author: DOWNEY, Judge. ANSTEAD, Judge, ANSTEAD, Judge.

text:
    JUNO BY THE SEA NORTH CONDOMINIUM ASSOCIATION (THE TOWERS), INC., Appellant, v. Seraphin MANFREDONIA, Charles Youngblood and Jeanett Youngblood, Appellees.
    No. 78-1359.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    On Rehearing Jan. 21, 1981.
    Timothy J. Hmielewski of Nason, Gildan, Yeager & Lubin, P.A., West Palm Beach, for appellant.
    Raymond G. Ingalsbe of Saylor, Ingalsbe & Cohen, North Palm Beach, for appellees.
   DOWNEY, Judge.

This case arose out of a controversy between several condominium unit owners and the condominium association precipitated by passage of a rule assigning parking spaces to certain unit owners. From a declaratory judgment in favor of the unit owners the Condominium Association has perfected this plenary appeal.

The case was presented to the trial court upon a stipulation of facts which in pertinent part reflects that Juno By The Sea North Condominium is a seventy unit condominium located on the east, or ocean, side of Highway AIA in Juno Beach, Florida. The condominium documents provide for three separate parking areas:

A) There are 20 covered spaces, which are limited common elements and which were sold to unit owners for $2,000.00 each on a first-come, first-serve basis.
B) There are 50 spaces located within the common elements on the east side of AIA directly adjacent to the Condominium building.
C) There are 27 spaces within the common elements which are located on the west side of AIA, across the street from the Condominium building.

When all of the Condominium units were sold and there were an insufficient number of parking spaces in parking lot B adjacent to the Condominium building, the Board of Directors passed a rule assigning one parking space to each unit owner who did not already own one of the twenty covered spaces located in the limited common elements. Appellees then filed suit for declaratory relief contending that the Board of Directors did not have the authority to pass the rule in question assigning all of the fifty spaces in parking Lot B, a common element, to less than all of the seventy unit owners. The trial court entered judgment for the appellees, declaring the action of the Board of Directors to be void and enjoining the Board from excluding any unit owners from enjoying the use of parking Lot B.

Appellant contends that the Condominium Act, Chapter 711, Florida Statutes (1975) (now Chapter 718, Florida Statutes), and the Declaration of Condominium authorized the Board of Directors of Juno By The Sea North Condominium to pass reasonable rules regulating the use of the common elements of the Condominium. Besides the authority contained in the Condominium Act, appellant points out that prior to the purchase of any of the units in this Condominium building Condominium Association Rule V was in effect, which provided:

Automobiles are a necessity in our modern way of living, but unfortunately, take up considerable valuable space. Parking is allocated to individual owners of our condominium family, and we urge your continued cooperation in strict recognition of the space assignments made by the Association or Developer. Do not, even on a momentary basis, park in someone else’s space and inform your guests and visitors not to preempt one of your neighbor’s alloted (sic) spaces.

We would concede that Condominium Associations in general and appellant in particular, through their Boards of Directors, have the authority to pass reasonable rules and regulations pertaining to the common elements of the Condominium. However, as we see it, the reasonableness of the rule adopted by the Directors of the Association is not the focal issue involved in this litigation. The issue rather is one of power and authority. If the Board of Directors had the power to designate certain portions of the common elements for the exclusive use of less than all of the unit owners, then it must be conceded that the method of assignment is logical and reasonable. If, on." the other hand, the Board lacks the authority, the power, to so dispose of a portion of the common elements, then all the logic and reason in the world will not cure that lack of capacity to promulgate such a rule.

Parking is no doubt an essential part of living in a condominium community. If there were sufficient parking spaces in Lot B, a common element, to furnish a parking space for each unit owner, the Board could, Pursuant to its rule making power, assign parking spaces. And certainly the Board can set out reasonable rules and regulations concerning the size of the spaces, speed limits in the parking lot and other rules necessary to maintain order and safety in the area. But the evil involved in the present case is that Lot B is' not large enough to afford a parking space for all seventy unit owners and so the Board has chosen some unit owners, but not all, for this preferential assignment. It is true the Board did not act as it did without rhyme or reason; the Board assigned the fifty parking spaces in Lot B (a common element) to the unit owners who had not bought one of the twenty covered parking spaces in Lot A (limited common element). But it does not suffice to say that the twenty unit owners excluded from the preferential assignment in Lot B already have one covered space in Lot A. The unit owners who have covered parking spaces in Lot A purchased those spaces for $2,000 each; they could purchase those spaces because, pursuant to the Declaration of Condominium, those spaces were limited common elements. If the Declaration did not designate Lot A as a limited common element area, the purchase of said covered spaces in Lot A would have been invalid.

The trial judge noted that the Board’s assignment methodology might be just or logical, but he found an absence of authority for the Board to make the preferential assignments in question. We are persuaded to agree with the trial judge and thus affirm the judgment appealed from.

AFFIRMED.

DAUKSCH, ’JAMES C., Jr., Associate Judge, concurs.

ANSTEAD, Judge, dissents with opinion.

ANSTEAD, Judge,

dissenting:

By its holding today the majority has ruled that a condominium association does not have the “power and authority” to assign individual spaces in a common element parking lot. At the same time the majority has held that if there were enough spaces for everyone in parking lot B, the association would have the authority to do so. The majority first states the issue is one of “power and authority” rather than “reasonableness” but proceeds to decide the issue because it finds the assignment plan to be unreasonable; i. e., preferential to those unit owners who do not own a covered parking space. I cannot agree with the “reasonableness” of the majority’s opinion and therefore dissent.

The appellant relies on the power conferred upon it by Section 711.12, Florida Statutes (1975) and the declaration of condominium to maintain, manage, and operate the condominium property, which, specifically includes both common elements and limited common elements, as its source of authority to assign parking spaces in the 50 space lot. I agree.

By express terms in the statute and in the declaration the association has been granted broad authority to regulate the use of both the common element and limited common element property. In general, that power may be exercised as long as the exercise is reasonable and does not exceed any specific limitations set out in the statutes or condominium documents. For instance here, although the association has the authority to regulate the use of limited common elements, it would have no authority to assign the use of the covered parking spaces because those spaces have been specifically designated in the Declaration of Condominium as appurtenances of individual units and subject to exclusive use by owners of those units. However, no such restrictions exist as to the 50 space parking lot.

The appellees contend that the appellant association violated Section 711.13(2), Florida Statutes (1975) which prohibits material alterations of the common elements except in a manner provided in the declaration. The appellees assert that the association’s action improperly converted and materially altered the 50 common element spaces into limited common elements for the benefit of only 50 out of the 70 unit owners. The majority opinion does not indicate whether it agrees with this view.

Limited common elements as defined by Sections 711.03(13) and 711.04(2), Florida Statutes (1975) are not only elements reserved for the use of a certain unit but such elements become an appurtenance of the unit and pass with the unit when legal title is conveyed. Here, the 50 parking spaces, unlike the 20 covered spaces, have not been converted into limited common elements since they will not pass as appurtenances to individual units but will remain common elements subject to continuing regulation by the association. Moreover, I do not believe that by assigning individual spaces in a common element parking lot the association is materially altering those common elements. There is no dispute here about the propriety of using the common elements as a parking lot. Surely some regulation of the parking areas would be necessary even if there was an excess of parking spaces in the lot. Even the majority opinion concedes that spaces could be assigned in Lot B if there were enough spaces therein for all the unit owners.

Parking spaces, by their very nature, are exclusive; i. e., only one vehicle can be parked in a space at a time. By necessity the 50 spaces are going to be used “exclusively” by 50 out of 70 of the unit owners at any given time. In other words 20 of the unit owners will always be excluded from use of the 50 spaces no matter what regulations are enacted. Surely one of the reasons that the “open parking” plan attempted briefly proved unworkable was because many unit owners found themselves completely excluded from any convenient parking.

In Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) we adopted a test of reasonableness to determine the validity of association regulations. In that case we held that an association could ban the use of alcohol on common element property. Judge Downey stated for the court:

It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with the private ownership of property. It provides, for example, that no sale may be effectuated without approval; no minors may be permanent residents; no pets are allowed. Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining. Id. at 181, 182.

I simply cannot agree that an association has the “inherent authority” to absolutely bar alcoholic beverages from the common element premises but at the same time, lacks any authority to adopt a reasonable plan of assignment of parking spaces.

