author: ORFINGER, Judge.

text:
    Leigh O. McEACHERN, III, Appellant, v. STATE of Florida, Appellee.
    No. 78-2074/T4-218.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 29, 1980.

      Richard L. Wilson, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

This is a timely appeal from the judgment and sentence of the Circuit Court, Orange County, adjudging appellant guilty of two counts of grand larceny after jury trial, and imposing sentence of fifteen years for each count, to run consecutively. We affirm the conviction, but set aside the sentences and remand this cause for resentenc-ing.

Appellant was Chief Deputy Sheriff of Orange County, Florida, during the fiscal years beginning October 1, 1975 to September 30,1976, and October 1,1976 to September 30, 1977. Appellant was responsible, inter alia, for the administration of an “investigative fund”. Most of the investigative fund expenditures can be attributed to the “Special Investigations Division” of the Sheriff’s Office, which carries out most under-cover assignments such as narcotics and vice. Money from the fund is used to pay informants, to purchase drugs, to demonstrate an agent’s ability to pay for drugs in proposed purchases, and for other similar under-cover purposes. Internal records were kept of the expenditures, but because of the necessity to keep the investigations secret, the funds are not audited. Checks drawn on the account are initially issued only upon written requisition from either the Sheriff, the Sheriff’s designate, or Appellant McEachern.

The record shows that in fiscal year 1975 — 76, a sum in excess of $263,000 was drawn on the account. Of this sum, more than $236,000 was issued directly to appellant upon his requisition. Slightly more than $143,000 was redeposited to the account, so approximately $120,000 was consumed. During fiscal year 1976-77, more than $187,000 was paid out, $140,000 of it directly to appellant. After crediting redeposits, slightly more than $105,000 was consumed. Evidence was presented at trial in the form of records of the Special Investigations Division showing its use of the investigative funds, and records were also produced of the Criminal Investigation Division which also made some use of these funds, although in very small amounts. The unaccounted for portion of the funds drawn in these two fiscal years far exceeded the amounts which could be accounted for.

Evidence was presented establishing appellant’s salary during his employment with the Sheriff’s Department. Evidence was also presented of the combined income of appellant and his wife during the two fiscal years in question, and also the recorded expenditures made by appellant and his wife during those periods. There was evidence presented that appellant paid large amounts of money in cash at various times. In short, the evidence tended to show expenditures both by cash and by check of sums far greater than the known income of appellant and his wife.

Explanations by appellant as to the sources of his income other than his salary, and explanations given by his wife were disputed and contradicted by other testimony. Appellant’s wife testified that she had received approximately $75,000 in cash from her former husband, but the former husband denied giving her any money. The jury obviously did not believe appellant’s explanation, and it had a right to reject it.

Appellant raises five points on appeal, but only two require discussion. He first contends that the court erred in allowing certain records to be considered as evidence, referring specifically to various books and records of the Sheriff’s Department offered in evidence by the State and admitted into evidence over objection. We find no error in the admission of the records under the Uniform Business as Evidence Act, section 92.36(2), Florida Statutes (1975). In each case, there was testimony of the custodian or other qualified supervisor of the records testifying as to the identity and mode of preparation and that it was made in the regular course of business at or near the time of the act, condition or event.

The Uniform Business Records as Evidence Act is an extension of the shopbook rule and is intended to liberalize the rules pertaining to the admissibility of shop-book memoranda. Exchange National Bank of Tampa v. Hospital and Welfare Board of Hillsborough County, Fla. App.2d, 1965, 181 So.2d 9. The justification for this exception to the hearsay rule is the probability of trustworthiness which is incident to a record kept in the regular course of business and made at or near the time of the act, condition or event of which it purports to be a record. National Car Rental System, Inc. v. Holland, Fla.App. 4th, 1972, 269 So.2d 407. There is nothing in the statute which suggests that its application is limited to civil cases. Holley v. State, 328 So.2d 224, at 225.

The argument by appellant that the persons making the entries could not be identified does not require a contrary ruling. The statute was passed to avoid the necessity of bringing to court every person who played a part in the preparation of a particular business record. Holley v. State, supra. Appellant relies on Mastan Company, Inc. v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968), as support for his position that these records should have been excluded. In that case, the trial court excluded the evidence after determining that the proffered records did not comply with the statute. The appellate court concluded that the trial court was correct in ruling that the business records were not properly authenticated for introduction. The court noted, however, that the records could have been properly authenticated by the supervisor of the records, who was not offered as a witness. It noted that the trial court has broad discretion in determining if the evidence adduced lays the proper foundation for reception of business records under the statute. Here, the trial court determined that there was a proper predicate and foundation, and we cannot say that he abused his discretion.

Appellant next contends that the indictment failed to charge him with a crime under the laws of the state. We do not agree. The indictment was sufficient to charge him with larceny under section 812.-021(l)(a) and to designate the crime as grand larceny under section 812.021(2)(b), Florida Statutes (1975). The indictment alleges that appellant

did, while deputy sheriff of Orange County, Florida, between the 1st day of October, 1975, and the 30th day of September, 1976, in Orange County, Florida, in violation of Florida Statute 812.021, take, steal, and carry away from the lawful possession of the custodian and owner thereof, Melvin G. Colman, Sheriff of Orange County, Florida, within a twelvemonth period preceding the 1st day of October, 1976, as part of a common scheme or design to defraud, certain property, to-wit: money, of the aggregate value of $200.00 or more, lawful money of the United States of America, with the intent to permanently deprive the said Melvin G. Colman, Sheriff of Orange County, Florida, of the said property or the use and benefit thereof while the said LEIGH O. McEACHERN, III, was an agent, servant, or employee of the said Melvin G. Colman, Sheriff of Orange County, Florida.

Count II was in identical language, except that it referred to the next succeeding fiscal year.

But appellant then contends that if the indictment does charge a crime, it only charges him with grand larceny as a third degree felony, and does not charge him with those elements of the statute which raise the crime to a second degree felony. In pertinent part, section 812.021(2) says:

(2) If the property stolen is:
* * * * * #
(b) Of the aggregate value of $200 or more, taken in any 12-consecutive month period, by an agent, servant, or employee from his principal or employer by a series or combination of any of the acts denounced in this section, as part of a common scheme or design to defraud;
******
the offender shall be deemed guilty of grand larceny, which constitutes a felony of the third degree, . . . unless the offender is a public servant who used his official position to commit the offense or, in the course of committing the offense, stole public property or property which the duty of his office required him to receive and hold, in which case the offender shall be guilty of a felony of the second degree . . . ”

As can be seen from the complete recitation of the indictment, nowhere does it charge that appellant either was a public servant who used his official position to commit the offense, or that appellant stole public property, or that he stole property which the duty of his office required him to receive and hold. In order to convict appellant of the second degree felony, he must be charged with those elements of the crime that comprise the felony. Without those allegations, he is charged only with grand larceny, a third degree felony and can only be sentenced for that crime when found guilty.

“In an indictment or information for an offense divided into degrees it is sufficient to charge that the defendant committed the offense without specifying the degree . . . . When an accusatory instrument charges an offense that embraces a lesser offense or one of a lower degree of the same general class it may support a conviction of the lesser offense only, though the proof shows the defendant to be guilty of the greater offense. This may occur where he is indicted for only the lesser offense and the proof shows commission of a greater crime inclusive of the lesser one charged.” 15 Fla.Jur.2d, Criminal Law % 687, pp. 288-289. (emphasis added).

At the sentencing hearing, when appellant’s counsel objected to the sentence under the higher crime portion of the statute, the State obviously recognized the need to properly charge appellant when, in responding to the objection, the prosecutor said that the indictment contained allegations that “Mr. McEachern was a public servant and the fact that the money he had was entrusted to him and the fact that the money that was entrusted to him was in the custody and control of the Sheriff of Orange County.” However, it is obvious from the indictment which we have earlier set out in full, that no such language appears. If the State had intended to charge appellant with the higher degree of the crime, it would have been a simple matter to allege one of the three required elements.

“An information must allege each of the essential elements of a crime to be valid. . No essential element should be left to inference.” State v. Dye, 346 So.2d 538 (Fla.1977).

Since he was not so charged, we can only assume that the State did not intend to charge him with the higher degree of the crime, although we fail to understand why it was not done. The jury found appellant guilty as charged in the indictment, so he could only be sentenced for the crime for which he was charged and found guilty. Following the same principle, this court has recently held that a defendant indicted for robbery could not be sentenced for armed robbery, although the proof indicated that he was armed. Michael Alan Sanders v. State, No. 80-519 (Fla. 5th DCA July 30, 1980). A similar result was reached in Chapola v. State, 347 So.2d 762 (Fla. 1st DCA 1977), where a defendant was charged with robbery, there being no allegation in the information that a weapon was used. The court said:

The Court erred in sentencing Chapola to life imprisonment because he was merely charged with robbery; the jury found him guilty as charged; and the Court adjudicated him guilty of this charge. Under Section 812.13(2)(c), which is applicable to this case, the Court could sentence Chapola to no more than 15 years imprisonment.
The State argues that Chapola knew pri- or to trial that the State would adduce evidence at trial that he was carrying a knife at the commission of the robbery but he did not attack the sufficiency of the information. This argument is without merit. It is the State’s obligation to frame the allegations of its information, not the defendant.
Chapola went to trial on the allegations in the information and the Court properly charged the jury on the allegations and proof thereof at trial. 347 So.2d at 763-64.

See also, Scott v. State, 379 So.2d 1021 (Fla. 2d DCA 1980).

