author: McDONALD, Justice. BOYD, Justice,

text:
    STATE of Florida, Petitioner, v. Willie CARTER, Jr., Respondent.
    No. 57937.
    Supreme Court of Florida.
    April 16, 1981.

      Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for respondent.
   McDONALD, Justice.

The state seeks certiorari review of a decision of the Third District Court of Appeal which discharged respondent from prosecution because he, a defendant charged with grand theft under section 812.014, Florida Statutes (1977), was not brought to trial within 180 days of his arrest. Recognizing that the circumstances differ somewhat from those in State ex rel. Sheppard v. Duval, 287 So.2d 370 (Fla.3d DCA 1973), we perceive conflict and accept jurisdiction.

Before trial Carter moved to dismiss the information claiming that the statute under which he was charged is unconstitutional. Rather than ruling on the motion the trial judge granted a stay of proceedings and tolled the speedy trial period, stating:
Previous to this case, several Circuit Judges of the Eleventh Judicial Circuit of Florida have dismissed Informations on the grounds that the Grand Theft Statute, Section 812.014, Florida Statutes (1977), is unconstitutional. The State of Florida is appealing those decisions and those appeals are presently pending before the Florida Supreme Court.
Each appeal involves a significant expense of judicial resources and requires a filing fee in the amount of $75.00. The Court finds that the expense of manpower and financial resources need not be continuously made since an ultimate decision concerning the constitutionality of the Theft Statute will result from the presently pending appeals.
Based upon the foregoing, it is,
ORDERED AND ADJUDGED that all proceedings concerning the Grand Theft charge in the instant case are stayed and that the speedy trial period is tolled until the final mandate of the Supreme Court is issued which resolves the constitutionality of the Theft Statute, Section 812.-014, Florida Statutes (1977).

Florida Rule of Criminal Procedure 3.191(d)(2) authorizes the trial court to extend the time established for trial by rule 3.191(a)(1) on the court’s own motion or on motion of either party, if exceptional circumstances exist. “Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court.” Fla.R.Crim.P. 3.191(f). The court’s justification for the instant extension is not invalid merely because it is not one of the exceptional circumstances enumerated in rule 3.191(f). State ex rel. Girard v. McNulty, 348 So.2d 311 (Fla.1977).

Florida courts have strictly adhered to the procedures delineated in rule 3.191 governing the security of an accused’s right to a speedy trial. See, e. g, Stuart v. State, 360 So.2d 406 (Fla.1978); Allen v. State, 275 So.2d 238 (Fla.1973); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978); Jenkins v. State, 349 So.2d 1192 (Fla. 4th DCA 1977); State v. Jones, 332 So.2d 699 (Fla. 1st DCA 1976); State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976); Mullin v. State, 307 So.2d 829 (Fla. 3d DCA 1974), cert. denied, 317 So.2d 761 (Fla.1975); Riggins v. State, 301 So.2d 124 (Fla. 1st DCA 1974); Pouncy v. State, 296 So.2d 625 (Fla. 3d DCA 1974).

We recently ruled that a state’s appeal does not automatically toll the speedy trial time and placed on the trial court the responsibility for guaranteeing a defendant his constitutional right to a speedy trial. State v. Jenkins, 389 So.2d 971 (Fla.1980). We have also stated that a defendant’s motion for a continuance does not relinquish all of the defendant’s rights to a speedy trial. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

The issue in this case has not been addressed previously by this Court. That issue is whether multiple trial court rulings declaring a new criminal statute unconstitutional present an exceptional circumstance which would allow a trial judge to toll the speedy trial period until the constitutionality of the statute is decided by the appellate courts. We hold that this situation presents a proper exceptional circumstance and that the trial judge justifiably tolled the speedy trial period.

We accept the rationale of Bembry v. Gable, 372 So.2d 177 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 757 (Fla.1980), that a trial judge’s desire to receive helpful advice from an appellate court is not sufficient in and of itself to justify an order extending the speedy trial period. Nevertheless, when there has been a massive assault against a statute under which a defendant is charged and an appellate decision is imminent, an exceptional circumstance exists to authorize a trial judge, in his discretion, to grant an extension of time for a defendant to be brought to trial under that statute.

The decision of the Third District Court of Appeal is quashed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion with which SUNDBERG, C. J., and ENGLAND, J., concur.

BOYD, Justice,

dissenting.

I dissent from the Court’s decision because I do not believe the circumstances relied upon as justifying the delay of the proceedings properly constitute “exceptional circumstances” within the meaning of Florida Rule of Criminal Procedure 3.191(f). The decision departs from our precedents which hold that the filing of a motion to dismiss does not toll the speedy trial rule time. In Carroll v. State, 251 So.2d 866, 870 (Fla.1971), this Court declared:

To hold that a genuine motion testing the validity of an information tolls the running of the speedy trial statute places an accused in the anomalous position of waiving his guarantee of a speedy trial in order to assert the insufficiency of the information lodged against him. This we decline to do.

We recently reiterated this view in Tucker v. State, 357 So.2d 719 (Fla.1978):

We reject the notion that criminal defendants are to be penalized for moving to dismiss an indictment, and certainly not where the motion is sufficiently well-taken to elicit a favorable ruling from the trial court. The position urged by the state (and mentioned suggestively by the Second District) would place an accused on the horns of a dilemma by requiring him to jeopardize his speedy trial rights in order to challenge the state’s right to prosecute. The right to test the legality of the state’s procedure and the right to a speedy trial are independently guaranteed, and we cannot accept a construction of our rules that would force a defendant to risk one to obtain the other.

Id. at 721, n. 7. The same reasoning applies here.

I see no justification for denying a defendant his right to a speedy trial merely because other defendants have been successful in challenging the constitutionality of the statute he is charged with violating.If the previous successful challenges to the statute were to have any impact on respondent’s case, it should have been that his motion, found to have merit, would be granted. This would have given him the same treatment as the earlier, successful challengers. The court’s deferral of the decision placed respondent in a worse position than he would have been in had the court upheld the statute. Had the court simply upheld the statute and denied the motion to dismiss, then at least the respondent would have seen his case go to trial instead of being placed in some kind of judicial limbo.

Florida Rule of Criminal Procedure 3.191(f) states that “exceptional circumstances shall not include general congestion of the court’s docket....” This exclusion is a manifestation of the Rule’s broad policy that the defendant’s constitutional right is not to be jeopardized by circumstances created by the state. Yet the trial court’s order seems to suggest that considerations of judicial economy and appellate court docket congestion outweigh the defendant’s right to be brought to trial within the time period prescribed by the rule. The factor of judicial economy and the problem of appellate court docket congestion are matters of concern to the judicial system and result from the courts’ structure and rules of procedure. If this framework causes a drain on the state’s manpower and financial resources, then the framework should be changed. But these problems do not justify an extension of time under the rule. Nor do they, in my view, justify infringement of the right to be brought to trial without delay.

I would affirm the decision of the district court of appeal.

SUNDBERG, C. J., and ENGLAND, J., concur.

      . Carter v. State, 374 So.2d 1063 (Fla.3d DCA 1979).

      . Art. V, § 3(b)(3), Fla.Const. (1972).

      . This Court upheld § 812.014 in State v. Allen, 362 So.2d 10 (Fla.1978).


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    DIVISION OF ADMINISTRATION, STATE DEPARTMENT OF TRANSPORTATION, Petitioner, v. CAPITAL PLAZA, INC., Respondent.
    No. 58464.
    Supreme Court of Florida.
    April 16, 1981.

      H. Reynolds Sampson, General Counsel, and Margaret-Ray Kemper, Appellate Atty., Tallahassee, for petitioner.
    David W. Foerster of Foerster & Hodge, Jacksonville, for respondent.
   McDONALD, Justice.

We have for review a decision wherein a district court held that a jury should be allowed to consider evidence regarding substantial impairment of access due to the construction of a median strip when considering severance damages in relation to a condemnation. We have jurisdiction, and, for the reasons set out below, we quash the district court decision.

Through eminent domain proceedings, the Department of Transportation (DOT) acquired a strip of land owned by Capital Plaza, Inc. (Capital), to be used in widening a road. Following reconstruction, the road, formerly two lanes with no median, had six lanes divided by a raised four-foot-wide median. Due to the median, northbound drivers can no longer turn across traffic directly into Capital’s service station.

The trial court denied Capital’s request to introduce evidence of damages to the remainder of the property caused by decreased access. The district court reversed, holding that the jury should have been allowed to consider evidence relating to free access by northbound traffic. In reaching its decision, the court relied on State Department of Transportation v. Stubbs, 285 So.2d 1 (Fla.1973). We find, however, that Stubbs, does not control the instant situation.

In Stubbs this Court stated that “[e]ase and facility of access constitute valuable property rights for which an owner is enti-tied to be adequately compensated.” 285 So.2d at 3. Stubbs held that section 388.04, Florida Statutes (1971), requires jury consideration of severance damages where there is a direct physical taking of property for the construction of a limited access road. The instant case is distinguishable from Stubbs because the road involved here is not a limited access facility governed by section 338.04.

Instead, the instant case concerns alleged damages resulting from a change in the flow of traffic, not a deprivation of access. There is still free, unimpeded access to Capital’s service station albeit only by southbound traffic. Although the holding in Stubbs is not applicable here, that case does provide guidance. The Stubbs Court also said that “ ‘access’ as a property interest does not presently include a right to traffic flow even though commercial property might very well suffer adverse economic effects as a result of a diminution in traffic.” 285 So.2d at 4. Thus, this state has joined the numerous other jurisdictions which have found that a landowner has no property right in the continuation or maintenance of traffic flow past his property. See Annot. 73 A.L.R.2d 689, § 4 (1960); 2A Nichols Eminent Domain § 6.445 (rev. 3d ed. 1979).