I believe the regulation challenged herein is reasonable and makes eminent good sense. Upon construction of Juno by the Sea, there were 70 parking spaces provided to unit owners in the immediate area of the condominium building. For an extra $2,000.00 each, 20 unit owners were able to secure the best of these 70 spaces; i. e., 20 covered spaces in the basement of the condominium building. Under the regulation, the remaining 50 unit owners, by virtue of either purchasing their units too late, or by choice, were left with parking in open parking spaces immediately outside the building. Additionally, 27 “spare” parking spaces located across the street were available to all the unit owners. Accordingly, I do not think it was improper for the association, in devising an assignment plan, to consider, among other factors, the fact that 20 unit owners had already secured convenient, exclusive parking spaces within the condominium building. As noted, supra, the appellant was vested with the authority of regulating the use of the limited common elements; i. e., the covered spaces, as well as the common elements; i. e., the open parking. In addition, although not noted in the majority opinion, the expense of maintenance of the covered spaces as well as the open spaces is borne by the association. Under all these circumstances I believe this plan not only makes good sense, but appears to be the only reasonable alternative, short of total chaos, open to the association.

It is also important to note that we are not faced with a situation where the prospective unit owners were without notice of the assignment of parking spaces. Point East Management Corporation v. Point East One Condominium Corporation, Inc., 282 So.2d 628 (Fla.1973). Rule V of the association’s rules and regulations, quoted in the majority opinion, put unit owners on notice that parking spaces would be assigned first by the developer and then by the association to individual unit owners.

As noted in Hidden Harbour, supra, “each case must be considered upon the peculiar facts and circumstances thereto appertaining.” I believe that under the peculiar facts of this case the regulation was reasonable and within the authority of the association and that our decision today is in direct conflict with our previous holding in Hidden Harbour.

ON PETITION FOR REHEARING

ANSTEAD, Judge.

By this appeal we are presented with another unique problem that has arisen within a condominium community. At issue is whether a condominium association, acting through its board of directors, has the authority to assign individual parking spaces for the exclusive use of individual unit owners.

Juno by the Sea North is a condominium building comprised of 70 units located on the east side of Highway A1A in Juno Beach, Florida. There are three parking areas used by the condominium occupants: a covered parking area located in the basement of the condominium building consisting of 20 spaces; an outside parking area directly adjacent to the building consisting of 50 spaces; and an area opposite the condominium building on the west side of A1A consisting of 27 spaces.

By specific provision in the Declaration of Condominium, the 20 covered parking spaces were designated as limited common elements; i. e., elements exclusively reserved for the use of a certain unit, which were assigned to individual unit owners for $2,000.00 each on a first-come first-serve basis. Thereafter, the developer, and subsequently, the condominium association, assigned the 50 parking spaces adjacent to the building to other unit owners who had not purchased covered parking. The association is responsible for the cost of maintenance of all three parking areas. The parties agree that the two open parking lots were designated in the Declaration as common elements, but, unlike the covered parking, were not specifically designated as limited common elements.

At the time of purchase each unit owner at Juno by the Sea acknowledged that he was subject to the provisions of the various condominium documents including the association rules and regulations. Prior to the time any units were sold, Rules and Regulations of the condominium association had been adopted and Rule V thereof provided:

Automobiles are a necessity in our modern way of living, but unfortunately, take up considerable valuable space. Parking is allocated to individual owners of our condominium family, and we urge your continued cooperation in strict recognition of the space assignments made by the Association or Developer. Do not, even on a momentary basis, park in someone else’s space and inform your guests and visitors not to preempt one of your neighbor’s allotted spaces.

For a short interval the association allowed “open parking” in the 50 space lot but that created such a controversial situation, according to the appellees, that the association promptly reenacted the rule assigning spaces in the 50 space lot to those unit owners who had not acquired covered parking spaces. This action followed. In entering judgment for the appellees the trial court noted that the regulation appeared “logical” and “just” but held that the association had exceeded its authority.

On appeal, the appellant relies on the power conferred upon it by Section 711.12, Florida Statutes (1975) and the Declaration of Condominium, to maintain, manage, and operate the condominium property, which specifically includes both common elements and limited common elements, as its source of authority to assign parking spaces in the 50 space lot. We agree.

By express terms in the statute and in the declaration the association has been granted broad authority to regulate the use of both the common element and limited common element property. In general, that power may be exercised as long as the exercise is reasonable, is not violative of any constitutional restrictions, and does not exceed any specific limitations set out in the statutes or condominium documents. For instance here, although the association has the authority to regulate the use of limited common elements, it would have no authority to assign the use of the covered parking spaces because those spaces have been specifically designated in the Declaration of Condominium as appurtenances of individual units and subject to exclusive use by owners of those units. However, no such restrictions exist as to the 50 space parking lot.

The appellees assert that the association’s action improperly converted the common element spaces into limited common elements. It is contended that the assignment plan adopted by the appellant association violated Section 711.13(2), Florida Statutes (1975) which prohibits material alterations of the- common elements except in a manner provided in the declaration. In this regard appellees rely on Mayfair Engineering Co. v. Park, 318 So.2d 171 (Fla. 4th DCA 1975). In Mayfair we held that a developer, by virtue of a specific reservation in the Declaration of Condominium, had retained the authority to assign the exclusive use of certain parking spaces in the condominium. Judge Owen, writing for the court, noted that the Declaration, in effect, converted all of the parking spaces in the condominium into limited common elements since it not only provided for the developer’s right to assign exclusive use of some of the spaces, it also provided that all unit owners would receive one space for exclusive use. However, contrary to appel-lees’ contention, we did not consider in Mayfair, supra, the extent of a condominium association’s authority to regulate the use of common element parking spaces.

We also note that limited common elements as defined by Sections 711.03(13) and 711.04(2), Florida Statutes (1975) are not only elements reserved for the use of a certain unit but such elements become an appurtenance of the unit and pass with the unit when legal title is conveyed. Here, the 50 parking spaces, unlike the 20 covered spaces, have not been converted into limited common elements since they will not pass as appurtenances to individual units but will remain common elements subject to continuing regulation by the association.

Moreover, we do not believe that by assigning individual spaces in a common element parking lot the association is “materially altering” those common elements. The common element parking lot involved continues to be used as a parking lot for the benefit of the unit owners. If appellees’ argument were accepted there could be no assigned spaces even if there were 70 instead of 50 spaces in the lot adjacent to the building. Surely some regulation of the parking areas would be necessary even if there was an excess of parking spaces in the lot.

Parking spaces, by their very nature, are exclusive; i. e., only one vehicle can be parked in a space at a time. By necessity the 50 spaces are going to be used “exclusively” by 50 out of 70 of the unit owners at any given time. In other words 20 of the unit owners will always be excluded from use of the 50 spaces no matter what regulations are enacted. Surely one of the reasons that the “open parking” plan attempted briefly proved unworkable was because many unit owners found themselves completely excluded from any convenient parking. Hence, we conclude that the association did have the authority to assign individual parking spaces in the common element parking lots set aside for the use of the unit owners.

In our view, the real issue presented by appellees is not that the association lacked the authority to assign individual parking spaces but rather that this particular plan of assignment is unreasonable and discriminatory because it excludes certain unit owners from the 50 space lot; i. e., the unit owners who own covered parking spaces. In Hidden Harbour Estates Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) we adopted a test of reasonableness to determine the validity of association regulations:

It appears to us that inherent in the condominium concept is the priciple that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned- property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with the private ownership of property. It provides, for example that no sale may be effectuated without approval; no minors may be permanent residents; no pets are allowed. Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining. Id. at 181, 182.

First, we note that we are not faced with a situation where the prospective unit owners were completely without notice of the assignment of parking spaces. Point East Management Corporation v. Point East One Condominium Corporation, Inc., 282 So.2d 628 (Fla.1973). We believe Rule V of the association’s rules and regulations, while awkwardly drawn, still put unit owners on notice that parking spaces would be assigned first by the developer and then by the association to individual unit owners. Indeed, that was done from the beginning.

Further, under the circumstances of this case we find no unlawful discrimination. Limited common elements are owned and maintained by all of the unit owners as part of the common elements but the use thereof is exclusively limited to individual unit owners. These limited common elements usually consist of elements such as parking spaces, balconies, patios or other such property which the unit owners use individually but in which they share a common interest in maintaining. For instance, to insure the uniform quality of appearance of all the exterior balconies, they might be designated as limited common elements for the exclusive use of the unit owner but subject to maintenance by all the unit owners through the condominium association. Invariably in such cases, however, every unit owner has the exclusive use of a similar item. Otherwise, it would be unfair for the owner of one unit that does not have a balcony to help pay for the maintenance of a balcony used exclusively by another unit owner.

It is because we have a variation from the usual scheme of limited common elements that the problem arises herein. Instead of all having covered parking spaces, there are only enough spaces for 20 unit owners. And yet, all of the unit owners pay for the maintenance of the covered spaces. It is true of course that the covered spaces are designated limited common elements and that the 20 unit owners involved paid extra consideration of $2,000.00 each for the use of these spaces. However, this does not justify burdening the other unit owners with the cost of maintaining these spaces. In our view the only way such an arrangement can be upheld is if the remaining 50 unit owners are also assured of the use of exclusive parking space maintained by all of the unit owners. And the rule under attack here does just that in an eminently reasonable manner. Under the rule each unit owner has the exclusive use of a parking space and shares equally with his neighbor in the maintenance of that space. The rule does not unfairly discriminate.