We understand and appreciate the trial judge’s concern expressed in his sentencing judgment that the citizens of this State will not and should not tolerate stealing of public money by officers and employees who are placed in positions of trust and responsibility. Had the State charged appellant properly, the trial judge would have had jurisdiction to sentence appellant for conviction of a second degree felony, but in this ease he could not do so.

Since we must remand this case for resentencing, one additional observation is warranted. In pronouncing the sentence, the trial court alluded to the cost of investigation and trial and the difficulty involved in proving the State’s case. While it is not clear that the court placed great emphasis on this factor in determining the length of sentence, it is clear that this cannot be considered in imposing a sentence for one convicted of a crime. The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979). We suggest the court omit any consideration of the cost or expense or difficulty of a jury trial in resentencing the appellant.

We have considered appellant’s other points on appeal and find no merit in them.

Accordingly, the judgment of conviction is affirmed. The sentence is set aside and the cause is remanded to the trial court for resentencing on two counts of grand larceny, each a third degree felony. Defendant shall be present for resentencing.

AFFIRMED in part, REVERSED in part and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ramona BLACK, etc., Appellant, v. RESERVE INSURANCE COMPANY, etc. et al., Appellees.
    Nos. 78-1930, 78-1931.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 13, 1980.
    Arnold R. Ginsberg and Edward A. Perse of Horton, Perse & Ginsberg, and Bernard H. Butts, Miami, for appellant.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for ap-pellees James Davis, Broward County, Bd. of Rules and Appeals, and American Home Assur. Co.
   PER CURIAM.

This is an appeal from adverse summary judgments by the plaintiff in a wrongful death action brought under Section 768.28, Florida Statutes (1975). We reverse and remand for further proceedings in light of Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). The trial court erroneously applied the Modlin doctrine, which Commercial Carrier Corporation v. Indian River County, supra, overruled.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

BERANEK and GLICKSTEIN, JJ., and SIMONS, STUART M., Associate Judge, concur.

      . Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).


author: PER CURIAM. ANSTEAD, Judge,

text:
    Robert F. HOLSTEN, Appellant, v. Sylvia L. HOLSTEN, Appellee.
    Nos. 78-2422, 79-80.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 17, 1980.
    Larry Klein, West Palm Beach, for appellant.
    Guy C. Hill, West Palm Beach, for appel-lee.
   PER CURIAM.

AFFIRMED.

MOORE and HERSEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

This is a rather unusual case, and while I concur in the result reached by the majority, I feel it appropriate to comment on that point on appeal urged by the husband relative to the trial court’s interpretation of the parties’ property settlement agreement.

In post dissolution proceedings, the trial court entered a final judgment awarding the appellee wife $30,375.00 based upon its interpretation of a provision in a property settlement agreement which required the appellant husband to pay the wife a share of his bonuses for 1974,1975, and 1976 from two corporations in which he had a stockholder’s interest. The pertinent portion of the property settlement agreement, executed in 1974 and incorporated into a judgment of dissolution of marriage entered that same year, provided for the following:

7a) Husband is owner of 50% of the stock of Character Homes, Inc., a Florida corporation, and is also vice-president of such corporation. Husband represents that said corporation now owns a home known as “Galaxy”, another home known as “Galaxy II”, and Lots 189, 240 and 241 in Tequesta Subdivision of Palm Beach County, Florida, Plat Book 25, Pages 7-15 inclusive. Husband shall cause such corporation to sell all of the above as soon as reasonably possible and pay to Husband his “bonus” equal to one-half of the corporate profits in excess of $25,000.00 during 1974, 1975 and 1976. Upon receipt of such “bonus” Husband shall pay an amount equal to one-half thereof to Wife. Apartment 209 of Riverkey Condominium, in which the Husband presently lives, shall not be considered as a “bonus” or portion thereof.
b) Husband owns one-third of the outstanding stock of Realtek Real Estate, Inc., a Florida corporation. Husband represents to Wife that he is to receive a “bonus” or payment equal to one-third of the net profits in excess of $25,000.00 of such corporation during the calendar years 1974,1975 and 1976. Husband shall pay to Wife one-half of any such “bonus” or payment received immediately upon receipt of same by Husband; .

In January of 1975, the husband entered into an exchange of stock with one Don Boese, a stockholder in both Character Homes, Inc. and Realtek Real Estate, Inc. in which the husband exchanged his one-half ownership in Character Homes for Boese’s one-third interest in Realtek. As a result of the transaction, the husband divested himself of all interest in Character Homes, but increased his ownership interest in Realtek from one-third to two-thirds.

The trial court, in determining what the wife was owed under the provisions of the property settlement agreement, held that the husband’s bonuses under the agreement should be computed on the basis of two-thirds of the net profits of Realtek, rather than the one-third stated in the agreement, since the husband now owned two-thirds of the stock. The court’s decision was based upon what it perceived to be an equitable method for enforcing the intent of the property settlement agreement, that of providing the wife with an expectancy of income in direct proportion to the economic fortunes of her husband. And although the decision appears to alter or modify the literal terms of the agreement, I think the result is correct.

As with any other contract, the polestar guiding the court’s interpretation of a property settlement agreement should be the intention of the parties. Greenwald v. Blume, 312 So.2d 783 (Fla. 3d DCA 1975). That intention is to be determined by considering the language used in the agreement in light of the surrounding circumstances and the objects which the parties sought to accomplish. Hall v. Hall, 135 So.2d 432 (Fla. 3d DCA 1961).

While the property settlement agreement herein contained no provision expressly addressing the effect of any sale or exchange of the stock of the two corporations held by the husband, it is clear that the agreement did not contemplate such action by the husband. However, in fact the exchange has been accomplished. The question now is whether the husband should be permitted to reduce his obligation by the voluntary exchange of stock. Clearly the wife would not have agreed to this if the issue had been specifically addressed at the time the agreement was executed. Are we now to deny her recovery because there was no specific provision covering such eventuality? I don’t think so. If in fact this specific exchange of stock was anticipated at the time the contract was executed it is highly probable that the wife would have only agreed to such an exchange if she were to receive similar benefits from any bonuses generated by the substituted stock. To hold otherwise would be to encourage cheating on agreements which rely upon the good faith of the parties for their performance.

By finding that the husband’s additional one-third interest in Realtek was the fungible equivalent of his former one-half interest in Character Homes surrendered in the exchange, the effect of the trial court’s decision was not to modify the terms of the property settlement agreement but rather to enforce the terms thereof in accordance with the intent of the parties and the spirit of the agreement.


text:
    Loreen Marie BARTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-605.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 15, 1980.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., and SIMONS, STUART M., Associate Judge, concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    McCarthy CLINTON a/k/a Clinton McCarthy, Appellant, v. STATE of Florida, Appellee.
    No. 79-760.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Joseph R. Atterbury, 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.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

I must respectfully dissent.

Appellant was charged by information with possession of marijuana in excess of five grams. His pretrial motion to suppress was denied whereupon he pled nolo conten-dere, specifically reserving his right to appeal the trial court’s denial of his motion.

Officer William Dawson of the Delray Beach Police Department was the only witness to testify at the hearing on the motion to suppress. The pertinent part of the testimony is as follows:

A Another police officer, Officer Ross Licata, had requested assistance at the rear of 633 West Atlantic Avenue in the alleyway. I proceeded to that area and Officer Licata advised me that he had observed a group of black males gathered in a circle or bunched up at the corner of the building in front of Ideal Recreation, 633.
Q Are you familiar with that area of Delray Beach?
A Yes, sir. .
Q What kind of an area is it?
A There is a very high crime rate.
******
Q What specifically did Officer Licata tell you he had seen?
A He thought that there was gambling, possibly gambling and narcotics, marijuana smoking going on in that group and that there was also some type of gambling.
******
Q Then what happened, sir, after you formulated a plan?
A Officer Licata contacted me by way of radio and stated to me that he was now approaching a black male at that time and we started into the alleyway coming south to approach from the opposite side of him.
******
A As I started up that alleyway Officer Licata came on the radio and in an excited tome of voice said they are running, breaking away, and we started to run in the alleyway and the subject came at a full pace, running at a full pace towards us down the alleyway, and he ran almost into me. Before he realized it we were there in the alleyway about three-quarters of the way into it.
At that time I told him to “Hold it right there, police officers,” and I turned my flashlight on.

On cross-examination the following transpired:

Q So the only thing ypu knew before that happened was that Officer Licata had a suspicion that there was some type of illegal activity going on?
A Yes.
Q Isn’t it true that he never specifically gave you any indication of what it was that he suspected?
A He suspected some type of gambling and the use of illegal narcotics with the group of black males who had gathered on that corner.
* * * * * *
A He explained when he met me that he thought there was gambling going on or that they were using some type of narcotics.
Q Wasn’t your answer at the deposition, “Well, he wasn’t sure.”?
A Well, he wasn’t sure which one it was. He wasn’t sure whether it was gambling or exactly what they were doing, but they were definitely doing something.
Q So you just had a definite suspicion, you couldn’t tell what it was?
A Right.
Q And you had the same suspicion on secondhand knowledge?
A Yes.
Q So the fact is you didn’t have any knowledge of any specific crime being committed by any specific person?
A I didn’t know if there was a specific crime being committed, I felt they were committing some kind of crime against the State of Florida, but I can’t say yes, it was this, or yes it was that. I can’t say.
Q The first time you saw him is when he was coming up the alley because you were running then?
A Right.
Q At that time you didn’t have specific knowledge or suspicion, just suspicion that he was breaking one of the narcotics laws?
A He was part of the group and he was running.
Q You didn’t see — ?
A Officer Licata said, “They were running, breaking up,” and as we started into the alley Officer Bombacie assumed he was one of the subjects in that group.
Q You assumed that?
A I didn’t see him in the group, no, sir.
Q Okay. So you suspected him of being part of the group and involved in something illegal because he was running?
A Yes.
Q But still at that point you didn’t have any idea what it may be?
A Not exactly, I suspected it was gambling or stolen property, something of that nature.

