author: OWEN, WILLIAM C., JR. (Retired), Associate Judge. ERVIN, Judge,

text:
    Ernest J. JOHNSON, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Appellee.
    No. YY-286.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.

      John J. Chamblee, Jr., Tampa, for appellant.
    Richard L. Oftedal, West Palm Beach, for appellee.
   OWEN, WILLIAM C., JR. (Retired), Associate Judge.

Appellant, a tenured classroom teacher, employed by appellee, School Board of Palm Beach County, seeks review of the final order of the State Board of Education upholding appellant’s suspension and termination by appellee.

On December 18, 1978, appellant assaulted a male high school student during the course of a regular school day. On December 22, 1978, without the benefit of prior notice or a hearing, appellant received a letter from the Superintendent of Schools of Palm Beach County dated the same date advising that appellant was suspended without pay effective immediately. The letter set forth various grounds upon which the Superintendent had suspended appellant. It also advised appellant that the Superintendent would recommend to the School Board that it ratify the suspension without pay and that it terminate appellant’s employment on January 17, 1979. Finally, the letter stated that the recommendations would be made at a meeting of the School Board to be held on January 17, 1979, the time and place being specifically designated.

On January 17, 1979, the School Board conducted a public meeting at which time the Superintendent presented his recommendation for the appellant’s suspension without pay and for his termination. The School Board adopted the Superintendent’s recommendation to suspend the appellant without pay retroactive to December 22, 1978. The record does not reflect whether appellant was permitted an opportunity to rebut the charges against him at the hearing conducted before the School Board on January 17, 1979, but for reasons hereafter discussed this factual void presents no hurdle.

On January 30, 1979, the Superintendent of Schools of Palm Beach County filed with the School Board a formal petition for termination of appellant’s continuing contract of employment, a hearing on which was noticed for April 16, 1979. After the hearing, and in due course, the School Board issued its final order dismissing appellant on his contract of employment. Appellant’s appeal to the State Board of Education resulted in an order (here under review) sustaining the dismissal order of the School Board. No challenge is made here to the order of dismissal, but only to the periods of suspension without pay.

Appellant’s first point questions whether the Superintendent’s suspension of appellant’s pay on December 22, 1978, and the School Board’s subsequent retroactive approval of the suspension violated appellant’s due process rights and renders Sections 230.33(7)(h), 231.36(6), and 230.23(5)(g) facially unconstitutional or unconstitutional as applied. Appellant’s second point is whether the School Board’s prospective suspension of appellant’s pay up to the date of termination hearing violated state and federal constitutional due process guarantees. Able counsel for both parties have, both in briefs and in oral argument before the Court, materially aided the Court in resolving these issues.

Appellant’s first point is resolved by us without the necessity of considering the constitutional issues.

The superintendent of a district school system has the responsibility for the day-today administration of the district schools as the executive officer of the district school board. Whenever he has good reason to believe that a member of the instructional staff or other school employee has been guilty of conduct justifying suspension or dismissal as set forth in Section 231.36(6), Florida Statutes, the superintendent has the power and duty under the emergency provisions of Section 230.33(7)(h), Florida Statutes, to immediately suspend such member of the instructional staff or other school employee. However, we perceive that the legislature, in granting this power to the superintendent, intended it for use only in emergencies so that the suspended teacher [or other employee] may be immediately removed from his or her position pending school board action. The suspension is limited in duration to the period extending to and including the day of the next regular or special meeting of the school board, a provision which clearly contemplates that at such meeting it becomes the duty of the school board to take action on the matter. The notice of suspension served on the suspended teacher [or other employee] should include notification of the charges made against him as well as the date, time, and place of such next regular or special meeting of the school board. The power of the school board to suspend (by virtue of Section 230.23(5)(g), Florida Statutes) is exercised in the manner prescribed in Section 231.36(6), Florida Statutes. This latter statute, which expressly authorizes the school board to suspend any employee without pay, is the only statutory reference to the power to suspend without pay.