We believe the regulation challenged herein is not only fair but makes good sense. Upon construction of Juno by the Sea, there were 70 parking spaces provided to unit owners in the immediate area of the condominium building. For an extra $2,000 each, 20 unit owners were able to secure the best of these 70 spaces; i. e., 20 covered spaces in the basement of the condominium building. Under the regulation, the remaining 50 unit owners, by virtue of either purchasing their units too late, or by choice, were left with parking in open parking spaces immediately outside the building. Additionally, 27 “spare” parking spaces located across the street were available to all the unit owners.

Accordingly, we do not think it was improper for the association, in devising an assignment plan, to consider, among other factors, the fact that 20 unit owners had already secured convenient, exclusive parking spaces within the condominium building. As noted, supra, the appellant was vested with the authority of regulating the use of the limited common elements; i. e., the covered spaces, as well as the common elements; i. e., the open parking. In addition, the expense of maintenance of the covered spaces as well as the open spaces is borne by the association. Under all these circumstances we believe this plan not only makes good sense, but appears to be the only reasonable alternative, short of total chaos, open to the association. As noted in Hidden Harbour, supra, “each case must be considered upon the peculiar facts and circumstances thereto appertaining.” We believe that under the peculiar facts of this case the regulation was reasonable and within the authority of the association.

The appellant’s petition for rehearing is granted and the judgment of the trial court is reversed with directions for further proceedings consistent herewith.

DOWNEY, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.

      . Appellee analogizes the preferential assignment here to action by the Board of Directors in assigning another part of the common elements, the swimming pool, to some of the unit owners to the exclusion of others. Assuming some logical reason could be conjured up for such action, would anyone seriously contend that the Board of Directors of this condominium had any such power or authority? Perhaps a more telling analogy would bé a situation in which a small group of unit owners purchased a lot abutting the condominium property to use as their exclusive parking lot. Since the Association had insufficient spaces in Lot B for everyone, the Association might by rule assign the spaces in Lot B to other unit owners and exclude the owners of the private lot. One can not deny there is a rational basis for such action, but it nevertheless seems to lack constitutional acceptability.

      . In fact, of course, there are a total of 77 common element parking spaces when you consider the open lot across the street as well as the lot next to the building, so there are an excess of parking spaces here.

      . Unlike a swimming pool.

      . The owners of the covered parking spaces may be entitled to a space in the lot across the street, but that issue is not before us.

      . Unlike the private parking lot described in footnote 1 of the majority opinion which presumably would be maintained only at the expense of those who purchased it.

      . Agreement of 75% of the unit owners is required in order to amend the Declaration of Condominium. In addition, the Declaration provides that no amendment may alter a unit owner’s share in the common elements without his express consent. Hence, agreement of all 70 unit owners would have to be obtained if in fact an owner’s share in the common elements was being altered by the assignment of parking spaces.

      . § 711.03(13), Fla.Stat. (1975) defines limited common elements.

      . The existing association rules, including Rule V, were attached to the Declaration and expressly made a part thereof.

      . In fact, of course, there are a total of 77 common element parking spaces when you consider the open lot across the street as well as the lot next to the building.

      . Unlike a swimming pool and some other common elements.

      . By our decision in Hidden Harbour Estates Inc. v. Norman, supra, we did not hold that an association has the authority to enact any reasonable regulations. The regulations must be within the legal powers properly granted to the association and not contravene the legal rights of others. For instance, the association has little authority over the individual condominium units and presumably could not enact a regulation requiring the interior of each unit to be cleaned weekly by an association retained cleaning service, even though such a regulation might appear eminently reasonable; i. e., it may provide the best service to all the units at the cheapest cost. Each homeowner is still free to maintain the interior of his own apartment.

      . Agreement of 75% of the unit owners is required in order to amend the Declaration of Condominium. In addition, the Declaration provides that no amendment may alter a unit owner’s share in the common elements without his express consent. Hence, agreement of all 70 unit owners would have to be obtained if in fact an owner’s share in the common elements was being altered by the assignment of parking spaces.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Judge. WENTWORTH, Judge, ROBERT P. SMITH, Jr., Judge. ERVIN, Judge,

license: Public Domain

text:
    Jerome ROTSTEIN, M. D., Appellant, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, State Board of Medical Examiners of Florida, Appellee.
    No. OO-426.
    District Court of Appeal of Florida, First District.
    July 24, 1980.
    On Rehearing March 11, 1981.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, Sam Spector of Spector & Tunnicliff, Tallahassee, for appellant.

      Deborah J. Miller, Dept, of Professional Regulation, and Joseph W. Lawrence, II, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

We affirm the order of the State Board of Medical Examiners revoking the license of appellant Rotstein to practice medicine in Florida. The ground on which discipline was sought and on which revocation was ordered is that Dr. Rotstein was convicted of willfully making a false statement to an agency of the United States, in violation of Title 18 U.S.C., Section 1001. Under Section 458.1201(l)(c), Florida Statutes (1977), it was a ground for discipline of a licensed medical doctor that the licensee was

convicted of a felony in the courts of this state or any other state, territory, or country. Conviction as used in this paragraph shall include a conviction of an offense which if committed in this state would be deemed a felony without regard to its designation elsewhere . . ..

The offense for which Dr. Rotstein was convicted, on his plea of guilty in the United States District Court for the Southern District of New York, is a felony under federal law. As such, the conviction was grounds for discipline under the Florida statute because the offense was a felony under the laws of a “country,” the United. States, referred to in the statute. Section 458.1201(l)(c) contemplated that “any other state, territory, or country” included the United States. We reject the argument that an offense made a felony by the United States Code, but not by Florida Statutes, could not constitute grounds for discipline. The statute does not exclude from consideration felony convictions under out-of-state laws more far-reaching than Florida’s; rather, the statute “includes” out-of-state misdemeanor convictions which under Florida law would constitute felony convictions. In Re Weathers, 159 Fla. 390, 31 So.2d 543 (Fla.1947) is not to the contrary; that decision construed Section 458.12(2), Florida Statutes (1941), requiring that the out-of-state conviction, constituting the basis for discipline, be for a crime “which if committed within the state of Florida would constitute a felony under the laws thereof.” Section 458.1201(l)(c) was not similarly restrictive.

Appellant urges that the disciplinary proceedings were flawed by the Board’s failure to comply with Section 120.60(6), requiring, “prior to the institution of agency proceedings” for license discipline, that notice and an opportunity to show compliance be accorded the licensee. Appellant did not urge this before the Board at any time, and the point is waived. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla.1st DCA 1980). Appellant also urges that the Board lost jurisdiction by its failure to enter a final order within 90 days after service of the hearing officer’s recommended order. Section 120.59(l)(b), Florida Statutes (1979). The Board, which reviewed the entire record after initially hearing the case, entered its order some two weeks beyond the 90-day schedule. No prejudice was shown before the Board at its final hearing, which was also held beyond the 90-day schedule, and no particular prejudice is suggested here. The delay in filing the final order does not, therefore, vitiate the proceedings. Jess Parrish Mem. Hosp. v. Florida Pub. Empl. Relations Comm’n, 364 So.2d 777 (Fla.1st DCA 1978).

Appellant’s final point is that the revocation of his license constitutes “cruel and unusual punishment” in violation of the State and Federal Constitutions. Appellant has not sustained this constitutional claim and, absent any contention concerning the regularity of the Board’s review of the record to fix a penalty or otherwise concerning the Board’s exercise of discretion according to Florida Real Estate Comm’n v. Webb, 367 So.2d 201 (Fla.1978), it is inappropriate for this court to inquire further into the manner in which the Board exercised and explained its discretion to revoke appellant’s license. The revocation order is

AFFIRMED.

ERVIN, J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully disagree with the court’s disposition of this appeal. After appellant pleaded guilty to the federal offense of willfully making a false statement to an agency of the United States, 18 U.S.C. § 1001, the Department of Professional and Occupational Regulation, State Board of Medical Examiners of Florida, instituted disciplinary proceedings and appellant was granted a § 120.57, Florida Statutes, hearing. At this administrative hearing appellant presented evidence indicating that he was guilty of a technical violation of 18 U.S.C. § 1001, but that his conduct was of the character which, while malum prohibi-turn, was not malum in se. The hearing officer made numerous findings reflecting favorably upon appellant’s professional competence and integrity and recommended that appellant be placed on probation. The Board thereafter accepted the hearing officer’s findings but revoked appellant’s professional license, noting that the offense of which the appellant was convicted was “of a very serious nature.”

In Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), the Florida Supreme Court determined that where an agency, within its discretion, imposes a penalty prescribed by law, a reviewing court may not overturn the penalty except where the agency’s findings are also overturned. Webb also establishes that upon review of the entire record an agency may increase a recommended penalty without explaining its rationale for the increase. However, as was indicated in McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla.1st DCA 1977), judicial review proceedings under § 120.68, Florida Statutes, seek crystallization of agency discretion, and to the extent that agency action depends on non-rule policy, the agency’s duty of exposition increases. In quoting from the reporter’s comments on the proposed administrative procedure act, the court in McDonald noted that: The McDonald court further noted that judicial review aims not at displacing agency discretion but at requiring, as a condition of its exercise, a reasoned explanation.

Three due process checks to prevent arbitrary agency action are the requirements that reasons be stated for all action taken or omitted, that reasons be supported by ‘the record,’ and that specific judicial review procedures allow the courts to remedy defects of substance.

While Webb indicates that an agency may increase a recommended penalty without explanation, where an explanation is given I would apply McDonald and require that the explanation be supported by record evidence and sufficiently particularized so as to elucidate the agency’s rationale. Such a requirement accords with due process of law as guaranteed by Art. I, § 9, Florida Constitution, and provides the opportunity for meaningful judicial review of an agency’s explanation of its discretionary action. In the present case the eonclusory statement that appellant’s offense was of a “very serious nature” is not particularized or substantiated by any reference to record evidence, and my study of the record does not clarify but instead compounds the problem because of the highly prejudicial nature of documentary exhibits forwarded with the record but never introduced into evidence. The Board’s order does not reveal the factors considered, or the basis of its conclusion, regarding the “serious nature” of the offense. To the extent that the Board may have disbelieved appellant’s explanation of the offense (contrary to the apparent acceptance of that explanation which necessarily inheres in the hearing officer’s findings and recommended lesser penalty), § 120.57(l)(b)9, Florida Statutes, would require a more specific and particularized statement by the full Board than that given in the present case. In my opinion, the circumstances require that the cause be remanded to the Department pursuant to § 120.68(12)(c), Florida Statutes.

Without deciding the issue addressed by the majority as to whether § 458.1201(l)(c), Florida Statutes, uses the word “include” as a term of enlargement or limitation, I would note that foreign authority has construed similar language as a limiting term, contrary to the majority’s conclusion in this case. See People v. Fisher, 145 Misc. 406, 261 N.Y.S. 390 (1932).

I would reverse and remand this cause to the Department.

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Judge.

Our principal opinion held that Dr. Rot-stein’s conviction of a federal felony in the United States District Court for the Southern District of New'York subjected him to medical license discipline as one “convicted of a felony in the courts of this state or any other state, territory, or country,” Section 458.1201(l)(c), Florida Statutes (1977), regardless of the fact that the closest Florida counterpart to Rotstein’s federal crime is a misdemeanor. Section 837.06, Florida Statutes (1979).

Rotstein’s petition for rehearing newly advances Article X, Section 10, Florida Constitution, as requiring the restrictive statutory interpretation for which he contended, and which we rejected, when the case was initially submitted. That section of the 1968 Constitution provides:

The term “felony” as used herein- and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary.

Rotstein urges that constitutionally defining “the term felony” as meaning only Florida felonies and those nonFlorida offenses which “if committed in this state” would be Florida felonies may well forbid the legislature to use the term felony in any other sense, but that, in any event, the restricted constitutional definition is highly persuasive evidence of the sense in which the legislature did use the term in Section 458.1201(l)(c). We agree with Rotstein and, because he was not convicted of a felony in that restricted sense, we now vacate the order revoking his license to practice medicine.

Because Article X, Section 10 serves in this case as a compelling instrument of statutory construction, requiring that we give to the statute an interpretation it can fairly bear but which until now we thought was not its intent, we need not decide whether through accident or design Article X, Section 10 gives “the term felony” an authoritarian definition from which the legislature cannot constitutionally depart. But because there is, indeed, some evidence that Article X, Section 10 outlaws legislation employing “the term felony” to describe a crime classed as a felony by the federal or other state government which forbade the crime and convicted its perpetrator, we will set out here what we have learned of this apparent constitutional incursion upon the language, and upon our liberty to use it freely in saying what we mean, so that, forewarned, the draftsmen of “the laws of this state” may use other words, if they choose, to express the same meaning.

Florida’s 1885 Constitution also defined “the term felony,” and in doing so appeared to forbid its use “in the laws of the State” in any manner except as prescribed by Article XVI, Section 25:

The term felony, whenever it may occur in this Constitution or in the laws of the State, shall be construed to mean any criminal offense punishable with death or imprisonment in the State Penitentiary.

In Duggar v. State, 43 So.2d 860 (Fla.1949), the Supreme Court considered the effect of former Article XVI, Section 25 upon a statute which disqualified for jury service any person convicted of “any felony.” Section 40.01, Florida Statutes (1941). In holding that Duggar’s conviction was not vitiated by the service on his jury of two persons who had been convicted of federal liquor law felonies, the Court held that the two jurors had not been convicted of “any felony” because the Constitution and statutes used the term in the exclusive sense of an offense “punishable with imprisonment in the State Penitentiary of Florida.” Duggar, 43 So.2d at 861-62 (emphasis by the Court). The Court acknowledged a duty to construe the governing statutes “in the light of the mandatory provisions of section 25, Article XVI of the Constitution ... as undoubtedly they must be construed in the absence of legislative language in the statutes involved indicating an intention to give the term felony a broader or different meaning . . .. ” Id. at 861.

Three dissenting justices in Duggar found the majority’s construction of the Constitution and statutes unacceptable, and they offered alternative interpretations: first, that the constitutional definition of “the term felony” was not intended to restrict its use. in any statute except “those which prescribe punishment for an offense or crime,” i. e., that the legislature could use the term in any other acceptable sense to describe a juror disqualification; second, that the federal felonies committed by those jurors were, after all, “committed in Florida” and could have been prosecuted in Florida courts as Florida felonies; and third, that because the constitutional definition was “a yardstick” or “guide,” not a limitation on or prohibition of legislation, the term felony conviction as used in the juror disqualification statute should be construed to include any conviction, wherever obtained, of „ any crime, wherever committed, which if committed in Florida would constitute a Florida felony.

Neither Duggar opinion took note of the Court’s decision two years earlier in In re Weathers, 159 Fla. 390, 31 So.2d 543 (Fla.1947), discussed in our principal opinion ante p. 306, in which, despite the restrictive definition in Article XVI, Section 25, the Court assumed the validity of a statute which grounded medical licensee discipline on “conviction of any offense which if committed within the state of Florida would constitute a.felony under the laws thereof.” Section 458.12, Florida Statutes (1941). No constitutional objection was raised in Weathers.

Thus, while dicta of the Duggar majority appeared not to foreclose the possibility of giving the full intended effect to a statute using “legislative language ... indicating an intention to give the term a broader or different meaning” than “the mandatory provisions” of the.Constitution, the majority apparently rejected the minority’s view that the constitutional definition was applicable only to statutes “which prescribe punishment for an offense or crime” and was wholly inapplicable to other statutes, such as those prescribing the qualifications of jurors or physicians, which the Duggar minority thought might properly employ “the term felony” in usages other than that prescribed by Article XVI, Section 25.

Duggar therefore did not entirely resolve whether (and, indeed, how,) a statute could employ “the term felony” in a sense broader than described in “the mandatory language” of Article XVI, Section 25, Florida Constitution (1885). Unfortunately for purposes of this' case, neither did the 1968 Constitution, which in above-quoted Article X, Section 10, broadened “the term felony” to include offenses like those of which the Duggar jurors had been convicted (offenses which if committed and prosecuted in Florida would be Florida felonies), but used the same “mandatory language” saying what “the term felony” shall mean “in the laws of this state.” Thus new Article X, Section 10 prescribes a wider meaning for the term felony but still appears to foreclose legislation giving the term a broader meaning still, for example, by treating as a “felony,” for purposes of disciplinary proceedings against a physician, a conviction so classed by the federal government which convicted him.

The mind struggles to be free of the thought that the 1968 Constitution declares, as did Lewis Carroll’s Humpty-Dumpty, that “When I use a word, it means just what I choose it to mean — neither more nor less,” and perversely denies the legislature permission to use “the term felony” in ways the language otherwise permits. Certainly this constitutional restriction has no more substantial effect. It may be supposed the Constitution thus aims to prevent the legislature from subjecting citizens to loss of privileges on account of their conviction of a “felony” in some arcane and distant culture. If the legislature needs such a restraint, this one is an illusion. For the legislature still is at liberty to disqualify jurors and physicians who were convicted anywhere of any particular crime the legislature names, see Duggar, supra, or of any foreign crime described by the legislature as punishable in the equivalent of “the state penitentiary,” or by imprisonment for more than a year, or described in any other way characteristic of — dare we say? — a felony. Thus the legislature is not prohibited, merely inconvenienced.

