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

text:
    KEY HAVEN ASSOCIATED ENTERPRISES, INC., Appellant, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and Dept. of Environmental Regulation et al., Appellees.
    No. TT-255.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Rehearing Denied July 13, 1981.
    Mallory H. Horton, of Horton, Perse & Ginsberg, and David Paul Horan, of Taylor, Brion, Buker & Greene, Key West, for appellant.
    Terry Cole and Kent A. Zaiser, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Appellant Key Haven urges that the circuit court erred by dismissing, for Key Haven’s failure to exhaust Chapter 120 remedies in a licensing dispute, its inverse condemnation complaint against the Department of Environmental Regulation. Judge Hartwell’s decision to abstain was the preeminently correct response to a litigant who sought extraordinary constitutional remedies after abandoning opportunities for wholly adequate administrative and judicial remedies within the Chapter 120 process. We affirm.

Between 1964 and 1968 the trustees of the Internal Improvement Trust Fund (IIF) sold Key Haven’s president and predecessor in title 185 acres of submerged shallow flat-lands in the Keys of Monroe County. The trustees reserved only fractional undivided interests in any petroleum and other valuable minerals beneath the bottomlands. The price was $300 per acre. In 1972, four years after the last purchase, Key Haven applied to the trustees for a permit to dredge 679,000 cubic yards of limerock from the bottom and to fill adjoining bottom-lands with that material and 300,000 yards more, brought from elsewhere, to create a residential development of canalfront lots. Following a moratorium on all such permits, DER in April 1976 notified Key Haven of its intent to deny this one, and Key Haven sought and received formal Section 120.57(1) proceedings on its applications.

Before the DOAH hearing officer Key Haven contended that its dredge-and-fill proposal met the standards of Chapters 253 and 403, Florida Statutes (1975), for preserving natural resources and water quality, but that in any event the State, having sold the submerged lands expecting they would be dredged and filled, was estopped to refuse the permit. After an appropriate hearing the hearing officer entered a recommended order rejecting Key Haven’s argument on both counts and recommending denial of the permit. The hearing officer found Key Haven had not shown that the project would satisfy Chapters 253 and 403 —to the contrary, the project would “obliterate all aquatic life in this area” — and, though the IIF trustees assumed the bot-tomlands to be sold would be filled, as was lawful in those days without a State permit, and they were aware of the purchaser’s plans, the State was not estopped to deny the permit because the trustees did not promise the purchaser a permit, or mislead him, or induce him to take any injurious action:

When the Petitioner purchased the subject property from the Trustees of the Internal Improvement Trust Fund, the Petitioner was not required to seek further dredge and fill permits from the State. When the Petitioner undertook to commence dredge and fill activities, there was, however, such a requirement. The Petitioner is not in a different position than any other landowner who has been affected by the statutory permitting requirements.

Following DER’s adoption of the recommended order with little change, Key Haven had a clearly defined opportunity to appeal the DER order within the administrative process. The Governor and Cabinet, sitting as the IIF trustees, hear appeals from DER permit denials. Section 253.76, Fla.Stat. (1977). Should the trustees’ decision have been adverse, Key Haven would then have been entitled to a Section 120.-68(1) district court appeal.

Key Haven was untempted by the direct review option. Instead of pursuing a permit or other remedies through those conventional forums, Key Haven filed a circuit court complaint alleging that the IIF trustees sold Key Haven’s predecessor the submerged flatlands knowing and intending that he would dredge and fill to create canal front lots, and that DER’s denial of the permit unconstitutionally prevented all use of the property and constituted a taking for which compensation was payable as in eminent domain. Before the circuit court Key Haven sought to avoid contesting DER’s denial of the permit while asserting, nevertheless, that the denial effected a taking. Key Haven summarized its position by argument in support of its motion for summary judgment:

The Plaintiff corporation and the Defendants deem it to be in the public interest to deny a development permit for the lands previously purchased from the Trustees with the understanding that those lands would be filled. The Plaintiff corporation does not seek to review the denial of the development permit, it, as well as the Defendants agree that such denial was necessary in light of the substantial and over-riding public interest in preserving the state’s natural resources; however, the state must, in order to keep from defrauding the landowner be compelled by this Court to institute condemnation proceedings against the land.

In granting DER’s motion to dismiss the complaint for Key Haven’s failure to seek Chapter 120 remedies before the IIF trustees and, if necessary, a district court of appeal, Judge Hartwell cited Coulter v. Davin, 373 So.2d 423 (Fla.2d DCA 1979), holding that one’s remedy for agency action which is unconstitutional in effect is by direct review in a district court rather than by collateral attack in a circuit court, and he cited Kasser v. Dade County, 344 So.2d 928 (Fla.3d DCA 1977), holding that a property owner cannot be heard to assert simultaneously that a zoning restriction is reasonable and that it is confiscatory by constitutional standards. Judge Hartwell found compelling parallels between those cases and this one:

The only distinction between Coulter and Key Haven is that the plaintiff in Key Haven seeks inverse condemnation whereas Coulter sought an injunction barring agency action against him. However, the actions were based on identical allegations — that agency action constituted an unconstitutional taking of land. Therefore, both actions were attempts to collaterally attack the particular agency’s denial of a permit.
The analogy between Kasser and Key Haven is clear. Key Haven seeks to circumvent the established review procedure for denial of a dredge and fill permit by DER by alleging agreement with that denial. Key Haven is thus in the same contradictory posture as Kasser — collaterally attacking action while asserting agreement with it.

Florida courts consistently have embraced the general principle that a party ordinarily will not be indulged a collateral attack on administrative action in circuit court when direct review by a district court of appeal is or was available under Section 120.68. Carrollwood State Bank v. Lewis, 362 So.2d 110, 113-14 (Fla. 1st DCA 1978), cert. den., 372 So.2d 467 (Fla.1979); Metro Dade County v. Dept. of Commerce, 365 So.2d 432 (Fla.3d DCA 1978); School Board of Leon County v. Mitchell, 346 So.2d 562, 567-68 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla.1978); State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 589-91 (Fla. 1st DCA 1977).

The primacy of direct district court review under Chapter 120 is but an extension of the familiar principle, long antedating the Administrative Procedure Act of 1974, that all review processes afforded by the executive branch must ordinarily be exhausted before the judicial branch will consider intervention. See School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974). The same principle limits the availability of district court review of action by the executive branch under Chapter 120. In the APA context the exhaustion requirement assures that the branch constitutionally responsible for implementing the statutory scheme has had a full opportunity to reach a sensitive, mature, and considered decision upon a complete record appropriate to the issue; and that requirement produces an authentic decision by the executive which then may be reviewed comprehensively, on all appropriate issues, in a single judicial forum. See Rice v. Dept. of Health and Rehabilitative Services, 386 So.2d 844, 848 and (dissenting opinion) 854 and n.6 (Fla. 1st DCA 1980); Escambia County Sheriff’s Dept. v. Fla. Police Benevolent Ass’n, Inc., 376 So.2d 435, 436 (Fla. 1st DCA 1979), cert. den., 389 So.2d 1109 (Fla.1980). The power of circuit courts to intervene is not dissolved by Chapter 120, but by judicial policy that power is reserved for use in situations irremediable by direct review, Willis, 344 So.2d at 590. Even when the facial constitutionality of a rule or statute is raised, that question is judicially determinable in the direct review process, e. g., Peoples Bank of Indian River County v. Dept. of Banking and Finance, 395 So.2d 521 (Fla.1981); so when a party having Chapter 120 remedies seeks to raise such issues in collateral circuit court litigation, the court “should refrain from entertaining declaratory suits except in the most extraordinary cases as when the constitutional legitimacy of the entire administrative inquiry is questioned. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978); Rice, 386 So.2d at 849.

Contending it was exempt from normal review processes before the IIF trustees and a district court, Key Haven says it was entitled to circuit court preemption because DER properly denied Key Haven the only remedy DER might have granted, and neither DER nor the trustees could grant the remedy Key Haven seeks in consequence of DER’s lawful action, namely, full compensation for the lost “Manhattan” Key Haven might have raised from the ocean floor by dredge and fill. Only the circuit court, says Key Haven, can order that proper remedy, hence its detour from the statutory review process.

Judge Hartwell correctly held that “Key Haven’s assertions of satisfaction with the denial of the permit are inconsistent with its position that the same action constitutes an unconstitutional taking of its property.” Compare Kasser, supra. Moreover, Key Haven is incorrect even in its premise that a district court of appeal could not on direct Chapter 120 review have granted Key Haven the only remedy Key Haven says it wants and is entitled to: an order that the State file condemnation proceedings. This court has undoubted power to order that precise remedy in lieu of a permit for the desired development project. Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979), rev’d on other grounds sub nom. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). The Second District Court of Appeal recognized that power in the district courts when deciding Albrecht v. State, 1981 FLW 724 (Fla. 2d DCA 1981), a case remarkably like this one, ending in the same result. Albrecht, 1981 FLW at 724:

Under the teaching of Coulter, appellants could have argued the question of whether the order of the Department of Environmental Regulation constituted a taking of their property without due process by law in the proceedings before the First District Court of Appeal.. . . To now allow them to assert it [in circuit court] under the guise of arguing that the taking was legal but that they were entitled to be paid for it would be to permit them to go through the back door. They could have made the same contention in the administrative proceeding, and the First District Court of Appeal could have required that any taking be compensated.

