author: McCORD, Judge. McCORD, Judge.

text:
    COMMUNITIES FINANCIAL CORPORATION, a Florida Corporation, and Coquina Water Management District, Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AE-52.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Motion for Rehearing and Clarification Granted in Part, Denied in Part June 24, 1982.

      Gary P. Sams of Hopping, Boyd, Green & Sams, Tallahassee, and Dana G. Bradford, II, of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    Alfred J. Malefatto and Randall E. Denker, Asst. Gen. Counsels, Tallahassee, for ap-pellee.
   McCORD, Judge.

Communities Financial Corporation (CFC) and Coquina Water Management District appeal from a final summary judgment which, among other things, denied their claim for attorney’s fees under Sections 57.105 and 120.69(7), Florida Statutes. The State of Florida, Department of Environmental Regulation (DER), cross-appeals from that judgment. DER urges error in the trial court’s failure to dismiss CFC’s and Coquina’s complaint for failure to exhaust administrative remedies, in the trial court’s dissolving of a temporary injunction and failing to make that injunction permanent, and in the trial court’s award of costs to CFC and Coquina.

CFC is a Florida corporation engaged in the subdivision and sale of real property. In 1971 it purchased approximately twenty-two square miles of real property in Okeechobee County, which property it proposed to sell as individual one and one-fourth acre lots. The development of that land is the subject of this appeal. Coquina was organized under Chapter 298, Florida Statutes, to handle the drainage activities on that plan.

In 1971 and 1972 CFC registered the lots for sale with the Division of Land Sales and Condominiums (Land Sales). At this time CFC contacted DER’s predecessor agency, the Department of Pollution Control (DPC), regarding the necessity to obtain permits to develop the property. Upon reviewing CFC’s plans, DPC indicated that it had no regulatory responsibilities regarding the project. However, DPC asked to be advised regarding the specific details of the drainage techniques to be used.

Once Land Sales had approved the project, CFC began to solicit purchases, committing itself to complete the required road and drainage improvements by December 31, 1979. Land Sales and CFC established escrow accounts to be funded by purchase money in order to insure that the promised improvements would be completed on schedule. In 1974, CFC and Coquina submitted plans for the surface water management system to the South Florida Water Management District (SFWMD). After several years of analysis, inspection of the site, and a public hearing, SFWMD granted conceptual approval of the drainage plan for the development in 1977. Finally, on March 15, 1979, a construction permit for the westernmost seven sections of the project was issued by SFWMD. Basically, this drainage system consists of a series of connected swales which empty into several sloughs: Ash, Gore, and Company.

Meanwhile, in response to an inquiry concerning land sales matters from the United States Department of Housing and Urban Development, a DER staff member conducted a critical review of the entire project. This review led to a series of warning letters from DER, commencing June 23, 1977, in which DER asserted that CFC and Coquina required permits for their dredging and filling in waters of the state. CFC and Coquina maintained throughout that DER did not have permit jurisdiction. When negotiations broke down, DER issued an administrative complaint on June 1, 1979.

Prior to filing the administrative complaint, DER had informally urged Land Sales to withhold approval for CFC’s withdrawal of the construction funds from escrow. Land Sales, at first, refused to do so because DER had taken no formal action to establish its position. However, in November of 1978 it began withholding approval. Then, on April 30, 1979, Land Sales informed DER that it would not continue to withhold funds unless DER took direct action to assert its position.

On July 12, 1979, CFC answered DER’s administrative complaint and requested a formal hearing pursuant to Section 120.-57(1), Florida Statutes, before the Division of Administrative Hearings (DOAH). On the same day, CFC filed a complaint for declaratory judgment, injunctive relief, and damages against DER and Land Sales. DER, in turn, filed a counterclaim, essentially realleging the elements of its administrative complaint. DER also sought a temporary injunction halting CFC’s and Coqui-na’s construction activities. CFC’s complaint against Land Sales was essentially directed toward Land Sales’ refusal to grant approval for release of the escrow funds. To this end, CFC sought and obtained from the trial court a temporary injunction barring Land Sales from withholding its approval to release the funds. Land Sales appealed, and this Court dissolved the temporary injunction, essentially holding that the injunction was not appropriate because the matters involved were not free from all doubt. In particular, this Court noted DER’s continued assertion of jurisdiction over certain activities on the site. Burroughs v. CFC, 378 So.2d 790 (Fla. 1st DCA 1979). Meanwhile, in response to conflicting evidence adduced at a hearing regarding violations of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, the trial court enjoined CFC from any future violations of the turbidity standard [Fla.Admin.Code Rule 17-3.-05(2)(d) ] for water flowing from the land. The trial court took no further action, deferring to a decision by DOAH on the merits of the administrative complaint.

On March 14,1980, a DOAH hearing officer issued a recommended order that the administrative complaint be dismissed in its entirety. Essentially, the hearing officer found that DER had not proven that the dredging and filling activities of CFC in constructing the drainage system took place in waters of the state subject to DER’s jurisdiction. DER adopted the hearing officer’s findings of fact and conclusions of law in toto. Upon receiving DER’s final order, the trial court enjoined DER from attempting to exercise its permit jurisdiction, dissolved the temporary injunction against CFC and Coquina, enjoined Land Sales from withholding approval of the release of the escrowed funds, denied CFC’s motion for attorney’s fees under Sections 57.105 and 120.69(7), and ordered DER to pay various costs.

The primary consideration presented by this appeal is whether the trial court erred in refusing to dismiss the complaint because of CFC’s failure to exhaust its administrative remedies. We find that it did. It is now well settled that where adequate administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted. E.g. Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So.2d 511 (Fla. 1st DCA 1980); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974). One exception to this doctrine, which CFC claims, is where agency actions are so egregious or devastating that the promised administrative remedies are too little or too late. State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, supra. In Willis, this Court set forth certain criteria which, if met, would invoke the jurisdiction of the circuit court in such cases: (1) the complaint must demonstrate some compelling reason why the APA (Chapter 120, Florida Statutes) does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants’ grievance is cognizable administratively. Id., at 591.

The case made by appellants did not meet any of these criteria. CFC and Coqui-na urge that a circuit court is the only forum in which they could seek relief against both Land Sales and DER. It is clear, however, that Land Sales’ action in withholding approval for release of the escrow funds is an “agency action” [§ 120.-52(2), Fla.Stat.] which would be subject to a Section 120.57(1) or (2) petition for administrative hearing. See Willis, supra. Further, a petition for declaratory statement pursuant to Section 120.565, Florida Statutes, may well have been an appropriate avenue for relief. Thus, the absence of any claim that Land Sales refused to afford CFC and Coquina an administrative hearing or otherwise refused to recognize that their grievances were administratively cognizable undermines the very assertion that the APA has no adequate remedy. Moreover, since Land Sales based, at least in part, its disapproval on DER’s dispute with CFC and Coquina, they could easily have subpoenaed DER employees to account in such a hearing before Land Sales. Such a hearing could well have been consolidated with the hearing on DER’s administrative complaint. Fla.Admin.Code Rule 28-5.106. Since such avenues of relief were not pursued, we cannot conclude that the remedies of the administrative process were inadequate.

CFC also alleged that the numerous and complex legal and factual issues regarding DER’s jurisdiction, the timeliness and efficacy of its agency action, and the propriety of applying certain statutory and regulatory standards necessitates circuit court intervention. Such an allegation, without more, undermines the very purposes of the APA, for it presupposes that a circuit court is a more appropriate forum for resolution of disputes which are particularly within the administrative agency’s expertise. See McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Additionally, in light of the ready acceptance of a DOAH hearing in order to resolve such legal and factual disputes between the parties, CFC’s and Coquina’s argument is unconvincing.

CFC also alleged that circuit court intervention was appropriate because CFC needed a timely remedy so as not to disrupt existing contractual relationships. However, it did not allege, much less prove, that adequate financial resources were not readily and reasonably available from alternate sources, such as CFC’s own internal financial structure. The failure to make such an allegation, or any other specific and compelling reason regarding their argument for timely relief, precludes the circuit court’s intervention. Rather, it would seem that the impressive array of APA procedures would provide a more timely and efficacious remedy than resort to the procedures of regular civil practice.

We, therefore, hold that the trial court erred in failing to dismiss the complaint because of the appellants’ failure to exhaust their administrative remedies. Lest this be considered an academic gesture, we point out that the trial court assessed substantial costs against DER. Since the case should have been dismissed, the assessment of costs cannot stand.

Our resolution of the exhaustion of administrative remedies issue raised by DER’s motion disposes of all the other issues, with the exception of DER’s argument regarding the trial court’s dissolution of and refusal to extend an injunction to prohibit CFC and Coquina from violating turbidity standards. The hearing officer noted, and the evidence of record establishes, that the turbidity readings in excess of state standards were attributable to construction activities alone and would not be expected to continue after completion of construction. These isolated instances do not make CFC and Coquina such egregious violators of the law that DER must be informed of what they are doing on every occasion.

Accordingly, this cause is reversed and remanded to the trial court with directions that the final summary judgment be vacated and the cause be dismissed.

ERVIN and SHAW, JJ., concur.