The available legislative history concerning Article X, Section 10 of the 1968 Constitution appears to entrench and not to relieve the problem. For the Constitution Revision Commission took up a proposal which would have made the definition more obviously “not a limitation on legislative power, nor ... a prohibition” (the dissenting position in Duggar, 43 So.2d at 862), and rejected it. Thus addressing a draft which said what offenses which shall be felonies “unless otherwise provided by law,” the Committee on Drafting and Style recommended striking the quoted words, else there be “no need to define felony in the Constitution as the legislature can change that designation.”

In view of all this, in order to enforce a statute authorizing licensee discipline on the explicit ground that he was convicted in another jurisdiction of a crime which was a felony under the laws of that jurisdiction, it may be necessary for a court to return as much violence to the terms of Article X, Section 10, as that section seems to inflict on “the term felony” for no apparent purpose and with no real effect. But that decision can await another day. Today, given the added interpretive weight of Article X, Section 10, we are able without embarrassment to construe former Section 458.1201(l)(c) as meaning by the term “felony” only what the statute says the term “shall include,” that being a Florida felony or a crime committed elsewhere which would be a felony if committed in Florida. The added effect of the Constitution makes this construction equally acceptable with that endorsed by our principal opinion. That being so, we are obliged to adopt the construction of this penal statute which favors the accused. Bach v. Board of Dentistry, 878 So.2d 34 (Fla. 1st DCA 1979). It follows that Dr. Rotstein was not convicted of a felony as that term is employed in the statute.

The petition for rehearing is therefore GRANTED, the order appealed is VACATED, and the charges are DISMISSED.

WENTWORTH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I do not believe Article X, Section 10 of the 1968 Florida Constitution interdicts the responsible regulatory agency from disciplining a licensee who has been convicted of a felony if the licensing statute clearly provides that the conviction is a ground for discipline even though the offense would not, under the laws of Florida, be designated a felony. Duggar v. State, 43 So.2d 860, 861 (Fla.1949), relied upon by the majority, perceived it necessary to resort to the definition of felony, provided in Article XVI, Section 25 of the 1885 Constitution (superseded by Article X, Section 10), “in the absence of legislative language in the statutes .. . indicating an indication to give the term felony a broader or different meaning . . .. ” While courts in other jurisdictions may have reached a different conclusion, the Duggar holding is logically defensible since Section 40.01, Florida Statutes (1941) —relating to the disqualification of an individual to serve as a juror if he had been convicted of a felony — failed to state unambiguously that the conviction in another state or country would be a ground for disqualification even though the offense under the laws of Florida would not have been labeled a felony. The court’s reference to the constitutional definition of felony was therefore imperative due to the lack of any legislative guidance as to what was meant by “felony.” Its holding was simply one not of constitutional dimension, but of statutory construction which placed a strict interpretation upon an ambiguous penal statute.

Section 458.1201(l)(c), Florida Statutes (1977), does not, however, contain the same fatal ambiguity which afflicted Section 40.-01(1). As first enacted by Chapter 12285, Acts of 1927, the statute provided for discipline if “the physician has been convicted in a court of competent jurisdiction of a felony.” Moreover, the statute stated that “[t]he conviction of a felony shall be the conviction of any offense which if committed in the State of Florida would constitute a felony under the laws thereof.”

In applying the statute’s provisions to a situation in which the licensing board sought to revoke the license of a physician who had been convicted of a federal felony which was not an offense under the laws of Florida, the Florida Supreme Court stated that the statute “required [in order for] a conviction to be a cause for revocation of license [it] had to be not only a felony but of an act which is a felony under the laws of the State of Florida.” In re: Weathers, 159 Fla. 390, 31 So.2d 543, 544 (Fla.1947). The 1951 session of the legislature amended Section 458.12(2) by Chapter 26552, Section 1, Laws of Florida (1951), to provide the agency “authority to discipline the holder of a license” who has been

guilty of any of the following:

******
(b) Conviction of a felony in the courts of this state or any other state, or territory, or country. The conviction of any offense in another state, territory or country, which if committed in this state would be deemed a felony shall be held a felony under this section without regard to its designation in such other state, territory or country; . . .

The statute was again amended by Section 2, Chapter 69-205, Laws of Florida (1969), to authorize, as it did at the time of the revocation proceedings against Dr. Rotstein, the agency to discipline a physician who

[was convicted] of a felony in the courts of this state or any other state, territory, or country. Conviction as used in this subsection shall include a conviction of an offense which if committed in this state would be deemed a felony without regard to its designation elsewhere, . . .

It has been a long-standing rule of statutory construction that once a statute is amended, there is a presumption that the legislature intended the statute to have a meaning different than that given it before the amendment. See Carlile v. Game & Fresh Water Fish Com., 354 So.2d 362 (Fla.1977). The amendments to Section 458.-1201(l)(c) following the Weathers decision must have meant something, and I can only conclude that they were intended to subject a physician to discipline even though the offense for which the licensee was convicted was not one which would have been labeled a felony in Florida.

Considering the legislative history of Section 458.1201(l)(c), the amended statute, in my judgment, authorized the Department to revoke the license of a physician who had been previously convicted of an offense under any of the following circumstances: (1) If he was convicted in Florida of a felony; (2) if he was convicted in a foreign jurisdiction of a felony, regardless of the offense’s designation in Florida, and (3) if he was convicted in another jurisdiction of an offense, which although not classified in that jurisdiction as a felony, would nevertheless be labeled a felony under the laws of Florida.

A recent decision of the Illinois Supreme Court offers guidance as to how a statute, formerly ambiguous as to its effect, should be interpreted once the legislature clarifies its purpose. In Bruni v. Dept. of Registration and Education, 59 Ill.2d 6, 319 N.E.2d 37 (1974), a doctor’s license was revoked by the Department pursuant to a statute which authorized the revocation of a physician’s license for “conviction of a felony.” (Ill.Rev.Stat.1965, Ch. 91, par. 16A(2)) Dr. Bruni had previously been convicted of passing counterfeit federal reserve notes in violation of 18 U.S.C. § 472 (1964), a federal felony. Under the unique provisions of Illinois law, however, such an offense was classified only as a misdemeanor. While revocation proceedings were pending against him, the Department requested an opinion from the Illinois attorney general as to whether the term “conviction of a felony” included convictions in a federal court if the offense was one which under Illinois law is classified as a misdemeanor. The attorney general’s opinion — similar to that of the Florida Supreme Court’s in Duggar —was that “the words ‘conviction of a felony’ standing by themselves and ‘with no reference to the laws of any other state or the federal government would seem .to require an application for situations wherein an offense was committed under the laws of the State of Illinois.’ ” 319 N.E.2d at 39. The attorney general concluded, under such facts, that the application for revocation should be denied as to such convictions “in sister states or under Federal Laws.” Id. The Department, nevertheless, revoked Dr. Bruni’s license. Later, however, during the appeal from the order, the General Assembly of Illinois amended the licensing statute to provide that a physician’s license might be revoked if the physician had suffered a “conviction in this or another state of any crime which is a felony under the laws of this state or conviction of a felony in a federal court.” (Ill.Rev.Stat.1967, Ch. 91, par. 16A(2)) In affirming the revocation order, the Illinois Supreme Court determined that recourse could appropriately be made to the language of subsequent acts of the lawmaking body when no specific provision aided in the construction of the unamended statute. In so doing, the court decided that the 1967 amendment was a clarification of the meaning of the term “conviction of a felony” as contained in the prior act and that such term necessarily included a physician’s conviction of a felony in a federal court. 319 N.E.2d at 40.

To conclude, Duggar, in my judgment, requires resort to the definition of felony, expressed in Article X, Section 10 of the Florida Constitution, only when the licensing statute’s purpose is not clearly explicated as permitting revocation of a license upon the licensee’s conviction of a felony in another jurisdiction, regardless of its designation as such under the laws of Florida. Such reference is not required in the instant case because Section 458.1201(l)(c) unambiguously provides that a physician may be disciplined when it is shown that he was convicted of a felony in the courts of “this state or any other state, territory or country.”

      . Count one of the information charged:
      From on or about March 30, 1973 to on or about October 30, 1973, in the Southern District of New York, JEROME ROTSTEIN, the defendant, unlawfully, knowingly and wilfully falsified and concealed material facts, made and caused to be made false, fictitious and fraudulent statements and representations and made and used false writings and documents, knowing the same to contain false, fictitious and fraudulent entries within the jurisdiction of the United States Food and Drug Administration, a department and agency of the United States, in that JEROME ROTSTEIN, the defendant, while conducting clinical research on the investigational drugs Sudoxicam, Flazalone and SaH. 43-715 made and submitted to Pfizer, Inc., Riker Laboratories, Inc., and Sandonz Pharmaceuticals, Inc., false and fictitious clinical reports and laboratory data refíecting medical examinations which had not been performed as represented and laboratory data which was false; all in the course of experimental drug studies conducted within the jurisdiction of the said United States Food and Drug Administration, Department of Health, Education and Welfare. (Emphasis added.)