The administrative record that Key Haven declined to complete in this case could well have supported a district court determination of the taking issue. Although DER did not and the IIF trustees would not likely have discussed the permit issue in terms of whether denying it would be tantamount to “taking” Key Haven’s submerged lands, the dominating element in Key Haven’s argument, first for the permit and then for the “taking,” was that the State impliedly promised to allow dredge- and-fill on the submerged lands it sold Key Haven’s predecessor. Cf. Estuary Properties, supra. On that issue the hearing officer found against Key Haven on a record that may have been wholly sufficient to enable a judicial determination of whether a taking occurred. Both this court and the Supreme Court found the Estuary Properties record sufficient for that purpose. See also Peterson v. Dept. of Environmental Regulation, 35 FDOAH 77, 82, 84 (Fla.Admin.L.Serv., Inc. 1977), aff’d, 363 So.2d 872 (Fla. 1st DCA 1978). And if the existing record were thought to be insufficient to permit such a finding, the district court might have ordered further evidentiary proceedings and findings by either the DOAH hearing officer or the agency, before or after resolving the nonconstitutional issues. Rice, supra, 386 So.2d at 850.

Because Key Haven made no attack on the facial constitutionality of any governing rule or statute, but simply attributed unconstitutional effect to the aborted agency decision, Coulter squarely supports Judge Hartwell’s decision to reject Key Haven’s collateral attack. Coulter, 373 So.2d at 428:

[W]e suggest that the point of analysis is to determine where the alleged constitutional violation occurred. If it is alleged to have occurred in the taking of action by the agency in the proceeding to which the plaintiff was a party, whether the violation be procedural or substantive, and whether the action be a rule, regulation, order, or some other form, the issue is foreclosed from consideration in circuit court as grounds for relief. (Emphasis added).

Our colleague’s dissenting opinion, infra p. 74, suggests that the sounder approach to “constitutional issues growing out' of agency action” is to allow their raising either in the administrative proceeding, with direct linear review in a district court, or by declaratory judgment or other proceedings in circuit court. In the case of constitutional issues “growing out of agency action” as distinguished from those appearing on the face of a statute or rule, the suggested arrangement would contradict general principles which were announced very early in this court’s APA experience and were later approved by the Supreme Court, Gulf Pines supra; Willis, supra; School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). And that arrangement would directly conflict with both Coulter, which foreclosed circuit court litigation on constitutional issues growing out of agency action that was remediable, if erroneous, by Chapter 120 processes; and with Rice, which held that the primacy of Chapter 120 processes should be respected even when a constitutional question appears on the face of the statute, unless collateral intervention is made necessary by the futility of agency proceedings, see Gulf Pines, or the untimeliness of eventual district court relief.

The dissenting opinion suggests that our decision here is contrary to the implications of Rice, which stated:

If there was no appeal from the agency action [on constitutional questions of statutory or rule validity], the policy behind res judicata is not served by foreclosing circuit court litigation on questions that could not have been effectively raised for decision by the agency. 386 So.2d at 848, n. 6.

This apparent misunderstanding of the quoted language stems from a failure to differentiate constitutional questions of facial statutory or rule validity, which an agency cannot decide, from constitutional questions which a party gleans from agency action on an issue clearly within its authority to decide, such as whether Key Haven shall receive a dredge and fill permit. Both Coulter and Rice involved questions of the former class: each involved the facial validity of a statute. Rice disagreed with Coul-ters theme that such questions automatically qualify for collateral litigation in circuit court, and undertook to demonstrate why even those questions should if practicable be carried with the undivided case within Chapter 120 processes, to the exclusion of collateral circuit court litigation. The quoted Rice language simply suggested agreement with CoultePs result on its own facts — that res judicata should not bar circuit court litigation on independent questions of facial statutory or rule validity raised by a party who chose to accept the agency’s action on all matters within its jurisdiction and who did not appeal to a district court the independent and latent constitutional question.

Key Haven’s case obviously is not of the same class as Coulter and Rice. Key Haven gleans its constitutional question not from the terms of the governing statutes, Chapters 253 and 403, but from the agency’s action applying those statutes (or, rather, from a subagency’s action, Key Haven not having sought relief from the IIF trustees). Coulter squarely held that such constitutional issues “arising from administrative action” are not proper subjects for collateral circuit court litigation; Rice surely did not disagree. In such a case, the constitutional question is not independent of the agency’s action on the merits, but is inseparable from it, and the constitutional question is necessarily phrased, ingeniously or ingenuously, as a variation of the affected party’s original position on the nonconstitu-tional question. In response to Key Haven’s claim that the circuit court should hear and determine the constitutionally rephrased question that Key Haven might have presented as a permit issue through Chapter 120 processes, we can only echo what the Second District said in Albrecht and Judge Hartwell said here: despite the ingenuity of Key Haven’s contention, we cannot accept it as a rational exception to the principles of primary administrative jurisdiction and exhaustion of administrative remedies.

If doubtful minds still require additional reasons for guarding Chapter 120 processes from undue circuit court intervention, a moment’s further reflection on the circumstances of this case, and the ramifications of possible circuit court litigation on Key Haven’s constitutionally rephrased permit question, provides reasons enough. Key Haven pursued its permit through DER and then detoured to circuit court. But had Key Haven instead sought direct review of DER’s decision by the IIF trustees, and if necessary by a district court of appeal, the district court might have afforded a range of possible remedies that were entirely unavailable to the circuit court under Key Haven’s strategy to achieve condemnation. On such a hypothetical appeal, even if it appeared to a district court that the State’s only proper course was either to grant the permit exactly as requested or to acquire the property by eminent domain, at least that choice would have remained, and it is a choice that is properly reserved to the State. Estuary Properties, supra, n. 6. Cf. Dept. of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980). But here, Key Haven flatly asserted for strategic reasons that the permit was properly denied, and thereby reduced the circuit court’s possible remedies to only one, an injunction requiring condemnation.

Exhaustion of administrative remedies and direct judicial review would have opened up still more possible alternative remedies for the wrong asserted by Key Haven. By eschewing the required appeal to the IIF trustees, Key Haven deliberately avoided asserting its estoppel claim to the very public officers whose conveyance-with-knowledge during the ’sixties gave rise to that claim. Though the hearing officer found no factual basis for estopping the trustees, those officers themselves may have found sufficient moral if not legal suasion in Key Haven’s claim of breach of faith, or fraud, to offer a rescission of the sale or a permit for some less extensive development scheme, or the very permit desired by Key Haven, conditioned upon Key Haven acquiring the necessary U.S. Corps of Engineers permit. And if the IIF trustees denied any such relief with what later appeared to a district court to be inadequate attention to Key Haven’s claims, the court may have required the trustees to readdress the permit question in light of the court’s own analysis of the record. The Supreme Court, acting as a court of direct linear review, ordered that sort of relief in Estuary Properties. This court ordered that kind of focused administrative reconsideration of an issue in Rice.

Our hypothetical review of various remedies that may have been available to Key Haven, had it pursued normal administrative and judicial remedies under Chapter 120, does not imply that Key Haven would have been granted any such relief. Key Haven’s claim for a dredge-and-fill permit or for condemnation, based principally on a theory that the State impliedly promised and should not renege on granting the permit, was highly problematic, given the hearing officer’s findings. The point of our surveying the rich variety of appellate remedies is rather to contrast them with the lone remedy, condemnation, that was made available in circuit court under the contorted “taking” allegations of Key Haven’s complaint. And we make that point, not for its value in claiming this judicial “turf” for the district courts of appeal, but to suggest that administrative justice at its best is not judicial turf at all, and that remedies available only through Section 120.68 can, while achieving justice in a particular cause, measurably and permanently improve agency capacity to do justice.

In Florida, with judicial vigilance against standardless delegations of legislative power and with sensitive management of APA processes, an affirmative answer can now be given to the despairing question, “Is Judicial Restraint Possible in an Administrative Society?” It has become evident that the district courts of appeal most fruitfully employ the APA’s “impressive arsenal of varied and abundant remedies for administrative error” when they use those remedies not to impose on administrators judge-made substantive decisions that were legislatively committed to the administrators, but rather to induce those administrators to make their decisions more nearly just, through deliberations appropriate to “the dignity and burden of their own responsibility.” Recently that most pilloried of all bureaucracies, the Department of Health and Rehabilitative Services, demonstrated its capability to change its mind on an important question of statutory construction because of evidence and arguments brought forward by APA processes. Any court could have answered the question for HRS as a matter of law; but no court could have achieved with that result the added dignity, self-reliance and sensitivity that accrued to HRS as a result of making the decision itself.