Officer Licata neither testified at the hearing on the motion nor expressed to Officer Dawson any of the facts that led him to believe some criminal activity was afoot. At best, then, we have “a group of black males gathered in a circle or bunched up at the corner of the building.” I fail to see how these scant facts alone, in the words of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), are specific and articulable to justify a detention.

Recently in Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980), we held that detention was not justified when a suspect walked briskly away from a parked vehicle after observing the police. Similarly, the First District held it was improper to stop a person in a high crime area when he, after spotting police officers, jumped down from an automobile fender and walked briskly away. Jackson v. State, 319 So.2d 617 (Fla. 1st DCA 1975). A stop was also invalidated by the court in Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977), wherein a vehicle was stopped after pulling away after midnight at a faster than average speed from its parking space in a parking lot of a business area when all of the businesses in the area were closed. These three cases present a stronger argument for a “founded” suspicion of crime than does the instant situation, yet each was found insufficient to justify a detention.

It is not my intent to eliminate common sense from cases involving the detection of crime. But on the other hand I must preserve the right of persons to be free from unreasonable searches and seizures. Sub judice the state had the burden to prove the detention was justified. In the absence of specific and articulable facts there was no basis from which the trial court could have properly concluded that the detaining officers had founded suspicion that appellant “has committed, is committing, or is about to commit” a crime. Section 901.151, Florida Statutes (1979). See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

Accordingly, I would reverse.

      . For example, Officer Licata, had he testified, might have been able to explain in detail various gestures made by members of the group or possible contraband that he saw that led him to suspect narcotics, marijuana smoking and gambling.


text:
    SWEETING NURSING HOSPITAL, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 79-2590.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 10, 1980.
    Jeffrey P. Wasserman of Litman, Mu-chnick & Wasserman, Hollywood, for appellant.
    Harold L. Braynon, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

BERANEK and MOORE, JJ., and KAP-NER, LEWIS, Associate Judge, concur.


text:
    Thomas V. WAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 80-59.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1980.
    Rehearing Denied Sept. 18, 1980.

      Jack 0. Johnson, Public Defender, Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bartow, for appellant.
    Thomas V. Waugh, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Thomas V. Waugh appeals judgments and sentences for ten drug offenses, to which he pled guilty.

Appellant’s sole contention on appeal is that the trial court erred in accepting his guilty plea to one of the charges, possession of cocaine. We agree that the factual basis given by the state for possession of cocaine indicates that appellant did not commit that offense.

Prior to accepting a guilty plea, the court must receive in the record factual information to establish the elements of the offense for which the defendant has entered his plea. Williams v. State, 316 So.2d 267 (Fla. 1975); Fla.R.Crim.P. 3.172(a). Because appellant could not have been convicted of possession of cocaine on proof of the facts delineated in the state’s factual basis, he was prejudiced by the trial court’s acceptance of his guilty plea to that charge.

Accordingly, the judgment and sentence for possession of cocaine is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. The remaining judgments and sentences are affirmed.

SCHEB, C. J., and BOARDMAN and GRIMES, JJ., concur.

      . Appellant’s counsel advised in his appellate brief that he saw no reversible error regarding the other nine charges against appellant and requested permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.ct. 1396, 18 L.Ed.2d 95 (1967). Our examination of the record likewise has revealed no reversible error with regard to the other nine charges.


author: ERVIN, Judge.

text:
    Charles D. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. NN-486.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.
    Rehearing Denied Oct. 8, 1980.

      Richard S. Rhodes, Orlando, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellant appeals his conviction for possession of more than five grams of cannabis, entered following a non-jury trial. We affirm.

Appellant and a friend were stopped by an agricultural inspector after they drove past an inspection station in a Dodge pickup truck with an attached camper. The vehicle was returned to the inspection station where, with defendant’s consent, the inspector looked inside the rear portion of the truck, opened the lid of a wooden box and found a large duffle bag, which had the odor of marijuana. When appellant was asked whether an examination could be made of the bag, he declined. The inspector called the sheriff who obtained a search warrant based on the inspector’s affidavit that he believed the bag contained marijuana. The sheriff searched and found approximately 200 pounds of marijuana in the camper.

Appellant and the state stipulated to a non-jury trial solely on the issue of identification of the marijuana, and appellant reserved his right to appeal denial of his motions to dismiss and to suppress the evidence.

There is no merit to appellant’s contention that his motion to dismiss should have been granted because the state’s traverse did not comply with Fla.R.Crim.P. 3.190(d). Although the state attorney had apparently not filed a written traverse, he traversed orally at the hearing, and the appellant did not object. Appellant waived objection to the state’s traverse. State v. Cramer, 383 So.2d 254 (Fla.2d DCA 1980). Moreover, the oral traverse, stating that appellant had sufficient knowledge and control of the marijuana in the truck based on his statements in the presence of the inspector and the officer, was enough to imply knowledge sufficient to avoid a motion to dismiss. See Cummings v. State, 378 So.2d 879 (Fla.1st DCA 1979).

Additionally, we do not agree appellant was illegally stopped on the ground his vehicle was a “camping trailer”, as defined by Section 3 20.01(l)(b), Florida Statutes (1977), and therefore excluded from agricultural inspection under Section 570.-15(l)(a)(7), Florida Statutes (1977). The inspector had probable cause to believe the pick-up truck with a camper was a truck. Holec v. State, 376 So.2d 401 (Fla.1st DCA 1979).

As to the sufficiency of the inspector’s affidavit that he smelled marijuana to support a search warrant for marijuana, Pederson v. State, 373 So.2d 367 (Fla.1st DCA 1979), is distinguishable. There the search warrant was issued for agricultural products. The court expressly declined to rule on whether “the smell of marijuana was sufficient probable cause supporting the search warrant.” Pederson, supra, at n. 1, pp. 368-69. We upheld a search without a warrant under otherwise identical circumstances in Flynn v. State, 374 So.2d 1041 (Fla.1st DCA 1979).

Appellant’s final point, that the state failed adequately to identify the substance seized as marijuana, deserves discussion. The state’s expert witness, Harriet Pfaffman, a chemist with FDLE, stated she was familiar with botany and taxonomic botanical identification. She was accepted as an expert on the chemical and botanical aspects of identification of cannabis. The decision as to an expert witness’s qualifications is one left to the trial court’s discretion, reviewable only for abuse. McCormick, Evidence § 13 at 30 (2d ed.1972). See also Fotianos v. State, 329 So.2d 397, 401 (Fla.1st DCA 1976). Her microscopic examination of the substance revealed cystolith and glandular hairs, indicative of cannabis, but which are found also on many other plants. She could not recall whether the cystolith hairs were located on the tops of the leaves as they would be if the substance were cannabis. She then performed a Du-quenois-Levine test and determined the substance was marijuana.

The defense’s expert, Dr. Fullerton, was an associate professor of pharmaceutical chemistry at Oregon State University who held a doctorate in organic chemistry. He has published at least one article in a professional journal on the subject of identification of marijuana in criminal cases. His conclusion, without detailing the scientific and statistical facts he testified to, was that the Duquenois-Levine test was, at best, non-specific for marijuana, and that many other substances, such as coffee, sandle-wood and nutmeg, would produce a positive result when exposed to it. Dr. Fullerton stated that microscopic identification with hydrochloric acid, to determine the presence of calcium carbonate, and use of mass or infrared speetrography would positively identify marijuana.

Based on Dr. Fullerton’s testimony, appellant argued before the trial judge and here that the state’s evidence did not prove beyond a reasonable doubt that the substance seized was marijuana. It is true that language in State v. Vail, 274 N.W.2d 127 (Minn.1979) and State v. Wind, 60 Wis.2d 267, 208 N.W.2d 357 (1973), supports appellant’s assertion that the Duquenois-Le-vine test is not sufficient to prove identity of a substance as marijuana beyond a reasonable doubt. In Vail, supra, the Minnesota Supreme Court affirmed the trial court’s decision that the Duquenois-Levine test, along with microscopic identification and thin-layer chromatography, were insufficient proof of the identity of the substance seized, even in conjunction with facts that appellant was attempting to sell 200 pounds of it and was obviously under the impression himself that it was marijuana: “Minnesota’s law requires proof of the actual identity of the substance, the defendant’s belief is not sufficient.” 274 N.W.2d at 134. Moreover, in Vail, the court placed great emphasis on the fact that the trial judge, sitting in place of the jury, had found the evidence of the identity of the substance to be insufficient. The court emphasized that it did not prescribe minimum evidentiary requirements in marijuana identification cases. 274 N.W.2d at 134.

In State v. Wind, supra, the Wisconsin Supreme Court held that, when the appellant sold marijuana to an undercover agent, positive results of the Duquenois-Levine and thin-layer chromatography test, although admittedly non-specific for marijuana, were admissible and probative towards identifying the substance. However, the court stated further that those tests’ results alone would not “meet the burden of proving the identity of the substance beyond a reasonable doubt,” in a case involving only possession. 208 N.W.2d at 361.