      . Webb squarely rejects the argument that Section 120.57(l)(b)9 requires a license-revoking agency “to explain its rationale for increasing the penalty recommended by the hearing officer.” 367 So.2d at 204. Rotstein’s appeal makes no point of any deficiencies in the Board’s order, so it seems inappropriate to inquire in this case whether any other sections of Chapter 120, where McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 582 (Fla.1st DCA 1977) found a duty to explicate the exercise of discretion, may impose that duty on license-revoking agencies. It must be said, however, that Judge Wentworth’s dissent makes a compelling argument for the desirability of imposing such a duty of exposition, even if a reviewing court is empowered to do no more than disapprove an inadequate statement and remand for reconsideration. Section 120.-68(12). Our experience suggests that inconsistent and draconian penalties are more than a possibility when professional regulatory boards, composed of part-time judges largely chosen from the accused’s peer group, Section 20.30, Florida Statutes (1979), are at liberty to disregard, without a stated reason, a reasoned penalty recommendation.

      . Rotstein was convicted of willfully making a false statement to an agency of the United States, in violation of Title 18, U.S.C., Section 1001. Section 837.06, Florida Statutes (1979), provides:
      Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his official duty shall be guilty of a misdemeanor of the second degree ....

      . Section 40.01, Florida Statutes (1941):
      No person, who shall have been convicted of bribery, forgery, perjury or larceny, or any felony, unless restored to civil rights, shall be qualified to serve as a juror.

      . See tentative draft by Committee on Drafting and Style, dated 10/10/66, found in series 720, Box 08, folder 71, Constitution Revision Commission Records 1965-1967, Florida Archives, stating:
      1. The form of this section is recommended by the [Committee on] Human Rights as follows:

        Felony defined. — Those offenses punishable by death and those punishable by imprisonment in the state penitentiary shall be felonies, unless otherwise provided by law.

        2. This modifies the form of the 6-30-66 draft by the addition of the words “unless otherwise provided by law” and there is no need to define felony in the Constitution as the legislature can change that designation. The Committee on Drafting and Style recommends deletion of the phrase “unless otherwise provided by law.”

      . An annotation pertaining to certain grounds for revocation of a physician’s license states:
      The question of what is meant by the term “felony” as used in the statutes within the scope of this annotation has been litigated in several cases .. . and in only one jurisdiction has it been held, in strict conformity with the plain text of the statute, that the word applied only to an offense which would be a felony if committed in that state; generally, the term is held to mean any offense which is a felony under the law of the jurisdiction in which the conviction was obtained.
      Annot., 93 A.L.R.2d 1398 at 1414 (1964).


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    Barbara Ann GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1134.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Barbara Ann Gross, defendant in the trial court, was charged with second degree murder and convicted of manslaughter. On appeal, she challenges the trial court’s failure to include instructions on justifiable and excusable homicide when the court reinstructed the jury on manslaughter. We reverse.

As part of the final instructions, the court instructed the jury on justifiable homicide, excusable homicide, second degree murder, manslaughter, and the lesser included offense of aggravated assault. During its deliberations, however, the jury requested a reinstruction on manslaughter. Defense counsel then requested that the court also reinstruct on justifiable homicide. Over defense objection the court reinstruet-ed only on manslaughter, omitting justifiable and excusable homicide. In doing so, however, the court also reminded the jury of its previous instructions on justifiable and excusable homicide.

We begin our discussion by noting that defense counsel sought reinstruction only as to justifiable homicide and, similarly, his objection related solely thereto. Absent a request for reinstruction on excusable homicide or an objection to the court’s failure to give such instruction, the issue has not been preserved for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Kiley v. State, 356 So.2d 328 (Fla. 4th DCA 1978); Jackson v. State, 307 So.2d 232 (Fla. 4th DCA 1975). We, therefore, limit our discussion of the merits to the failure to rein-struct on justifiable homicide.

In Hedges v. State, 172 So.2d 824 (Fla.1965), the Supreme Court announced the rule that a reinstruction on manslaughter must include a reinstruction on excusable and justifiable homicide. Failure to do so, the court said, leaves the jury with “an incomplete, and,- potentially misleading instruction.” Id. at 826. The court further explained its ruling in this fashion:

One notes immediately that [manslaughter] is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions. Id.

Thus, irrespective of the facts of the case, a reinstruction on excusable and justifiable homicide is required in order to provide a complete reinstruction on manslaughter. Nelson v. State, 371 So.2d 706 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978); Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971).

Accordingly, we are compelled to conclude that the trial court’s failure to reinstruct the jury on justifiable homicide requires that the conviction and sentence herein be vacated and that the cause be remanded for a new trial.

REVERSED and REMANDED.

ANSTEAD, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting.

I dissent and in so doing adopt the language and reasoning set forth in the Attorney General’s brief as follows:

After the jury’s question was received by the judge, defense counsel requested that the justifiable homicide instruction be read along with the manslaughter and aggravated assault instructions which the jury had requested. The trial judge then discussed a recent case, and how he deals with such issues [since] that case. From his discussion, he was obviously referring to the case of Henry v. State, 359 So.2d 864 (Fla.1978). Quite candidly, it appears to counsel for Appellee that the judge’s understanding of that case was not correct. Henry did not abrogate the requirement in the prior case of Hedges v. State, 172 So.2d 824 (Fla.1965), that when reinstruction on manslaughter is requested, the court must also reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter.

However, the question is whether or not the trial judge’s handling of the situation here amounted to a reinstruction on justifiable homicide.

The judge explained to counsel that as a result of the Henry case, he [was limiting] his reinstruction to the specific charges requested by the jury, but also reminded them about justifiable and excusable homicide. No objection was made to that procedure at that point, and just before the judge read the instructions to the jury on manslaughter and aggravated assault, he stated the following to them:

Mr. Flanigan, and ladies and gentlemen, I have your request and I am about to read manslaughter and aggravated assault again, but I wanted you to understand that we don’t want to give undue emphasis to any section of the entire charge and we want you to keep in mind the instructions on justifiable and excusable homicide as well as murder of the second degree and everything else that I said.
If you want those read again, then don’t hesitate to ask for them. You get the sense of what I am talking about? I see affirmative nods, (emphasis supplied)

Admittedly, the judge did not read the entire justifiable and excusable instructions to the jury at this point. However, Appellee submits that in the peculiar circumstances of this case his reminder to the jury of those instructions was sufficient. As defense counsel stated to the jury at the beginning of his closing argument, there was no significant conflict on the facts of the case, and as it happened, both attorneys spent more time “instructing” the jury on the law to be applied to the facts than is normally [is] seen or tolerated in a criminal trial. In his initial closing argument to the jury, the assistant state attorney spent considerable time explaining the defenses of justifiable and excusable homicide. Defense counsel later alluded to the fact that the assistant state attorney had gone through the instructions “step by step,” and stated that because the facts are not in dispute, both he and the assistant state attorney would be discussing mostly the law which would be applied to those facts.

In the light of the foregoing, I view the error as harmless and I would affirm.


author: WENTWORTH, Judge. MILLS, Chief Judge, WENTWORTH, Judge. MILLS, Chief Judge,

text:
    CITY OF TAMPA, Appellant, v. David L. TINGLER, Appellee.
    No. VV-31.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Rehearing Denied April 21, 1981.

      James A. Sheehan, Tampa, for appellant.
    Joseph L. Thury, Tampa, for appellee.
   WENTWORTH, Judge.

The self-insured employer appeals a workers’ compensation order and contends, among other issues, that the deputy should have denied the claim for untimely notice of injury. We find no reversible error and affirm the order appealed.

Claimant, a city police officer, was required to intercede in a domestic dispute; a physical struggle ensued and claimant’s arm was severely twisted. Although claimant soon recovered from this physical trauma, he thereafter developed a disabling psycho-physiological reaction.

Section 440.185(1), Florida Statutes, requires that an employer be given notice, within 30 days, that an injury has resulted from an industrial accident. See Crossroads Villa v. Hutchins, IRC Order 2-3237 (Sept. 27, 1977), cert. dismissed 353 So.2d 676 (Fla.1977). But the time for notice does not begin to run until the claimant is aware of such facts as would indicate that the injury is causally related to the industrial accident. Escarra v. Winn Dixie Stores, Inc., 131 So.2d 483 (Fla.1961). In the present case the claimant did not give formal notice of the relation between his psychophysiological reaction and the employment altercation until ten months after the employment incident. However, the record does not conclusively establish that claimant was aware of such causal relation before this time. We therefore conclude that the present case falls within the Escar-ra rule and that notice of injury was timely given. We also note that, immediately after the employment altercation, claimant filed a police report which detailed the occurrences of the employment altercation and noted the battery which occurred during the physical struggle.