Just recently the United States Court of Appeals for the Fifth Circuit, sitting en banc, decided that it is necessary even for a Section 1983 civil rights complainant to exhaust adequate and appropriate Florida administrative remedies, and the court eloquently restated all the sound reasons for remaining faithful to the exhaustion requirement: to avoid premature or unnecessary judicial labor, to assure agency action by the authentic agency head, to encourage improvement in agency decisionmaking processes, to afford remedies simpler and less expensive than court litigation, and to encourage a responsible autonomy in the executive branch of state government. Patsy v. Florida Int’l University, 634 F.2d 900, 911-12 (5th Cir. 1981). The court’s statement of one of those reasons seems especially pertinent at this stage in the maturity of Florida’s Administrative Procedure Act:

Third, a reasonable exhaustion requirement will improve the administrative process itself. Prompted by appropriate judicial decisions, the state administrative agency will have the incentive and be able to hone its procedures to comply with federal requirements, both procedural and substantive, without losing the advantage of the agency’s expertise, its familiarity with local conditions and awareness of the impact of particular action on related areas, and its desire to correct errors of. lower level functionaries within the agency. The proper roles of the officials within the agency will be solidified when the errors of lower level functionaries are corrected within the agency instead of by the courts.

The circuit court was correct in rejecting Key Haven’s claim that Chapter 120 remedies previously available to it were inadequate for review of DER’s order denying a dredge-and-fill permit, therefore requiring circuit court action. The Chapter 120 remedies plainly were adequate, and the circuit court correctly declined “to employ an extraordinary remedy to assist a litigant who has foregone an ordinary one which would have served adequately.” Willis, 344 So.2d at 592-93.

AFFIRMED.

SHAW, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

The majority holds that appellants are without a remedy because of their failure to appeal the agency’s denial of a permit and to raise, in connection with that permit appeal, constitutional issues. Prior decisions of this court have allowed the raising of constitutional issues in administrative proceedings, but none to date have made it a mandatory substitute for the right to file in inverse condemnation in the Circuit Court. If this is to be the law of Florida by interpretation of Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), it is law that has developed after appellants’ right to appeal the denial of the permit had expired in 1977. Appellants’ right to appeal in the permitting proceeding also expired prior to the effective date of Florida Statutes, Section 253.763, which provides a remedy for taking of private property through the permitting process.

The better reasoned and sounder approach to the raising of constitutional issues growing out of agency action is to allow the proponent of those issues to raise them on appeal from the administrative proceeding or by suit for declaratory or other relief in the Circuit Court. It is only when the proponent of those issues has obtained a judicial determination that the doctrine of res judicata is applicable as was held in Rice v. Department of Health & Rehabilitative Services, 386 So.2d 844, 848 at note six (Fla. 1st DCA 1980):

If there was no appeal from the agency action, the policy behind res judicata is not served by foreclosing circuit court litigation on questions that could not have been effectively raised for decision by the agency.

Florida Statutes, Section 120.73, expressly affords “the right to a proceeding in the Circuit Court in lieu of an administrative hearing,” and preserves the jurisdiction of the Circuit Court to render declaratory judgments under Florida Statutes, Chapter 86. Obviously, Section 120.73 has little or no meaning if constitutional issues must be raised in the administrative proceeding and appeal taken under Section 120.68 or otherwise foreclosed.

In the instant case, the complaint for declaratory relief and inverse condemnation alleges that the predecessor in title of appellants purchased, in 1964, 1965, and 1968, submerged lands in a sale approved by the then “Board of Conservation,” and that this land was sold by the State “for the purpose of being dredged and filled so as to create canal-front residential lots;” that the price paid for the land was based on t ie aforesaid purpose; and, finally, that the State has totally denied to the plaintiff any use of the property for that purpose or for any other purpose. Thus, the State, which sold the property with the approval of the Board of Conservation more than 15 years ago, has now changed its mind about allowing development.

Under the majority view, appellants, by hindsight, should have pursued their constitutional claim to inverse condemnation in four separate forums, two of which have no authority whatsoever to decide such a claim. Thus, appellants should have: (1) made a record to support their constitutional claim before the administrative hearing officer in the permit hearing; (2) appealed to the agency the hearing officer’s recommended denial of the permit and raised the constitutional issue; (3) appealed to the District Court of Appeal the denial of the permit and sought an initial ruling on the constitutional issue based on the record made before the agency; and (4) finally, if successful in that appeal, obtained the filing of condemnation proceedings in the Circuit Court, followed, in all probability, by (5) a second appeal to the District Court of Appeal from the condemnation proceedings. Also, as mentioned by the majority, there could be remand(s) by this court to the agency to hold further hearing(s) and to determine additional facts needed for this court’s decision on the constitutional issue.

Only litigants with limitless time and resources can afford this type of administrative “exhaustion.” It is not required where, as here, the administrative forum is not empowered to determine the issue presented or to give the relief sought.

This court’s affirmance of dismissal of the complaint leaves appellants with bare title to 184 acres of submerged land. The State, while resisting the constitutional claim for compensation, retains both the original $55,000 sale price paid and the beneficial use and enjoyment of the property on behalf.of the public. One who bought property from a private individual under these circumstances would not be left without a remedy by the courts; neither should appellants. In Askew v. Taylor, 299 So.2d 72, 74 (Fla. 1st DCA 1974), this court stated:

The Supreme Court, almost a century ago, held that “common honesty is quite as respectable on the part of the State as in an individual, and hence the State will be honest and not repudiate.”

I respectfully dissent.

      . Chapter 253 provided that the IIF trustees (and DER when it assumed such functions in 1975) should not issue dredge and fill permits unless studies demonstrated that the project would not interfere with the conservation of natural resources or destroy shellfish beds or marine nursery and feeding grounds. The trustees also were required to consider other factors affecting the public interest in reaching their decision. Sections 253.123(2)(d), 253.-124(2), Fla.Stat. (1975). Chapter 403 and implementing standards regulated construction projects that would reduce the quality of water below the classification established for them or otherwise would potentially harm human health and welfare or animal and plant life. Section 403.088(1), 403.031(2), Fla.Stat. (1975).

      . As paraphrased by the hearing officer’s recommended order, Key Haven argued:
      [T]he Trustees of the Internal Improvement Trust Fund, when they approved the sale of the subject submerged property to the Petitioner [Key Haven], made an implicit determination that the project would be in the public interest, and would not adversely affect the water quality or natural resources of the area. Petitioner argues that since the Trustees made these findings, and sold the property with the belief and understanding that it would be filled, a contrary determination at a later date cannot be sustained.

      . Article X, Section 6, of the Florida Constitution provides: “No private property shall be taken except for a public purpose and with full compensation therefor....”

      . Generally, before the district court will entertain review under 120.68, Florida Statutes, a challenger of agency action must avail himself of such additional appeals within the executive branch as are provided by statute. See Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So.2d 511 (Fla. 1st DCA 1980); Peterson v. State Dept. of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Dept. of Environmental Regulation, 369 So.2d 655 (Fla. 2d DCA 1979).

      . The record of a 1975 conference shows that Key Haven’s president, when asked by state officials if he would consider selling the submerged land back to the State for the price he paid for it, responded that reversing the sale “would be like having bought Manhattan for $24 worth of jewelry and selling it back now for the same price.”

      . Estuary Properties, 381 So.2d at 1140-41:
      This cause is remanded to the Adjudicatory Commission for entry, within thirty (30) days from the filing of this opinion, of an order in accordance with F.S. 380.07(5) granting to Petitioner permission to develop, which shall include the use of the black mangrove acreage, and which said order shall be conditioned so as to terminate within said thirty (30) days from its date in the event Lee County shall ... commence condemnation proceedings in the appropriate circuit court for acquisition of the mangrove acreage below the salina.

      . In Peterson, an applicant for a permit to fill his mangrove swamp argued during 120.57(1) hearings that permit denial would destroy all reasonable use of his land and constitute an unconstitutional taking without compensation. On the basis of the record, the hearing officer found the claim of a compensable taking unsupported.

      . Burnette, 384 So.2d at 922-23:
      [W]e shall affirm the judgment which as modified enjoins the Department’s continued use of the State Road 10 drainage system in such a way as to burden this land.... Condemnation of some land or easements may be appropriate to manage this drainage in compliance with the injunction, but the manner and method of so relieving Burnette’s land are for the Department to determine in the exercise of its lawful powers.

      . Key Haven argued to the circuit court that “the state must, in order to keep from defrauding the landowner be compelled by this Court to institute condemnation proceedings against the land.”