In this case, the trial judge sitting as trier of fact, found as a fact that the substance was marijuana. Questions of fact are not generally within our province where the record supports the trial court’s findings. We decline to state as a matter of law that the Duquenois-Levine and microscopic tests are not probative of the identity of a substance as marijuana. The trial judge had other facts before him, including the inspector’s testimony that the substance smelled like marijuana, and the fact that appellant retrieved a small amount of the substance from the cab of the truck with the statement that he did not believe the inspector and sheriff would let him take it with him. We expressly decline to follow the Minnesota rule which requires scientific proof of the actual identity of the substance as marijuana. Vail, supra, at 134. Instead, we approve the opinion in Moore v. United States, 374 A.2d 299, 302 (D.C.App.1977), stating that, in addition to the scientific tests, other facts tending to show the identity of the substance, such as its appearance and smell and circumstances under which it was seized, are probative and can meet the state’s burden of proof. Accord, State v. Otswald, 591 P.2d 646 (Mont.1979). In Otswald, the state had no expert chemical identification of two marijuana “joints” found in the appellant’s possession. The officer who found the joints conducted a test with his “valtox kit”, which contained a selection of chemical reagents which might produce characteristic colors when combined with marijuana, and obtained positive results. The state conceded that the test was not specific for marijuana, but argued that the test’s results, combined with the officer’s physical identification of the substance as marijuana, were adequate evidence. The court agreed, stating:

We have reviewed many cases involving the burden of proving beyond a reasonable doubt the identity of a substance alleged to be marijuana. In only two of those cases do we find language indicating that absolute chemical identification is required to meet this burden of proof, and in both cases that language was dicta only. [Cites omitted.] On the other hand, numerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient. 591 P.2d at 652.

AFFIRMED.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.

      . “The Duquenois-Levine test is a color chemical test in which the suspected material is placed in a test tube. A reagent is added, the tube is then shaken and, following this hydrochloric acid is added. The tube is shaken once again and if color forms, chloroform is added and the tube is again shaken. If chloroform is extracted into the lower level and the color is violet to blue, the test is usually considered to be positive for marijuana.” Annot., Proof The Substance is Marijuana, 75 A.L.R.3d 717, 722, n. 23 (1977).

      . While controversy surrounds the reliability of the Duquenois-Levine test as a means of identifying marijuana, the government and most crime laboratories accept its validity for identification. Stein, Laessig and Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, 1973 Wisc.L.Rev. 727. Additionally, Thornton and Nakumura, In the Identification of Marijuana, 12 Journal of the Forensic Science Society, 461, 480 (1972), observe that the specificity of the Duquenois reaction has been established for over 30 years and that no other plant material other than marijuana has been found to have an identical reaction. For a contrary view, see Kurzman, Fullerton and McGuire, Winning Strategies for Defense of Marijuana Cases: Chemical and Botanical Issues, 1 Natl.J. of Crim.Def. 487, 523-24 (1975).


text:
    CITY OF MIAMI, etc., et al., Appellants, v. Carlos RODRIGUEZ-QUESADA, etc., et al., Appellees.
    No. 80-555.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1980.
    Rehearing Denied Oct. 7, 1980.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., for appellants.
    Miguel A. Pirez-Fabar, Coral Gables, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The City of Miami seeks reversal of a temporary injunction enjoining the abolition of the Little Havana Community Development Board (Board). We find the injunction to have been improperly imposed and reverse.

The Congress has enacted legislation which provides funds for community development. Under this legislation, grants for state and local community development programs are prohibited unless assurances are given by the locality that there will be citizen participation in the development of its program. 42 U.S.C.A. § 5304(a)(6); 24 C.F.R. § 570.303 (1979). The City of Miami applied for a block grant under this program.

To facilitate community participation, the City of Miami Commission established the Board by resolution adopted on April 30, 1979. The resolution provided for the election of the fifteen-member advisory group from within the Little Havana area. They were duly elected on July 30, 1979 to serve a one-year term. After finding that the Board did not provide an opportunity for residents to voice their opinions and had alienated resident participation within the area, the City Commission, by resolution adopted January 24, 1980, abolished the elective Board and replaced it with an appointive board. The present action was commenced by two-thirds of the members of the elected Board in their individual capacities.

We find nothing in the Federal Housing and Community Development Act of 1974, nor the regulations which implement it [24 C.F.R. § 570.1, et seq. (1979)], which restricts the implementing authority in determining the manner and means of community input. It is clear that the Act requires community input; however, this input is advisory in nature. The fact that the Board was established by resolution demonstrates its temporary nature. Certain Lots Upon Which Taxes Are Delinquent v. Town of Monticello, 159 Fla. 134, 31 So.2d 905 (1947).

It is the general rule that the power to create an office generally includes the power to modify or abolish it even though the office is occupied by a duly elected incumbent. City of Jacksonville v. Smoot, 83 Fla. 575, 92 So. 617 (1922); 9 Fla.Jur.2d Civil Servants § 20; 63 Am. Jur.2d Public Officers and Employees § 33. Where an incumbent does not have a contractual or property interest in an office, it may be abolished at any time. 63 Am. Jur.2d Public Officers and Employees § 34.

In this instance, the City of Miami Commission was authorized to create the Board and was privileged to abolish it. For the foregoing reasons, the temporary injunction is reversed with directions to dismiss the complaint.

Reversed.

      . While we decide this case upon the merits, we might have disposed of it on the question of standing. The Little Havana Community Development Board was an advisory board created by the City of Miami Commission. By its nature, it was subservient and not autonomous. Autonomous bodies of government have the power to either bring suit or be sued. North Miami Beach Water Board v. Gollin, 171 So.2d 584 (Fla. 3d DCA 1965). This Board did not. The fact that the choice of those who would voice the community’s opinions was determined by election did not bestow upon the members of the Board a property right in the office. Absent a contractual or property right in their respective positions, the Board members had no standing to bring suit for injunction in their individual capacity. Being a subservient body, they could not sue in their collective capacity either.


author: COBB, Judge.

text:
    Joseph Lavone McDANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 79-949/T4-523.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    Rehearing Denied Sept. 29, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant was charged with robbery, armed robbery, and possession of a short-barrelled shotgun arising from three separate incidents. By statutory definition, a short-barrelled shotgun has a barrel length of less than 18 inches or an overall length of less than 26 inches.

During the trial, the state introduced the shotgun into evidence. It has a barrel length of approximately 16 inches and an overall length of approximately 25 inches. At the close of the trial, the appellant moved to dismiss the possession of a short-barrelled shotgun charge on the ground that the state had failed to introduce any evidence as to either the length of the barrel of the shotgun or the overall length of the shotgun. The trial court denied the motion on the rationale that the jury had the actual gun to look at and that the trial court was taking judicial notice that it is a matter of common knowledge as to how long 18 inches is.

Appellant was convicted as charged on all three counts and sentenced to three consecutive sentences. Appellant appeals the judgment and sentence imposed for possession of a short-barrelled shotgun and contends that the trial court erred in denying the appellant’s motion to dismiss that charge.

Showing the length of the shotgun or its barrel is an essential element of possession of a short-barrelled shotgun and must be proved. Cf. Purifoy v. State, 359 So.2d 446 (Fla.1978); McIntire v. State, 381 So.2d 1154 (Fla. 5th DCA 1980).

Judicial notice may be taken of matters that are commonly known, but may not be used to dispense with proof of essential facts that are not judicially cognizable. Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1917); Moore v. Choctawhatchee Elec. Co-Op, Inc., 196 So.2d 788 (Fla. 1st DCA 1967). Without the assistance of testimony or a measuring device, we do not believe that the common person can look at a shotgun barrel that is about 16 inches in length and know to the exclusion of a reasonable doubt that the barrel is less than 18 inches. Nor do we believe that the common person can look at a shotgun that is approximately 25 inches in length and know to the exclusion of a reasonable doubt that it is less than 26 inches. Under these circumstances, the trial court abused its discretion in taking judicial notice of these unproved elements and we, therefore, reverse the judgment and sentence of the appellant for possession of a short-barrelled shotgun and remand this case with directions that the trial court order a judgment of acquittal as to this count only. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED and REMANDED.

FRANK D. UPCHURCH and SHARP, JJ., concur.

      . Section 812.13(2)(c), Florida Statutes (1977).

      . Section 812.13(2)(a), Florida Statutes (1977).

      . Section 790.221, Florida Statutes (1977).

      . Section 790.001(10), Florida Statutes (1977).

      .Rather than sending this court the actual shotgun, the clerk of the trial court has sent us three poorly lit photographs of the shotgun that were taken after the trial. The photographs show the shotgun with a tape measure lying on the shotgun.


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    Paul W. LEFFLER and Meredith Enterprises, Inc., Appellants, v. Earl M. SMITH and Ruth A. Smith, his wife et al., Appellees.
    No. 79-1489/T4-640.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    Rehearings Denied Oct. 6, 1980.

      Phillip H. Logan of Shinholser, Logan & Moncrief, Sanford, for appellant Leffler.
    Fred M. Johnson and Baya Harrison, III, of Fuller & Johnson, P. A., Tallahassee, for appellant Meredith Enterprises, Inc.
    William M. Rowland, Jr., of Rowland, Bowen, Thomas, Bruggeman & Brown, P. A., Orlando, for appellees.
   COBB, Judge.

Meredith Enterprises, Inc., and Paul Lef-fler appeal from a final judgment in favor of the Smiths, as representatives of a class of property owners, declaring the existence of a recreational easement in favor of the property owners over two lots in Meredith Manor, and ordering Meredith Enterprises and the Lefflers to remove fences placed on those lots and enjoining their interference with the property owners’ recreational easement in the future.