When less than the entire property is taken, compensation for damage to the remainder can be awarded only if such damage is caused by the taking. Here, DOT constructed the median within its previously owned right of way. Construction of the median, not the taking, caused the alleged damage. Severance damages are not available for a change in traffic flow.

We hold that landowners have no compensable interest in traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from a taking. The district court opinion is quashed with directions to affirm the trial court ruling.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . Capital Plaza, Inc. v. Division of Adm., State Dep’t. of Transp., 381 So.2d 1090 (Fla. 1st DCA 1979).

      . Art. V, § 3(b)(3), Fla.Const.

      .§ 73.071(3)(b), Fla.Stat. (1979). Stubbs phrased the issue as “whether there has been a substantial diminution in access as a direct result of the taking.” 285 So.2d at 3.


author: PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. John David JONES, Government Employees Insurance Company and Lewis P. Barwick, Respondents.
    No. 58812.
    Supreme Court of Florida.
    April 16, 1981.
    James 0. Driscoll of Driscoll, Langston, Layton & Kane, Orlando, for petitioner.
    Ronald L. Harrop of Gurney, Gurney & Handley, Orlando, for respondents.
   PER CURIAM.

The decision of the Fifth District Court of Appeal in Jones v. Barwick, 386 So.2d 7 (Fla. 5th DCA 1980), is quashed on the authority of Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla.1980).

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


author: BOYD, Justice.

text:
    Dwight LEE, Appellant, v. STATE of Florida, Appellee.
    No. 58914.
    Supreme Court of Florida.
    April 16, 1981.
    Jack 0. Johnson, Public Defender, and Douglas A. Lockwood and Michael S. Becker, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Twelfth Judicial Circuit, Sarasota County. In rendering judgment, the court passed upon the constitutional validity of a state law. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellant Dwight Lee was charged with the offense of placing a witness in fear by threat of force in violation of section 918.-14(3)(a)(l), Florida Statutes (1979). Section 918.14(3) provides:

(3)(a) It is unlawful for any person:
1. To cause a witness to be placed in fear by force or threats of force;
2. To make an assault upon any witness or informant; or
3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.
(b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in S. 775.082, S. 775.083, or S. 75.084.

The information alleged that on October 11, 1979, appellant threatened the life of a prospective witness who was to testify against him in a pending criminal case. Appellant moved to dismiss the information on the ground that the statute is unconstitutionally vague and overbroad. After the denial of the motion to dismiss, appellant entered a plea of nolo contendere, specifically reserving the right to appeal the denial of his motion to dismiss. Based on this plea, the court adjudicated appellant guilty and imposed probation for two years.

On appeal, the appellant argues that section 918.14(3)(a)(l) is vague. We disagree and uphold the statute.

Statutes which define criminal offenses must do so in language that is definite enough to apprise ordinary persons of common intelligence of what conduct is proscribed. State v. Ashcraft, 378 So.2d 284 (Fla.1979); State v. Mayhew, 288 So.2d 243 (Fla.1973); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). Applying this standard to the language of section 918.14(3)(a)(l), we conclude that it is sufficiently definite “to convey a definite warning as to the conduct proscribed, measured by common understanding and practice.” Von Edwards v. State, 377 So.2d 684, 685 (Fla.1979); Zachary v. State, 269 So.2d 669 (Fla.1972).

The circuit court’s order upholding the statute was correct. Therefore, we affirm the judgment.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: ADKINS, Justice.

text:
    STATE of Florida et al., Appellant, v. CITY OF RIVIERA BEACH, a municipal corporation of the State of Florida, Appellee.
    No. 59348.
    Supreme Court of Florida.
    April 16, 1981.

      David H. Bludworth, State Atty., and Oliver H. Harris, Asst. State Atty., West Palm Beach, for appellant.
    Allan V. Everard, City Atty., Riviera Beach, and Henry E. Williams, Jr. of Brown, Wood, Ivey, Mitchell & Petty, Tampa, for appellee.
   ADKINS, Justice.

This is an appeal from a judgment of the circuit court, Palm Beach County, entered in proceedings for the validation of bonds. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const. (1980), and § 75.08, Fla.Stat. (1979).

The city of Riviera Beach brought an action to validate three million dollars in revenue bonds designated “industrial development revenue bonds (Standex International Corporation project) series 1980.” The state attorney for the Fifteenth Judicial Circuit on behalf of the state of Florida filed an answer and objected to the issue of the bonds on grounds, inter alia, that the city had no authority under chapter 159, Florida Statutes, to sponsor a revenue bond project outside the municipal boundaries and further, that the city had no authority to sponsor an industrial project in an adjoining unincorporated area of the county without findings by, or the consent of, Palm Beach County. The bond issue was approved by final judgment of the circuit court and the state entered this appeal.

From the record it appears that the city, in connection with its industrial development program, was approached by representatives of Standex International Corporation, a Delaware corporation authorized to do business in Florida with principal offices in Salem, New Hampshire. Standex was considering the location of a plant in the industrial area or park in the city. After discussions and negotiations the city and Standex entered into a memorandum agreement covering the proposed issuance of the bonds and related matters.

The bonds are to be issued for financing part of the cost of a capital project, a manufacturing plant, to be sold to Standex pursuant to an installment purchase contract. The project consists of a 3.6 acre site located approximately a quarter of a mile or less from the current boundaries of the city in Palm Beach County, an industrial building of approximately 30,000 square feet, and machinery and equipment. The plant will manufacture electronic parts and components for automotive cruise control systems, for heart pacemakers, for guidance control systems used in remote control unit relay stations, and for U.S. radar components, and radar satellites for the military.

The company will employ 150 employees in the first year and, depending upon production of another line of components, 300 employees within two years, working on a shift or shift-and-a-half basis. The bulk of these employees will be drawn from the city of Riviera Beach and Palm Beach County and surrounding areas.

The area on which the site is to be located was de-annexed from the city, but the city and the company desire that the project site be reannexed to the city. The first issue is whether the bonds could be validated for an industrial revenue project on property that is outside the city limits.

Article VII, section 10, Florida Constitution, provides that neither the state nor any other governmental unit shall “give, lend, or use its taxing power or credit to aid any corporation, association, partnership, or person.” It further provides that this restriction shall not prohibit laws authorizing the “issuance and sale by any county, municipality, special district or other local governmental body of ... revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants.... ” This constitutional provision authorizing the municipality to issue revenue bonds to finance the cost of a capital project for a manufacturing plant contains no geographic or territorial limitations.

Article VIII, section 2(c), Florida Constitution, provides that the municipal exercise “of extra-territorial powers by municipalities shall be as provided by general or special law.”

These constitutional provisions do not prohibit the legislature from enacting a law authorizing any municipality to issue revenue bonds to finance a manufacturing plant located within or without the municipal limits or without regard to municipal boundaries.

The legislature implemented article VII, section 10(c), Florida Constitution, by the enactment of the Florida Industrial Development Financing Act, as amended, being sections 159.25-159.43, part II, chapter 159, Florida Statutes (1979). These are referred to as “the Act.” Section 159.26 of the Act reads, in part, as follows:

The Legislature finds and declares that, in order to improve the prosperity and welfare of the state and its inhabitants, to improve living conditions, ... the economic development of the state, and to increase purchasing power and opportunities for gainful employment, it is necessary and in the public interest to facilitate the financing of capital projects for industrial or manufacturing plants, . .. within the state; to facilitate and encourage the planning and development of these capital projects without regard to the boundaries between counties, municipalities, special districts, and other local governmental bodies or agencies in order to more effectively and efficiently serve the interests of the greatest number of people in the widest area practicable; .. .

(emphasis added).

The legislature, in other words, has found that the undertaking of industrial development projects by local government is a matter of state interest and that the issuance of bonds in support of these projects by local governments without regard to the boundaries between them better serves the state interest or purpose by more effectively and efficiently serving the interest of the greatest number of people in the widest area practicable. The Act, construed as a whole, clearly provides for the undertaking by a municipality of an industrial development project located outside of its boundaries.

The undertaking by a municipality of an industrial development project is the exercise of a proprietary power rather than a sovereign power. We clearly defined a proprietary function or power in Daly v. Stokell, 63 So.2d 644, 645 (Fla.1953), when we said:

We understand the test of a proprieto-ry power to be determined by whether or not the agents of the city act and contract for the benefit and welfare of its people; any contract, in other words, that redounds to the public or individual advantage and welfare of the city or its people is proprietory, while a governmental function, as the term implies, has to do with the administration of some phase of government, that is to say, dispensing or exercising some element of sovereignty.

This Court has repeatedly upheld the exercise of extraterritorial powers, particularly with respect to proprietary projects, by the municipalities where such powers are supported by or derived from legislative grant. Town of Riviera Beach v. State, 53 So.2d 828 (Fla.1951), reversing the lower court and validating revenue bonds of the town, now the city of Riviera Beach, for the purchase of a water system located in another municipality; State v. City of Pensacola, 143 Fla. 823, 197 So. 520 (1940), validating revenue bonds to extend city’s water system into unincorporated areas adjacent to the city; State v. City of Tampa, 137 Fla. 29, 187 So. 604 (1939), validating sewer revenue bonds to extend city’s sewer system into unincorporated areas adjacent to the city; State v. City of Cocoa, 92 So.2d 537 (Fla.1957), validating bonds to extend a city water system twenty miles beyond city limits; State v. City of Melbourne, 93 So.2d 371 (Fla.1957), validating bonds to extend a city water system into two other municipalities; Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942), upholding the power of a city to operate a bathing beach in a park outside the city; and Hope v. City of Gainesville, 195 So.2d 849 (Fla.1967), validating bonds to extend city water, sewer, and electric system outside the city boundaries. See also Town of Palm Beach v. City of West Palm Beach, 239 So.2d 835 (Fla. 4th DCA 1970), upholding the right of a city to construct an ocean sewer outfall and appurtenances through another town; and City of North Miami v. Town of Bay Harbor Islands, 296 So.2d 513 (Fla.3d DCA), cert. denied, 305 So.2d 200 (Fla.1974), upholding the operation and control by a town of a causeway extending into another city.