      . Section 10 of the Federal Rivers and Harbors Act of 1899, 33 U.S.C. 403, and Section 404 of the Federal Water Pollution Control Act of 1972, 33 U.S.C. 1344 (as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq.), require that a permit be obtained from the United States Army Corps of Engineers before undertaking construction or filling activities in the navigable waters of the United States. In Askew v. Gables-by-the-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976), cert. den., 345 So.2d 420 (Fla.1977), the State’s inappropriate intervention in the Corps permitting process was a substantial factor in the decision that a taking had occurred.

      . See Estuary Properties, 399 So.2d at 1383, where the Supreme Court discussed “investment-backed expectations of the use of the property” as an element of a “taking”, but distinguished cases in which the buyer of submerged lands had at the time of purchase a statutory right to fill, Zabel v. Pinellas County Water and Navigation Control Auth., 171 So.2d 376 (Fla.1965), or was granted a permit and then was frustrated by State interference in federal permitting processes. Askew v. Gables-by-the-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976), cert. den., 345 So.2d 420 (Fla.1977).

      . 64 Judicature 401 (1981). Authors Greanias and Windsor conclude that the courts are increasingly inclined to become activist decision-makers, displacing the more politically responsive executive branch, because of such factors as the growth of government, increased regulation of the private sector, habitual legislative delegation of troubling questions to judicial disposition, and general skepticism about whether the political process works. The authors suggest that this policy leadership role ultimately will prove harmful to the judiciary.

      . State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977).

      . A. Bickel, The Least Dangerous Branch 24 (1962).

      . In Rice, supra, a couple wanting to give their son the hyphenated surname of both parents encountered a statute which seemed to HRS to require entry of the father’s surname alone on the birth certificate. By letter, an HRS supervisor had denied the couple’s request, but there was no other agency action. This court remanded proceedings to HRS for entry of a final order construing the statute on the basis of a more fully developed record on specified issues. 386 So.2d at 847. Heeding the court’s direction that HRS evaluate the State’s interest in denying the couple’s request, a DOAH hearing officer found that State interests in preserving custom, economy and administrative efficiency were not shown by evidence to be significant in comparison to the parents’ interests in naming their child. Moreover, the hearing officer concluded, the statute as construed did not require exclusive use of the father’s name. Finding the hearing officer’s recommended order “correct and ... otherwise well advised,” HRS then adopted it as its own restatement of policy and ordered the hyphenated surname entered on an amended certificate. Thus the need for further judicial review was obviated. Rice, et al. v. Dept. of Health and Rehab. Serv., 3 FALR 314-A (1981).

      . See, e. g., Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977).

      . But see Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844, 848 at note 6 (Fla. 1st DCA 1980).

      . § 253.763(2), Fla.Stat. (effective May 29, 1978):
      Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit court in the judicial circuit in which the affected property- is located; however, circuit court review shall be confined solely to determining whether final agency action is an unreasonable exercise of the state’s police power constituting a taking without just compensation. Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120.


source: Caselaw Access Project

author: COWART, Judge. SHARP, Judge,

license: Public Domain

text:
    Patrick J. GORMAN, Appellant, v. Eileen E. GORMAN, Appellee.
    No. 80-338.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Rehearing Denied June 30, 1981.

      Julius G. Petruska, Orlando, for appellant.
    Lawrence D. Johnson of Peacock & Johnson, Orlando, for appellee.
   COWART, Judge.

Appellee was the wife of appellant and the step-mother of appellant’s six children by a former marriage. The trial judge found both parties “fit and proper as parents” but awarded the step-mother custody of her husband’s 13 year old son. The final judgment of dissolution also awarded the wife the marital home as lump sum alimony. Both decisions are challenged on this appeal.

Appellant argues that since he is the natural father, and the trial judge specifically found him a fit and proper parent, it was an abuse of discretion to deny him custody. Appellant cites Hernandez v. Thomas, 50 Fla. 522, 39 So. 641 (1905), Foster v. Sharp, 114 So.2d 373 (Fla. 3d DCA 1959), Besade v. Besade, 312 So.2d 484 (Fla. 3d DCA 1975), and Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977), for applications of the proposition that, absent a finding of unfitness, a natural parent should have custody of a child as against others. Appellee cites Pitman v. Pitman, 153 Fla. 434, 14 So.2d 671 (1943), Cone v. Cone, 62 So.2d 907 (Fla. 1953), Shepard v. Shepard, 87 So.2d 807 (Fla.1956), DeGroot v. Fuller, 210 So.2d 244 (Fla. 2d DCA 1968), Heffernan v. Goldman, 256 So.2d 522 (Fla. 4th DCA), cert. denied, 256 So.2d 6 (Fla.1971), Brannan v. Brannan, 284 So.2d 701 (Fla. 1st DCA 1973), Forman v. Forman, 315 So.2d 9 (Fla. 3d DCA 1975), and Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980), for examples of where the award of custody of a child to persons other than a natural parent was in the best interests of the child. All of the cases cited by both parties can be factually distinguished in certain relevant details from this case. In Hernandez the grandmother was not entirely fit while here the step-mother was found fit. In Foster the natural mother, in poor health, temporarily surrendered custody of one child to a sister-in-law and the court returned the child to its mother contrary to the preference of the child. In Besade some of the prospective custodians were never before the court. In Behn the maternal grandmother had not had long actual custody, but here the step-mother has shared actual custody since the child was a few months old. In Pitman, Cone, Heffer-nan, Brannan, and Scott, the child had not actually resided with its natural parent for some time unlike here where the natural father has continuously shared actual custody. In Forman a natural parent was awarded joint custody along with grandparents, thus custody was not given exclusively to others as against a natural parent. In Shepard and DeGroot the fitness of the natural parent was in question.

Rather than distinguishing the particular facts of this case from the cases cited by appellant, or stressing the aspects of the cases cited by appellee that are consistent with our conclusion, or giving great weight to some factors, such as the child’s strong preference in this case, we hold that the ultimate test in determining the custody award should be the best interests and welfare of the child as contemplated by section 61.13(3), Florida Statutes (1979), and that when the trial judge’s discretion relating to custody has been exercised in a reasonable manner it should not be disturbed on appeal. It is true, as is stated in the cases cited by appellant, that courts should not lightly encroach on the rights of natural parents to have the custody, care and control of minor children, especially when such parents are found to be fit. We are very sensitive to those rights. However, the facts of this case illustrate that there can be conflicts between what is reasonably perceived by a trial judge to be in the child’s best interests and a natural parent’s preferential right to custody of a child. This same problem is presented in many adoption cases.

In this case the child’s natural mother died as the result of complications from the birth of this child. Within months appellant married appellee. Appellee so completely cared for appellant’s children that this child was unaware that appellee was not his natural mother until he was 10 or more years of age. The child expressed great love and devotion toward his stepmother, obviously his psychological parent, and felt like he never had a father because his father was often away from home, was frequently intoxicated, and physically abused and blamed this child for the death of his natural mother, telling the child on one occasion “your mother died 13 years ago because of you and don’t you ever forget it.” In finding the father a fit and proper parent the trial judge was charitable. We do not hold the trial judge in error in making this finding, but everybody needs to be loved and not rejected and this case demonstrates that in a given case a child can be better loved and cared for by a “stranger” than by its own fit natural parent. We sustain the trial judge’s decision awarding custody of this child to its stepmother.

Both parties have previously been employed as teachers and the wife’s earnings have averaged about 92% of that of the husband. The husband has the legal obligation to support his children while the wife has no dependants and no comparable legal duty to others. The home is the only major asset of the parties. It was acquired substantially from the joint efforts of the parties during the marriage and is jointly owned. At the time of the divorce it was worth $65,000 to $68,000, subject to a mortgage of $9,000 to $10,000. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), was originally dated January 31, 1980, but was not widely published until it was clarified on rehearing and issued March 27, 1980. This case was tried on February 19, 1980, and the final judgment is dated March 7, 1980; therefore, the Canakaris opinion was not available to the trial judge. Canakaris, after distinguishing and limiting the term “special equity” in domestic relations actions to describe a vested equitable property interest, seems to hold that there now exists two general types or uses of lump sum alimony. The first type relates to support and occurs where the court finds from the circumstances sufficient need on the part of one spouse and sufficient ability to pay on the part of the other spouse to warrant permanent alimony and also further finds that unusual circumstances exist justifying the determination that the alimony should be in the form of a lump sum award rather than being paid periodically. The second type, or use of, lump sum alimony relates to making an equitable division of marital property. As an example of the use of a lump sum alimony award to make an equitable and just distribution of property between the parties in a marriage dissolution action the Supreme Court in Canakaris cites, and quotes with approval from, Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975). In Brown the First District Court of Appeal refers to Chestnut v. Chestnut, 160 Fla. 83, 33 So.2d 730 (1948) for the proposition that basically alimony is awarded on the theory that marriage is a partnership to which the wife has made a contribution, and refers to Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972), and Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973), as examples where that court had approved trial court rulings equally dividing the material asserts of the marital venture. In Brown the court then considered the property distribution problem that is involved in the dissolution of a marital partnership when assets have been accumulated during the marriage ;n the name of one party whose efforts have been away from the home earning money and accumulating assets while the other party has directly contributed services as a homemaker providing for the living needs and comforts of both partners and their children. Finding that one partner had been shortchanged by an award of only rehabilitative alimony the court in Brown reversed and directed the trial court to award lump sum alimony sufficient to compensate the homemaker for her contribution to the marriage.