Inez Meredith originally owned a large parcel of land in Seminole County. In 1953 she caused a portion of the land to be platted as the Gene Gables Section of Meredith Manor. Block “E” consisted of six lots on Lake Brantley. She conveyed 26 of the 29 lots platted to Meredith Enterprises. The 1953 deed contained the following critical language:

5. All of Lot 1, Block “E”, is reserved for the exclusive use of resident property owners of record as a park and bathing beach.

In 1954, Inez Meredith platted an additional portion of her land, 73 lots recorded as Nob Hill Section, Meredith Manor. Lot 15, Block “A”, fronts Lake Rena. Thereafter, Inez Meredith conveyed to Meredith Enterprises all of the lots in the Nob Hill Section. Between 1954 and 1976, Meredith Enterprises sold many of the lots in the Gene Gables and Nob Hill Sections of Meredith Manor. In approximately fifty-one of those deeds there is language to the effect that the grantees therein are to have the use and privilege of all “resident only parks and beaches” or language of similar import. The trial court found that in its dealings and negotiations with potential purchasers, Meredith Enterprises held out and represented to potential purchasers that Lot 1, Block “E”, of the Gene Gables Section (the Lake Brantley lot) and Lot 15, Block “A”, of the Nob Hill Section (the Lake Rena lot) were set aside for the use of residents of the development: the Lake Brantley lot for park and bathing use, the Lake Rena lot for boat ramp use. The Meredith Manor property owners used Lot 1, Block “E” on Lake Brantley as a park and bathing beach until 1977. In August of 1976, Meredith Enterprises sold to defendant Leffler all of Lot 1, Block “E”, except the south 50 feet. In the spring or summer of 1977, the Lefflers enclosed their portion of the lot with a fence. In addition, the residents of Meredith Man- or used Lot 15, Block “A”, on Lake Rena until Meredith Enterprises erected a fence in 1977.

The trial court found that Inez Meredith intended to give to the resident property owners of the Gene Gables Section of Meredith Manor the use of Lot 1, Block “E”, as a park and bathing beach. The trial court found that Meredith Enterprises ratified the intent of Inez Meredith when it placed language in many deeds to property owners of the Gene Gables Section of Meredith Manor referring to the earlier grant of the park and beach areas to resident property owners. In addition, the trial court found that Meredith Enterprises gave the property owners the use of Lot 15, Block “A”, as well. The trial court held that the grant- or’s intent would prevail over the ancient common-law rule that a reservation in a third party, not a party to a deed, is invalid.

As to Lot 1 on Lake Brantley, appellants argue that the reservation in the 1953 deed was invalid under the common-law rule that prohibits a reservation in favor of a stranger to a deed. The common law of England down to the 4th day of July, 1776, is in force in this state unless inconsistent with the constitution and laws of the United States and the acts of the Legislature of this state. § 2.01, Fla.Stat. (1979). However, it is not necessary now to determine the continued vitality of this ancient rule. Cf. Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941).

We uphold the result reached by the trial court, on the ground that appellants, Meredith Enterprises, and its successor in interest, Leffler, are estopped from questioning the validity of the reservation.

Legal estoppel or estoppel by deed is defined as a bar which precludes a party to a deed and his privies from asserting as against others and their privies any right or title in derogation of the deed, or from denying the truth of any material fact asserted therein.

Cook v. Katiba, 190 So.2d 309, 311-312 (Fla. 1966).

In Dade County v. Little, 115 So.2d 19 (Fla. 3d DCA 1959), the court applied the doctrine of estoppel by deed to a conveyance containing a reservation of a right of way to the state in a deed from a drainage district. The court held that the present landowners were estopped from claiming the reservation was ineffective where the deed was of record at the time the present landowners received conveyance of the land. The court cited the general rule from 31 C.J.S., Estoppel § 38f:

The grantee in a deed will be concluded by recitals therein limiting the quantity or extent of the interest conveyed and making reservations in favor of the grantor or third person, (emphasis added).

Dade County v. Little, 115 So.2d at 22.

The court also cited 19 Am.Jur., Estoppel §21:

Estoppel of the grantee of a deed, viewed generally, is of the nature of equitable estoppel rather than technical estoppel by deed, since the estoppel is not predicated primarily on the execution of a formal written instrument which cannot be denied or rebutted, but rather on the inability of a person, in the eyes of the law, to acquiesce in, and enjoy the benefits of a transaction and at the same time reject the accompanying burdens. A person cannot claim under an instrument without confirming it. He must found his claim on the whole, and cannot adopt that feature or operation which makes in his favor, and at the same time repudiate or contradict another which is counter or adverse to it.

Id. at 22.

Appellant Leffler suggests that there was not sufficient evidence to put him on notice that the plaintiffs were claiming an easement on his property. However, under Florida’s recording act, the recordation of an instrument is constructive notice to creditors and subsequent purchasers not only of its own existence and contents, but also of such other facts concerned with the instrument as would have been ascertained from the record if it had been examined and if inquiries suggested by it had been prosecuted. See Hull v. Maryland Cas. Co., 79 So.2d 517 (Fla.1955); Zaucha v. Town of Medley, 66 So.2d 238 (Fla.1953). The Lef-flers are charged with constructive notice of the 1953 deed and of such facts as they could have ascertained had they made inquiries suggested by the language in the deed. Simple inquiry would have shown the continuous use of the lot in question by the plaintiffs and their predecessors for many years.

As for the Lake Rena lot, we hold that the trial court properly granted reformation of the 51 deeds from Meredith Enterprises in reference to Lot 15, Block “A”, Nob Hill Section of Meredith Manor, and further hold that there was sufficient evidence before the trial court to do so. The purchasers acquired an easement in the Lake Rena lot for boat ramp purposes by implication; Meredith Enterprises is equitably estopped from denying to the Meredith Manor lot owners that which they were led to believe they had. See Wilson v. Dunlap, 101 So.2d 801 (Fla.1958); McCorquodale v. Keyton, 63 So.2d 906 (Fla.1953).

Finally, Meredith Enterprises argues that the thrust of plaintiff’s action is to obtain specific performance of an oral statement of Meredith Enterprises or Inez Meredith to the effect that the Lake Rena lot would be reserved as a boat ramp for the use of Meredith Manor lot owners. Appellants suggest that enforcement of such an oral promise to create an easement is barred by the statute of frauds. However, neither Leffler nor Meredith Enterprises specifically raised the statute of frauds as an affirmative defense in their pleadings, nor during trial. Therefore, this affirmative defense, not pleaded, was waived. Langlois v. Oriole Land & Dev. Corp., 283 So.2d 143 (Fla. 4th DCA 1973); Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1959).

Accordingly, we affirm the correct result reached by the trial court.

AFFIRMED.

BOOTH, JOHN W., Associate Judge, concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. As the majority opinion clearly confirms, it is not possible for a deed to effect the reservation of property right in a third person. A grantor may reserve an estate or a right unto herself, but under the common law, that law yet unchanged, the grantor cannot reserve an estate or right for a third party — a “stranger to the deed.” 23 Am.Jur.2d Deeds § 279 (1965); Annot., 88 A.L.R.2d 1199, 1203 § 3 (1963).

Of paramount importance, in my opinion, is the stability of the law in land title matters. See National Equipment Rental Ltd. v. Coolidge Bank & Trust Co., 348 So.2d 1236 (Fla. 2d DCA 1977). For the majority to change an historic title standard by use of the doctrine of estoppel is to certainly disturb the marketplace. Purchasers of real property must be able to presume the law in regard to title to real property remains constant until changed by the Legislature, and then any legislative changes may only apply prospectively. Here the appellants should be able to rely on the fact that an ineffective attempted reservation in a deed will remain forever ineffective, at least as to them if not to their successors in title.

This brings up another point. How long would this estoppel defense be available and to whom? Would all of the appellees’ successors in title, forever, be entitled to take the property from all of appellants’ successors in title, forever? That is certainly a logical extension if it is assumed the estop-pel can be proved forever. That is not a good result and title examiners will surely agree.

      . Fla.Stat. § 2.01 (1979). Common law and certain statutes declared in force. The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.


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

text:
    GENERAL TIRE AND RUBBER COMPANY et al., Appellants, v. HICKORY SPRINGS MANUFACTURING COMPANY, a North Carolina Corporation and Textron, Inc., a Delaware Corporation, d/b/a Burkhart, Appellees.
    Nos. 79-1156/T4-574 to 79-1165/T4-547I, 79-1169/T4-574M to 79-1181/T4-574Y, 79-1183/T4-574AA to 79-1185/T4-574CC and 79-1208/T4-574DD to 79-1219/T4-574OO.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    Rehearings Denied Sept. 29, 1980.