The order appealed is affirmed.

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

MILLS, C.- J., dissents.

MILLS, Chief Judge,

dissenting:

I dissent. I would reverse the deputy’s order.

The City appeals a workers’ compensation order awarding Tingler permanent partial disability benefits, contending the deputy erred in finding that Tingler timely filed notice of his injury.

On 26 August 1978, as part of his employment duties as a police officer, Tingler was required to intercede in a domestic dispute. During the physical struggle, his arm was twisted.

Prior to this employment incident, Ting-ler was getting minor headaches toward the end of his work shift, and having trouble sleeping, however, he was able to continue working. After this employment incident, he experienced back spasms, headaches, cramps, trouble sleeping, muscle spasms in his arms, legs, and neck, a sore throat, rectal bleeding, and a sweat rash. He eventually obtained medical treatment and his condition was diagnosed as a chronic anxiety reaction resulting from the employment incident, or a psychophysiological reaction with musculoskeletal difficulties and severe anxiety overlay.

Although Tingler reported the employment altercation in the police report, he did not indicate that he sustained any injury and he did not file a notice of injury until June of 1979.

Section 440.185(1), Florida Statutes (1978), requires notice of injury within 30 days of its occurrence. Tingler did not give notice of his injury until ten months after its occurrence. Although a report of the employment incident was filed, the report did not indicate that Tingler sustained any injury, thus, does not constitute a notice of injury within the meaning of Chapter 440. Crossroads Villa v. Hutchins, IRC Order 2-3237 (Sept. 27, 1977), cert. dismissed 353 So.2d 676 (Fla.1977).

In Escarra v. Winn Dixie Stores, Inc., 131 So.2d 483 (Fla.1961), it was indicated that the time for notice does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of the injury. The court further explained that recognition of the injury’s probable compen-sable character contemplates knowledge of facts indicating that the disability is causally related to the industrial occurrence. Tin-gler’s testimony suggests that, although he was not immediately aware of such causal relations, he realized it within a few months after the employment incident. The lack of subjective realization as to compensability of an injury is not an adequate excuse for failure to give timely notice of injury. Southern Culvert Pipe Co. v. Oswalt, 382 So.2d 1365 (Fla. 1st DCA 1980).

The deputy erred in not finding that claimant’s notice of injury was untimely and unexcused. The City’s “complete knowledge of the accident” did not include knowledge that Tingler sustained an injury. While the claim for benefits may have been made as soon as Tingler “reasonably realized that his injuries were compensable”, it appears that he long before realized that his injury was causally related to the industrial incident.

ON MOTION FOR REHEARING DENIED

WENTWORTH, Judge.

Appellant asserts by motion for rehearing that “even if there [was] a physical injury in this case, it didn’t cause the claimant’s psychiatric disability, which it must do for the case to be compensable.” The decision in Watson v. Mellman, 106 So.2d 433 (Fla. 3d DCA 1958), indicates the sufficiency (even in cases of pre-existing pre-disposing conditions) of causal relation between psychiatric disability and minor non-permanent physical trauma in employment when, as in this ease, the medical testimony is that the “physical involvement of the struggle did in fact contribute a lot to the cause of the psychiatric problems.” We note also that the original police report described the “struggle” and assault on the claimant officer, although appellant accurately corrects the terminology of the opinion, supra, in that the record evidence is only that claimant’s arm was “jerked” and “wrenched” instead of twisted, except by loose translation of the account of the whole occurrence.

The motion for rehearing is denied.

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

MILLS, C.J., dissents.

MILLS, Chief Judge,

dissenting:

I dissent. I would grant the appellant’s motion for rehearing for the reasons expressed in my dissenting opinion and appellant’s subsequent motion for rehearing.


author: MOORE, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Clarence E. JONES and Vivian E. Jones, Appellees.
    Nos. 78-2224, 79-141.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Rehearing Denied May 12, 1981.

      Jack Miller of Brennan, McAliley, Hays-kar & McAliley, West Palm Beach, for appellant.
    Sam D. Phillips, Jr. of Phillips, Babbitt & Cook, P.A., West Palm Beach, for appellee.
   MOORE, Judge.

These are consolidated appeals from a declaratory judgment action in which a final judgment awarded attorneys fees to the appellees and from a subsequent order which determined the amount of those fees. The sole determinative issue is whether a wife-passenger in an automobile owned by her husband and driven by him is an insured under the terms of an automobile liability insurance policy issued to her husband so as to give rise to a duty on the part of the insurance company to defend her against a claim of negligence. A peripheral question is whether the allegations of a complaint can impose upon an insurer a duty to defend anyone who is a passenger in an insured automobile. We hold that under the facts of this case the insurance company had no duty to defend and reverse.

The facts are relatively complicated. The appellees, Clarence Jones and his wife Vivian, were involved in an automobile accident with Darrell Hailing. Mr. Jones was driving the automobile which he owned and his wife was a passenger. Mr. Jones was insured under an automobile liability insurance policy issued by the appellant, Auto= Owners Insurance Company. When the Hallings filed a claim against Mr. Jones seeking damages from the accident, the appellant paid its policy limits to the Hallings and obtained a general release in favor of itself and Mr. Jones. Two years later, the Hallings filed suit against Mr. and Mrs. Jones for injuries allegedly sustained in the same accident. The - basis for the suit against Mrs. Jones was that she negligently failed to prevent her husband, who was allegedly intoxicated, from driving the vehicle. Although the appellant agreed to defend Mr. Jones in this action, it refused to defend Mrs. Jones.

Mr. and Mrs. Jones then retained the services of their present counsel to defend the suit brought by the Hallings and to file a declaratory judgment action against the appellant to determine appellant’s obligations to Mrs. Jones. Approximately one week after the declaratory judgment action was filed, appellant voluntarily agreed to defend Mrs. Jones but refused to compensate her for the attorneys fees incurred in connection with prosecution of the declaratory judgment action and the defense of the Hallings’ suit up to that time. The appel-. lant denied liability for attorneys fees pursuant to its contention that it was not obligated to defend Mrs. Jones because she was not an insured under the policy issued to Mr. Jones. Before the declaratory judgment was decided by the court, the negligence action by the Hallings was terminated in the Jones’ favor.

Thereafter, the trial court entered judgment in favor of the appellees in the declaratory judgment action. The pertinent findings of the final judgment were that (1) Mrs. Jones was an insured under the terms of the policy issued by the appellant, (2) Mrs. Jones was entitled to a reasonable attorneys fee for defending the suit brought by the Hallings for that period of time until the appellant assumed the defense of Mrs. Jones, and (3) she was entitled to attorneys fees for the successful prosecution of the declaratory judgment action. The appellant contends that it was not obligated~to_defend Mrs. Jones in the negli gence suit because she was not an “insured” person under the policy issued to Mr. Jones. Thus, since there was no duty to defend, appellant asserts that the trial court incorrectly found such a duty and improperly assessed an attorneys fee against the appellant. We agree.

Obviously, there is no duty on the part of an insurance company to defend anyone who is not an insured under the terms of the policy. The pertinent provisions of the policy involved here with regard to the definition of the word “insured” are:

A. “INSURED” shall mean:

(1) Whenever used in coverages A and B (liability coverages) and in other parts of this policy when applicable to these coverages, the named insured and any person using the automobile and any person or organization legally responsible for its use, provided the actual use thereof is with the permission of the named insured or if the named insured is an individual, with the permission of an adult member of the household who is not a chauffeur or domestic servant... .
(2) Wherever used in Coverage D, and in other parts of this policy when applicable thereto: (a) the first named insured if an individual and not a corporation, firm or partnership, and while residents of the same household, the spouse of the first named insured and, if not owning any automobile, the relatives of either; (b) any person while in, upon, entering or alighting from an automobile to which Coverage A of this policy applies; (c) any person, with respect to damages he is entitled to recover for care or loss of services because of bodily injury to which Coverage D applies. (Parenthetical and emphasis added.)

Thus, for purposes of liability coverage to third persons, Mrs. Jones would be an insured under paragraph (1) if she qualified in any one of three instances. First, she would be an insured if she were the named insured which she obviously is not. Secondly, she would be an insured if she used the automobile with the permission of the named insured. It is undisputed that Mrs. Jones was not actually “using” the automobile since she was merely a passenger. Therefore, Mrs. Jones would be an insured only if she was “legally responsible for the use of the automobile.” It is this third category which the appellee contends brings Mrs. Jones within the coverage provisions of the policy, and therefore, creates a duty to defend on the part of the appellant.