Even without considering the husband’s obligation for child support, which, being superior to a subsequent wife’s claim for alimony, reduces the husband’s disposable income for purposes of comparison with the wife’s income, the evidence indicates that the wife’s earning ability in this case is within about eight percent of that of the husband. This and other factors relating to the need and ability test rule out alimony as such in this case and thereby eliminates the first or support type of lump sum alimony award.

When title to assets acquired during the marriage is held by one party and there are no special equities, the use of an award of lump sum alimony to make an equitable distribution may be necessary to obtain a just result. When a home is acquired jointly during the marriage and there are other assets, to award one party’s interest in the home to the other as part of an equitable distribution of all of the marital assets may be proper as in Brown and Canakaris. However, where, as here, the home is substantially the only asset of value accumulated during the marriage, there are no special equities and no necessity for a lump sum alimony award for support purposes, and the home is jointly owned, there is no necessity for the application of equitable remedy of lump sum alimony in order to make an equitable and just distribution of the home. That result is achieved by the property law concepts embodied in section 689.15, Florida Statutes, which provides “in cases of estates by the entirety, the tenants, upon dissolution of marriage, shall become tenants in common” and by chapter 64, Florida Statutes, which provides for partition between tenants in common. Therefore, it was error for the trial court to award the wife the husband’s moiety in the home as lump sum alimony. In this case both parties planned to leave this state after the dissolution and there was no need or request for the exclusive use of the home as an element of child support. The record on appeal indicates in a post-judgment motion that appellee may have been forced, in order to prevent loss of the home by foreclosure, to personally borrow funds which were used to discharge the mortgage on the home. Upon remand in this cause or in any partition action she will be entitled to an opportunity to assert a “special equity” in the nature of an equitable lien against the husband’s interest in the marital home property for any such sums as she may have advanced for the benefit of his interest. Evidence of - appellant’s intent to live in Canada may have caused the trial judge and appellee some concern about the enforceability of the award of child support in this case. Upon remand the trial court can now consider imposing a lien on appellant’s interest in the home, and the proceeds of any sale thereof, to secure support for the child as permitted by section 61.13(4), Florida Statutes.

This cause is affirmed as to the custody award, reversed as to the award of lump sum alimony, and remanded for further consideration consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COBB, J., concurs.

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

SHARP, Judge,

concurring in part and dissenting in part.

I concur with the majority on the issue of custody, but I disagree with the reversal of the lump sum alimony award.

An award of alimony should not be reversed unless the appellant demonstrates an abuse of discretion by the trial judge. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Even though property is jointly owned by a husband and wife, it is within the trial court’s discretion to award the property to either as lump sum alimony. Reid v. Reid, 68 So.2d 821 (Fla.1953); Blidner v. Blidner, 219 So.2d 749 (Fla. 3d DCA 1969). In determining the nature and amount of alimony to be awarded, the court must give due consideration to several factors. These factors include the value of the parties’ estates, their earning ability, age, health, stations in life, the duration of the marriage and the conduct of the parties. Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 324 (Fla.1977) and 354 So.2d 981 (Fla.1977).

As noted by the majority, both Patrick and Eileen Gorman were school teachers. Eileen Gorman worked during the marriage and cared for the children, enabling Patrick to attend several universities and obtain an advanced degree. This degree placed Patrick in a higher rating bracket making it possible for him to obtain a principalship and a higher salary. While Eileen does have a degree, it is not from an accredited university and she needs another year of classes before she can obtain a teaching certificate. This teaching certificate is required for teachers in the public school system. Eileen was previously a theology teacher in a private Catholic school. She testified that she could not gain reemployment in that school when the news of her divorce became known. Patrick was then working as a maintenance man earning $3.50 per hour. The record shows that he had the opportunity to obtain better paying teaching positions, but he declined to accept them. A trial judge could conclude that Patrick’s reduction in income was voluntary, and not from necessity, for the purpose of awarding lump sum alimony. Hausman v. Hausman, 330 So.2d 833 (Fla. 3d DCA 1976). The evidence would certainly support such a conclusion in this case.

Because Patrick Gorman failed to demonstrate an abuse of discretion by the trial judge, I would affirm the award of lump sum alimony. Since the majority has reversed the lump sum award, on remand the lower court should also be free to consider other forms of alimony.

      . The “reasonableness” test is defined in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

      . See Browning v. Favreau, 60 So.2d 186 (Fla.1952); Steets v. Gammarino, 59 So.2d 520 (Fla.1952).

      . See Greenbaum and Greenbaum, In the Best Interest of the Child, 50 Fla.B.J. 532 (1976); % Muench and Levy, Psychological Parentage: A Natural Right, 13 Family L.Q. 129 (1979).

      . A lump sum alimony award cannot, of course, be used merely to divide jointly owned property because that must be done in accordance with statutory partition proceedings. Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974), cert. dismissed, 312 So.2d 733 (Fla.1975); Baker v. Baker, 271 So.2d 796 (Fla. 3d DCA), cert. denied, 278 So.2d 285 (Fla.1973). Nor can an award of lump sum alimony be used as a division tool where one party has established a special equity because, if the special equity is for a dollar value arising in the nature of an equitable lien from an ungifted contribution of funds or property from a source outside the marriage relationship, such interest, being a security interest, is enforced by judicial sale as in foreclosure and not by a division of property. If, as in Ball v. Ball, 335 So.2d 5 (Fla.1976), the special equity interest is an entitlement to legal title from the finding of a resulting trust rather than a gift, then a title transfer, not a property division, occurs.

      . See Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979).


author: HURLEY, Judge.

text:
    Barbara Ann BERRY, individually and as a Personal Representative of the Estate of Lisa Lynn Berry, Appellant, v. STATE of Florida, Appellee.
    No. 78-2182.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied July 15, 1981.

      Robert L. Gossett of Bunin & Gossett, Hollywood, for appellant.
    Jim Smith, Atty. Gen., and Joseph Belitz-ky, Asst. Atty. Gen., Tallahassee, for appel-lee.
   HURLEY, Judge.

This is an appeal from an order dismissing plaintiff’s complaint for damages against a judge, a state attorney, and the members of the Florida Parole and Probation Commission. We affirm.

The events giving rise to this case commenced on October 22,1976, when a parolee named James Franklin Rose abducted, brutally beat, and murdered eight year old Lisa Lynn Berry. Rose was subsequently convicted and sentenced for the killing. Thereafter, Lisa’s mother, Barbara Ann Berry, instituted suit against various state officials alleging that they had been negligent in dealing with Rose and that their negligence proximately caused her daughter’s death. The defendants included: (1) James M. Re-asbeck, a circuit judge in the Seventeenth Judicial Circuit; (2) the State Attorney for the Seventeenth Judicial Circuit; and (3) the nine members of the Florida Parole and Probation Commission. Defendants filed individual motions to dismiss which were granted by the trial court and which generated this appeal.

I

The common thread running through all counts of the complaint is that James Franklin Rose was a recidivist or multiple offender and this fact was known to each defendant. Taking the defendants separately, we begin with Judge Reasbeck who was sued in counts two, three and four. Count two alleged that Judge Reasbeck breached a duty imposed by Section 775.-11(3), Florida Statutes (1969), by failing to call Rose’s recidivism to the attention of the prosecuting attorney. Count three charged that Judge Reasbeck breached a statutory duty imposed by Section 775.09, Florida Statutes (1969), by failing to sentence Rose as a recidivist or multiple offender. And, finally, count four alleged a breach of a statutory duty by the court’s failure to order that Rose be treated as a mentally disordered sex offender pursuant to Section 917.13 et seq., Florida Statutes (1969).

Appellant argues that each of the foregoing judicial acts or omissions was essentially ministerial or operational-level activity and, consequently, in accord with Section 768.28, Florida Statutes (1979), which grants a limited waiver of sovereign immunity, appellant contends that Judge Reas-beck is liable for money damages because of his failure to comply with mandatory statutory requirements which, in turn, proximately contributed to her daughter’s injury and death.