Considering these several statutes in pari materia, we conclude that while the superintendent may suspend in emergencies, the legislature intended to reserve to the school board the ability to suspend without pay. Furthermore, we find no legislative authority or intent that the school board, in taking action under Section 231.-36(6), Florida Statutes, to suspend an employee without pay, may make such suspension without pay retroactive to the date of suspension by the superintendent. Otherwise, the school board could by such action, in practical effect, grant to the superintendent the power which we now say he does not possess, i. e., the power to suspend without pay.

We conclude that when the superintendent notified appellant on December 22, 1978, of his suspension without pay effective immediately, the superintendent was within his authority under the emergency power granted by Section 230.-33(7)(h), Florida Statutes, to suspend appellant, but was without authority to make such suspension without pay. When the school board met on January 17,1979, it had before it charges against appellant sufficient under Section 231.36(6), Florida Statutes, to empower the school board to suspend appellant without pay, but such suspension without pay should have been prospective only and not applied retroactively to the time of the emergency suspension by the superintendent. Appellant is therefore entitled to receive his full pay from December 22, 1978, through January 17, 1979, plus all other monetary benefits attending his employment for that period.

Appellant’s second point, concerning the School Board’s prospective suspension of appellant’s pay pending termination hearing, does require that we consider constitutional issues.

As noted earlier in this opinion, appellant does not challenge either his dismissal or the due process sufficiency of the termination hearing resulting in that dismissal. Rather, he says his suspension without pay from January 17, 1979, to the commencement of the termination hearing on April 16,1979, was itself a deprivation of a “property interest” requiring constitutional due process safeguards.

Without question appellant, by virtue of his tenure, had a legitimate claim of entitlement to continued employment absent sufficient cause for his discharge, and therefore had a property interest in his continued employment of which he could not be deprived without procedural due process meeting constitutional standards. But termination is one thing; mere temporary suspension or interruption of pay is quite another. The question of whether the latter rises to the level of a protected property right, and if so, the extent to which it requires protection, must be determined by a balancing of the competing interests.

This matter is discussed by Mr. Justice Powell in a concurring opinion in Arnett v. Kennedy, infra, wherein he states, at 416 U.S. 167, 94 S.Ct. at 1651:

“Having determined that the constitutional guarantee of procedural due process applies to . . . discharge from public employment, the question arises whether an evidentiary hearing, including the right to present favorable witnesses and to confront and examine adverse witnesses, must be accorded before removal. The resolution of this issue depends on a balancing process in which the Government’s interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment. Goldberg v. Kelly, supra, at 263-266, 25 L.Ed.2d 287. As the Court stated in Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961), ‘consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ ”

Here the school board has an interest in eliminating, as soon as possible, the payment of wages to misbehaving or unproductive employees, and in avoiding the time, expense and unnecessary disruption of its other affairs caused by repetitive hearings were it to hold a presuspension hearing in addition to a termination hearing. Thus, the school board’s interest in being able to act expeditiously in suspending an employee without pay is substantial. The employee’s countervailing interest is the continuation of his pay pending an evidentiary hearing. Since the employee would be reinstated and awarded back pay if he prevails on the merits of his claim, his actual injury would consist of a temporary interruption of income during the interim. While this is no small loss, we decide, on balance (as did Mr. Justice Powell in Arnett v. Kennedy), that a prior evidentiary hearing is not required. To say that before a tenured teacher may be suspended without pay, the teacher is entitled to a pre-suspension hearing with all procedural due process safeguards when the teacher is entitled to such a hearing prior to termination is to create a practical absurdity, i. e., dual and duplicate hearings.

The district school board is an “agency” within the purview of the Administrative Procedures Act, Chapter 120, Florida Statutes. Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). When the school board, acting pursuant to Section 231.36(6), Florida Statutes, suspends a member of the instructional staff without pay, the school board must with reasonable dispatch initiate and diligently prosecute proceedings under the appropriate subsection of Section 120.57, Florida Statutes, to the end that the risk of wrongful suspension be minimized.