It is well settled in Florida that an insurer’s duty to defend an action against its insured is determined by the allegations of the complaint. National U. Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1978). The complaint must allege a state of facts'within the coverage of the insurance policy in order to establish a duty to defend. Conversely, there is no duty to defend a suit where the complaint fails to bring the case within the coverage of the policy. National U. Fire Ins. Co., supra. The sole allegation against Mrs. Jones in the complaint filed by the Hallings is that she negligently failed to prevent her husband from operating the automobile, even though she well knew that he was incapable of safely operating it. We hold that this allegation fails to fall within the definition of “any person or organization legally responsible for its (the automobile) use.” Consequently, the allegations of the complaint do not bring Mrs. Jones within the definition of an insured under the terms of paragraph (1) above and. there is no duty on the part of appellant to defend her.

The appellees also contend that if Mrs. Jones is not considered an insured under Paragraph (1), she then falls within Paragraph (2) of the definition of insured. It is argued that the underlined portion of Paragraph (2) amplifies Paragraph (1) and grants to the spouse all of the protections afforded the named insured as it relates to Coverage D (the uninsured motorist protection provisions) and all other coverages recited in the policy of insurance. The meaning of this section is clear. “In other parts of this policy” means those parts of the policy other than coverages A, B and D, wherever the term “insured” is used. Otherwise, there would be no purpose in having two different definitions of the term “insured”. The paragraph (1) definition is for purposes of liability to third parties, and the paragraph (2) definition is for purposes of uninsured motorist protection and all other coverage under the.policy, not including liability to third persons.

Since we find that Mrs. Jones was not an insured under the terms of the policy, the trial court erred in awarding her an attorneys fee for retaining private counsel to defend the claim of the Hallings and for prosecuting the declaratory judgment action. Accordingly, the final judgment of the trial court is reversed.

DOWNEY and ANSTEAD, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Paul Daniel BROWN, William E. Rieder, Appellants, v. STATE of Florida, Appellee.
    Nos. 79-1788, 79-1801, 79-1853 and 79-1884.
    District Court of Appeal of Florida, Second District.
    March 18, 1981.
    Rehearing Denied April 23, 1981.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Tallahassee; and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellants were convicted of robbing the Breeze-In-Market in Pinellas County. They also pled nolo contendere to the robbery of an adult bookstore in Pasco County. Each appellant has appealed both judgments and the four appeals have been consolidated for review. The cases raise eight points for our consideration; we deem that three require comment.

The Breeze-In-Market was robbed on September 22, 1978 at approximately 6:00 P.M. Two hours later, the bookstore was robbed. About an hour and a half after the bookstore robbery, a five-man lineup was conducted on U.S. Highway 19 where a red pickup truck matching the description of one involved in the bookstore robbery had been stopped. Mr. Cale, the bookstore clerk, was asked to identify the persons who had robbed him. Because it was dark, Cale could only identify the suspects by their build. An hour later, the same five men were presented to Cale at the police station. He positively identified three men involved in the robbery. Two of the three men identified were appellants. Subsequently, Cale made an in-court identification of appellants during the Breeze-In-Market trial. Appellants moved to suppress Cale’s out-of-court as well as the in-court identification in both the market and bookstore cases. Appellants now argue that the denial of those motions constituted error.

Suppression of an out-of-court identification is mandated where the procedures, under the totality of the circumstances, are impermissibly suggestive. State v. Sepulvado, 362 So.2d 324 (Fla. 2d DCA 1978). The trial court concluded that the methods employed were not impermissi-bly suggestive and such finding comes to us with a presumption of correctness. Identification procedures, although suggestive, are not impermissibly so unless they indicate that the identification is unreliable. Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978).

In this case, the totality of the circumstances indicate that the witness had an excellent opportunity to view the suspects at the time of the robbery. Further, the length of time between the crime and the identification was less than three hours. In the absence of any other facts which would show the identification was unreliable, the trial court was correct in holding that the procedures were not impermissibly suggestive and in denying appellant’s motions to suppress in the market case. Nevertheless, as we will discuss hereinafter, Cale’s testimony was not admissible in the market case because it violated the rule in Williams v. State, 110 So.2d 654 (Fla.1959).

In the subsequent bookstore robbery case, the court denied appellants’ motions to suppress Cale’s identification on the ground that the motions had previously been ruled on in the market case. Although we agree with appellants that the previous ruling in the market case was not res judicata, we nevertheless hold that the subsequent motions were properly denied on the theory of collateral estoppel. The difference between these principles is often misunderstood. Res judicata applies only to bar a second suit between the same parties based on the same cause of action. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). Collateral estoppel does not require the same cause of action. This theory is applicable where the parties are identical and the issues sought to be estopped have been fully litigated. Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977).

Here, although the causes of action in the two prosecutions were not the same, the parties were identical. Moreover, the issues presented in the motions to suppress in the bookstore case were identical to those previously litigated in the market case. Therefore, the court in the bookstore case properly relied upon the prior ruling in denying the motions to suppress.

Appellants further contend that the trial court in the market case committed reversible error in permitting testimony to be admitted concerning the bookstore case. Evidence regarding the bookstore robbery was admissible in the market trial if it were relevant to prove any material fact in issue, but not admissible if offered solely to prove appellants’ propensity to steal. Williams v. State, 110 So.2d at 633. The issues of fact presented in the market case were 1) the essential elements of the robbery, and 2) identity.

Evidence of a collateral crime is sometimes admissible to prove identity. The rationale underlying its admission is that the modus operandi employed in the two crimes is so unusual that the jury can logically infer that the same person committed both crimes. This rationale is not supported, and evidence of a collateral crime is not admissible, when there is only a general similarity between the two crimes. Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979). Therefore, we must review the mo-dus operandi of the market and bookstore robberies to determine if they are sufficiently unusual to warrant the inference that they were committed by the same people.

The evidence adduced at the Breeze-In-Market trial revealed that two men initially entered the market and approached the check-out counter with two six-packs of beer. As the clerk rang up the sale, one of the men displayed a gun and demanded the employee put the money into a bag. While the clerk was complying with these instructions, one of the perpetrators asked the clerk if he had tripped an alarm. The clerk replied that he had not. A third man entered the store and went behind the counter, where he took change from the register and placed it in the bag with the other money. The employee was then ushered to the rear of the store and was assured that he would not be harmed. The three men left the market. The clerk later described one of the three men as having a dark complexion with piercing eyes, and another as being tall with reddish hair.

Mr. Cale, the bookstore clerk, testified in the market trial that three men entered the bookstore at approximately 8:00 P.M. After a customer left, the men approached the sales counter and the smaller of the three drew a gun. The gunman went behind the counter, opened the cash drawer and began taking money. One of the men asked the cashier if an alarm had been set off when the money was removed and the clerk explained that it had. One of the perpetrators told the man with the gun to shoot the clerk, another suggested they kidnap him and finally, one held open the door and told the clerk to run. The clerk described one of the men as being larger than the rest with a red beard and hair.

Clearly, the modus operandi in these two robberies were not unusual. Unfortunately, robberies committed in the above-described manner are an everyday occurrence in our society. The fact that appellants committed the bookstore robbery did not provide a basis for the jury to infer that they committed the Breeze-In-Market robbery. Therefore, the testimony concerning the crime committed at the bookstore and the subsequent apprehension of the suspects in that case should not have been allowed into evidence at the market trial to prove identity.

The State next asserts that evidence of the collateral crime was necessary to establish the entire context out of which the market robbery arose. In support of this contention the State directs our attention to Smith v. State, 365 So.2d 704 (Fla.1978). That case, however, is distinguishable from the case at bar. In Smith v. State there was an unbroken chain of circumstances connecting the various criminal acts. In the instant case, the crimes were not interrelated but were merely isolated robberies. Unlike the murder in Smith v. State, the bookstore robbery was not relevant to establish the criminal context surrounding the Breeze-In-Market robbery.

Finally, appellant Rieder urges that the trial court erred in sentencing him to a mandatory three-year sentence pursuant to section 775.087(2)(a), Florida Statutes. That statute provides that any person who is convicted of a robbery and who had in his possession a firearm shall be sentenced to a minimum three-year term of imprisonment. There was no evidence adduced that Rieder possessed a firearm in either of the robberies. The fact that appellant Brown possessed a firearm will not support a minimum three-year sentence under section 775.087 for Rieder. Brown v. State, 358 So.2d 92 (Fla. 4th DCA 1978).

Accordingly, each appellant’s conviction and sentence for the robbery of the Breeze-In-Market is reversed and those cases are remanded for a new trial. Rieder’s conviction for the robbery of the bookstore is affirmed, however, that case is remanded to allow the trial court to correct his sentence by eliminating the mandatory three-year sentence. Brown’s conviction and sentence for the bookstore robbery is affirmed.

GRIMES and RYDER, JJ., concur.