In evaluating these claims, we first note that Section 768.28’s waiver of sovereign immunity applies to “state agencies or subdivisions” which, by definition, include “the executive departments, the Legislature, the judicial branch, and the independent establishments of the state....” (Emphasis supplied.) As noted in Neilson v. Department of Transportation, 376 So.2d 296, 297 (Fla. 2d DCA 1979), “[a]ll units of government are now liable for their tortious conduct.” Thus, the statute is all-embracing and applies to the three branches of government. With respect to the judicial branch, however, it is subject to a crucial limitation. Pursuant to our responsibility to avoid a holding of unconstitutionality if a fair construction of the statute can be made within constitutional limits, State v. Beasley, 317 So.2d 750 (Fla.1975), we hold that Section 768.28 does not abrogate the common law principle of judicial immunity. This doctrine which insures that judges are immune from liability for damages for acts committed within their judicial jurisdiction is essential to the preservation of an independent judiciary. Indeed, the tripartite concept of our government forbids the destruction of judicial immunity at the hands of either of the other two branches of government.

The principle of judicial immunity traces its roots to the earliest days of the common law and emerged in American jurisprudence with the landmark case of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). There, the court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id. at 347. For that reason the Court held that “judges of courts of superi- or or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Id. at 351. Moreover, this has been the consistent and uniform holding of the Florida courts. See also Dennis v. Sparks, - U.S. -, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

The rationale underlying the principle of judicial immunity was ably set forth by Judge Gee in Sparks v. Duval County Ranch Co., 604 F.2d 976, 979-80 (5th Cir. 1979) (en banc), aff’d sub nom. Dennis v. Sparks, supra:

[T]he absolute immunity that judges enjoy exists for the benefit of the judicial system and of the public, not for that of the judge. Only a hero could exercise an unfettered judgment while facing, day after day and case after case, the prospect of personal ruin implicit in permitting every losing party to sue him for damages. There have never been enough heroes to go around, and a sound policy must deal with the prospect that some who occupy the bench may not be of that ilk.
In this imperfect world, however, where even the moon has a dark side, this manifestly necessary policy has the unfortunate effect of insulating not only the robe, but the person within it, from being called to account for actions that may be illegal, even corrupt, as is alleged here. This undesirable side effect of an otherwise valuable prescription can, as to the magistrate himself, be safely mitigated only slightly. All authorities recognize that when a judge acts in a “clear absence of all jurisdiction” he is not protected. But any broader or less explicit inroad upon the robe’s immunity in an attempt to reach its wearer would invite recurring attempts at enlargement, ruinous in terms of judicial time and funds expended to defend — even successfully— against them. Thus the rule of judicial immunity from damages, with its single, bright-line exception, is as broad as, but no broader than, is necessary. (Footnote omitted.)

In summary, we hold that the enactment of Section 768.28 did not abrogate the common law principle of judicial immunity, and, consequently, judges continue to enjoy absolute immunity from damages liability for acts performed in the course of their judicial capacities unless such acts are undertaken with a clear absence of all jurisdiction. To paraphrase Justice Jackson, it is not a tort for the judiciary to judge. Therefore, since it is evident from the plaintiffs complaint that Judge Reasbeck had jurisdiction when he took or failed to take the actions complained of, the dismissal of counts two, three and four was correct.

II

Next, we turn to count one which alleged negligence on the part of the State Attorney for the Seventeenth Judicial Circuit. The gist of the complaint is that the State Attorney was mandated to prosecute Rose as a multiple offender and his failure to do so constitutes actionable negligence. Again, we reject appellant’s contention that the adoption of Section 768.28, Florida Statutes (1979), abrogated the long-held common law immunity of public prosecutors. For reasons of public policy, a prosecutor enjoys absolute immunity for damages when the acts within the scope of his prose-cutorial duties. The rationale for such immunity was set forth by the court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976):

The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. One court expressed both considerations as follows:
“The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case.. . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter and fairer law enforcement.” Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597 (1935). Id. at 422-23, 96 S.Ct. at 991-92 (footnote omitted).

Our sister court addressed this issue in Weston v. State, 373 So.2d 701, 703 (Fla. 1st DCA 1979):

It is necessary to the judicial process in the enforcement of the criminal laws of the state that the state attorney be free from any apprehension that he or she may subject the state to liability for acts performed in the exercise of the discretionary duties of the office. Such acts require the exercise of basic policy evaluation, judgment and expertise in determining whether or not a charge should be made for violation of the state’s criminal laws.

Accordingly, we join with the First District and hold that the conduct of a state attorney in the exercise of his prosecutorial duties qualifies as a discretionary governmental function the performance of which is not affected by the statute waiving sovereign immunity. Therefore, the trial court in the case at bar was correct in dismissing count one.

Ill

Finally, we turn to counts five and six which named the members of the Florida Parole and Probation Commission as defendants. Count five alleged that the commission negligently failed to comply with Section 775.11(3), Florida Statutes (1969), which requires that:

Whenever it shall become known to any warden or prison, probation, parole or police officer or other peace officer, that any person charged with or convicted of a felony has been previously convicted within the meaning of § 775.09 or 775.10 he shall forthwith report the facts to the prosecuting attorney of the county.

We hold that the court’s dismissal of this count was proper for the statute has no application under the facts of this case and does not impose a duty on the individual members of the commission to report information to the prosecuting attorney. The statute, which was repealed on July 1, 1975, was obviously designed to facilitate the transfer of information at a time when it would be of use to the prosecuting attorney. For example, a probation officer, compiling a pre-sentence report, would have been required to disclose a history of prior convictions, presumably so that the state attorney could determine whether to see1: enhanced punishment under the recidivist statutes. The commission members, however, would have reason to be advised of the defendant’s history only in relation to his consideration for parole, certainly at a time when sentencing considerations are concluded, and when it would have been useless to communicate such information to the original prosecuting attorney. Thus, the statute did not apply to the individual members of the Parole and Probation Commission.

Lastly, we consider count six which charged that the members of the Florida Parole and Probation Commission negligently paroled Rose in violation of the standard established in Section 947.18, Florida Statutes (1969), which provided that:

No person shall be placed on parole merely as a reward for good conduct or efficient performance of duties assigned in prison. 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. No person shall be placed on parole unless and until the commission is satisfied that he will be suitably employed in self-sustaining employment, or that he will not become a public charge. The commission shall determine the terms upon which such persons shall be granted parole.

Initially, we must determine whether the enactment of Section 768.28, Florida Statutes (1979) constitutes a waiver of sovereign immunity in this area. The Supreme Court provided the analytical backdrop to this question in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979), wherein it held:

[Although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance. In order to identify those functions, we adopt the analysis of Johnson v. State, [69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968)], which distinguishes between the “planning” and “operational” levels of decision-making by governmental agencies. In pursuance of this case-by-case method of proceeding, we commend utilization of the preliminary test iterated in Evangelical United Brethren Church v. State, [67 Wash.2d 246, 407 P.2d 440 (1965)], as a useful tool for analysis.

The Court offered this succinct distinction between planning and operational level functions:

Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. Id. at 1021.

The four preliminary considerations which were endorsed by the Court in Commercial Carrier are enumerated in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965):

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances invol/ed.

Unquestionably, the decision to grant or withhold parole requires the exercise of discretion. Yet, we are loathe to ascribe talis-manic effect to the term “discretion.” As Judge Goldberg noted in Smith v. United States, 375 F.2d 243, 246 (5th Cir. 1967), “[m]ost conscious acts of any person whether he works for the government or not, involve choice. Unless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions.” Thus, resolution of the issue at hand requires deeper analysis. In this respect, we find it significant that the United States Supreme Court has recognized the important role which discretion plays in the parole decision-making process and accordingly has held that a state may clothe its parole officials with absolute immunity to insure the uninhibited exercise of a parole authority’s discretion. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), rehearing denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980).

Applying the analysis recommended in Commercial Carrier Corp. v. Indian River County, supra, we conclude that the determination to grant parole is a discretionary, planning level decision which does not subject the state to tort liability. See Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974); Wright v. State, 342 So.2d 565 (Fla. 1st DCA 1977). In reaching this decision, we have carefully considered the recent opinion in Payton v. United States, 636 F.2d 132 (5th Cir. 1981), which permitted a cause of action to be prosecuted against the United States Parole Board for negligent parole of a federal prisoner. While we agree with most of the analytical framework developed by the court in Payton, we also believe that its application to the Florida parole process would corroborate the conclusion that the decision to grant or disapprove parole in this state is a planning level or judgmental function. We note, however, that in reaching this conclusion we have confined ourselves to the specified statute and allegations in plaintiff’s complaint. We expressly do 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.

Accordingly, the order under appeal is AFFIRMED.

MOORE and BERANEK, JJ., concur.

      . § 768.28(2), Fla.Stat. (1979).

      . See Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 343 P.2d 931 (1959).

      . See Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973); Farish v. Smoot, 58 So.2d 534 (Fla.1952); Beckham v. Cline, 151 Fla. 481, 10 So.2d 419 (1942); McDaniel v. Harrell, 81 Fla. 66, 87 So. 631 (1921); Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975); Silvers v. Drake, 188 So.2d 377 (Fla. 1st DCA 1966); Waters v. Ray, 167 So.2d 326 (Fla. 1st DCA 1964).