ON MOTION FOR REHEARING AND CLARIFICATION

McCORD, Judge.

Communities Financial Corporation (CFC) and Coquina Water Management District (Coquina) move for rehearing and clarification of the decision in this cause. Although we do not recede from the holding of our opinion, we do find it appropriate to address and clarify certain matters.

CFC’s and Coquina’s first contention is that they met the criteria set forth in State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and should therefore be exempted from the requirement of exhausting their administrative remedies. In particular, they take issue with the finding of the court that they “did not allege, much less prove that adequate financial resources were not readily and reasonably available from alternate sources, such as CFC’s own internal financial structure.” Their recitation of certain portions of the record, however, does not support their claim. The complaint does not allege, nor does it reasonably imply, that “adequate financial resources were not readily and reasonably available from alternate sources, such as CFC’s own internal financial structure.” What it did allege is that its ability to finance required improvements and its development would be “impaired,” which is hardly the same thing. Thus, the complaint on its face fails to make sufficient allegations to support the circuit court’s intervention in the administrative process.

CFC and Coquina also argue that they offered proof to establish that sufficient financial resources other than the escrow funds held by the Division of Land Sales and Condominiums were unavailable to CFC for the purpose of fulfilling its contractual obligations to land purchasers. In support of this argument they cite the affidavit of the chairman of the board and chief executive of CFC’s parent corporation. There, he stated that (CFC) “does not have the immediate financial resources to satisfy the total amount of colorable claims and obligations .... ” arising out of its promise to deliver improved lots by December 31, 1979. Just because funds are not immediately available, however, does not mean that those funds will not become available in a timely fashion. Moreover, even if such funds were not available within CFC’s internal financial structure, appellants are still ignoring the true import of this court’s holding, which is that they failed to “allege, much less prove, that adequate financial resources were not readily and reasonably available from alternate sources,” not just from CFC itself. (Emphasis supplied). We also note that the record affirmatively establishes that CFC knew that the intent and purpose of the escrow funds was not to be a construction funding account but was to protect the purchasers of the lots. See Burroughs v. Communities Financial Corporation, 378 So.2d 790 (Fla. 1st DCA 1979).

Appellants’ remaining points, with one exception, are merely attempts to reargue issues already decided. However, we do agree with appellants’ contention that the trial court’s permanent injunction against the Division of Land Sales and Condominiums should not be vacated because Land Sales did not appeal the trial court’s final summary judgment. Accordingly, this court’s opinion is hereby amended to reflect this fact.

Appellants’ Motion for Rehearing and Clarification granted in part and denied in part.

ERVIN and SHAW, JJ., concur.

      . We note that this is not a jurisdictional question:
      The determination of whether the circumstances of a particular controversy warrant judicial intervention [by a circuit court], then is ultimately one of policy rather than power

        Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978).

      . DER’s counterclaim in no way affects our resolution of this issue. Since this pleading patently constitutes a compulsory counterclaim [Fla.R.Civ.P. 1.170(a)], DER’s failure to so plead may well have abrogated any rights it had to litigate the issues contained in the counterclaim at some future date.


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    James Henry BREZIAL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1031.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied July 21, 1982.

      Douglas J. Glaid of Kay & Silber, P. A., Sp. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

Appellant James Brezial was convicted of possession of cocaine and placed on three years probation. At issue on appeal is whether the trial court properly denied a motion to suppress in which Brezial contended that the cocaine in question had been seized from him as the result of an unlawful police detention and search.

Officer David Barnes of the Fort Lauder-dale Police Department was the only witness to testify at the hearing on the motion to suppress. Barnes related that on the night of December 13, 1980, the Fort Laud-erdale Police Department received an anonymous report of a disturbance at Dillard High School. Barnes and Officer Dankoc-sik were dispatched to investigate, arriving at 8:52 p. m. Barnes panned the school’s closed and darkened football field with the spotlight on his patrol car and observed two men sitting in the bleachers who ran when they saw the light, hopping a three-foot fence in the process. Although his companion escaped, Brezial was stopped and asked to identify himself and explain his reason for being in the area. Brezial stated that he carried no identification, but gave his name and date of birth. Barnes decided to run Brezial’s name through the police computer before releasing him. Before running the check the officer, allegedly in fear for his safety, decided to frisk Brezial for weapons. However, before the frisk commenced, Barnes observed a nail-like object protruding from Brezial’s right pocket and immediately seized the object, which was actually a hypodermic syringe containing six grams of cocaine.

The circumstances under which a temporary stop may be justified were expounded in State v. Stevens, 354 So.2d 1244, at 1247 (Fla. 4th DCA 1978), as follows:

Circumstances can “reasonably indicate” that a person “has committed, is committing, or is about to commit” a violation of criminal laws or ordinances without necessarily indicating that high probability of guilt which is implied by the term “probable cause.” State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977). To justify temporary detention, only “founded suspicion” in the mind of the detaining officer is required. Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974); State v. Ebert, 251 So.2d 38 (Fla. 2d DCA 1971). A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect’s possible commission, existing or imminent, of a crime; The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

In the present case, our view is that the anonymous report of a disturbance at the high school, when coupled with Brezial’s presence in the nighttime at a closed and darkened stadium and subsequent attempt to flee, formed a sufficient basis for Barnes’ stop.

Whether there was a sufficient basis for the officer’s frisk is a closer question. The mere fact that an officer has properly stopped a suspect does not automatically give him the right to conduct a frisk for weapons. Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). Rather, under Section 901.151(5), Florida Statutes (1981), the officer must have “probable cause to believe [that the suspect] is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person.” However, “[i]t is evident that the Florida stop and frisk law does not require probable cause in the same sense that probable cause is required for a search warrant or for arrest.” State v. Webb, 398 So.2d 820, at 825 (Fla.1981).

Brezial contends that the frisk here should be declared invalid because, at the time Officer Barnes decided to frisk, he had apparently not yet seen the “nail” and hence had no articulable reason to fear for his safety. However, we need not determine whether the officer would have been justified in frisking Brezial before spotting the “nail” since it was undisputed that Barnes spotted the sharp metallic object protruding from Brezial’s pocket before the frisk actually commenced. We believe this to be the dispositive factor validating the frisk. Barnes did not actually know whether the object was a nail, or some other object that could be used as a weapon, but he did observe enough of the object to entitle him to find out. We cannot accept Brezial’s proposition that the seizure should be invalidated because the officer had already decided to frisk him before spotting the nail-like object. See State v. Turner, 345 So.2d 767 (Fla. 4th DCA 1977).

Accordingly, we approve the decision of the lower court denying Brezial’s motion to suppress and affirm the conviction.

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

      . Section 901.151(5) reads, in full:
      (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.


author: OTT, Judge.

text:
    STATE of Florida, DEPARTMENT OF CITRUS, Appellant, v. OFFICE OF the COMPTROLLER and the Department of Banking and Finance of the State of Florida, Appellee.
    No. 81-1387.
    District Court of Appeal of Florida, Second District.
    May 12, 1982.
    Rehearing Denied July 7, 1982.

      J. Hardin Peterson, Jr., of Peterson, Myers, Craig, Crews, Brandon & Mann, P. A., Lakeland, for appellant.
    Walter W. Wood, Asst. Gen. Counsel, Tallahassee, for appellee.
   OTT, Judge.

In this appeal, we are asked to invalidate a revision to rule 3A-40.101, Florida Administrative Code, as it specifically applies to the Department of Citrus (DOC) and its Florida Citrus Advertising Trust Fund (citrus fund). This revision has previously been challenged unsuccessfully at the administrative level. We have jurisdiction pursuant to sections 120.56 and 120.68, Florida Statutes (1981), and Florida Rule of Appellate Procedure 9.030(b), (c).

Section 601.15(7), Florida Statutes (1981), creates the Florida Citrus Advertising Trust Fund and provides that all taxes levied and collected under the provisions of chapter 601 shall be deposited in this fund. These moneys are later reappropriated to the DOC for its exclusive use within statutory grants. From this fund, the DOC must determine, levy, and collect all taxes or assessments; pay salaries, regulate the sale, shipment, importation, and standards of citrus fruits and products; and advertise the Florida citrus industry nationwide and enforce all the provisions and regulations of the Florida Citrus Code. §§ 601.35, 601.52, 601.731, 601.90-601.9902, Fla.Stat. (1981).

The taxes which are collected for the citrus fund are deposited in the state’s general revenue account, which is administered by the comptroller. The comptroller administers twenty different funds enumerated in section 215.22, Florida Statutes (1981). Eighteen of the twenty funds are subject to a 4% deduction which represents the estimated pro rata share of the cost of general government. However, the citrus fund (§ 215.22(7), Fla.Stat. (1981)) and the general inspection fund (§ 215.22(5), Fla.Stat. (1981)) received special treatment by the legislature and are only liable for a 2% deduction. The funds deposited in the state’s general revenue account accrue interest for the state’s general revenue, but not for the DOC’s specific use. However, when the DOC so desires, it can advise the comptroller to transfer some of these funds to the State Board of Administration (SBA) for investment. Interest derived from these investments accrues for the benefit of DOC. The SBA deducts a fee for its investment services pursuant to section 215.535, Florida Statutes (1981).