The power of a municipality to undertake an industrial development project located outside its boundaries has not heretofore been ruled upon in this state. There are, however, a number of decisions from other jurisdictions upholding the right of a municipality to finance an industrial project located outside the city limits. Norvell v. City of Danville, 355 S.W.2d 689 (Ky.1962); Grinnell Co., Inc. v. City of Crisfield, 264 Md. 552, 287 A.2d 486 (1972); Birge v. Town of Easton, 274 Md. 635, 337 A.2d 435 (1975); Bennett v. City of Mayfield, 323 S.W.2d 573 (Ky.1959).

In the case sub judice there is clearly present the requisite public purpose by reason of the existence of a benefit nexus between the proposed project and the city and its inhabitants. Benefits are abundantly clear from evidence which shows the proximity of the project to the city, the job opportunities, the equal opportunity employment, the wage scales, the employee training programs, stimuli to the local economy, and the mutual desire of the company and the city that the project site become a part of the city. Requisite public purpose is clearly present. The city is authorized and empowered by the Act to undertake this particular industrial development project located outside but within a quarter of a mile of its current boundaries.

The next issue to be determined is whether a municipality may undertake an industrial development project located outside of its boundaries without the consent of, or consultation with, the governmental unit in which the project is located.

The Revenue Bond Act of 1953, part I, chapter 159, Florida Statutes (1979), by section 159.03(1) thereof provides that if a public improvement project is outside the corporate limits of the issuer, the consent of the adjoining governmental authority must first be obtained. The Industrial Development Financing Act, enacted in 1969, part II of chapter 159, sections 159.25-159.43, Florida Statutes (1969), omitted any requirement or reference to consent or consultation with the adjoining governmental authority.

Part I of chapter 159, the Revenue Bond Act of 1953, relates to the financing of certain named classes of ordinary public improvements to be held and used by counties or municipalities. Part II of chapter 159, The Florida Industrial Development Financing Act, relates to the financing of industrial development projects to be leased or sold to and used and operated by private interests. There are no cross references between part I and part II of chapter 159. Section 159.27, Florida Statutes, the definitional section in the Florida Industrial Development Financing Act, defines “bonds” as meaning bonds authorized “to be issued by any local agency under this part ...” Statutes which have no common aim or purpose and scope and which do not relate to the same subject, object, thing or person are not in pari materia. Singleton v. Larson, 46 So.2d 186 (Fla.1950).

In the case sub judiee the city is not seeking to exercise its rights of sovereignty over property outside its boundaries; it is merely, in the exercise of a strictly proprietary power, seeking to undertake an industrial development project outside of its boundaries. Although the Act does not require the consent of or consultation with the governmental unit in which the project is to be located, Palm Beach County, to the extent of its applicable regulatory ordinances, rules and regulations, will not be without a voice in the construction and operation of the project. The governmental unit is bound by the zoning regulations of another governmental unit, where one governmental unit seeks to utilize property within the geographical limits of a different governmental unit without regard to the so-called governmental-proprietary distinction. Palm Beach County v. Town of Palm Beach, 310 So.2d 384 (Fla. 4th DCA 1975).

Section 159.29 of the Acts says that in undertaking a project the local agency shall be guided by and shall observe the four criteria and requirements set forth in' the section. It provides that the determination of compliance therewith by the local agency shall be final and conclusive. Since it is the local agency undertaking the project that must comply with the four criteria and requirements, it does not make sense that some other agency or agencies should also make the determination of compliance, and then that the determination of such other agency or agencies, should affect the final or conclusive determination by the local agency in charge of the project.

In State v. Jacksonville Port Authority, 266 So.2d 1 (Fla.1972), the Jacksonville Port Authority, as the local agency undertaking an industrial development project, determined that another local governmental unit, the consolidated city of Jacksonville, would be able to cope satisfactorily with the impact of the project. In the opinion validating the bonds, we said:

Fla.Stat. § 159.29, F.S.A. provides that the determination of the local agency as to compliance with the criteria of that section shall be final and conclusive. Accordingly, we deem the requirements of Fla.Stat. § 159.29, F.S.A. to have been satisfied by the Port Authority without the need for discussion.

266 So.2d at 3.

The determination of the undertaking local agency, city of Riviera Beach, is final and conclusive. Neither the consent of nor consultation with other governmental units, within whose territorial limits the project is situate, is required for the undertaking of an industrial development project under the Act. Of course, the regulatory ordinances and rules and regulations of the county of Palm Beach would be applicable to the project.

The judgment of the circuit court is affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: PER CURIAM. ADKINS and BOYD, Justices,

text:
    THE FLORIDA BAR. In re Petition of Edwin L. DAVIS for Reinstatement.
    No. 58008.
    Supreme Court of Florida.
    April 23, 1981.
    As Corrected on Denial of Rehearing July 31, 1981.
    Edwin L. Davis, in pro. per.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, and Scott K. Tozian, Asst. Staff Counsel, Miami, for respondent.
   PER CURIAM.

This Florida Bar proceeding is before the Court on the petition of Edwin L. Davis for reinstatement to the practice of law. The matter was tried before a referee, and both parties have petitioned for review of the referee’s report.

The referee found as follows:

1. Petitioner was suspended from the practice of law for one year by the Supreme Court of Florida on October 19, 1962, for failing to account for trust funds. Florida Bar v. Davis, 145 So.2d 735.
2. Petitioner was again suspended from the practice of law for one year by the Supreme Court of Florida on June 28, 1963, for wrongful conversion of money. Florida Bar v. Davis, 154 So.2d 820.
3. Petitioner was disbarred from the practice of law by the Supreme Court of Florida on October 30, 1964, for failure to discharge duties to his clients. Florida Bar v. Davis, 168 So.2d 314.
4. Since October, 1964, Petitioner has lived in Alabama and has worked as a law clerk or as a paralegal for a law firm in Tuskegee and Montgomery under the supervision of Alabama lawyers.
5. Petitioner has conducted himself honorably in his vocation and his community since that time and has earned the respect of his family and community.
6. Petitioner has made all reasonable efforts to make restitution to former Florida clients, which efforts are continuing to the present day. There remains outstanding:
a. $98.00 due to Jacques Roher, a former client, whose whereabouts at present is unknown.
In addition, Petitioner owes personally two judgments which are unsatisfied because of doubt of the existence of the creditors:
b. $42.00 in favor of Broward County Title Co.
c. $90.00 in favor of Sun Finance Corp.
7. Petitioner acknowledges his past transgressions and is genuinely contrite for the troubles caused by his actions to his clients, the Florida Bar, his family and to himself.

The findings of fact are supported by the record. The referee’s recommended conclusions are that respondent has rehabilitated himself and should be reinstated. We find that the criteria for reinstatement have been met and approve the recommendation.

The Florida Bar asks that reinstatement be conditioned upon successful completion of the bar examination. The referee concluded that this is unnecessary because the petitioner has maintained his competence in the law through employment as a law clerk. We conclude that it is appropriate that petitioner be required to pass the Florida (Part A) and Ethics (Multistate Professional Responsibility Examination) portions of The Florida Bar Examination as a condition precedent to his reinstatement, and we approve the conditions recommended by the referee.

Therefore, Edwin L. Davis is hereby reinstated to the practice of law subject to the conditions stated in the referee’s report. He must place $300.00 in escrow with The Florida Bar for the benefit of holders of outstanding claims against him for a period of ten years. He must continue to search diligently for the potential creditors referred to in the referee’s report. Additionally, petitioner must pass Part A and the Multistate Professional Responsibility Examination of The Florida Bar Examination. Finally, we assess The Florida Bar’s costs against him in the amount of $446.71, over and above the $150.00 already deposited.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS and BOYD, JJ., dissent with an opinion.

ADKINS and BOYD, Justices,

dissenting.

The referee’s recommendation comes to us with a presumption of correctness and therefore, we would follow his recommendation and reinstate petitioner without requiring successful completion of the bar examination.

       We are advised that petitioner has paid the debts referred to in paragraphs 6(a) and (b) of the referee’s report. The creditor referred to in paragraph 6(c) is a dissolved corporation.


text:
    STATE of Florida, Petitioner, v. Ronald Stephen REYNOLDS, Respondent.
    No. 59677.
    Supreme Court of Florida.
    April 16, 1981.
    James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner.
    Ronald Stephen Reynolds, in pro. per.
   PER CURIAM.

The decision of the district court in Reynolds v. State, 388 So.2d 221 (Fla.2d DCA 1980), is quashed on the authority of Fauls v. Sheriff of Leon County, 394 So.2d 117 (Fla.1981), and this cause is remanded for further proceedings.

It is so ordered.

BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, Acting C. J., dissents.


text:
    In re AMENDMENT OF ARTICLE XVIII, OF the INTEGRATION RULE OF the FLORIDA BAR
    No. 60491.
    Supreme Court of Florida.
    April 16, 1981.
   PER CURIAM.

Pursuant to the inherent powers of the Court under Article V, Section 15 of the Florida Constitution, Article XVIII, Sections III and VIII of the Integration Rule of The Florida Bar are amended to revise the procedures regarding certification of clinical training.

