 133 (1941), observing that employees become eligible for retirement upon their meeting “all the requirements of the act creating the retirement system,” and thereby acquire “a vested right under the terms of said statute which . may not be affected or adversely altered by subsequent enactments.” Compare also Hickey v. Pittsburg Pension Board, 378 Pa. 300, 106 A.2d 233, 52 A.L.R.2d 430 (1957).