      Chris W. Altenbernd, Tampa, and O. H. Eaton, Jr., Altamonte Springs, for appellants John E. Polk, Individually, and as Sheriff of Seminole County, Florida, George Proudfoot, Seminole County, Florida, a Political Subdivision of the State of Florida, and Appalachian Ins. Co.
    Joel H. Brown, Miami, for appellants Joseph R. Hart, Joseph L. Winters, Andrew J. Milan, Cynthia Smith, Daisy Ann Campbell, and Dorothy L. Gaines.
    Howard R. Marsee, Orlando, for appellants Supreme Sales, Co., Inc. and Gulf Ins. Co.
    Dennis J. Hightower and Karl 0. Koepke, Orlando, for appellants Eddie Bond, Gary Winters, Timothy Bond Merrill, Jr., Joel McClean, Jr., Kenneth W. Hatcher, Arthur P. Hatcher, Paul Francis Gregor, Marion Lee Corey, Roy B. Clanton, et ux., Daniel Finnick Blauvelt, Franklin B. Owen, and James Lang Williams.
    J. Scott Kirk and John W. Bussey, III, Orlando, for appellant General Tire and Rubber Co.
    J. Michael Matthews, Altamonte Springs, for appellant Jones.
    Robert B. Nadeau, Jr., Orlando, for appel-lee Hickory Springs Mfg. Co.
   FRANK D. UPCHURCH, Jr., Judge.

This is an interlocutory appeal pursuant to Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure, from an order dismissing appellee, Hickory Springs Manufacturing Company, who was the defendant below, for lack of in personam jurisdiction. Thirty personal injury or wrongful death actions which arose from a fire in the Seminole County jail were filed in the Circuit Court for Seminole County naming appellee as defendant. All those cases have been consolidated for this appeal.

The point on appeal is whether the lower court erred in dismissing appellee as a party defendant for lack of in personam jurisdiction.

We affirm.

The fire was started by an inmate in mattresses which contained a polyurethane foam manufactured by appellee. Appellants contend the foam is unsuitable for use in the manufacture of mattresses destined for use in jails. This material was sold by appellee to Alagold Products in Alabama, which manufactured mattresses. These mattresses were then sold to Supreme Sales Company, Inc. in Georgia which in turn sold the mattresses to Seminole County for use in its jail. It was not demonstrated that appellee had any notice or knowledge that the foam it sold in Alabama would be used in mattresses destined for a jail in Florida or elsewhere. It was shown, however, that appellee had made sales of polyurethane foam in Florida to other consumers but none was in anyway connected with this occurrence. Nor was it shown that appellee recommended this product for use in jails.

Appellee, a foreign corporation, had not qualified to do business within the state. Therefore, appellants were required to bring appellee within one of the two Florida “long-arm” statutes, sections 48.181 and 48.193, Florida Statutes (1979).

Section 48.181 basically provides for the acquisition of in personam jurisdiction over a foreign corporation which is “doing business” within the state. Section 48.193 sets out specific acts, including that of conducting a business, which may subject a foreign corporation to in personam jurisdiction. Section 48.193 specifically limits jurisdiction to causes of action arising from the enumerated acts. Although section 48.181 does not expressly impose the same limitation, Florida district courts have interpreted the statute as including the requirement that the cause of action be related to the business activities of the foreign corporation. Bradford White Corp. v. Aetna Ins. Co., 372 So.2d 994 (Fla. 3d DCA 1979); Hartman Agency, Inc. v. Indiana Farmers Mut., 353 So.2d 665 (Fla. 2d DCA 1978); Crown Colony Club, Limited v. Honecker, 307 So.2d 889 (Fla. 3d DCA 1975); Manus v. Manus, 193 So.2d 236 (Fla. 4th DCA 1966). See also Phillips v. Hooker Chemical Corp., 375 F.2d 189 (5th Cir. 1967).

Therefore, it is necessary to show first that the cause of action arose from an obligation or cause connected with the activities of the foreign corporation before reaching the question as to whether the corporation was doing business within the state. In Manus v. Manus, 193 So.2d 236 (Fla. 4th DCA 1966), the court stated:

[Sjince the alleged cause of action against this foreign corporation is not shown to have arisen out of an obligation or cause connected with the activities of this foreign corporation in this state, we cannot reach the question of whether or not this foreign corporation was doing business in this state.

See also American Baseball Cap Inc. v. Duzinski, 359 So.2d 483 (Fla. 1st DCA 1978), cert. denied, 366 So.2d 443 (Fla.1979).

Appellants failed to show any connection between appellee’s business activities in Florida and the cause of action and therefore the court was correct in dismissing Hickory Springs as a party defendant.

DAUKSCH, C. J., and COBB, J., concur.

      . § 607.304, Fla.Stat. (1979). See also § 48.-091, Fla.Stat. (1979).


text:
    RACECON, INC., Appellant, v. Brent A. MEAD, etc. et al., and Jeanie Elizabeth Burnham, etc. et al., Appellees.
    No. 79-499.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.

      Michael A. Estes of Woolfolk & Estes, Orlando, for appellant.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellees.
   ORFINGER, Judge.

This is an appeal from a final judgment on a cross-claim holding that the lessee of a motor vehicle was obligated to provide primary liability insurance coverage on said vehicle notwithstanding the terms of the lease which required the lessor to provide such coverage. We reverse.

On February 21, 1977, lessor Ready Equipment, Inc. (Ready) leased an automobile to lessee Racecon, Inc. (Racecon) for one year. The written lease agreement provided that lessor would provide liability insurance for bodily injury up to limits of $100,000/300,000 and would name lessee as an additional insured. The lease further provided that the lessee would indemnify and save the lessor harmless from any amounts in excess of this coverage which lessor might be required to pay because of claims arising out of the operation of the motor vehicle by lessee or anyone with its knowledge or consent.

In the main action below it was alleged that Racecon had turned the vehicle over to its employee Burnham, whose minor daughter was operating it at the time it collided with a bicycle ridden by the minor plaintiff, Mead. Mead, joined by his mother, sued Ready as lessor, Racecon as lessee, Burn-ham and his minor daughter for damages resulting from the collision. Prior to the trial of the damage action, Racecon filed a cross-claim against Ready, alleging the terms of the lease and seeking a determination that Ready was obligated to provide primary insurance coverage because of the terms of the lease, which included the obligation to defend the main action.

Ready answered the cross-claim and asserted that notwithstanding the lease terms, because of the requirements of section 627.7263, Florida Statutes (Supp.1976), the lessee was obligated to carry primary insurance and any insurance carried by lessor would be excess. The trial court agreed, holding that the statute became part of the lease and that although the lease as written required Ready to provide primary coverage, the lease was superseded by the statute so that Racecon was actually required to carry the primary coverage.

By stipulation of the parties, the policies of insurance issued by different insurers to Ready and Racecon respectively were placed in the record. The pleadings did not request the court to determine which policy provided primary coverage and which provided excess, nor did the court do so. The final judgment merely acknowledged that the policies had been introduced into evidence, and then held that the lease agreement, by virtue of the incorporation therein of the aforesaid statute, made it mandatory that Racecon, as lessee, provide primary liability coverage “. . .to the limits of liability required by chapters 324.-021(7) and 627.736 of the Florida Statutes which was accomplished by an insurance policy issued . . . ” to Racecon.

Independent of any insurance requirement, and by virtue of the dangerous instrumentality doctrine, there is a common law obligation of owners of motor vehicles which makes them responsible for injuries caused by such vehicle in the course of its intended use.

The sole question presented to us on this appeal is whether the parties to a motor vehicle lease agreement are free to contract between themselves which of them shall provide the primary liability insurance coverage in the face of the statute as it then existed, which said that the lessee had that obligation. Prior to the enactment of the statute, the parties were free to contract between themselves with regard to the furnishing of insurance, although the owner continued to be responsible to injured third parties notwithstanding any agreement between the owner and the lessee. Insurance Company of North America v. Avis Rent-a-Car System, Inc., 348 So.2d 1149 (Fla.1977). The court there held that it did not violate public policy to shift the burden of loss, and said:

. We hold that the public policy of the state was satisfied in this case when the injured’s beneficiaries were compensated by the vehicle’s owner for the negligent operation of a rented vehicle. The parties were free to contract between themselves to shift the burden of loss so long as they met the requirements of law, and in this case there is no suggestion that those requirements were not met. .
Id. at 1154.

The statute in question was in effect only one year, because by chapter 77 — 468, Laws of Florida 1977, the legislature amended it to provide, as did the earlier case law, that the lessor’s insurance would be primary unless the lease agreement clearly stated to the contrary. Other cases have upheld the validity of leases wherein the lessee takes on the obligation to provide insurance. Hertz Corporation v. Pugh, 354 So.2d 966 (Fla. 1st DCA 1978).

It is thus our view that so long as the public policy of the state was satisfied, (as it undoubtedly was here where the owner agreed to provide primary coverage both to satisfy its common law obligation and its obligation under the financial responsibility laws of the state) the parties were free to contract between themselves that the owner (lessor) would provide the primary coverage, thus shifting the burden of loss. The statute would determine that obligation where there was no agreement.

The judgment appealed from is reversed for further proceedings consistent herewith.

REVERSED and REMANDED.

SHARP, J., and BAKER, JOSEPH P., Associate Judge, concur.

      . It was not stated in the cross claim nor in the final judgment appealed from whether the damage claim had a value in excess of the limits mentioned in the lease agreement between the parties.

      . Section 627.7263 Rental and leasing driver’s insurance primary.
      (1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the rental or leasing driver or any other person operating the motor vehicle with the permission or consent of the rental or leasing driver shall be primary. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by §§ 324.021(7) and 627.736, Florida Statutes.
      (2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessor of the provisions of subsection (1) and providing a space for the lessee’s insurance company’s name.