Later, when the DOC needs the funds held for investment by the SBA, it advises the SBA to return the funds to the comptroller for appropriate disbursement. Under the new rule, 3A-40.101, which is the subject of this appeal, the 2% charge authorized by section 601.15(7)(a), Florida Statutes (1981), is specifically extended to the interest earned on such. investment funds. The DOC argues that section 601.15(7)(a) exempts such investment funds together with their earned interest from the application of this new rule. However, the comptroller and Department of Banking and Finance contend that this rule merely clarifies the statutory prohibition from imposing the deduction twice upon the original principal only.

Section 601.15(7)(a) provides:

Two per cent of all income of a revenue nature deposited in this fund, including transfers from any subsidiary accounts thereof, shall be deposited in the General Revenue Fund in lieu of the service charge provided for in § 215.20; provided, however, that if any moneys are withdrawn from the trust fund for investment, such 2 per cent shall not again be charged against said moneys when they are redeposited in the trust fund. (Emphasis added.)

Initially, we note that the attorney general has addressed the issue raised in this appeal. 1979 Op.Att’y Gen.Fla. 079-110 (Dec. 19, 1979). The attorney general’s opinion did not consider the effect of section 601.15(7)(a), Florida Statutes (1981), but instead construed sections 215.20 and 215.22 to conclude that interest from investment accounts generally were not subject to the deduction. The hearing officer at the administrative appellate level below concluded that the attorney general’s opinion was in error because it had misconstrued the term “income of a revenue nature.” Whether this is or is not a correct assumption is of little moment because the attorney general did not consider the effect of section 601.15(7)(a) in his ruling. Accordingly, we will not invalidate the revised rule on this specific point. Nonetheless, we note that opinions of the attorney general are persuasive and entitled to great weight in construing Florida Statutes. See Beverly v. Division of Bev. of Dept. of Business Reg., 282 So.2d 657 (Fla. 1st DCA 1973), and Richey v. Indian River Shores, 337 So.2d 410 (Fla. 4th DCA 1976).

Next, we must consider what effect, if any, section 601.15(7)(a) has on the revised rule. An examination of the twenty funds enumerated in section 215.22 indicates that the citrus fund is the only fund which contains a provision that prohibits a deduction following investment when the funds are redeposited. We feel appellee’s argument that this section merely prohibits a “double” charge on just the original principal is too simplistic. It appears obvious and should go without saying that the original deposit should not be “doubly” assessed. Thus, we conclude that the citrus fund was intended by the legislature to receive special treatment. This can be gleaned from the persuasive impact of the attorney general’s opinion, the reduced percentage (2% instead of 4%), and the fact that it is the only fund with the limitation imposed by section 601.15(7)(a).

It is a fundamental rule of law that administrative agencies and state officers possess only such authority or power as may be conferred on them by law. Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978); State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900 (Fla.1974). For the above reasons, we hold that appellee has exceeded the authority granted it under section 215.25, Florida Statutes (1981), in its application of the new revised rule (3A-40.101, Florida Administrative Code) to the citrus trust fund. In so holding, we carve out a specific exception to this revised rule for the citrus trust fund and only for the citrus trust fund. All other enumerated trust funds are not affected by this holding. Accordingly, the finding of the hearing examiner below is quashed and the office of the comptroller is directed to remit all charges improperly assessed against the interest earned on invested funds from the Florida Citrus Advertising Trust Fund.

GRIMES, A.C.J., and RYDER, J., concur.


author: CAMPBELL, Judge.

text:
    TIFFANY PLAZA CONDOMINIUM ASSOCIATION, INC., a Florida nonprofit corporation, Appellant, v. Mr. and Mrs. C. O. SPENCER, Jr., Mr. and Mrs. Richard Etsell, Mr. and Mrs. Stanley Weinberg, Mr. and Mrs. Derek Hogg, Mr. and Mrs. Peter Mills, Mr. and Mrs. Fred Empkie, and Mrs. Hildegard V. Arronett, Appellees.
    No. 81-1657.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Rehearing Denied July 16, 1982.
    Robert L. Moore of Kanetsky, Moore, De-Boer & Horliek, P. A., Venice, for appellant.
    C. Anthony Sexton of Hill, Hill & Dicken-son, Tampa, for appellees.
   CAMPBELL, Judge.

Appellant, Tiffany Plaza Condominium Association, Inc., defendant below, is an association organized pursuant to chapter 711, Florida Statutes (1974 Supp.), and the Declaration of Condominium of Tiffany Plaza Condominiums entered into in July 1975. Tiffany Plaza Condominium is a forty-two unit residential condominium located at Longboat Key, Florida. Appellees, plaintiffs below, are the individual owners of six of the residential units in the condominium. Their action in the trial court was to prevent the collection of an assessment imposed upon them by the association for construction of a rock revetment on the sand and beach between the condominium and the mean high-water line of the Gulf of Mexico. The beach between the condominium and the mean high-water line is a “common element” of the condominium as defined in the declaration of condominium and chapter 711, Florida Statutes (1974 Supp.), and its successor statute, chapter 718, Florida Statutes (1981).

At an annual meeting on February 7, 1981, a vote regarding construction of the rock revetment was taken by members of the association. Thirty-two voted for and eight voted against. Two members were absent. The board of directors of the association then voted to assess all members for their pro rata share of the cost of constructing the rock revetment. Appellees objected and filed their action seeking an exemption from payment by reason of article 5.2(b) of the declaration of condominium. The association defended on the basis that the rock revetment was not an alteration or improvement of a common element as contemplated by article 5.2(b), but was part of the maintenance, repair and replacement of a common element which the association had responsibility for under several provisions of the declaration, bylaws and statutes.

The trial court’s final order found for appellees, holding that article 5.2(b) of the declaration of condominium “prohibits any alteration or improvement of the common elements for any reason, including but not limited to the maintenance of the common elements, unless those unit owners who do not consent to the alteration or improvement are relieved from the initial cost thereof.” We reverse.

Both parties urge the applicability of certain sections of chapter 718, Florida Statutes (1981). They argue and we agree that there is no essential difference between the relevant sections of chapter 718, Florida Statutes (1981), and chapter 711, Florida Statutes (1974 Supp.), in effect at the time of the adoption of the declaration of condominium. The relevant parts of the declaration, bylaws and statutes are as follows:

Declaration of Condominium

2.6 Common expenses include

(a) Expenses of administration; expenses of maintenance, operation, repair or replacement of the common elements, and of the portions of apartments to be maintained by the Association.

(b) Expenses declared common expenses by provisions of this Declaration or the Bylaws.

(c) Any valid charge against the condominium as a whole.

3.6 Common Elements: The common elements include the land and all other parts of the condominium not within the individual apartments. All common elements shall be available for use by all apartment owners without discrimination. Such use shall be without charge except where specifically authorized by this Declaration.

4.5 Liability for Common Expenses or Limited Common Expenses: Each apartment owner shall be liable for a proportional share of the common expenses or limited common expenses, such share being the same as the undivided share in the common elements which is appurtenant to his apartment.

5. Maintenance, Alteration and Improvements : Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof, shall be as follows: . . .

5.2 Limited Common Elements and Common Elements:

(a) By the Association : The maintenance and operation of the limited common elements and the common elements shall be the responsibility and expense of the Association.

(b) Alteration and Improvement: After the completion of the improvements included in the limited common elements and the common elements which are contemplated by this Declaration, there shall be no alteration nor further improvement of the limited common elements and common elements, without prior approval in writing of the record owners of the apartments; provided, however, that any alteration or improvement of the limited common elements or the common elements bearing the approval in writing of the record owners of not less than 75% of the common elements, and which does not interfere with the rights of any owners without their consent, may be done if the owners who do not approve are relieved from the initial cost thereof. The share of any cost not so as'sessed shall be assessed to the other apartment owners in the shares which their shares in the common elements bear to each other. There shall be no change in the shares and rights of an apartment owner in the common elements which are altered or further improved, whether or not the apartment owner contributes to the cost thereof. Nothing in this section shall contravene the rights as established in Section 3.2 hereof.

6. Assessments: The making and collection of assessments against apartment owners for common expenses shall be pursuant to the Bylaws and subject to the following provisions:

6.1 Share of common expense: Each apartment owner shall be liable for the proportionate share of the common expenses, and shall share in the common surplus, such shares being the same as the undivided share in the common elements appurtenant to the apartments owned by him.

9. Reconstruction or Repair after Casualty.

9.1 Determination to Reconstruct or Repair : If any part of the condominium property shall be damaged by casualty, whether or not it shall be reconstructed or repaired shall be determined in the following manner:

(a) Common element and limited common element: If the damaged improvement is a limited common element or common element the damaged property shall be reconstructed or repaired, unless it is determined in the manner elsewhere provided that the condominium shall be terminated.

9.5 Assessments: If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair said proceeds are insufficient, assessments shall be made against the apartment owners in the case of damage to limited common elements and common elements, in sufficient amounts to provide funds for the payment of such costs. Such assessments against apartment owners for damage to apartments shall be in proportion to the cost of reconstruction and repair of their respective apartments. Such assessments on account of damage to limited common elements and common elements shall be in proportion to the owner’s share in the common elements.