      . “Of course, it is not a tort for the government to govern.... ” Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953) (Jackson, J., dissenting).


author: HERSEY, Judge.

text:
    ALLINGTON TOWERS NORTH, INC., a Florida Corporation, Appellant, v. Annette H. RUBIN, a/k/a Annette Rubin, Appellee.
    No. 80-1476.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied July 13, 1981.

      Steven R. Rosenthal of Litman, Muchnick & Wasserman, Hollywood, for appellant.
    Jesse H. Diner of Atkinson, Golden, Ba-cen & Diner, P. A., Hollywood, for appellee.
   HERSEY, Judge.

Appellant, seller, appeals from a final judgment which determined that appellee was entitled to specific performance of a contract for the purchase and sale of a condominium apartment.

A purchase agreement, binding on all parties, was initially entered into. Thereafter an addendum was added as follows:

[I]t is expressly agreed that the Buyer shall have the absolute and unfettered right to cancel and/or rescind said Purchase Agreement any time before closing, notwithstanding any contrary provisions in the Purchase Agreement.

Various subsidiary issues are tendered by the record and the briefs but the crux of this case depends upon whether the written agreement, including this addendum, is unenforceable as lacking mutuality of obligation and mutuality of remedy.

A preliminary skirmish evolved out of appellant’s failure to specifically plead lack of mutuality as an affirmative defense but we determine that to be of no legal consequence for several reasons, any one of which would be sufficient to carry the day for appellant. First, failure of consideration was pled as an affirmative defense. This was a bilateral contract, execu-tory as to both obligations. The seller promised to deed the property over and the buyer promised to pay for it. If either of those promises is illusory or unenforceable then there is no consideration for the other promise. The appropriate defense would be lack of consideration. Jenkins v. City Ice & Fuel Co., 118 Fla. 795, 160 So. 215 (1935). Here there is evidence that the addendum, which is alleged to make the purchaser’s promise illusory, was executed subsequent to execution of the contract. Thus the defense is appropriately referred to as failure of consideration. Second, the addendum was admitted into evidence without objection. Testimony referring to it and the consequent unenforceability of the contract against the purchaser also came in without objection. Only in final argument did ap-pellee suggest that lack of mutuality was not properly in issue. Under the circumstances it would be appropriate to consider that the issue was impliedly tried by consent pursuant to Rule 1.190(b), Florida Rules of Civil Procedure. Third, mutuality of obligation and mutuality of remedy are essential elements of an enforceable contract and therefore, in order to obtain specific performance, mutuality must exist. Howard Cole & Co. v. Williams, 157 Fla. 851, 27 So.2d 352 (1946). This court has also held that mutuality of obligation and remedy must exist for a specific performance suit to succeed. Burger Chef Systems, Inc. v. Burger Chef of Florida, Inc, 317 So.2d 795 (Fla. 4th DCA 1975).

The result of engrafting the addendum provision onto the contract is to require the seller to convey if the purchaser decides to go forward. On the other hand it leaves the seller with no corresponding right to enforce a sale and closing. We cannot envision a clearer case of lack of mutuality.

Accordingly, we reverse the final judgment and remand this cause for the entry of a judgment for defendant, appellant.

REVERSED AND REMANDED.

BERANEK, J., and WARREN, LAMAR, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Thaddeus J. BARA and Lois S. Bara, Appellants, v. Helen V. JONES, David L. O’Dell, and Carpet King, Inc., a Florida corporation, Appellees.
    No. 80-1709.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied July 15, 1981.
    Alan S. Fishman and Robert D. Hurth, P. A., Pompano Beach, for appellants.
    William R. Merkle of Hamilton, James Merkle & Young, Delray Beach, for appel-lee Helen V. Jones.
   DOWNEY, Judge.

This is an appeal from a final judgment wherein, among other things, the trial court found in favor of appellee Helen V. Jones and against appellants Thaddeus J. Bara and Lois S. Bara, his wife.

The Baras had purchased 48% of the common stock of Carpet King, Inc., for $20,000. The owner of the remainder of the common stock, appellee David L. O’Dell, purchased the Bara 48% interest and made periodic payments on the balance due. Eventually, O’Dell ceased paying the Baras and they brought suit for the balance. The Baras and O’Dell entered in negotiations to refinance the debt and prevent the suit from going to judgment. The Baras were unwilling to postpone payment without some security. Accordingly, O’Dell prevailed upon his employee, Helen Jones, to secure the obligation by giving the Baras a note and security agreement encumbering some antiques she owned. As a consequence, the pending suit was not further prosecuted.

The debt was reduced from $14,000 to approximately $9,800 when a default occurred and the Baras commenced this suit against the appellees. Neither O’Dell nor Carpet King, Inc., appeared in the case, and a default was entered against them. But Jones filed an answer, pleading lack of consideration, among other affirmative defenses. The trial court entered judgment for the Baras against O’Dell and Carpet King, Inc., but the court found in favor of Jones on her affirmative defense of lack of consideration. The latter aspect of the judgment is the subject of this appeal.

It is fundamental in the law of contracts that forbearance to sue on a debt, when the forbearance is bargained for, is good consideration for the promise of a third person, even though the claim is not asserted against the third person and the forbearance was of no advantage to him. 1 Corbin On Contracts, § 139; Marks Brothers Paving Co. v. Mt. Vernon Homes, Inc., 156 So.2d 787 (Fla. 3rd DCA 1963).

In the case at bar, Jones contends that she intended only to collateralize the debt and that she was misled. However, it is clear that any misrepresentations were attributable to O’Dell and not to the Baras. Jones also takes the position that she was simply an employee rather than a director or stockholder of Carpet King, Inc., and thus no benefit flowed to her from the Baras’ forbearance in this case. However, as indicated above, the benefit of the forbearance moved to O’Dell and Carpet King, Inc.; thus, Jones’s purported failure to receive any benefit from the forbearance does not affect the sufficiency of that forbearance as consideration for Jones’s promise.

Accordingly, we hold that the trial court misinterpreted the legal effect of the evidence and thus improperly entered judgment for Jones. The final judgment is therefore reversed as to Jones, and the cause is remanded with directions that the trial court enter judgment for the Baras and against appellee Jones.

REVERSED IN PART and remanded with directions.

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


author: DANAHY, Judge.

text:
    Mary DAVIS and Jack Davis, her husband, Appellants, v. Mollie MANDAU, Billy H. Bryant, Paul F. Dicken, Rocks & Stones, Inc., Biff-Burger of Clewiston, Inc., National Biff-Burger, Clewiston Builders, Inc., Swindle Bros. Dragline & Paving, and Donald R. Evans d/b/a Evans Plumbing & Supply Co., Appellees.
    Nos. 79-2169, 80-197.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Rehearing Denied July 1, 1981.

      David H. Zoberg and David S. Wieder, Miami, for appellants.
    Harry Haskins and Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees Mollie Mandau, Billy H. Bryant, Paul F. Dicken, Rocks & Stones, Inc., and Biff-Burger of Clewiston, Inc.
    Robert L. Donald and G. Gordon Harrison of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellee Nat. Biff-Burger.
    Jack J. Rafter, Jr., Clewiston, for appel-lees Clewiston Builders, Inc., and Swindle Bros. Dragline & Paving.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Donald R. Evans d/b/a Evans Plumbing and Supply Co.
   DANAHY, Judge.

We find no error in the entry of the summary judgments for appellees in this case. For the reasons set forth in Beattie v. Brotz, 391 So.2d 802 (Fla. 2d DCA 1980), we reverse the cost order in favor of appellee Evans to the extent that it taxes the costs of copies of depositions.

Pursuant to Article V, Section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), we certify this decision as being in direct conflict with the decisions of the Fourth District Court of Appeal in State Farm Mutual Automobile Insurance Co. v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979); Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979); County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978).

AFFIRMED but REMANDED for the entry of a new cost order which excludes the costs of copies of depositions.

GRIMES, Acting C. J., and CAMPBELL, J., concur.


author: PER CURIAM.

text:
    Philip KEIDAISH, Appellant, v. Jim SMITH, Attorney General, Appellee.
    Nos. 80-1765, 80-2000.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Rehearing Denied June 30, 1981.

      Dale Gardner Jacobs and Ernest M. Jones, Jr. of Jacobs, Valentine, Groseclose & Miller, P. A., Lakeland, for appellant.
    Jim Smith, Atty. Gen., and Gary L. Con-over and David K. Miller, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from the denial of a motion to quash an ex parte nonfinal order entered in a forfeiture proceeding under the Florida RICO (Racketeer Influenced and Corrupt Organization) Act. The order restrained appellant from transferring or disposing of any assets other than in the normal course of legitimate business or for day-to-day living expenses.