      . We note that no insurance company is a party to any part of this proceeding. While not disclosed in the stipulation, we can presume that the insurance policies were made a part of the record only to show their existence.


author: HURLEY, Judge.

text:
    William H. ARNOLD, Appellant, v. James A. WECK, Weck and Stone, P. A., Joseph A. Hubert, Individually, and Welcom H. Watson, Joseph Hubert, Michael K. Davis, Thomas L. Salle, Thomas M. Clark d/b/a Watson, Hubert & Davis, Appellees.
    No. 79-482.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Rehearing Denied Oct. 17, 1980.
    Steven R. Reininger of Tew, Critchlow, Sonberg & Traum, P. A., Miami, for appellant.
    William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees James A. Week and Week & Stone, P. A.
   HURLEY, Judge.

This is an appeal from the dismissal of appellant’s complaint with prejudice for failure to state a cause of action. The complaint consisted of three counts. We affirm as to Counts I and III, but find that the allegations of fraud and deceit contained in Count II are sufficient to withstand the motion to dismiss.

The facts relevant to Count II are concise. Appellee/attorney Week represented a judgment creditor in a collection suit against appellant. In his representative capacity, Week executed a satisfaction of judgment in settlement of his client’s claim against appellant. This settlement, however, was subsequently repudiated by the judgment creditor and the satisfaction of judgment was vacated. In its order granting the motion to vacate, which order is attached to the complaint and thus made a part thereof, the court stated that it found no evidence of appellee/attorney’s authority to settle or satisfy the judgment against appellant on behalf of his client. On this basis, appellant sought damages against Week for fraud and deceit alleging, in part:

That Defendant WECK represented to Plaintiff ARNOLD that he had the full authority of his client to enter into a full compromise and settlement of the judgment for an amount substantially less than the full amount and to enter into a satisfaction of judgment to affirm said settlement, when in fact no such authority had been granted.
That the plaintiff relied to his detriment on the representations of Defendant WECK and agreed via his counsel to the settlement, thereby paying the approximate amount of $6,600.00 and dismissing with prejudice another pending lawsuit. That' the acts and representations of Defendant WECK,were fraudulent, intentional, malicious and/or done with wanton and careless disregard for the rights of the plaintiff for reasons including but not limited to the defendant’s desire to recoup his costs and attorneys fees expended in the prolonged litigation, including appeals which preceded the “settlement” in 1972, and the plaintiff has suffered damages as a result.

It is well-settled that on a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true. Mill v. Ball, 372 So.2d 497 (Fla. 1st DCA 1979); Raney v. Jimmie Diesel Corp., 362 So.2d 997 (Fla. 3d DCA 1978); Temples v. Florida Industrial Constr. Co., 310 So.2d 326 (Fla. 2d DCA 1975); Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970). In ruling on such a motion, the court is not permitted to speculate as to whether the allegations will ultimately be proven, but rather is confined to the issue of whether the complaint states a valid cause of action. Raney v. Jimmie Diesel Corp., supra; Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Nantell v. Lim-Wick Constr. Co., 228 So.2d 634 (Fla. 4th DCA 1969). To do so in an action for fraud and deceit, the complaint must allege: (1) a representation by the defendant aimed at prompting action by the plaintiff; (2) the falsity of the representation and the defendant’s knowledge of such falsity; and (3) plaintiff’s reliance on the representation to his detriment. American Int’l Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975).

The required elements of a representation by the defendant, its falsity, and the plaintiff’s reliance thereon to his detriment, are pled explicitly in Count II. Thus, the pivotal issue on this appeal is whether the remaining element of the defendant’s knowledge of the falsity of the representation is adequately set forth in the allegations. We answer in the affirmative by employing the rule that a motion to dismiss “. . . admits as true all well pleaded facts as well as all reasonable inferences arising from those facts.” We find that the remaining element is discernible with reasonable certainty from the allegations that appellee concluded a settlement agreement “. . . when in fact no such authority had been granted,” and that appel-lee’s . . acts and representations were fraudulent, intentional, malicious. . ” Thus, the element of knowledge is apparent though not properly stated.

Accordingly, the trial court’s order dismissing appellant’s complaint with prejudice is affirmed as to Counts I and III, and reversed and remanded as to Count II.

LETTS, C. J., and DOWNEY, J., concur.

      . Rule 1.130(b), Fla.R.Civ.P.; Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA), cert. denied, 252 So.2d 797 (Fla.1971).

      . Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976).


author: HERSEY, Judge.

text:
    REGENCY HIGHLAND ASSOCIATES, a Florida General Partnership, Appellant, v. Lylian K. SHERWOOD, Appellee.
    No. 79-2239.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Rehearing Denied Oct. 16, 1980.
    Curtis G. Levine of Baskin & Sears, Boca Raton, for appellant.
    John R. Tatum of Buck & Tatum, P.A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

Regency Highland Associates, as developer and seller, entered into an agreement to sell a condominium unit to appellee. After payment of the earnest money deposit, appellant delivered a binder or commitment letter for title insurance to appellee, together with a proposed form of warranty deed and related closing documents. The title binder disclosed the existence of some twenty-seven claims of lien, five filed Notices of Lis Pendens, and seven existing lawsuits, all involving the real property in which the condominium unit was located. The title binder agreed to insure against loss from any of these exceptions (claims of lien, lis pendens and existing lawsuits).

Appellee refused to close the transaction and demanded return of her earnest money deposit. Appellant defended on the basis that the purchase and sale agreement provided that appellant would convey only an insurable title and since the binder agreed to insure over the exceptions, appellee was legally obligated to close the transaction, pay the balance of the purchase price and take title to the condominium unit. Litigation ensued and as a result appellee was granted a judgment for the return of her earnest money deposit with interest.

We affirm the judgment of the trial court.

Paragraph 7 of the purchase and sale agreement provides as follows:

7. TITLE. Seller will convey an insurable fee simple title of the condominium unit by Warranty Deed to Purchasers subject to the following exceptions :
A. Real estate taxes for the year of closing and subsequent years.
B. Applicable zoning regulations and ordinances.
C. All of the terms, provisions, conditions, rights, privileges, obligations, easements and liens as set forth and contained in the Declaration of Condominium, recorded in Official Records Book 2576 at Page 1342, Public Records of Palm Beach County, Florida, and the Articles of Incorporation and By-Laws of REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC. and any Amendments thereto.
D.Any restrictions, reservations or easements of record. Seller will assign a perpetual exclusive use of the parking space described in Paragraph 1 above to Purchasers in accordance with the provisions of the Declaration of Condominium.

If the exceptions to title noted on the title insurance binder could be classified either as restrictions or reservations or easements then their existence would not justify avoidance of the contract. However, the trial court found- that liens, notices of lis pendens and existing lawsuits do not fall within the enumerated categories. We agree. A restriction involves a limitation on the use of property. 7 G. Thompson, Real Property § 3160 (1962). Reservations are created for the benefit of a grantor out of the thing granted, causing something to exist that had no existence before the grant. City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888 (1932). An easement is a servitude carved out of the servient estate. 2 G. Thompson, Real Property § 315 (1980). And see Orange Blossom Hills, Inc. v. Kearsley, 299 So.2d 75 (Fla. 1st DCA 1974). None of these definitions contemplate liens, notices of lis pendens or existing litigation.

Appellant takes the position that it is nevertheless sufficient compliance with the contract if a title insurance company will insure the title, and thus the grantee of the warranty deed, against loss or damage occasioned by the enumerated exceptions. Whether that position is legally sound depends upon the language of the purchase and sale agreement.

Competent parties can agree to a purchase and sale of real property based solely on the seller’s ability to convey an insurable title. In a proper case the buyer would be obliged to perform despite the existence of restrictions, reservations, easements, liens, notices of lis pendens or pending litigation. For example, in Van Arsdale v. Dimil Land Co.,, 325 So.2d 471 (Fla.4th DCA 1975), we held that the existence of a reservation of mineral rights would not bar specific performance of a purchase and sale agreement requiring “titles to be insurable in the usual form subject to easements and restrictions common to the subdivision.” However, in the earlier case of Kehl v. Miami Title & Abstract Co., 143 Fla. 9, 196 So. 610 (1940), the buyer under a contract requiring the seller to furnish an abstract showing his title to be “good and insurable” would not be required to take title where the title insurance company refused to insure against loss from litigation then pending. While obviously distinguishable, we think these precedents are persuasive.

The agreement involved in the instant case is ambiguous. The first part of paragraph 7, quoted previously, can be interpreted at least two ways. It may mean that the deed will be subject only to the four enumerated items and that the title will insurable. Under this interpretation appellant would be entitled to prevail because the deed tendered is subject only to the four enumerated items and a title insurance binder was produced insuring over the additional exceptions.

On the other hand, the language could as well mean that seller is to convey by warranty deed an insurable title and that title shall be subject only to the four items enumerated. In this event, appellee prevails because of the admitted existence of a myriad of other exceptions. Here it would be appropriate to say that the buyer intended to purchase a condominium unit, not a law suit.

We start with the proposition that the trial court’s judgment comes to us clothed with a presumption of validity and correctness. Southeast Bank of Deerfield Beach v. Ralph C. Jackson Realty, Inc., 354 So.2d 1217 (Fla. 4th DCA 1978). The trial court here determined that mere insurability of the title was insufficient to satisfy the agreement.

In addition, appellant’s attorney prepared this agreement. It is a familiar rule of construction that a contract will be interpreted most strongly against the party who selected the questionable language. Tannen v. Equitable Life Insurance Co. of Washington, D.C., 303 So.2d 352 (Fla. 3d DCA 1974). In this case the agreement, construed most strongly against appellant, requires us to conclude that the seller failed to tender a title in compliance with the requirements of its own provisions.

We therefore recognize the validity and enforceability of a purchase and sale agreement requiring only that seller tender “insurable” title rather than “good” or “marketable” or “merchantable” title. The intention to do so, however, must be clear and unequivocal in view of the consequences to the intended buyer.