Sections III C and VIII A.l. are amended to read:

III. C. Be certified by the dean of his law school as being of good character and competent legal ability, and as being adequately trained to perform as a legal intern in a law school practice program.
VIII. A.l. Files a certification in the same manner and subject to the same limitations as that required to be filed by the law school dean and files a separate certificate of the dean stating1 that the law student has successfully completed the law school practice program. This certification may be withdrawn in the same manner as provided for the law school dean’s withdrawal of his certification. The maximum term of certification for graduates shall be twelve (12) months from graduation.

These amendments shall become effective immediately.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


author: ALDERMAN, Justice.

text:
    HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION, FLORIDA DIVISION and William A. Wood, Appellants, v. DIVISION OF PARI-MUTUEL WAGERING DEPARTMENT OF BUSINESS REGULATIONS, Florida Horsemen’s Benevolent Association et al., Appellees.
    No. 57951.
    Supreme Court of Florida.
    April 16, 1981.

      Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, and Sam Spector and Cynthia S. Tun-nicliff of Spector & Tunnicliff, Tallahassee, for appellants.
    Jim Smith, Atty. Gen. and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, David M. Maloney, Staff Atty., Tallahassee, and Elizabeth J. DuFresne and Linda F. Robinson of DuFresne & DuFresne, Miami, for appellees.
   ALDERMAN, Justice.

Horsemen’s Benevolent and Protective Association and William Wood appeal the final judgment of the Circuit Court in and for Dade County, upholding the constitutionality of section 550.2615, Florida Statutes (Supp.1978), which requires licensed horse racetracks holding permits for thoroughbred horse racing in this state to deduct one percent of the total purse pool paid and to pay this amount to a horsemen’s association representing a majority of the owners and trainers of thoroughbred horses stabled in Florida for a continuous twelvemonth period who conduct racing at the licensee’s place of business. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972), and, finding section 550.2615 unconstitutional because it constitutes an invalid exercise of the state police power, we reverse.

Horsemen’s Benevolent and Protective Association, Florida Division, a division of a foreign nonprofit corporation whose members are owners and trainers of thoroughbred horses stabled and raced at licensed tracks in Florida, and William Wood, a Florida resident arid owner and trainer of thoroughbred horses stabled and raced at licensed tracks in Florida, brought an action for declaratory and injunctive relief seeking to have section 550.2615 declared unconstitutional and to enjoin its enforcement. Named as defendants were the Division of Pari-Mutuel Wagering, all of the horse tracks duly authorized to conduct thoroughbred horse racing and pari-mutuel wagering in Florida, and Florida Horsemen’s Benevolent Association, which is a Florida corporation representing members who own, train, race, and stable thoroughbred horses within Florida. The complaint alleged that the defendant racetracks pay a sum of money called a “purse” to the owners of thoroughbred horses participating in races conducted by the tracks. This purse is separate from, and not required for, the payment of any tax, license fee, or regulatory fee to the state or any political subdivision or agency thereof. At Gulfstream racetrack, they alleged, all of the participants in each race are entitled to claim a share of the purse, and, at the other tracks, at least the first four finishers may claim a share of the purse. Alleging further that by law and custom participants in each race are entitled to claim a part of the purse, depending upon the order of finish, Horsemen’s Benevolent and Protective Association and Wood claimed that they had a valid expectancy in the purses paid and urged that section 550.-2615 is unconstitutional for several reasons.

Both sides stipulated that there were no material issues of fact and filed cross motions for summary judgment. Finding that Horsemen’s Benevolent and Protective Association and Wood failed to overcome the presumption of constitutional validity of section 550.2615, the trial court granted defendants’ motion for summary judgment.

Although it is our duty to uphold the validity of a statute in all cases where that result can be lawfully reached and although every reasonable doubt must be resolved in favor of constitutionality, we are unable to construe section 550.2615 in such a manner as to uphold its validity against the challenge that it constitutes an unlawful exercise of the state police power. Indisputably, the state, through the exercise of the police power, has the right to regulate, control, and supervise horse racing in Florida. Division of Pari-Mutuel Wagering v. Caple, 362 So.2d 1350 (Fla.1978); State ex rel. Mason v. Rose, 122 Fla. 413, 165 So. 347 (1936). But this power must be exercised for a public purpose. State v. Lee, 356 So.2d 276 (Fla.1978); United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976). Further, the statutory enactment must be reasonably appropriate to accomplish the purposes of the act. Division of Pari-Mutuel Wagering v. Caple. In evaluating the argument advanced by Horsemen’s Benevolent and Protective Association and Wood that section 550.2615 is an unreasonable exercise of the state police power, we must decide whether the means utilized, the enactment of section 550.2615, bears a rational or reasonable relationship to a legitimate state objective, remaining cognizant of the legislature’s broad range of discretion in its choice of means and methods by which it will enhance the public good and welfare. Belk James, Inc. v. Nuzum, 358 So.2d 174 (Fla.1978); Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974); State ex rel. Mason v. Rose.

The asserted justifiable purpose of this enactment is the enhancement of the racing and tourist industries in Florida by encouraging the development in Florida of a year-round quality racing program by encouraging the continuous stabling of thoroughbred horses in Florida. Improvement of racing in Florida, it is contended, will enhance state revenues from racing, thereby benefiting the public generally. This purpose, asserted as justification for the enactment of section 550.2615, is a constitutionally permissible objective under the state police power. Florida Canners Association v. State, Department of Citrus, 371 So.2d 503 (Fla.2d DCA 1979). Section 550.-2615, however, does not effect this intended legislative purpose.

There is no reasonable relationship between the stated objective of the statute and the form of the statute chosen by the legislature to advance this purpose. Section 550.2615 contains no provision for how the funds paid to the horsemen’s association must be spent or that they must be spent in furtherance of the legitimate state objective herein advanced. It merely requires that they be spent in accordance with articles of association which may be amended at any time and which need not espouse goals consistent with the stated public purpose for the statute. This statute effectually requires payment of money to a private association to do with as it chooses. This is an .unlawful exercise of the police power. State v. Lee; Liquor Store, Inc. v. Continental Distilling Corp., 40 So.2d 371 (Fla.1949).

The only control that the Division of Pari-Mutuel Wagering has under this statute is to ensure that the monies paid to the horsemen’s association are spent in accordance with its articles of association and to review the sworn statement of the officers 'of the association that it represents a majority of the owners and trainers of thoroughbred horses stabled in Florida for a continuous twelve-month period who conduct racing at the licensee’s place of business. There is no requirement in the statute that the monies received by the horsemen’s association be used for a justifiable state objective.

Accordingly, we hold section 550.2615 unconstitutional, and we reverse the judgment of the trial court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.

      . Section 550.2615, Florida Statutes (Supp. 1978), provides:
      550.2615 Distribution of certain funds to a horsemen’s association.—
      (1)Each licensee who holds a permit for thoroughbred horseracing in this state shall deduct from the purses required by s. 550.261 or s. 550.44, an amount of 1 percent of the total purse pool and shall pay said amount to a horsemen’s association for its use in accordance with the stated goals of its articles of association filed with the Department of State.
      (2) Said funds shall be payable to a horsemen’s association only upon presentation of a sworn statement by the officers of the association that the horsemen’s association represents a majority of the owners and trainers of thoroughbred horses stabled in Florida for a continuous 12-month period who conduct racing at . the licensee’s place of business.
      (3) The «Division of Pari-mutuel Wagering shall audit all distribution of such funds to the horsemen’s association and shall promulgate rules to facilitate orderly transfer of funds in accordance with the provisions of this law.
      (4) If the division finds that said funds have not been used by the horsemen’s association in accordance with its state articles of association, no further funds shall be permitted to be designated for the use of the horsemen’s association, and the division shall bring the matter to the attention of the Legislature.


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

text:
    ABC LIQUORS, INC. (STORE NO. 126), Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. SS-372.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Rehearing Denied May 19, 1981.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellant.
    Jim Smith, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

At issue here is the meaning of the term “separate locations” as employed in a licensing statute which taxes alcoholic beverage vendors $1,000 extra for having “more than three permanent separate locations serving alcoholic beverages for consumption of the licensed premises.” Section 565.02(l)(g), Florida Statutes (1979). On substantial competent evidence a DOAH hearing officer entered a recommended order, adopted by the Division of Alcoholic Beverages and Tobacco, finding that appellant ABC’s bar service facilities on its licensed premises were designed and built in four “separate locations” rather than in only one or two. That finding rests primarily on the agency’s concept, satisfactorily advanced by evidence and accepted by the hearing officer, that bars standing separately, staffed separately, opened and closed separately, and operated separately are “separate locations” notwithstanding that they áre nearby each other in the same room. The agency’s core position is stated thusly by the hearing officer’s critical finding of ultimate fact:

Therefore, the design of the bar area within the room must be perceived as one primarily fashioned to suit the commercial needs of the Petitioner as opposed to the safety of the patrons.

When in Section 120.57 proceedings to construe and apply a nonpenal regulatory statute an independent hearing officer and the agency agree on a dispositive finding, there is little cause for a district court of appeal to debate whether the matter in issue is more nearly adjudicative fact or statutory policy and whether the hearing officer’s or the agency’s finding must prevail. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). In such a case our task is only to assure that the affected party was protected by adherence to Chapter 120 processes, that the dispositive finding is supported by substantial competent evidence appropriate to the issue, and that the agency was not “clearly erroneous or unauthorized,” Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So.2d 788, 790 (Fla.1952), in interpreting the statute given in its charge to enforce. APA processes thus lend added strength to the principle stated by the Supreme Court in King v. Seamon, 59 So.2d 859, 861 (Fla.1952):

The contemporaneous construction placed upon a statute by the officials charged with the duty of executing it should not be disregarded or overturned by this court except for the most cogent reasons, and unless clearly erroneous, (e. s.)