Bylaws of the Association

ARTICLE 4-POWERS AND DUTIES OF THE BOARD OF DIRECTORS

4.1 Powers and Duties of the Board of Directors. All of the powers and duties of the Association existing under the Condominium Act, the several Declarations of Condominium, Articles of Incorporation and these Bylaws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by apartment owners when such is specifically required.

4.2 Assessments. To make and collect assessments against members to defray the costs and expenses of the condominium properties. The Board may allocate or apportion to particular apartment buildings such costs and expenses as may be appropriate; and to make special assessments consistent with such allocation or apportionment.

4.3 Disbursements. To use the proceeds of assessments in the exercise of its powers and duties.

4.4 Maintenance. To maintain, repair, replace and operate the condominium properties.

4.6 Reconstruction and Improvements. To reconstruct improvements after casualty and to further improve the condominium properties.

Chapter 718, Florida Statutes (1981) 718.103

(1) “Assessment” means a share of the funds required for the payment of common expenses, which from time to time is assessed against the unit owner.

(6) “Common elements” means the portions of the condominium property not included in the units.

(7) “Common expenses” means all expenses and assessments properly incurred by the association for the condominium.

718.111

(6) The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common elements.

718.113 Maintenance; limitation upon improvement.—

(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that limited common elements shall be maintained by those entitled to use the limited common elements.

(2) There shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration.

Construing the declaration, bylaws and statutes as a whole, we conclude that article 5.2(b) of the declaration is not intended to relieve an objecting unit owner of the pro rata assessment for the cost of an alteration or improvement when it is reasonably necessary for the maintenance, repair or replacement of a common element. If, in the good business judgment of the association, such alteration or improvement is necessary or beneficial in the maintenance, repair or replacement of the common elements, all unit owners should equally bear the cost as provided in the declaration, bylaws and statutes. The trial court erred when it concluded that objecting owners should be relieved from the initial costs thereof even when the alteration or improvement was for the purpose of maintenance of the common elements.

From the cited provisions of the declaration, it is clear to us that the association could properly assess all unit owners for the replacement or repair of the beachfront common element if it was damaged by erosion or otherwise. Likewise, it seems to us that if, in the good business judgment of the association, alteration or improvement of the beachfront by the addition of a rock revetment would protect the beach from damage and the necessity of subsequent repair or replacement, then that cost also should be borne equally by all unit owners. Our holding should not be construed as finding that the construction of the rock revetment by the association was, in fact, necessary or that it would protect the beachfront from erosion or damage. That issue was not reached by the trial court because of its interpretation of article 5.2(b) of the declaration. The issues were submitted to the trial court on a stipulated statement of facts which set forth that both parties had experts who would testify on both sides of the issue regarding erosion and the necessity for a rock revetment. We feel that it may be necessary for the trial court to hear those witnesses to properly conclude that issue.

In Trafalgar Towers Association # 2, Inc. v. Zimet, 314 So.2d 595 (Fla. 4th DCA 1975), the court found that the hiring of a resident manager and the purchase of a condominium unit to house the resident manager was in furtherance of the association’s duty to maintain the common elements of the condominium. This case is analogous to Trafalgar, and we approve the reasoning of our colleagues in the fourth district as applied to this case.

Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971), is also helpful. There the court disapproved of the substitution by two unit owners of glass jalousies for wire screening around the porches or screen enclosures that constituted common elements without the consent of the management representing the other unit owners of the condominium. In doing so, the court held that the substitution was a material alteration prohibited without the consent of the management since it was a change, not merely for maintenance, but one which affected and influenced the function, use and appearance of the common elements.

REVERSED and REMANDED for treatment consistent herewith.

HOBSON, A. C. J., and BOARDMAN, J., concur.


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

text:
    Joanne Marie BERNSTIEL, Appellant, v. STATE of Florida, Appellee.
    No. 81-669.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Rehearing Denied July 15, 1982.
    Salvatore D. Molliea, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order withholding adjudication of guilt and placing her on probation for unlawful possession of a controlled substance. Appellant entered a plea of nolo contendere reserving the right to appeal the denial of her motion to suppress.

Appellant was renting property on which was located a trailer and a greenhouse. After hearing rumors that marijuana was being cultivated in the greenhouse, Detective Rye decided to investigate. While standing on adjacent property, Rye saw green foliage through an open door and protruding from the top of the greenhouse which had no roof. Rye thought that the plants were marijuana but did not believe that he had probable cause for a search warrant. He returned the next day and confirmed his suspicions with the use of binoculars. On the basis of his observations, he then obtained a search warrant and subsequently seized the marijuana.

Appellant contends that the use of binoculars constituted a warrantless search. She further argues that the probable cause derived from this infringement of her reasonable expectation of privacy could not properly form the basis for the subsequently issued search warrant. We disagree and affirm.

Whether the use of binoculars constitutes a search does not appear to have been addressed in Florida. Other aids to vision such as searchlights and flashlights have been held not to constitute a search. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Albo v. State, 379 So.2d 648 (Fla.1980). In State v. Parnell, 221 So.2d 129 (Fla.1969), the supreme court approved of an officer’s binocular observation of defendant’s home while awaiting the arrival of a search warrant stating that the “clandestine surveillance . .. was reasonable and justifiable and not an invasion of the privacy of the defendant.... ” 221 So.2d at 132. And in numerous cases, the courts have upheld searches based on probable cause derived from binocular observation albeit without specifically addressing the issue raised by appellant. See, e.g., Webb v. State, 373 So.2d 400 (Fla. 1st DCA 1979); Mahoney v. State, 300 So.2d 743 (Fla. 1st DCA 1974); State v. Knapp, 294 So.2d 338 (Fla. 2d DCA 1974).

Other jurisdictions have held that the use of binoculars does not per se constitute a search. See People v. Hicks, 49 Ill.App.3d 421, 7 Ill.Dec. 279, 364 N.E.2d 440 (1977). See also Annot., 48 A.L.R.3d 1178 (1973). Rather, the issue appears to be resolved using the standard applicable to general search and seizure cases as enunciated in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967).

In Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1969), the court upheld the introduction of evidence which government agents had gathered by looking into the defendant’s shed with binoculars. When the investigators made their initial observation, the door to the shed was open and its light was sufficient to reveal what was happening. The court noted that the use of binoculars did not change the character or admissibility of the evidence gained. 392 F.2d at 434.

Similarly, in Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), the court upheld the warrantless use of binoculars by a police agent to look through the window of the defendant’s shop. The court noted that the activity had occurred prior to the holding in Katz, but even assuming that the rationale did apply, the defendant had failed to demonstrate a reasonable expectation of privacy by leaving the windows of his shop un-curtained. 263 A.2d at 907.

Other jurisdictions, however, have rejected the rationale of Fullbright and Hernley. See United States v. Taborda, 635 F.2d 131 (2d Cir. 1980); United States v. Kim, 415 F.Supp. 1252 (D.Haw.1976). Taborda involved the surveillance of a defendant’s residence with a high-powered telescope. Kim involved surveillance by telescope and by binoculars; however, the emphasis appears to be on the danger imposed by more sophisticated devices such as telescopes:

It is inconceivable that the government can intrude so far into an individual’s home that it can detect the material he is reading and still not be considered to have engaged in a search.... If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a warrant; otherwise, they have no right to peer into people’s windows with special equipment not generally in use.

415 F.Supp. at 1256.

In State v. Barnes, 390 So.2d 1243 (Fla. 1st DCA 1980), the First District approved of the rationale of Taborda and Kim. In Barnes, a police officer observed a plant growing on defendant’s property but was unable to identify it as marijuana with his binoculars. The observation was made during the daylight hours from adjoining property. Using a high-powered telescope, the officer was able to identify the plant. He then returned at night with additional officers but without a search warrant and arrested the defendant.

In affirming the order of suppression, the court rejected the state’s argument that the marijuana had been properly seized as being in “plain view”:

The plain view exception to the warrant requirement cannot in our opinion be used to justify the seizure of evidence clearly identifiable only through a telescope, the warrantless use of which constitutes an intrusion into an area not reasonably expected to be exposed to the public. “If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a [search] warrant.” United States v. Kim, 415 F.Supp. 1252 (D.Haw.1976). Otherwise, we conclude such conduct is an intrusion into an area in which there is a reasonable expectation of privacy, accomplished by special equipment not in general use.

390 So.2d at 1244.

The court also noted that “Between the officer’s daytime attempts to view the marijuana from the neighbor’s yard and his return at night with two additional officials, when the evidence was seized, a warrant could have been obtained.” Id. Thus, by implication, the court indicated that the use of binoculars did not constitute an impermissible search.

In the case before us, green foliage which appeared to be marijuana could be seen through the open door and protruding from the top of the greenhouse by an officer standing on adjacent property. If the contraband had been observed solely by the naked eye, no search would have occurred. See State v. Rickard, No. 54,877 (Fla. April 29, 1982) [1982 F.L.W. 193], We now hold that the use of ordinary binoculars here does not alter this conclusion.