Accordingly, we affirm the final judgment.

AFFIRMED.

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


text:
    ADVANCE SERVICES, INC., a corporation, Appellant/Cross-Appellee, v. PIER I IMPORTS OF FORT WORTH, INC., a corporation, Appellee/Cross-Appellant.
    No. 79-1927.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Rehearing Denied Oct. 9, 1980.
    Frank J. Sinagra and Valerie A. Stott of Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellant/cross-appel-lee.

      Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees/cross-appellants.
   PER CURIAM.

Advance Services, Inc., plaintiff below, appeals from a final order granting a new trial in an action for monies due on an open account. We affirm. Appellant failed to demonstrate that the trial court abused its broad discretion in granting the motion. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied 359 So.2d 1221 (Fla.1978).

AFFIRMED.

MOORE and BERANEK, JJ., and KAP-NER, LEWIS, Associate Judge, concur.


text:
    Neville A. CHAN, Hilda Chan, Loren Wilson and Nadine Wilson, Appellants, v. BRUNSWICK CORPORATION, a Delaware Corporation, Appellee.
    No. 80-1065.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Rehearing Denied Oct. 8, 1980.

      Richard W. Smith of Johnson & Smith, P. A., Fort Lauderdale, for appellants.
    Harry S. Raleigh, Jr. of McCune, Hiaa-sen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

We have for consideration appellee’s motion to dismiss this appeal as untimely. At issue is whether a summary judgment was final and appealable. The reason for doubt becomes evident upon review of the sequence of events in the trial court.

On April 18,1980, the summary judgment was entered. The words “for which let execution issue” do not appear in that summary judgment.

On May 19, 1980, appellee moved for amendment to include that phrase.

On June 5, 1980, an amended summary judgment including the phrase “for which let execution issue” was entered nunc pro tunc.

Appellant’s notice of appeal was filed on June 17, 1980.

Making the amendment “nunc pro tunc” has no significant effect on the timeliness issue. Stupp v. Cone Brothers Contracting Company, 135 So.2d 457 (Fla. 2d DCA 1961). However the appeal is timely only if the summary judgment was not final until the addition of the traditional authorization for execution or, assuming it was final, if the motion to amend tolled the time for taking an appeal.

The pronouncement of a court may be characterized as final and appeala-ble if the judicial labor required or permitted to be done has been accomplished. Slatcoff v. Dezen, 72 So.2d 800 (Fla.1954). Where nothing further remains to be done to fully effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise, the judgment may be said to be final. Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334 (Fla. 1st DCA 1966); Hensley v. Palmer, 59 So.2d 851 (Fla.1952). More specifically, where successive judgments are entered and the later judgment represents neither a material change of the earlier judgment nor a new exercise of discretion, the time for appeal is counted from the earlier judgment. Drummond v. Gerwe, 264 So.2d 474 (Fla. 4th DCA 1972).

The summary judgment on appeal here provides in pertinent part:

1. There is no material issue of fact in dispute with respect to the Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON or FRANCES BURGER and the Plaintiff is entitled to a Summary Judgment as a matter of law.
2. Plaintiff’s Motion for Summary Judgment is granted and a Summary Judgment be, and the same is hereby entered in favor of the Plaintiff and against the Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON and FRANCES BURGER.
6. The Plaintiff shall have and recover from Defendants, CONCORDE YACHTS, INC., DANIEL A. MURPHY, GERALDINE MURPHY, NEVILLE A. CHAN, HILDA CHAN, LOREN WILSON, NADINE WILSON and FRANCES BURGER the sum of $397,254.23, jointly and severely [sic], together with costs of this action and a reasonable fee for the Plaintiff’s attorneys.

It meets the tests for finality unless the phrase “for which let execution issue” is an essential ingredient of finality. We hold that it is not. No case has been brought to our attention treating this issue. However, we find no requirement in the Florida Statutes that execution be specifically referred to in a final judgment. (Chapters 55 and 56, Florida Statutes 1979). Accordingly we decline to engraft such a requirement into the law of judgments and executions.

We next consider whether the motion to amend tolled the time for taking an appeal from the final judgment. Motions which do alter the time for taking an appeal are enumerated in Rule 9.020(g) of the Florida Rules of Appellate Procedure. A motion to alter or amend a judgment under Rule 1.530 of the Florida Rules of Civil Procedure is such a motion; however, it must be filed within ten days after entry of the judgment. The motion to amend here was filed thirty-one days after entry of the summary judgment and therefore was not “an authorized and timely motion,” under Rule 9.020(g), Florida Rules of Appellate Procedure.

For the foregoing reasons and because the notice of appeal was filed more than thirty days after rendition of the final judgment, appellee’s motion to dismiss is granted and this appeal shall stand dismissed.

GLICKSTEIN and HURLEY, JJ., concur.


author: DANAHY, Judge.

text:
    NEWS-PRESS PUBLISHING CO., INC., d/b/a Fort Myers News-Press, Petitioner, v. John GADD, as Chief Executive Officer of Lee Memorial Hospital, Respondent.
    No. 80-1376.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1980.
    Rehearing Denied Sept. 25, 1980.

      Steven Carta of Smith, Carta & Rings-muth, Fort Myers, for petitioner.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondent.
    Joy M. Packer of Rahdert & Packer, St. Petersburg, counsel for Times Publishing Company, amicus curiae.
   DANAHY, Judge.

News-Press Publishing Company, Inc., petitions for writ of certiorari to review orders of the circuit court which (1) denied its motion to strike affirmative defenses and (2) denied a motion for protective order barring the deposition of its publisher. We grant certiorari.

This case concerns the permissible scope of discovery and the type of defenses which may be raised in a mandamus action to compel inspection of documents under Chapter 119, Florida Statutes (1979), the Florida Public Records Act.

Petitioner, which publishes the daily newspaper, Fort Myers News-Press, sought the issuance of a writ of mandamus against respondent, a public hospital, compelling it to allow petitioner’s reporters to inspect certain personnel files of the hospital’s medical staff and records of the hospital Utilization Review Committee. The court issued an alternative writ of mandamus ordering the hospital to permit inspection of the documents or to show cause why inspection could be lawfully refused. The hospital’s response to the alternative writ of mandamus raised four affirmative defenses, to wit: (1) that the documents sought were not public records; (2) that inspection of the documents by petitioner would result in financial harm to the hospital, in that hospital staff members had indicated they would cease to admit patients if the documents were held out for public inspection; (3) that the records were sought for malicious purposes, rather than for any useful public purpose; and (4) that the public would be harmed if confidential physician-patient matters were ultimately printed in petitioner’s newspaper. The hospital also filed a notice of taking deposition of Paul Flynn, president and publisher of News-Press.

News-Press moved to strike all of the hospital’s affirmative defenses except the first defense, which alleged that the documents were not public records. News-Press also moved for a protective order to bar the taking of Flynn’s deposition or to limit the scope of the deposition to the question whether the documents involved were public records or were statutorily exempted from the public inspection requirement. Following a hearing, the court denied both motions.

News-Press argues that the court erred in denying its motion to strike the hospital’s affirmative defenses of financial harm, malicious motives in seeking inspection of the documents, and public harm. It contends that the only viable issues in this action are whether the documents sought are public records and, if so, whether there are any statutory exceptions to public inspection of such documents. We agree. The Public Records Act and cases interpreting the Act make it clear that all documents falling within the scope of the Act are subject to public disclosure unless specifically exempted by an act of our legislature. § 119.07(3)(a), Fla.Stat. (1979); Rose v. D’Alessandro, 380 So.2d 419 (Fla.1980); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla.4th DCA 1977), cert. denied, 360 So.2d 1247 (Fla.1978); Gannett Co., Inc. v. Goldtrap, 302 So.2d 174 (Fla.2d DCA 1974). Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public’s interest in disclosure and the damage to an individual or institution resulting from such disclosure. Because this type of public policy question was raised by the hospital’s affirmative defenses of financial and public harm resulting from disclosure, we hold that these defenses are irrelevant and should have been stricken. The hospital’s defense alleging malicious motives for seeking the documents is likewise irrelevant. The Public Records Act does not direct itself to the motivation of the person who seeks the records. Warden v. Bennett, 340 So.2d 977 (Fla.2d DCA 1976).

Further, we quash the notice of taking the deposition of the publisher of the News-Press. We do so because counsel for the hospital indicated that the reason for the deposition was to inquire into the newspaper’s motives for seeking the documents. Because the newspaper’s motives, as well as the hospital’s financial harm and public harm defenses, are irrelevant in an action to compel compliance with the Public Records Act, any inquiry concerning any of these defenses is outside the scope of permissible discovery. Fla.R.Civ.P. 1.280.

We do not determine whether the documents in question are within the purview of the Public Records Act. This is the ultimate issue remaining for determination by the trial court. Although we strike the hospital’s other affirmative defenses, the hospital is not precluded from asserting any general or special law which provides for the confidentiality of any of the records sought or which expressly exempts them from public disclosure. Accordingly, we grant the petition for certiorari, quash the orders of the lower court, and remand for proceedings consistent with this opinion.

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

      . Ordinarily we would decline to issue a writ of common law certiorari in a case in this posture, because any error could be remedied on appeal from a final order. However, early discretionary intervention is appropriate in this case, based on the policy of the legislature and courts of this state to expedite proceedings involving denial of media access to public records and judicial proceedings. § 119.11, Fla. Stat. (1979); State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1976).