See also Robinson v. Fix, 113 Fla. 151, 151 So. 512 (Fla.1933); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); Green v. Stuckey’s of Fanning Springs, Inc., 99 So.2d 867 (Fla.1957); United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959); State ex rel. Volusia Jai-Alai, Inc. v. Ring, 122 So.2d 4 (Fla.1960); Miller v. Brewer Co. of Florida, Inc., 122 So.2d 565 (Fla.1960); Fidelity Constr. Co. v. Arthur J. Collins & Son, Inc., 130 So.2d 612 (Fla.1961); Henderson v. Sol Walker and Co., 138 So.2d 323 (Fla.1962); State v. Florida Dev. Comm., 211 So.2d 8 (Fla.1968); Daniel v. Florida St. Turnpike Auth., 213 So.2d 585 (Fla.1968); and State ex rel. Biscayne Kennel Club v. Board of Bus. Reg., 276 So.2d 823 (Fla.1973).

In this case, having a duty to explicate its nonrule interpretation of the governing statute by conventional proof methods as far as reasonably possible, the Division adduced evidence that ABC’s design and operation of separate serving bars was dictated “simply by economics,” as one witness expressed it, not by safety requirements or other considerations beyond ABC’s effective control. Therefore the Division and the DOAH hearing officer cannot be considered “clearly erroneous or unauthorized” in attributing to the statute, debatable on its face, a similar economic purpose to collect an extra license fee for separate serving locations in a single room. Nor is it possible, on this record and in the face of the hearing officer’s unimpeached findings, for this court to give “most cogent reasons” for setting aside the agency’s decision. King, supra. To reverse would be to preempt agency responsibilities and reduce to the level of expensive but inconsequential preliminaries all the protective remedies which Chapter 120 affords in preference to court litigation. State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla.1978).

The agency order is AFFIRMED.

SHAW, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

The order below is clearly erroneous and should be reversed. Florida Statutes § 565.02 provides for an additional $1,000 tax if there are “more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises [emphasis supplied].” The majority affirms the agency’s innovative interpretation that aisles or rampways in a bar counter create “permanent separate locations.” By this view, there are four separate locations in one room of the licensed premises.

A careful reading of the statute in question, the entire Chapter 565, Florida Statutes, and rules adopted thereunder, fails to reveal any clear basis for imposition of the additional tax in this case. A tax can only be imposed by statutory language that is clear and specific. Ambiguity is resolved in favor of the taxpayer. Classifications, activities and individuals not clearly within the terms of a taxing statute cannot be subjected to tax. This court, in Department of Revenue v. Brookwood Associates, Ltd., 324 So.2d 184, 187 (Fla. 1st DCA 1975), held:

If a taxing statute does not reveal with certainty the intent of the legislature and is susceptible of two meanings, the meaning most favorable to the taxpayer should be adopted. This is particularly true in instances wherein one meaning results in imposing the tax and the other relieves imposition of the tax.

The foregoing rule, equally applicable to license taxes, requires reversal of the order below. Only by distortion of the common meaning of the statutory language can a single counter in a single room be more than one “permanent separate location.” The agency has not only resolved ambiguity against the taxpayer, but has strained to do so.

It is suggested in the agency’s order and the majority’s affirmance thereof that, if aisles or rampways were constructed primarily for the safety of patrons, as opposed to “the commercial needs” of the appellant, the tax would not be imposed. No statutory language supports a legislative intent to tax aisles constructed for “commercial needs.” No policy basis for increased tax on divided counters is apparent. What is apparent is that the beleaguered taxpayer, whose business premises was designed and constructed prior to the agency’s announced interpretation, will be assessed the tax.

Not only does the agency’s order violate basic rules of statutory interpretation, it also violates rule-making requirements of Chapter 120, Florida Statutes. Department of Revenue v. U. S. Sugar Corporation, 388 So.2d 596 (Fla. 1st DCA 1980). Appellant in the instant case, and other licensees whose premises were designed and constructed without notice or opportunity to be heard through the rule-making process, now face increased taxes based on their commercially inspired aisles or rampways. Further, the majority’s decision encourages further agency encroachment on a case-by-case basis. Each table serving patrons and each serving place at the table or counter may be considered a “permanent separate location.” An agency need not resort to rule-making when these results are available without it.

The recent decision of this court in Anheuser Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981), should preclude affirmance of the order below. In that case, the agency ruled that a brewer’s promotional “bar spending” violated Florida Statutes § 561.-42, which prohibits the giving of “any gifts or loans of money or property ... or ... the giving of any rebates.” There, as here, the agency had adopted no rule supporting this result, and the interpretation was a new one. This court vacated, pointing out the basic unfairness of the disciplinary order entered against licensee as follows:

This, then, is not a case in which licensee discipline is sought for violation of an explicit statute or rule, or from an act tainted by standards which are commonly understood though only generally expressed by statute. This is rather a case in which licensee discipline is imposed for violation of rather general, morally neutral, and somewhat technical statutory standards which the order makes explicit only retrospectively and only in terms of the discrete facts at hand.. .. [W]hen substantial private interests are to be determined entirely by retrospective policy-making through adjudication, and the conduct in question is such that the licensee likely would have conformed to any agency standard of which it had notice rather than incur the financial and other burdens of disciplinary action, Florida regulatory agencies may reasonably expect a reviewing court to ponder carefully whether rulemaking was reasonably practicable as well as desirable ....

As in Anheuser Busch, supra, the agency’s ruling is without any clear statutory basis or rule and operates retrospectively. Further, the ruling is contrary to common understanding of the language relied on, without supporting industry precedent or demonstrated agency expertise. Here, as in the Anheuser Busch case, the licensee is forced to bear a financial penalty which could, and presumably would, have been avoided had the agency given notice of its standard or policy. No distinction can be made between the disciplinary action in An-heuser Busch and the taxation here. The power to discipline and the power to tax are equally potent in their ability to destroy.

The majority’s suggestion that the licensee could have sought a declaratory order from the agency before building is small comfort and unrealistic, since the licensee could not have foreseen this type of interpretive taxation. The declaratory statement procedure was not designed as a substitute for the agency’s rule-making obligation.

Finally, the fact that the licensee/taxpayer is part of an industry peculiarly subject to broad regulatory powers by the State does not justify affirmance of the action below. See Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc., 391 So.2d 681. All regulated industries, businesses and individuals are entitled to a degree of fairness, and all are adversely affected by the weakening of basic restraints on improper governmental action.

I respectfully dissent.

      . 31 Fla.Jur. Taxation §§ 56, 57, and cases cited therein.

      . 21 Fla.Jur. Licenses and License Taxes § 4, and cases cited therein.


text:
    ALEXANDER/DAVIS PROPERTIES, INC., Dorothy Pearigen, Sally Alexander, Shade Murray, Jr. d/b/a C. D. Joint Venture, First & Mid South Advisory Co., Willie K. Davis, Franklin G. Clark, Michael G. Shears, John A. Thweatt, Richard H. Botts, David F. Clark, Dennis E. Clowers, David K. Ward, O. William Long & Glenn Eubanks d/b/a C. D. Joint Venture, whom among others are named as members of C. D. Joint Venture, Appellants, v. David E. GRAHAM and Roberta Jane Graham, his wife, Appellees. FIRST & MID SOUTH ADVISORY COMPANY, Willie K. Davis, Franklin G. Clark, Michael G. Shears, John A. Thweatt, Richard H. Botts, David F. Clark, Dennis F. Clowers, David K. Ward, O. William Long, Glenn Eubanks, who among others are named as members of C. D. Joint Venture, and Alexander/Davis Properties, Inc., Appellants, v. David E. GRAHAM and Roberta Jane Graham, his wife, Appellees.
    Nos. 77-2168, 77-2193 and 77-2223.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied May 21, 1981.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellants First & Mid South Advisory Co., Willie K. Davis, Franklin G. Clark, Michael G. Shears, John A. Thweatt, Richard H. Botts, David F. Clark, Dennis F. Clowers, David K. Ward, 0. William Long and Glenn Eubanks, who among others are named as members of the C. D. Joint Venture.
    Terrence J. Russell and Steven J. Gutter of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellants C. D. Joint Venture, Alexander/Davis Properties, Inc., Dorothy Pearigen, as Executrix of the Estate of James Pearigen, Deceased, and Sally Alexander, as Executrix of the Estate of Charles F. Alexander, Deceased, whom among others are named as members of C. D. Joint Venture.
    William Robert Leonard of Coleman, Leonard & Morrison, Fort Lauderdale, as additional counsel for appellant Shade Murray, Jr.
    Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, and Louis N. Scholnik of Graham, Hodge, Larson & Hume, P.A., Fort Lauder-dale, for appellees.
   PER CURIAM.

These are consolidated appeals by members of a joint real estate development venture from a final judgment entered against them and in favor of another partner. The principal contention raised on appeal is that the trial court erred in determining that appellants, hereafter referred to as the Mid-South group, were guilty of fraud in inducing the appellee, David Graham, to forebear from meeting certain obligations of the venture. We reverse.

The appellee, David E. Graham, an attorney, entered into a contract to purchase one hundred and twenty (120) acres of farm land from Virgil Green for $1,620,000.00 to be paid $405,000.00 in cash and $1,215,000.00 to be paid in the form of a promissory note securded by a purchase money mortgage. The first payment on the note, in the amount of $121,500.00, principal plus accrued interest, was due on October 1, 1974, with a similar payment due each year for nine years thereafter. Twenty acres of the property was to be released free and clear of the mortgage at the time of closing.