As to the seizure of the contraband, we feel that this matter is controlled by the principles enunciated in State v. Rickard. There the defendant’s actions in erecting a chain link fence and a plywood partition to obstruct the view of a neighbor gave rise to a reasonable expectation of privacy even though the contraband was visible from a nearby orange grove. Here appellant took similar measures to guard her privacy. Before law enforcement officers could lawfully enter this constitutionally protected area and seize the contraband, they were required to have a warrant or warrant exception. Id.; Ensor v. State, 403 So.2d 349 (Fla.1981). Here the officer obtained a warrant before seizing the marijuana in the greenhouse. As we have concluded that in these circumstances the enhanced observation could properly serve as the basis for this warrant, we find no violation of appellant’s right to be free from unreasonable searches and seizures.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . Here the property was fenced and guarded by several large dogs, the greenhouse was situated within the fenced property at a distance estimated to be between 120 and 220 feet from the fence, and the walls of the greenhouse were made with a translucent material which obscured the view of the interior.


author: COWART, Judge.

text:
    SUN FIRST NATIONAL BANK OF ORLANDO, as Trustee, and Hattie Dann, Appellants, v. Frederick K. GRINNELL a/k/a Fred K. Grinnell, John G. Pierce, William C. Demetree and Jack C. Demetree, Appellees.
    No. 81-972.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Rehearing Denied July 9, 1982.

      James B. Byrne, Jr., Orlando, for appellants.
    James O. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, and John G. Pierce, Orlando, for appellees.
   COWART, Judge.

This case involves the allegedly improper refusal of a mortgagee to release property under a partial release provision of a mortgage.

In December of 1970, Ernest C. and Hattie Dann, as sellers, and two of the appel-lees, as buyers, entered into a contract for the sale and purchase of 19.34 acres of land for a purchase price of $255,000, payable $66,250 down and the balance of $188,750 to be evidenced by a promissory note payable in 21 periodic annual payments of principal and interest and secured by a purchase money mortgage. The contract provided that the mortgage would contain a subordination clause and a partial release provision to the effect that:

Upon written consent of the Mortgagee, which said consent shall not be unreasonably withheld, property may be released from the lien of this mortgage upon payment to Mortgagee of the portion of the balance due on the note and mortgage which the number of acres requested to be released bears to the total acreage covered by this mortgage.

Thereafter, the sellers conveyed said property subject to said contract to the predecessor of appellant bank as trustee under an inter vivos trust. In December, 1971, the real estate transaction contemplated by the contract was closed and the appellant’s predecessor trustee-bank accepted the balance of the down payment, delivered a deed and accepted the buyers’ note and mortgage with the release provision, all as provided in the contract. The mortgagors took possession of the land and improvements and made certain payments on the note. In May of 1977, the mortgagors requested a partial release of 8.092 acres. The mortgagee’s agent responded that 4.1446 acres was “the maximum we feel can be released ... at this time.” On September 26, 1977, the mortgagors responded that they believed they were entitled to a release of 8.092 acres, but, since there was no question about a release of 4.1446 acres, requested a partial release of that acreage to be delivered at the earliest possible date. The mortgagee did not respond to the letter of September 26, 1977, nor to two follow-up letters. After some disputes and payments and delay, on December 27,1977, the mortgagee confirmed that all payments were then current and stated “we are now in the process of executing the partial release of mortgage.” Nevertheless, the mortgagee did not deliver the partial release, despite further requests. Finally, by letter dated June 23, 1978, the mortgagee notified the mortgagors that no property would be released because the unpaid balance on the note would be inadequately secured by the value of the mortgaged property if a release was granted.

Alleging the background facts and that the mortgagee had wrongfully denied a partial release and that the mortgagors had therefore elected to rescind the sale, the mortgagors brought an action against the mortgagee and Hattie Dann. Count I sought rescission of the original land sale contract, cancellation of the deed and the purchase money note and mortgage and restitution of all sums paid and expended in connection with the purchase, interest thereon and court costs. Count II sought money damages for breach of the mortgage provision for partial release of secured lands upon partial payment of the secured indebtedness. The mortgagee answered, alleged certain affirmative defenses and counterclaimed for foreclosure of the mortgage for non-payment of an accelerated principal balance of $142,400.53.

After an arduous trial, the trial court cancelled the contract, rescinded the deed, note and mortgage and entered judgment in favor of the mortgagors and against the mortgagee and Hattie Dann in the sum of $333,141.58.

The bank and Hattie Dann appeal, arguing four points:

(1) That the mortgagee did not unreasonably withhold a partial release of the mortgaged property in view of the mortgagor’s prior late payments, the failure of the mortgagors to properly maintain the mortgaged property and an appraisal indicating that the mortgaged property was worth less than the then balance of the secured indebtedness.

(2) That, upon rescission, mortgagee should have been allowed, as restitution, a reasonable amount for the use value for the nine years and seven months that mortgagors possessed the security property.

(3) The remedies of rescission and damages for breach of contract being mutually exclusive, the mortgagor should have been required before trial to have elected remedies.

(4) Undetailed expert witness fees should not have been awarded as costs without proof of their reasonableness.

With all due respect to counsel and the trial court, we believe that there are certain fundamental misconceptions inherent in this litigation. The original contract for the sale and purchase of land is the usual bilateral executory contract, each party being both a promisor and a promisee. The seller promises to convey title to land by delivery of a deed to the buyer in exchange for the buyer’s promise to pay the seller the purchase price. The two sets of promises are mutually dependent and conditional, requiring concurrent performances. At the “closing,” both parties simultaneously and fully discharge their promises and contractual duties by performance when the seller delivers a proper deed and the buyer delivers the purchase money in full.

The first complexity arises when the seller agrees to accept as consideration both a buyer’s promise to deliver some money at closing and the buyer’s formal promise to pay the balance of the purchase price in future installments (a promissory note) and to secure the promised future performance by a lien against the subject property in the form of a purchase money mortgage. Again, at “closing” both parties simultaneously and fully discharge their promises and contract duties by performance when the seller delivers a proper deed and the buyer delivers purchase money due at closing and the promised note and mortgage. It is important to recognize that, while such sales contracts customarily state a total purchase price as composed of an earnest money deposit, cash at closing, balances on assumed mortgages and balances evidenced by the buyer’s promissory note secured by a purchase money mortgage, the true nature of such sales agreement is that the buyer’s promise is not an agreement to pay the full purchase price in money but is a promise to make and deliver secondary contracts in the form of a promissory note and mortgage, just as he may “pay” part of the purchase price by assuming some existing indebtedness already secured by an existing mortgage on the property. That this is true is demonstrated by the fact that, if the deferred portion of the purchase price, or part of it, is not paid, the then owner of the indebtedness that originated in the real estate sale, whether that owner be the original seller or some subsequent owner, brings action in debt, not on any promise in the original contract, but on the buyer’s promissory note and makes a claim for security against the land, not under the original contract, but under and through the purchase money mortgage. Thus, as it relates to a note and mortgage given as part of the consideration, the land sale contract is a true “contract to make a contract” and the purchase money note and mortgage when later executed are in performance and satisfaction of a provision of the original sales contract, and not mere memorials of it. While the mere execution of such note and mortgage discharges the buyer’s contractual duty to provide it as the deferred portion of the purchase price, the contractual duties under the note and mortgage are substituted for the original contractual duty under the sales contract that is discharged and they become the operative expressions of assent and of the contractual relationships then existing between the parties to them or their subsequent assignees.

Sometimes, as here, the land sales contract provides that the seller agrees to accept, as security for a promissory note which is to be given as part performance, a mortgage (which mortgage is also part performance) which contains a covenant to subordinate or to release certain lands from the lien of the mortgage under certain circumstances. Obviously, such a covenant in a mortgage is not personal, merely obligating the seller, but is collateral to and “runs with” the mortgage, burdening it in the hands of the original mortgagee or anyone who subsequently owns the mortgage, similar to the way that the mortgage itself burdens the land with an encumbrance while it is owned by the original buyer (the mortgagor) or by anyone who thereafter owns the land. The release provision exists in favor of the owner of the land subject to the mortgage, is for his benefit, and constitutes an obligation of the original mortgagee or any subsequent owner of the mortgage indebtedness.

Just as the execution of the note and mortgage fulfills the buyer’s contractual promise to deliver such note and mortgage, likewise the acceptance by the seller of the mortgage with the positive covenants requiring subrogation and partial release of security constitutes performance in satisfaction by the seller of the provision of the sales contract that the mortgage would contain such a covenant. The only way the contract seller could breach the provision of the sales contract relating to the subrogation and partial release covenants would be for the seller to refuse to accept a mortgage because it contained such covenants. Once the mortgage containing the covenants is accepted by the seller, insofar as the subro-gation and partial release clauses are concerned, the fact that the mortgage originated to secure purchase money is immaterial to the relationships of the parties and the remedy of the mortgagor (or subsequent landowner subject to such mortgage) for breach of that provision by the mortgagee (or subsequent owner of the mortgage indebtedness) is the same as that of any other owner of lands upon breach of such a release provision by a mortgagee. Of course, either the original seller or any subsequent holder of the mortgage could, as mortgagee, breach the subrogation and partial release covenants of the mortgage by failing to abide by the terms of the covenants themselves, but in that event the landowner cannot rescind the mortgage because those covenants of the note and mortgage relating to payment of money and those relating to subrogation and partial release are independent and unconditional. The landowner who is the beneficiary of the subrogation and partial release covenants in the mortgage is, therefore, relegated to damages at law for their breach.