We hold that when a district school board, acting pursuant to the powers granted it in Section 230.23(5)(g), Florida Statutes, and Section 231.36(6), Florida Statutes, suspends a tenured member of the instructional staff without pay pending a trial-type termination hearing to be held with reasonable diligence and dispatch after the suspension and in accordance with the provisions of Section 120.57, Florida Statutes, since the employee is entitled to immediate reinstatement with back pay in the event the charges are not sustained, the suspension without pay is not a sufficient property interest as to require a pre-suspension evidentiary hearing.

Our holding is supported by what we believe to be the plurality view of the Supreme Court in Arnett v. Kennedy, 416 U.S. 132, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). It is also in accord with a three judge decision of the United States District Court for the Southern District of Florida in the case of Joshua A. Logan, Plaintiff v. School Board of Palm Beach County, Florida, et al., Case No. WPB-74-3086-CIV-CF, wherein an argument identical to appellant’s was raised and rejected in a unpublished opinion dated March 24, 1976, and authored by Chief Judge Charles B. Fulton. In that case the Court stated:

“The plaintiff claims further that if Florida Statute 231.36(6) is not unconstitutional on its face, that it is unconstitutional as applied because it provides for the suspension without pay, pending a hearing, of a teacher charged with, inter alia, incompetency or willful neglect of duty.
The law is settled that the opportunity for a hearing must be provided prior to depriving an individual of a property right, absent an extraordinary situation. Boddie v. Connecticut, 401 U.S. 371, [91 S.Ct. 780, 28 L.Ed.2d 113] (1971). Professors dismissed from an office held under tenure provisions have been held to have a ‘property’ interest in the continued receipt of benefits. Connell v. Higginbotham, 403 U.S. 207 [91 S.Ct. 1772, 29 L.Ed.2d 418] (1971); Slochower v. Board of Education, 350 U.S. 551, [76 S.Ct. 637, 100 L.Ed. 676] (1956). The plaintiff in the instant case, however, was not deprived of a property right prior to a hearing. The plaintiff was, instead, suspended as provided for by Florida Statute 231.36(6), his suspension lasting until a hearing could be scheduled. The plaintiff was afforded a full adversary hearing prior to his termination, and had the charges against him not been sustained, he would have been entitled to reinstatement and back pay, under the statute in question. It is apparent, then, that Florida Statute 231.36(6) is not unconstitutional insofar as it provides for the suspension without pay of a teacher charged with incompetency or willful neglect of duty, because such a suspension does not involve the deprivation of a property right without a hearing.”

Appellant relies heavily upon the case of Thurston v. Dekel, 531 F.2d 1264 (5th Cir. 1976), and particularly the portion of the opinion in which the court stated, at page 1273:

“Arnett and Davis [v. Vandiver, 494 F.2d 830] guide us to focus on procedures which will minimize the risk of improper termination associated with any dismissal process. Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.” (footnotes omitted)

The Thurston case is clearly distinguishable. There the court approved the trial court’s conclusion that the suspension process [for civil service employees of the City of Jacksonville] was no more than a facade, and in reality, suspension was the functional equivalent of permanent discharge “subject to the condition subsequent that an employee may be reinstated with back pay upon successful appeal.” However, suspension by a district school board is not the functional equivalent of a permanent discharge subject to the employee being reinstated with pay upon successful appeal but is a true suspension to be followed with reasonable diligence by a full trial-type hearing with all constitutional due process safeguards wherein the burden of sustaining the charges is on the employer, the failure of which entitles the employee to immediate reinstatement with back pay. Furthermore, the written notice which appellant received from the superintendent dated December 22, 1978, was adequate to minimize the risk of improper suspension without pay, for though appellant asserts that he was given no opportunity for being heard at the meeting of January 17, 1979, we have no doubt that had the charges been totally groundless he could have and would have found the means to bring that fact to the Board’s attention, by letter if no other means were available.