On September 6, 1973, Graham and the Mid-South group entered into an agreement by which Graham agreed to sell a substantial interest in the Green contract. This agreement was superseded by a second agreement executed on November 19, 1973. Finally, the parties executed a joint venture agreement on November 20, 1973.

In the November 19th agreement, Graham agreed to assign seventy percent (70%) of his interest in the Green contract to the Mid-South group for $1,500,000.00 to be paid by a note to be executed by the joint venture and secured by a second mortgage against the property, title to which was to be taken in the name of a trustee for the benefit of the joint venture. The parties agreed to enter into a joint venture for the purposes of owning, developing, financing, and selling the subject property, with Graham to contribute his 30% interest in the Green contract to the venture, and Mid-South, its 70% interest. Mid-South agreed to loan $605,000.00 to the venture to secure the purchase of the property pursuant to the Graham-Green contract. Of that sum, $405,000.00 was to be used to purchase the property from Green, $150,000.00 was to be loaned by the venture to Graham, and $50,-000.00 was to be used as working capital for the venture. In the agreement, Graham warranted that the property was presently being rezoned to planned unit development status and that water and sewer facilities would be available on the property by June of 1974.

The joint venture agreement of November 20th expressly provided that one of its purposes was to borrow or raise monies to pay the Green mortgage. Shade Murray, Jr., one of the appellants, was designated to be the managing partner of the venture, and was granted “exclusive power to manage, operate and determine the policy of the Venture.” Graham was to have no control of the venture business except to act as attorney for the venture. The $605,000.00 loaned by the Mid-South group was to be repaid in full prior to the payment of the Graham mortgage, and Graham was to subordinate his mortgage to that loan and to any other loans secured by the venture. With respect to the responsibilities of the partners, the joint venture agreement provided in part:

6. LIABILITIES OF PARTNERS. While all members of the Venture are partners in said Venture, it is specifically understood and agreed that various members of the venture have specific responsibilities.
Graham shall personally guarantee and be fully responsible for the payments on the Green Purchase Money Mortgage and all other members of the venture shall have no responsibility for said liability except that their interest in the land purchased from the Greens shall be liable for said debt.
All other expenses, liabilities and debts necessary for the carrying out of the purposes of this Venture shall be the responsibility of the Mid-South Group, and Graham shall not be required to assume liability for these said debts, and if a lender does require that he sign any evidence of such debts, he shall be fully indemnified by the other members of the Venture; provided, however, that Graham shall subordinate his interest in the land to development lenders or loans superior to Grahma’s [sic] interest as specified herein or in other documents which relate to this venture’s business.

Subsequently, Graham was given a note for $1,520,000.00, secured by a purchase money mortgage which expressly provided, as did the Green mortgage, that twenty acres of land would be released from all liens at the time of closing. Thereafter, the transaction closed as agreed, the venture received title to the property, and the venture executed a note to Mr. and Mrs. Green for $1,215,000.00. Liability of the venture and the Mid-South group on both the Graham and Green notes was expressly limited to the value of the property. However, the Grahams personally guaranteed payment of the venture’s note to the Greens.

Subsequently, attempts were made to secure water and sewage facilities for the property and to arrange financing of the contemplated development of a multi-unit condominium project on the property. Because of deteriorating market conditions, it was later decided that the project should consist of single family homes. Although it was undisputed at trial that a development loan could not be secured unless water and sewage facilities were available, each side contended that the other was responsible for the failure to secure such facilities. In any case, no facilities were available by June of 1974, as warranted by Graham in the November 19th agreement, and no development loan was ever secured.

In January of 1974, Graham assigned the mortgage he received from the joint venture to the Pan American Bank as security for a personal loan. Subsequently, he assigned the mortgage to the Miami National Bank as security for a personal loan of $600,000.00.

In the summer of 1974, the Mid-South group repeatedly advised Graham of their concerns about going forward or investing more money in the project because of the rapid decline of the real estate and development market in South Florida. The group also expressed concern about the lack of water and sewage facilities and the difficulty in securing financing. They asked for Graham’s help in securing a lender or investor to help bail out the project. Because Graham was concerned about his partners’ reluctance to continue with the project, a meeting was arranged for August 29, 1974, between Graham and the principal members of the Mid-South group. At the meeting, Graham was advised that no arrangements had been made to make the Green mortgage payment, since his partners were unsure that such payments should be made. However, after a lengthy discussion Graham prevailed upon the partners present to go forward with the project, and it was agreed that the joint venture should make the Green mortgage payment as it became due on October 1,1974, as well as the initial payment of accrued interest due on the Graham mortgage on November 20, 1974. There was no specific discussion as to where the money would come from to make the two payments, which amounted to over $250,000.00. At the end of the meeting, Graham also requested and received what he described as a “comfort letter” to reassure his bank, which held the Graham mortgage as collateral, that the venture would meet its obligations.

Shortly thereafter, on September 25, 1974, Graham was advised by a local law firm that the venture had retained it to secure releases from the Greens and Grahams on twenty acres of the property as originally agreed. The releases had not been secured at the time of closing in 1973. The joint venture did not make the Green mortgage payment due on October 1, 1974, and Graham was immediately so advised by the Greens. On October 2, 1974, Charles Alexander advised Graham that because of the delay in securing the releases, the joint venture had been forced into default on the Green mortgage and that while the venture’s future was uncertain, the releases were necessary in order to determine a plan of action for the balance of the property. In a reply letter, Graham advised Alexander of the delivery of the releases and of his concerns about the venture’s status.

Thereafter, the Mid-South group decided not to borrow additional monies or otherwise go forward with the project. The group used the twenty acres of joint venture property as collateral for the $605,-000.00 loan originally secured to purchase the property. On October 24,1974, Graham was notified in writing that the joint venture had decided not to go forward with the project, and would make no payments on the Green and Graham mortgages.

After the expiration of a 30-day grace period, Green filed to foreclose his mortgage. While that suit was pending, the joint venture filed suit seeking payment from the Grahams of a $15,000.00 installment due on the $150,000.00 loan made to David Graham by the joint venture. The two actions were consolidated and Graham •counterclaimed for damages against his venture partners, alleging that they had falsely represented their intentions to meet the obligations of the Green and Graham mortgages and to go forward with the development venture. After a non-jury trial, the trial court found in favor of the venture on the promissory note from Graham, but also found the members of the Mid-South group guilty of fraud. The court awarded Graham $1,547,450.00, which included the face value of the Graham purchase money mortgage, as damages, plus $120,000.00 in damages as the value of Graham’s thirty percent interest in the released twenty acres.

In essence, Graham claimed in the trial court that his partners had fraudulently led him into believing that they would make the Green mortgage payments with the intent of inducing him into not making the payments so that he would lose his second mortgage. In his brief, Graham summarized his position as follows:

The case presented in the lower court is a saga of a continuing stream of misrepresentation made by the MID-SOUTH GROUP to GRAHAM that arrangements had been made by them as the management entity of the C. D. JOINT VENTURE to fulfill their duty to meet the venture’s obligations on the GREEN and GRAHAM mortgages in a timely manner. This is also a tale of conversions of joint venture property by a management group to the detriment of another partner stripped , naked of any management power.

Graham’s action and the judgment of the trial court thereon were predicated on the following facts being established:

1. That as between the venture partners, the Mid-South group had the obligation to make the Green mortgage payments.
2. That the Mid-South group continuously misrepresented to Graham that it would make such payments.
3. That since Graham was without authority to act for the venture he had no choice but to rely on the Mid-South group to make the payments.
4. That had Graham not been advised that the Mid-South group was going to make the payments, he would have made the payments and preserved the value of his second mortgage.
5. That he was damaged at least to the extent of the loss of the face value of his second mortgage as a result of the Mid-South group’s representation that it would make the Green mortgage payment.
6. That he was wrongfully deprived of his 30% proportionate interest in the released 20 acres by reason of the Mid-South group’s use of such property as collateral for a loan.

At the heart of the controversy between the parties is Graham’s claim that his partners were responsible for the Green mortgage payments. However, in setting out the responsibilities of the partners, the joint venture agreement expressly provided in unambiguous language that Graham would be “... fully responsible for the payments on the GREEN purchase money mortgage .. .,” see quote, supra, page 4. In the face of this provision, Graham points out that the joint venture, rather than Graham, was the primary obligor on the Green note and mortgage and that he, Graham, was only a guarantor. Although we agree that the venture was the primary obligor, the fact remains that, as between the venture partners, the joint venture agreement expressly made Graham fully responsible for the Green mortgage payments. We do not believe there was any substantial competent evidence to support the contention of Graham and the finding of the trial court to the contrary.

What we believe Graham is really claiming is that his venture partners breached that portion of the agreement which made it their responsibility to secure a development loan from which the venture would be funded and the Green mortgage would be paid. As we have noted before, Shade Murray, Jr., was named the managing partner of the venture with the exclusive right to conduct venture business, and one of the primary purposes of the venture was to secure a development loan to pay the Green mortgage and to finance the entire project. The parties obviously anticipated that the project would be a success and that they would have no problem securing a development loan. They failed to foresee the problems involved with securing the water and sewage facilities, and the subsequent collapse of the real estate and development market. Moreover, no provision other than the one making Graham responsible for the Green mortgage and limiting his partners’ liability to the value of the land was made as to what was to occur if no loan was secured.