In this case, the original contract for sale and purchase was fully performed when the real estate transaction was closed in December 1971, the exact performance of all duties on both sides at that time necessarily discharged those duties and the contract, being fully executed, ceased to be a contract and could not thereafter be breached or rescinded for breach. Such a fulfilled and exhausted contract has historical, but no legal, significance and is not subject to rescission because of any breach of independent covenants that may have originated and come into existence as the result of some performance of its provisions. Accordingly, the remedy of rescission and cancellation of the original contract for sale and purchase of land in this case was not available for any alleged breach of the covenant for partial releases contained in the mortgage given as part performance of the original contract. Therefore, the final judgment rescinding and cancelling the original contract of sale and purchase and the resulting deed, note and mortgage, is hereby reversed.

We have reviewed the question of whether the mortgagee in fact and in law breached the release provision of the mortgage. That provision in this case differs from the usual provision as to such matters in that under the usual provision the right to partial releases is absolute, while here the provision for release of land in the ratio that the amount paid on the promissory note bears to the original amount of secured indebtedness is conditional upon the mortgagee not “unreasonably” withholding such partial release. There appears to be a dearth of legal authority construing such a provision, but a profitable analogy can be made to cases involving clauses in leases which provide for subleasing only with the consent of the lessor, which consent likewise is not to be “unreasonably withheld.” Cases collected in Annot., 54 A.L.R.3d 679 (1973) (“Construction and Effect of Provision in Lease That Consent to Subletting or Assignment Will Not Be Arbitrarily or Unreasonably Withheld”), indicate that the standard to be applied to determine whether consent was unreasonably withheld is that of the reasonably prudent man and that consent is not to be arbitrarily withheld. The court in Mitchell’s, Inc. v. Nelms, 454 S.W.2d 809 (Tex.Civ.App.1970), defines “unreasonable” in the context of one of these lease provisions as follows:

Webster’s New International Dictionary, 2d Edition, defines “Unreasonable” as:
Not conformable to reason; irrational; also, not governed or influenced by reason. Beyond the bounds of reason or moderation; immoderate; exorbitant.
Some courts have said that the term “unreasonable” conveys the same idea as irrational, foolish, unwise, absurd, silly, preposterous, senseless, and stupid.
Another court has said that the determination of what is “unreasonable” is one where, under the evidence presented, there is no room for difference of opinion among reasonable minds.

454 S.W.2d at 814. In Whitman v. Pet Inc., 335 So.2d 577 (Fla. 3d DCA 1976), cert. dismissed 348 So.2d 951 (Fla.1977), the court stated that the burden was on the lessee to show that consent was unreasonably withheld and was not on the lessor to show that consent was reasonably withheld. In order to establish unreasonable withholding, “there must be competent, substantial evidence of circumstances that establish the refusal as unreasonable.” Popovic v. Florida Mechanical Contractors, Inc., 358 So.2d 880, 885 (Fla. 2d DCA 1978).

Here, the appellees did not meet their burden of establishing that refusal to consent to a partial release was unreasonable. In fact, the opposite was established. The uncontradicted evidence showed that Sun Bank’s refusal to execute the partial release was based on a poor payment history, an appraisal of the property which showed the value of the property to be less than the outstanding balance on the note and the condition of the property. These cannot be said to be arbitrary considerations on the part of the bank. Appellees argue that their appraisal showed the property to be worth more at the time of the request for release than the outstanding balance on the note and that the trial court accepted the mortgagor’s appraiser’s testimony to be convincing and rejected that of the bank’s appraiser. However, the question here is not what the value of the property was at the time the release was requested; the question is whether the mortgagee was justified in relying on its appraiser’s appraisal in refusing the release. The appraiser was the mortgagee’s regular appraiser and it was not shown that his appraisal was unreasonable on its face, so that the bank could not reasonably rely on it; consequently, the trial court erred in finding that the mortgagee’s refusal of a partial release was unreasonable.

The trial judge’s determination that refusal was unreasonable was based primarily on the time lapse between the first request and the eventual refusal. We do not condone the mortgagee’s delay in communicating its decision not to execute a release under the circumstances, but note that if appellees had been entitled to a release, they might have a cause of action for damages against Sun Bank for delaying execution of the release. However, since they were not entitled to a release under these facts, no damages accrued.

Other than as included in this opinion, we do not deem it necessary to consider the appellant’s formal points on appeal. We reverse the final judgment herein and remand the cause for the trial court to consider appellant’s suit to foreclose the mortgage.

REVERSED AND REMANDED.

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

      . The complaint joins Hattie Dann as a party defendant but does not mention her other than for the recital that she was one of the original contract vendors and a grantor to appellant’s predecessor trustee-bank. No motion was filed testing the sufficiency of the complaint to state a cause of action against Hattie Dann. A careful examination into the plaintiffs theory for joining Hattie Dann would have revealed conceptual infirmities in the plaintiffs original cause of action which might have averted much of the trial and this appeal.

      . This sum apparently comprised the following:
      Down Payment $ 66,250.00
      Mortgage Payments, principal and interest 164,666.81
      Real Estate Taxes Paid 24,372.66
      Miscellaneous 100.00
      Court Costs 4,254.62
      Pre-judgment Interest on all Disbursements 90,521.28 $350,165.37
      Less
      Net Receipts from Rental of House 752.10
      Net Income from Sale of Fruit and Rental of Signs 8,026.31
      '/2 of Finder’s Fee 12,500,00 21,278.41
      $328,886.96
      Apparently the court cost figure of $4,254.62 was
      added in again 4,254.62
      TOTAL $333,141.58

      . For the unusual case where this occurred, see Murrell v. Robertson, 402 So.2d 590 (Fla. 5th DCA 1981).

      . The original mortgagee and all subsequent owners of the mortgage indebtedness are bound by the covenants in the mortgage, not because of any original expressed contractual assent (payees of promissory notes and mortgagees of mortgages customarily do not sign or otherwise expressly assent or agree to the terms of such documents), but because the mortgagee or subsequent owner of the mortgage claiming the benefits of the mortgage is bound by the covenants contained therein, as grantees who accept the benefits of deeds are bound by the covenants in them that might run in favor of others.

      . See 1 S. Williston, A Treatise On The Law of Contracts § 14 (3d Ed. 1957).


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

text:
    James HARMON, III, Appellant, v. STATE of Florida, Appellee.
    Nos. AH-224, 225, 226, and 227.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Rehearing Denied July 26, 1982.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Harmon complains that the six consecutive 100-year sentences imposed by Judge Nimmons for six felonies, each punishable by “imprisonment for a term of years not exceeding life imprisonment,” sections 782.-04(2), 787.01(2), and 812.13(2)(a), Florida Statutes (1981), exceed the statutory maximum sentence in that the court retained jurisdiction for one-third of each sentence, aggregating 200 years, to review the Parole Commission’s parole release order. Sec. 947.16(3). While the effect of the sentence package is that the judge retained power to review and vacate any release order that the Commission may enter during Harmon’s lifetime pursuant to objective parole release criteria that are themselves mandated by statute, that, apparently, is precisely what the legislature intended by section 947.16(3) to make possible in these circumstances. The sentence for each offense is “no harsher than if the court had imposed the maximum sentence of life.” Alvarez v. State, 358 So.2d 10 (Fla.1978).

Whether the otherwise lawful consecutive sentences are expressed as for life or for 600 years, Harmon’s life is both the practical and the lawful limit to the sentences imposed; only the period for exercising the court’s parole review powers, not the maximum period of imprisonment, has been extended by this order. Harmon suggests no convincing reason why the legislature may not thus empower the sentencing court to extend for the period of Harmon’s life the period of parole review, nor why the sentencing court may not in this fashion exercise that power.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: MILLS, Judge.

text:
    James Lisk GADDY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-293.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Rehearing Denied July 26, 1982.
    James Lisk Gaddy, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

We affirm the Commission’s determination of Gaddy’s presumptive parole release date (PPRD). The record reveals that Gad-dy was advised of the aggravating factors used in determining his PPRD and he signed the examiner’s report.

There was no error in aggravating Gaddy’s PPRD for multiple separate offenses even if he was given concurrent sentences. Florida Administrative Code Rule 23-19.01(5); Florida Administrative Code Rule 23-19.01(5), note 7.

Also, there was no error in classifying Gaddy’s offense as a “Category VI, Greatest (Most Serious — I),” because “If an offense can be classified under more than one category, the most serious applicable category is to be used.” Florida Administrative Code Rule 23-19.05, note 3.

SHIVERS, J., and CAWTHON, VICTOR M., Associate Judge, concur.


text:
    HARDAWAY CONSTRUCTION COMPANY and Underwriters Adjusting Company, Appellants, v. Linda BROOKS, individually and as natural guardian of Jeffrey Ryan Brooks and Laura Renee Brooks, Appellee.
    No. AH-315.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Rehearing Denied July 26, 1982.

      Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellants.
    Ronald W. Self of Kelly, Denney, Pease & Allison, Columbus, Ga., for appellee.
   MILLS, Judge.

The employer/carrier appeal a workers’ compensation order awarding death benefits following the murder of John R. Brooks, the husband and father of the ap-pellees. We affirm.

The deceased traveled from his Columbus, Georgia, home to Tampa to conduct an audit for his employer. The employer paid all traveling expenses, including room and meals. He worked one day and made arrangements to return the next day. On the evening of the first day, following a side trip to a dog track, he returned to his motel room. He was found shot to death the next morning in a secluded area of Polk County.

A motel is a traveling employee’s place of employment. It is a reasonable factual determination that the crime began at the motel room. We will not disturb this finding by the deputy commissioner.

The evidence of a causal connection in this case is slight. However, bearing in mind that the Workers’ Compensation Act is liberally construed in favor of claimants, the burden of showing a nonemployment cause is upon the employer/carrier when the “accident” occurs at the place of employment. We note that there was evidence of other violent crimes connected with the audited company and there was a perceived need for bodyguards by the replacement auditor.

There was no error in the finding that Brooks' murder arose out of and in the course of employment.

McCORD and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    Edward J. GOBIE, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent. John Edward JACKSON, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent. Willie James LOGAN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    Nos. AJ-383, AK-253 and AL-67.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Rehearing Denied July 26, 1982.

      Edward J. Gobie, John Edward Jackson and Willie James Logan, pro se.
    Malcolm S. Greenfield, Gen. Counsel, and Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for respondent.
   PER CURIAM.

These three cases involve the Florida Parole and Probation Commission’s (Commission) invocation of § 947.18, Fla.Stat. (1981), to decline to make a presumptive parole release date (PPRD) an effective parole release date (EPRD).

Section 947.18, Fla.Stat. (1981), gives the Commission ultimate discretion in deciding whether to parole an inmate by providing:

No person shall be placed on parole until and unless the commission shall find that there is reasonable probability that, if he is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.

On its face, § 947.174(6), Fla.Stat. (1981), which prescribes the procedure for making the PPRD the EPRD, indicates that the only proper criterion for consideration is whether the inmate’s institutional conduct has been satisfactory. However, § 947.18 provides: “No person shall be placed on parole merely as a reward for good conduct or efficient performance of duties assigned in prison.”

Section 947.18 was originally enacted by the Florida Legislature in 1941; it was adopted as part of the Objective Parole Guidelines Act in 1978, thereby reflecting a legislative intent to retain ultimate discretion in paroling an inmate with the Commission. In Payton v. United States, 636 F.2d 132, on rehearing, 649 F.2d 385 (5th Cir. 1981), the Fifth Circuit interpreted a substantially similar provision in the federal objective parole statutes. That court found that the objective criteria and the provision precluding parole unless the parole board determines that the inmate “will live and remain at liberty without violating the laws” and that his “release is compatible with the welfare of society”, limits the federal parole board’s previously unstructured discretion in the parole decision. But see, Berry v. State, 400 So.2d 80 (Fla. 4th DCA 1981). Further, Florida law has consistently found that there is no right to parole, even subsequent to the enactment of the Objective Parole Guidelines Act. Parole lies within the sound discretion of the Commission. Ivory v. Wainwright, 393 So.2d 542, 544 (Fla.1980); Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 721 (Fla.1974); Arnett v. State, 397 So.2d 330, 332 (Fla. 1st DCA 1981); and Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir. 1982).

However, we agree with Payton, supra, and find that Florida’s Objective Parole Guidelines Act has restricted the Commission’s previously unbounded discretion in granting parole. The Objective Parole Guidelines Act’s ultimate intent is to prevent arbitrary and capricious action by the Commission. § 947.002(1), Fla.Stat. (1981). Section 947.165(1), Fla.Stat. (1981), requires the Commission to develop and implement objective guidelines “which shall be the criteria upon which parole decisions are made.” However, neither the statutes nor the Commission’s rules provide guidelines concerning the invocation of § 947.18 to refuse to authorize an EPRD. In the instant cases and in the future, the Commission should explicate its reasons for its actions in a manner sufficient to permit judicial review for a determination of whether the Commission has overreached the legislative grant of discretion provided in the Objective Parole Guidelines Act.

In the three cases before us, the Commission has not only invoked § 947.18 to refuse to authorize EPRDs but has also established amended PPRDs and given written reasons for its actions. Section 947.173(1), Fla.Stat. (1981), provides that an inmate may seek review of the Commission action setting his PPRD. In two of the cases before us, no § 947.173 review was sought; in the third, the review was sought but has not been answered by the Commission. We therefore, direct the Commission to grant § 947.173 reviews to these three petitioners, setting forth in writing explanations for its actions. Section 947.173 reviews should be granted when the Commission acts to establish a PPRD, as in the situation presented here. We held in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), that inmates may appeal final agency action of the Commission pursuant to § 120.-68, Fla.Stat. (1981). Accordingly, we deny these petitions, but order the Commission to grant § 947.173 reviews, should petitioners seek them.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.

      . See § 947.174(6), Fla.Stat. (1981).

      .Both Payton and Berry involved the applicability of the doctrine of sovereign immunity and the federal and state tort claims acts to the federal and state parole boards. In Payton, the court determined that the parole board could be held liable to a private party for gross negligence in its decision to parole an inmate who was a confirmed homicidal psychotic. In Berry, the Florida court found that the Florida Parole and Probation Commission’s decision to parole the inmate was sufficiently discretionary to preclude bringing a tort action against the Commission. The court expressly did “not decide the question whether the Parole and Probation Commission would enjoy immunity in all instances including, for example, the negligent parole of a prisoner in direct contravention of a legislatively crafted and judicially imposed mandatory minimum sentence.” Berry, 400 So.2d 80, at 86.

      . Section 947.172(3), Fla.Stat. (1981), and Rule 23-21.15(5), Fla.Admin.Code, require the Commission to set forth its reasons in writing when it goes outside the matrix time range in setting a PPRD and when it refuses to authorize an EPRD.

      . We are of the opinion that the 60-day time limit in § 947.173(1), Fla.Stat. (1981), is not jurisdictional; under these circumstances, where the Commission has amended PPRDs to be set as much as 11 years beyond the previously established PPRDs, and done so no more than one month prior to the date presumed to be the parole release date, the inmates are entitled to § 947.173 reviews in order to rebut the information relied upon by the Commission to extend their PPRDs.


text:
    Dorothy AMOS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT IV, COUNTY DUVAL, UNIT 13, Appellee.
    No. AB-99.
    District Court of Appeal of Florida, First District.
    June 30, 1982.
    Mark Greenberg, of Jacksonville Area Legal Aid, Inc., Jacksonville, for appellant.
    Susan B. Kirkland, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   ON MOTION TO REVIEW DENIAL OF MOTION TO PROCEED IN FORMA PAUPERIS

PER CURIAM.

Appellant filed a Motion for Permission to Proceed in Forma Pauperis with the Department of Health and Rehabilitative Services (HRS) pursuant to § 57.081 Fla. Stat. (Supp.1980) and Florida Rule of Appellate Procedure 9.430. The motion was accompanied by an insolvency affidavit executed by Ms. Amos and an attorney’s affidavit executed by her counsel. The attorney’s affidavit stated that he had made an investigation to ascertain the truth of appellant’s affidavit and believed it to be true; that he had investigated the nature of her position and in his opinion it was meritorious; and that he had not been paid or promised payment or remuneration and intended to act as attorney without compensation.

HRS denied the motion solely because the attorney’s affidavit did not include a statement indicating whether the attorney’s employer, agency, or association had funds available to pay a filing fee. As authority for the denial, HRS cited Chappell v. Florida Department of Health and Rehabilitative Services, 391 So.2d 358, 361 (Fla. 5th DCA 1980), in which the Court stated:

The attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees, and the lower court or agency may consider those matters in determining whether or not the applicant is able to pay the filing fees.

We disagree with the above-stated portion of the Chappell decision.

The existence of the right of indigents to proceed without payment of costs is a substantive one, and is therefore properly defined by the Legislature. Formulating procedures for availing oneself of the right is the exclusive province of the Florida Supreme Court pursuant to the rule-making authority vested in it by Article V, Section 2(a) of the Florida Constitution. The requisite content of the attorney’s affidavit or certificate accompanying a motion for a certificate of indigency is specified in § 57.081(1) Fla.Stat. (Supp.1980), and the procedure for obtaining a certificate of indigency is found in Rule 9.430. Neither the rule nor the statute require or even suggest that the attorney must affirm that his or her employer, association or agency does not have funds available to pay filing fees.

We certify that this decision is in direct conflict with Chappell v. Florida Department of Health and Rehabilitative Services, 391 So.2d 358, 361 (Fla. 5 DCA 1980), review granted Case No. 60,838 (Fla. November 19, 1981).