The attorney general filed a motion to dismiss the appeal in which he alleged that the court had estreated appellant’s bond because of his failure to appear in the RICO criminal proceedings filed against him and that appellant had violated the terms of the order which he is seeking to set aside in this appeal. This court appointed Circuit Judge William A. Norris as a commissioner to determine whether appellant is in violation of the temporary injunction. Following a hearing, Judge Norris filed his report in which he concluded that appellant has fled the jurisdiction of the court and has violated the temporary injunction in many particulars by transferring specifically described valuable properties and large sums of money to various parties. Upon receiving this report, we have decided to grant the attorney general’s motion to dismiss.

Where an appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, dismiss the appeal. Gazil v. Gazil, 343 So.2d 595 (Fla.1977). The grace period prior to dismissal referred to in Gazil is inapplicable here because appellant has fled the jurisdiction and has already placed the assets and money beyond his control. This court will not entertain a person’s appeal from an order which he'has wilfully flaunted. Appellant’s attorneys’ contention that their client’s derelictions should not affect his right to complain about that portion of the order which refused to dissolve a lis pendens is without merit.

APPEAL DISMISSED.

BOARDMAN, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Jorge Carlos PEREZ and Johnny Ortiz, Appellees.
    No. 80-948.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 14, 1981.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Defendants were taken into custody some time prior to October 8, 1979; Perez as a result of an indictment charging first degree murder, Ortiz as a result >f an information charging a burglary. They were 16 and 17 years of age. While in the Dade County jail, they were arrested on October 9, 1979 for the commission of a sexual assault at the Dade County jail, which allegedly occurred on October 8,1979. Thereafter, subsequent to the expiration of 90 days from the time of their arrest on the sexual assault, an information charging such crimes was filed against the defendants. They moved for a discharge, contending that they were entitled to be brought to trial within 90 days of their arrest because they were juveniles and, as of the date of the alleged sexual assault, they had not been found guilty of the crimes with which they had originally been charged. After several hearings, the trial court granted their motions for discharge in words and figures as follow:

“THIS CAUSE coming on to be heard upon the Motions for Discharge of defendants JOHNNY ORTIZ and JORGE CARLOS PEREZ and the Court having heard arguments of counsel and being otherwise fully advised in the premises, makes the following findings:
1. The defendant, JOHNNY ORTIZ, was arrested on October 9, 1979, and charged with Sexual Battery.
2. At the time of his arrest the defendant, JOHNNY ORTIZ, was sixteen years of age.
3. The defendant, JORGE CARLOS PEREZ, was arrested on October 9,1979, and was charged with Sexual Battery.
4. At the time of his arrest the defendant, JORGE CARLOS PEREZ, was seventeen years of age.
5. The crimes for which the defendants were arrested allegedly occurred on October 8, 1979.
6. The State did not file an Information in the Adult Division of the Circuit Court in and for Dade County, Florida, until January 11, 1980, more than ninety days after the arrest of the juvenile defendants. All during this time, the defendants ORTIZ and PEREZ had been continuously incarcerated in a pre-trial status.
7. On February 29, 1980, the defendant, ORTIZ, filed a Motion for Discharged relying on the Florida Rule of Juvenile Procedure 8.180 and Florida Statute Section 39.02(5)(d).
8. This Motion was orally granted by this Court on February 29, 1980. No written order was rendered at that time.
9. On March 5, 1980, the State timely filed a Motion to Reconsider, Vacate and Set Aside the Order of Discharge with respect to defendant ORTIZ.
10. The State’s Motion relied on the case of Florida ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1969), (hereinafter referred to as Register) and Florida Statutes Sections 39.04(2)(3) and (e).
11. The Court heard argument on the State’s Motion on March 5, 1980 and March 19,1980 and specifically considered the arguments raised in the State’s Motion for Reconsideration.
12. On March 20, 1980, the defendant, PEREZ, filed a Motion to Discharge and the State adopted the same positions it had previously adopted in opposition to the motion of the defendant ORTIZ.
CONCLUSION OF LAW
1. The State relies on the Register case and Florida Statute Sections 39.04(2)(d) and (e) which authorize the State Attorney to exercise his/her discretion and file an Information charging a sixteen or seventeen-year old in the Adult Division of the Circuit Court without resorting to a transfer from the Juvenile Division when certain factors are present.
2. The Register case approved the statutory procedures set forth in Florida Statute Sections 39.04(2)(d) and (e) pertaining to the filing of an Informati m and this Court agrees with the holdings of the Register case, but finds it distinguishable.
3. In Register, the defendant, a juvenile was arrested on October 27, 1978, and an Information was filed in the Adult Division of the Circuit Court on November 17, 1978, a total of twenty-one days after the juvenile defendant’s arrest. The filing of the Information in the Adult Division of the Circuit Court, in the Register case was based on Florida Statute Sections 39.04(2)(d) and (e) the same Sections as are in issue in the instant case.
4. In the instant case the Information was filed on the ninety-fifth day after the arrest of the juvenile defendants. Until the Information was filed jurisdiction of this cause was in the Juvenile Division of the Circuit Court. On the ninety-first day following their arrest, the juvenile defendants speedy trial rights vested pursuant to the Juvenile Speedy Trial Rule, Rule 8.180 of the Florida Rules of Juvenile Procedure.
5. Even though the defendants did not file a Motion to Discharge until after the State filed an Information in this cause, the State cannot circumvent the 90 day rule of Rule 8.180 by waiting until more than 90 days have elapsed and then invoking the jurisdiction of the Adult Division of the Circuit Court. The intent of the juvenile speedy trial rule is to insure that some action or disposition of a juvenile case is pursued within 90 days. If the State cannot meet that time structure, subsection of the rule provides a remedy: The State may seek an extension of the 90 day period. This the State chose not to do in this case.
6. The State’s filing of an Information more than ninety days after the arrest cannot deprive the defendants of their previously vested rights under the Juvenile Speedy Trial Rule. The Defendants had been continuously available, indeed in custody, during the ninety day period and were not brought to trial through no fault of their own.
7. This Court specifically holds that the State cannot validly invoke the provisions of Florida Statute Sections 39.04(2)(d) and (e) by filing an Information in the Adult Division of the Circuit Court more than ninety days after a juvenile is taken into custody for a delinquent act which is classified as a felony by Florida law since the juvenile’s speedy trial time limitation elapses on the ninetieth day subsequent to the arrest. Thus, the State must make its determination to invoke Sections 39.-04(2)(d) and (e), prior to the running of Speedy Trial period.
8. Sections 39.04(2)(d) and (e), was not intended to provide the State with means of circumventing the juvenile speedy trial rule; yet that is how it was misused in this case.
IT IS THEREUPON
ORDERED and ADJUDGED that the Motion for Discharge of the Defendants PEREZ and ORTIZ be and the same are hereby granted.”

The State appeals and contends that this decision is controlled by the opinion of the Second District, rendered in State v. Robinson, 336 So.2d 437 (Fla.2d DCA 1976). If Robinson is still valid law, in light of the opinion of the Supreme Court of Florida in State v. Benton, 337 So.2d 797 (Fla.1976) we decline to follow it. Also compare State v. Boatman, 329 So.2d 309 (Fla.1976). The trial court’s reasoning, as reflected in its order of discharge, appears to be the better procedure to be followed when juveniles are to be charged as adults, and until such time as the State notifies a juvenile that he is to be considered as an adult as to certain charges the juvenile has the right to rely on the statutes and rules that protect him in the status of a juvenile; the State cannot wait until the expiration of the 90-day speedy trial time applicable to juveniles and then file an information and contend that the juvenile is an adult and therefore be governed by the 180-day speedy trial rule.

The order under review be and the same is hereby affirmed.

Affirmed.

      . On June 7, 1979 Perez entered a nolo conten-dere plea to second degree murder, but no finding of guilt was made until October 23, 1979. Ortiz pleaded guilty to the burglary information on January 11, 1980. Therefore, neither had been found guilty of the crimes originally charged prior to their arrest in the jail on October 9, 1979 in order to activate Section 39.02(5)(d), Florida Statutes (1979).


text:
    J. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1033.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

J. G., a juvenile, appeals from an order adjudicating him a delinquent pursuant to the court’s finding that he had by strong-arm robbery snatched two gold necklaces from two schoolgirls when walking by them in the hallway of the school in which all the parties were enrolled.

It is appellant’s contention that the trial court erred in denying his motion to suppress in-court identifications by the victims and in adjudicating him delinquent on insufficient evidence.

We have carefully considered these contentions in the light of the record and the applicable law and we have concluded therefrom that appellant’s points are without merit. Paschal v. State, 251 So.2d 257 (Fla.1971); Hanks v. State, 305 So.2d 817 (Fla.3d DCA 1974); Daniels v. State, 262 So.2d 725 (Fla.3d DCA 1972).

Affirmed.