The failure to secure a development loan may well have constituted a breach of the partners’ obligation under the various agreements, but even if this were so, we do not believe this breach gave rise to an action for fraud. One of the risks that each party assumes when a contract is made is that the other party may breach the contract. At any time after someone enters into a contract, he may decide that he has made a bad deal. If so, he may elect to default and thereby breach the contract. In a sense, he has a “right” to do so. Of course he must face the consequences and is responsible for damages for the breach. In this regard, we agree with the views expressed in the case of In re Estate of Donner, 364 So.2d 742 (Fla.3d DCA 1978):

Sam may have never intended to abide by his agreement with Ruth. The trial court found that he consciously intended to breach the settlement agreement at his earliest opportunity. That may be so but a willful breach of contract alone, without more, is insufficient in law, to constitute fraud:
“... [T]he fraudulent breach of a contract does not give rise to an action for fraud, and therefore where the only fraud charged relates to a breach of the contract, and not to its inducement or making, no action for fraud exists.” 37 Am.Jur.2d Fraud & Deceit § 21 (1968).
The trial court did not find fraud in the inducement nor would the record support such a finding. Moreover, had Sam promised Ruth that he would require his future spouse to waive dower as an inducement to entice her to accept the settlement agreement, this still would not amount to fraud in the legal sense. Harrington v. Rutherford, 38 Fla. 321, 21 So. 283 (1896); Brod v. Jernigan, 188 So.2d 575 (Fla.2d DCA 1966). But see Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla.3d DCA 1972). At p. 749.

Likewise, in the case at hand, there was no finding of fraud in the inducement and we do not believe the record would support such a finding if it had been made.

For fraud to be actionable, the following elements must be made to appear:

(1) a misrepresentation of material fact;
(2) [a] a knowledge of the representor of the misrepresentation, or
[b] representations made by the rep-resentor without knowledge as to either truth or falsity, or
[c] representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof;
(3) an intention that the representor induce another to act on it; and
(4) resulting injury to the party acting in justifiable reliance on the representation.

Nantell v. Lim-Wick Construction Co., 228 So.2d 634, (Fla.4th DCA 1969). As a general rule, fraud cannot be predicated upon a mere promise not performed. 14 Fla.Jur., Fraud & Deceit, Section 15. However, under certain circumstances, a promise may be actionable as fraud where it can be shown that the promissor had a specific intent not to perform the promise at the. time the promise was made, and the other elements of fraud are established. 14 Fla.Jur., Fraud & Deceit, Section 16.

The trial court and Graham principally relied on two letters to establish a case of fraud against the appellants: the October 3, 1973, letter from the Third National Bank of Nashville and, the August 29,1974, letter from Charles Alexander. See footnotes 1 and 3, supra. Graham claims that the letter of October 3, 1973, from the Third National Bank amounted to a deliberate misrepresentation by the Mid-South group that it had already secured a commitment to cover the Green mortgage payments; that no such loan commitment had been secured; that such misrepresentation was made to induce him into selling an interest in the Green sales contract to the Mid-South group; that he justifiably relied on the letter in deciding to sell such interest to the group; and that he lost the face value of his second mortgage as a result. We cannot agree.

First, we do not believe the letter represents that a loan has been secured for the entire amount of the Green mortgage. And, if there is any ambiguity in the letter, the only evidence offered at trial to resolve the ambiguity revealed that all of the parties, including Graham, were aware that no loan was being secured to cover the entire Green mortgage. Indeed, numerous documents and memoranda were introduced to establish that the letter referred only to the original $605,000.00 loan and that all the parties knew this. The bank’s letter of credit issued to Graham is only one of these. In addition, the letter was not written by the Mid-South group, and the proof established that the letter was written at the request of Graham as assurance that the Mid-South group indeed had the ability to make the cash payments at closing called for in the contract to purchase from Green. The letter was also written after Graham had contracted with the Mid-South group to sell a portion of his interest in the Green sales contract, so it could not have induced him to decide to sell. Further, the September 6th agreement referred to was later superseded, and it was never shown that funds were not available to meet the terms of that agreement as represented.

More importantly, the joint venture agreement executed by the parties made the venture itself responsible for the Green mortgage payments, and as noted previously, Graham, as between the partners, was made primarily responsible to pay the Green mortgage payments. The joint venture agreement itself expressly provided that the securing of a loan to pay the Green mortgage and develop the property was one of its main purposes. It would have been absurd for the parties to make these various agreements if a loan to pay the Green mortgage had.already been secured. If such a loan was available, there would be. no reason to secure the Green mortgage in the first place. In addition, the evidence demonstrated that all of the parties anticipated that the Green mortgage would be paid by the venture out of a development loan, and that such a loan could not be secured without the assurance of water and sewage facilities for the property. As noted, supra, these facilities were never secured. There is simply no evidence that would justify Graham’s reliance on this letter as a representation that financing had already been secured. In short, the proof was virtually undisputed that Graham was not the victim of fraud by virtue of the letter of October 3, 1973.

Graham’s claim as to the August 29,1974, letter from Alexander is similar to and connected with the claim made concerning the October 3rd letter. He claims that the Mid-South group had the obligation to make the mortgage payment; that this letter was an additional deliberate misrepresentation that a loan had already been secured by the Mid-South group to make the payments on the Green and Graham mortgages; that such misrepresentation was made to induce him into not making the Green mortgage payments; that he either could not make the payments because he had no authority to act for the venture, or, alternatively, that he thereafter had no time to secure the funds to make the payments; and that he lost at least the face value of his second mortgage by reason of the group’s representation that it would make the Green mortgage payment.

In order for a promise of future performance to serve as a predicate for a claim of fraud, it must be established that the promise was made with the present intention not to comply. There is no evidence here, other than the subsequent failure to complete the promise, that the Alexander letter was written with an existing intent not to comply. The testimony of Alexander and others who testified as to the circumstances surrounding the August 29th meeting was, in fact, all to the contrary. On August 29th, Graham’s partners had virtually decided not to go forward with the project. Graham was well aware of their reluctance to go forward and admitted that he was advised at the meeting that no arrangements had yet been made to make the payments. It was for the purpose of convincing them to change their minds about the project that he met with them to begin with. The only evidence received as to the “arrangements” referred to in the letter indicated that the Third National Bank, which provided the original $605,000.00 to get the venture off the ground, would provide the additional funds if such a loan was requested, but no request for an additional loan was made. In other words, a decision was subsequently made that the venture should not make the Green mortgage payment or any other additional investment in the project. This, of course, constituted a breach of the venture’s agreement to make the payments, but did not constitute fraud.

There is also no evidence that the letter, written at Graham’s request to “comfort” his creditors, was written for the additional purpose of securing his forebearance in making the Green mortgage payments. Graham never informed his partners that he wished to make the payments. In fact, the evidence reflects that the partners had nothing to gain by preventing Graham from acting, and would have been pleased if he had made the payments. Indeed, they had requested his assistance in securing a lender or investor to bail them all out. We also note our holding, supra, that the evidence does not support Graham’s contention that it was Mid-South’s primary obligation to make the Green mortgage payment.

Under all these circumstances, we do not believe Graham was in a position to justifiably rely on the letters of October 3, 1973, and August 29, 1974, as a reason to avoid making the payments himself if he wished to do so to protect himself and his second mortgage. He was immediately informed when the payment was not made, and, in the 30-day grace period which ensued thereafter, he made no efforts to secure funding for the payment or to secure an extension of time to make the payment.

Graham’s contention that he had to act in reliance on his partners’ promise to make the mortgage payments since he had no authority to act for the venture, also conflicts with his subsequent assertion that he could and would have acted had he known of his partners’ default sooner. As the holder of a junior mortgage and a guarantor of the Green note, he had the authority to act to protect his interest when" the venture defaulted on the first mortgage. However, as noted, supra, he did not act then or afterwards.

We also believe proof of Graham’s damages in the form of the loss of the face value of his second mortgage was insufficient, since it was predicated on speculation as to the subsequent success of the venture. There was simply no proof that, even had the one payment on the Green mortgage been made, the Graham mortgage would have eventually been worth its full face value. The payment of that mortgage was clearly predicated on the successful continuation of the venture and the development of the land. As to what would have taken place after the initial Green mortgage payment was made, we are left to speculation, and that is simply not enough to sustain an award of damages for fraud. W. Prosser, Law of Torts, § 110 (4th ed. 1971). Cf. George Hunt, Inc. v. Wash-Bowl, Inc., 348 So.2d 910 (Fla.2d DCA 1977).

As to the allegations of wrongful conversion of the 20 acres of property released from the Green and Graham mortgages and used as collateral for the $605,-000.00 loan made to the Mid-South group, we agree with Graham that he was entitled to an accounting and to his share of the value of such property over and above the prior lien rights of the appellants in the amount of $605,000.00. The trial court found Graham’s 30% interest in the 20 acres to have a value of $120,000.00, which means the entire 20 acres were found to be worth $400,000.00. However, since this is well below the amount the venture owed to appellants, which admittedly constituted a pri- or lien on the 20 acres, we do not believe Graham is entitled to damages on this claim of conversion. If the partners received more than the amount loaned by using the twenty acres of joint venture property as collateral for the $605,000.00 loan which they secured from the Nashville bank, and then in turn loaned to the joint venture, such fact was not proven below.

The appellants have raised other serious issues which, in view of our ruling as to the lack of substantial competent evidence to support the judgment of fraud, are unnecessary for us to decide.

Finally, the trial court, in awarding the joint venture $45,000.00 plus interest on a $150,000.00 promissory note executed by David and Roberta Graham on November 20, 1973, failed to hold Roberta Graham jointly and severally liable. We believe the trial court erred in that regard. Section 673.118(5), Florida Statutes (1973); see also Forbes v. National Rating Bureau, Inc., 223 So.2d 764 (Fla.2d DCA 1969).

This cause is reversed and remanded for further proceedings in accordance with the terms of this opinion.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.