The order denying the motion to proceed in forma pauperis is QUASHED with instructions to issue a certificate of indigency,

ROBERT P. SMITH, Jr., C. J., and McCORD and ERVIN, JJ., concur.


text:
    CORRY 98 CORPORATION, Solferino Trading Corporation, Kyle Whitehouse, Luke Whitehouse and Sterling E. Larson, Appellants, v. Stanley J. HARTE, Appellee.
    No. AI-86.
    District Court of Appeal of Florida, First District.
    June 30, 1982.
    Rehearing Denied July 30, 1982.
    Donald H. Partington of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for appellants.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Substantial competent evidence supports the trial court’s judgment. It is therefore AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    The STATE of Florida, Appellant, v. D. A. J., a juvenile, Appellee.
    No. 81-2046.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Upon the appellee’s forthright confession of error filed in this appeal, a confession which, in our view, is eminently correct, we reverse the trial court order under review [which excluded the state’s witnesses from testifying at trial and dismissed the juvenile delinquency petition herein] and remand the cause to the trial court for further proceedings. State v. Ashley, 393 So.2d 1168 (Fla. 3d DCA 1981); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Velasquez, 305 So.2d 837 (Fla. 3d DCA 1974); State v. Roig, 305 So.2d 836 (Fla.1974).

Reversed and remanded.


text:
    GRAPIN & CHAYKIN, M.D., P.A., and Bertram Grapin and Louis Chaykin, individually, Appellants, v. TURNOFF & FOX, M.D., P.A., a Florida Professional Association, and Howard Turnoff and Steven Fox, individually, Appellees.
    No. 81-1530.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Kelly, Black, Black & Earle and Hugo L. Black, Jr., Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The appellants have filed a motion for rehearing of our per curiam opinion filed on May 25, 1982. Appellants urge, inter alia, that our opinion affirming the order of the trial court which imposed discovery sanctions should be vacated on the ground that our holding is in conflict with this court’s decision in Grapin & Chaykin v. Turnoff & Fox, 413 So.2d 133 (Fla. 3d DCA 1982), in which a different panel held:

The trial court order adjudging plaintiffs in contempt of court and ordering them to pay to the defendants the sum of $250 per day for each and every day they remained in violation of orders requiring them to make discovery, is void for the failure of the order to contain findings that the alleged contemnors had the present ability to comply with the underlying discovery orders. Garo v. Garo, 347 So.2d 418, 419 (Fla.1977); Epstein v. Epstein, 345 So.2d 398 (Fla. 3d DCA 1977).

Reversed.

We recognize that our opinion of affirmance conflicts with the holding in Grapin & Chaykin v. Turnoff & Fox, supra, therefore, rehearing is granted and our opinion in this case is vacated. Upon rehearing we hold that the order of the trial court under review fails to find that the appellants have the present ability to comply, therefore it should be and is hereby reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.

Reversed.


author: HERSEY, Judge.

text:
    Edward MORNING a/k/a Samuel Fisher, Appellant, v. STATE of Florida, Appellee.
    No. 81-2043.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Rehearing Denied Aug. 4, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

At the close of the state’s evidence during a probation revocation hearing, appellant raised, for the first time, the illegality of the stop which resulted in an alleged “inventory search” and the seizure of incriminating evidence by law enforcement personnel. The trial court denied appellant’s motion to suppress as untimely.

Appellant was arrested for the incident which constituted a violation of the conditions of his probation on or about July 31, 1981. He first appeared before the trial judge on August 12, 1981 at which time the public defender was appointed to defend him. On August 20,1981 the public defender indicated to the trial judge that he had not yet had an opportunity to meet with appellant. On September 9,1981 the public defender had not completed discovery and requested a continuance of the final hearing. The parties appeared again before the court on September 17, 1981 on a defense motion to compel better discovery. The final hearing occurred on October 19, 1981. Clearly, appellant had ample time and opportunity to determine whether a motion to suppress was in order prior to that date. Nonetheless there was no such motion filed until after the state rested its case.

Because of appellant’s status as a probationer he had only a qualified right to the continued protection of the fourth amendment prohibition against unreasonable searches and seizures. His status did not, however, diminish the protection afforded by Article I, Section 12, of the Florida Constitution, the last sentence of which “is an express constitutional exclusionary rule as distinguished from the federal rule which exists by ease decision.” Grubbs v. State, 373 So.2d 905, 909 (Fla.1979). See also Nealy v. State, 400 So.2d 95 (Fla.3d DCA 1981). Grubbs established the rule that probationer’s status may enter into the determination of whether a search or seizure was reasonable under the circumstances (which circumstances include probationer’s status). The record makes a prima facie showing that the evidence introduced at appellant’s revocation hearing resulted from an unlawful stop. It was, therefore, at least arguable that the evidence was tainted and subject to exclusion upon timely objection to its legality.

The issue is whether Rule 3.190(h)(4) of the Florida Rules of Criminal Procedure applies in probation revocation hearings and, if so, whether it was properly applied under the facts of this case. The rule provides:

The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.

In a case involving the discovery rules the supreme court observed:

Additionally, we recognize the clear distinctions between a criminal trial and a violation of probation proceeding. A probation revocation hearing is more informal, the charging affidavit need not comply with the requirements indictments and information must meet, the strict rules of evidence can be deviated from, and the admission of hearsay is not error. Furthermore, there is a lesser burden of proof because only the conscience of the court must be satisfied. This informality highlights the desirability of pre-hearing discovery; the probationer needs the greater accuracy and reliability which discovery affords.

Cuciak v. State, 410 So.2d 916, 918 (Fla.1982).

Appellant’s argument assumes that standards of procedure are to be lowered to benefit the probationer. That is not the case. Probation is a privilege or license granted to one convicted of criminal activity. Revocation of that status because of a violation of conditions imposed in lieu of incarceration is not and obviously should not be circumscribed by the panoply of strict procedural requirements with which the presumption of innocence and other constitutional rights surround an individual initially accused of a crime. In short, the state, having indulged in an act of grace by granting probation, should not be unduly hindered by procedural niceties in seeking to undo that indulgence when a probationer shows his continuing contempt for the rules of an orderly society by engaging in further criminal activity.

Appellant thus loses the argument that, while Rule 3.190(h)(4) may apply in a criminal trial context, he is free to urge an unlawful stop, search or seizure at whatever stage of a probation revocation hearing that suits his own convenience.

There are sound policy reasons for requiring that motions to suppress be filed in advance of trial. Law v. State, 204 So.2d 741 (Fla.2d DCA 1967). Compliance with the rule permits the state, upon the filing of a motion to suppress, to obtain and present evidence on the issue thus raised, which it is obviously unable to do when first confronted with the issue after it has presented its case in chief at trial. The rule also permits the state, in a case where the motion to suppress is granted, to appeal that order (Rule 9.140(c)(1)(B), Florida Rules of Appellate Procedure) so that both parties know before trial whether evidence thus objected to will be admissible at trial.

On the other hand, the rule is not mandatory in requiring that a motion to suppress be made pre-trial. It is expressly provided that the court may entertain such a motion during trial.

For the very policy reasons previously adverted to, however, the trial court’s exercise of discretion in denying the motion here as untimely must be sustained. Appellant, prior to the final hearing, had sufficient time to discover and consider and act upon the facts giving rise to the motion to suppress. His failure to do so compels an affirmance.

The argument is frequently encountered that requiring adherence to any procedural rule “elevates form over substance.” Form (the procedural rules) is the skeleton which holds the body of substantive law together as a cohesive whole. Without the former the latter might well become unavailable and unenforceable. The lack of procedural rules on the one hand or the selective enforcement of those rules on the other will inevitably result in chaos, necessarily accompanied by diminished public esteem for the judicial process. In truth, then, it is not accurate to always equate the enforcement of a procedural rule with giving it preeminence over substantive rights. There is a delicate balance which must be struck between the two. In proper perspective the requirement of an orderly system ultimately assures rather than constricts the availability of substantive rights. We do no more than maintain that perspective here.

We specifically do not foreclose further inquiry into the issue of whether or not the evidence involved here was illegally obtained and thus fatally tainted. Nor is our opinion intended to prejudice appellant’s right to obtain such further inquiry by the use of any means available to him and under the constitution, statutes, rules of procedure or case law. We simply hold that the trial court acted within the parameters of his sound discretion in denying appellant’s motion to suppress, filed as it was, untimely.

AFFIRMED.

HURLEY and DELL, JJ., concur.


author: JOANOS, Judge.

text:
    BOCA RATON SPRINKLER and South Carolina Insurance Company, Appellants, v. John Birdean ANDREWS, Appellee.
    No. AF-354.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Marjorie D. Gadarian of Jones & Foster, P.A., Vero Beach, for appellants.
    Jerry Oxner, West Palm Beach, for appel-lee.
   JOANOS, Judge.

The employer/carrier appeal a compensation order. We affirm.

There was no error in not apportioning the disability. There was competent substantial evidence that the former injury was asymptomatic and not progressing, Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967).

The selection of January 21, 1981, as the date of maximum medical improvement is supported by competent substantial evidence.

The evidence reflects that claimant’s job search was sufficient.

McCORD and SHIVERS, JJ., concur.