      . The Mid-South group borrowed these funds from the Third National Bank of Nashville. On October 3, 1973, at Graham’s request, the bank wrote him a letter which stated:
      Re: Land Purchase Contract Dated September 6, 1973
      Dear Mr. Graham:
      It is hoped that this letter will serve a two-fold purpose. The first purpose is to assure you that with reference to the above mentioned contract between you and Charles Alexander or assigns as purchaser, our bank has made a commitment to Mr. Alexander et al to provide the funds as required in the above mentioned contract when the terms of the contract have been met.
      Secondly, you are presently holding a $100,000 commitment from our bank in lieu of earnest money pending the sale of the Coconut Creek property. We realize that the expiration date on this commitment is November 1, 1973 and we also realize that the sale can not be consummated before the latter part of November. We will be glad at your request to give an extension of this commitment until the end of November..
      If you have any questions whatsoever, please get in touch with me or Charlie.

        Yours very truly
      York Lillie, Jr.
      Assistant Vice President
      In addition, on October 10, 1973, Graham was provided with an irrevocable letter of credit for $500,000 from the bank to be negotiated by December 1, 1973, upon the filing of a:
      SIGNED STATEMENT BY BENEFICIARY THAT DAVID E. GRAHAM HAS FULFILLED HIS OBLIGATIONS UNDER CONTRACT DATED SEPTEMBER 6, 1973 BETWEEN DAVID E. GRAHAM AND CHARLES ALEXANDER OR ASSIGNS AND THAT CHARLES ALEXANDER OR ASSIGNS HAS NOT FULFILLED HIS/THEIR OBLIGATIONS UNDER SAID CONTRACT RELATING TO PURCHASE OF 120 ACRES OF LAND LOCATED IN NORTH BROWARD COUNTY, FLORIDA.

      . Why this note was not for $1,500,000.00 as provided in the November 19th agreement is not clearly explained in the record.

      . The letter stated:
      Dear David:
      We have concluded from our discussion both with you and our Partners here, that it is in the best interest of the C. D. Joint Venture and its obligations under the terms of the Green Mortgage and your mortgage, to provide the funds to satisfy these requirements.
      Although we would prefer to find an alternative method of meeting these cash needs, we realize the necessity of keeping the Venture in good standing with its creditors. Consequently, I want to assure you that we have made arrangements to fulfill the terms and conditions of the mortgages in a timely manner.
      Yours very truly,
      ALEXANDER/DAVIS PROPERTIES, INC.
      Charles F. Alexander
      President

      . Alexander’s letter of October 2nd stated:
      Dear Dave:
      As you know we have been trying to get a full release on the first twenty acres to which we are entitled. You have been further advised that the Greens have signed their release of this twenty acres and that this instrument has been recorded in Broward County. We must have a release from you in order to proceed with any kind of logical plan of action for the balance of the Green Property. All of our actions have been based upon the assumption that this release would be given immediately, upon request, and that no further actions by other parties would be required.
      Failure to secure this release has placed us in the position of having to go into default on the Green loan and has caused serious problems in our capacity to meet our obligations. I do not know what action we will take from this point forward, but feel that you should be aware of the fact that we are considering whatever courses of action that may be open to us from point of view of the Joint Venture as well as the Mid-South Group.
      Yours very truly,
      ALEXANDER/DAVIS PROPERTIES, INC.
      Charles F. Alexander
      President

      . Graham’s reply to Alexander stated:
      Dear Charlie:
      I am in receipt of your letter of October 2, 1974 wherein you state that you have not received the Release from me relative to the Green property.
      As I had previously informed you (over a month ago) as well as Dave Gillis by phone and your attorney, Mr. Laz Schneider, upon receipt of his letter requesting said Release and delivery of a survey, which letter was delivered and received the 26th day of September, the Release was prepared and forwarded to Miami National Bank, who presently holds an assignment on the subject mortgage.
      The letter from Mr. Schneider, as well as your letter dated October 2nd, seemed to indicate that I was in some way dilitory [sic] in delivering your Release. I must point out to you that the Release and survey, as required by the release provisions of the mortgage, were delivered to me late Wednesday afternoon wherein I immediately forwarded it to the bank (by runner) and discussed the problem with the appropriate banking official. The release was promptly executed and returned to me the 1st of October, at which time I called Dave Gillis and asked if I should have it recorded or forward it to Mr. Schneider. My instructions were to forward it directly to Mr. Schneider (who was out of town at that time), which I did.
      I am pleased that you are considering whatever courses of action may be open to you from the point of view from the “joint venture” since 1 am a 30% participant in the venture. I sincerely trust and hope that you and all other individuals involved in the management of the joint venture are doing whatever is necessary to protect my interest. Pursuant to the agreement, I am relying upon you tó do that which you have agreed to do, which includes the protection of my interest, the management of the property, the protection of the zoning and whatever financing is necessary.
      I also wish to advise you that I have this date received from Mr. Byrd Booth a letter dated October 2, 1974 (a copy attached hereto) advising me that the payment has not yet been received by the Greens on the first mortgage. Demand is herewith made that you immediately cause such payment to be made to protect my interest as a joint venturer and to prevent any default from occurring under the terms of the second mortgage. These matters were thoroughly discussed when I visited you and your attorney in Nashville on August 29th.
      I also request at this time a complete accounting on all monies expended on behalf of the joint venture and a complete disclosure of the availability of funds to the joint venture which will enable it to meet its obligations as the same become due and payable. I am making this request as a 30% participant and feel that at this time you have breached your fiduciary duty to me in your failure to keep me informed and in your failure to keep the obligation of the venture current.
      I can assure you that although I have in the past expressed complete willingness, both as a participant and a mortgagee to work with you and the other participants in this transaction to find an amicable solution to the present problems and economic conditions, I, also, at this time “feel that you should be aware of the fact that I am considering whatever courses of action that may be open to me”.
      Sincerely,
      David E. Graham

      . Under this plan, Graham, without investing any funds in the project, would have received not only $1,520,000.00 plus interest on the note from the venture but also 30% of the profits of the venture.

      . We have also considered Graham’s claim that Mid-South’s use of the 20 acres constitutes additional evidence of fraud. However, we note that Graham himself testified that the group was entitled to the use of the 20 acres and that the release made no difference to him “because they were hocking it anyway to the Third National Bank.” We agree that the group continued to assert that it was attempting to work out a plan for the rest of the property but we do not agree that these assertions considered together with the other evidence constituted sufficient evidence to establish a case of fraud.


author: COBB, Judge. COBB, Judge.

text:
    Alfred KELLY, Appellant, v. STATE of Florida, Appellee.
    No. LL-475/T1-12.
    District Court of Appeal of Florida, Fifth District.
    March 11, 1981.
    Rehearing Denied April 29, 1981.

      Stephen P. Sapienza, Flagler Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The appellant, Alfred Kelly, was charged in a three-count information with burglary of a dwelling, grand theft, and dealing in stolen property. He was convicted on all three counts.-

The trial evidence indicated that the home of the victim, Mrs. Skipper, was burglarized and several of the stolen items were pawned the following week to one Willis Brown by the defendant. The defendant, after being advised of his Miranda rights, gave an oral and written confession, which the trial court ruled was voluntary and which was admitted into evidence.

The appellant attempts to raise several points on appeal which were not properly preserved below: the admissibility of the confession, the state’s cross-examination of defendant in regard to prior convictions, the sufficiency of the evidence, prejudicial pros-ecutorial comment, the constitutionality of the grand theft statute, and the trial court’s instruction on the presumption raised by the unexplained possession of property recently stolen.

The appellant contends that the trial court erred in admitting certain tapes into evidence because of the victim’s admission on cross-examination, after identifying the tapes as the ones taken from her home, that there were many other tapes “just like this ... right here in Flagler County.” This did not render the identification insufficient for admissibility under these circumstances: the tapes were with other items, properly identified, that had been pawned by the defendant and were included in his pre-trial confession as having been taken from the victim. Moreover, if there was error in the admission into evidence of the tapes, it was harmless because there was ample evidence in respect to other identified items and their value to support the grand theft conviction.

The appellant also contends that the charge of grand theft in the second degree is an essential part of the burglary charge, and therefore he cannot be separately convicted of both. This point was addressed by the Florida Supreme Court in Estevez v. State, 313 So.2d 692 (Fla.1975), and its conclusion therein supports the state’s argument that these two offenses are separate, not facets of the same transaction, and separate sentences for these two convictions could be properly imposed. This point on appeal is rendered moot, however, by the disposition of the last point considered hereinafter.

The appellant argues that the trial court erred in accepting verdicts, and sentencing him, on both the charge of grand theft and the charge of dealing in stolen property. See § 812.025, Fla.Stat. (1979). We agree. The fact that one week elapsed between the theft and the pawning of the stolen items does not support the state’s argument that a different scheme or course of conduct arose by reason of the interim. The convictions for both grand theft of the second degree (a third-degree felony) and dealing in stolen property (a second-degree felony) cannot stand.

Accordingly, the conviction and sentence for grand theft in the second degree is reversed. See Pinder v. State, 366 So.2d 38 (Fla. 2d DCA 1978), affirmed, State v. Pin-der, 375 So.2d 836 (Fla.1979). The case is otherwise affirmed.

AFFIRMED in part; REVERSED in part.

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

ON MOTION FOR REHEARING

COBB, Judge.

We grant rehearing to delete the reference in our prior opinion to Pinder v. State, 366 So.2d 38 (Fla. 2d DCA 1978), aff’d., State v. Pinder, 375 So.2d 836 (Fla.1979). Rehearing is otherwise denied, and we adhere to the balance of our prior opinion.

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

      . § 812.014, Fla.Stat. (1979).

      . § 812.019, Fla.Stat. (1979).