Appellant also relies heavily upon a decision from the United States District Court for the Middle District of Florida, Ocala Division, Clinton Baker, et al. v. The School Board of Marion County, Florida, et al., 487 F.Supp. 380 (D.C.Fla.), in which, in an opinion issued October 7, 1980, by Senior United States Judge Charles R. Scott, the court, while exercising the doctrine of abstention, indicated the view that Section 231.36(6), Florida Statutes, was unconstitutional due to its failure to provide for pre-suspension notice and hearing. While the court noted that the procedural due process void would be filled if either Section 120.57(1) or Section 120.57(2) proceedings were provided prior to suspension, it expressed an uncertainty as to whether a school board’s suspension of an employee without pay pending a full evidentiary hearing would constitute a determination of “the substantial interests of a party”, as that term is used in Section 120.57, Florida statutes. While the termination of an employee would be a proceeding affecting the substantial interest of a party, requiring the agency action to be in accordance with Section 120.57, Florida Statutes (as we have, indeed, indicated earlier), we conclude that suspension without pay pending a full evidentiary termination hearing is not such a proceeding. Thus, compliance with Section 120.57, Florida Statutes, is not a prerequisite to Board suspension of an employee without pay pursuant to Section 231.36(6), Florida Statutes.

Upon remand, the final agency order will be modified to provide for appellant to receive his full pay from December 22, 1978, through January 17, 1979, plus all other monetary benefits attending his employment for that period. In all other respects, the final agency order is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMPSON, J., concurs.

ERVIN, J., concurs and dissents.

ERVIN, Judge,

concurring and dissenting.

Although I concur without reservation regarding the affirmance of the school board’s prospective suspension of appellant without pay pending the final termination hearing, I must respectfully dissent to the majority’s reversal of the board’s subsequent retroactive approval of the suspension without pay. I consider, under the circumstances, that the board may lawfully delegate the power to the superintendent to suspend an instructional employee without pay, and it may also retroactively ratify a delegable responsibility.

Under the broad statutory scheme, the school boards are authorized to “operate, control and supervise all free public schools in their respective districts. . . .” § 230-03(2), Fla.Stat. (1979). The superintendent acts “as the secretary and the executive officer of the school board, . . . . ” § 230.-03(3). Obviously, then, there is a principal-agent relationship between the board and the superintendent. We have recognized this relationship on at least two occasions, in which we have held that a school board may be held vicariously responsible for the unlawful acts of its subordinates. Columbia Cty. Bd., etc. v. Public Emp. Rel. Comm., 353 So.2d 127 (Fla. 1st DCA 1977); Zorick v. Tynes, 372 So.2d 133 (Fla. 1st DCA 1979).

Under the circumstances, I consider that the superintendent, acting as the agent of the board, had the authority both to suspend and to deny the employee all compensation pending the final retroactive action of the board. This conclusion becomes manifest upon reading Sections 230.33(7)(h) and 231.36(6) in pari materia. The former section permits the superintendent to suspend members of the instructional staff, and, “[w]hen authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him and of the date of hearing.” The above sentence interlocks with the following provisions from Section 231.36(6): “Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay.” In my judgment, the above statutes, when jointly construed, divulge the legislative intent that the board is empowered to delegate to the superintendent the authority to suspend without pay once the latter files charges against an instructional employee.

To summarize, in my judgment the superintendent was acting as an agent for the school board and was exercising a power which could have been delegated lawfully to him by the board. And, if the power is one which can be delegated, it is axiomatic that the board’s ratification may be retroactive to the date of suspension. See Fla.Jur., Agency and Employment, § 50, n. 9. Under the circumstances, I am of the belief that the school board could ratify the superintendent’s suspension of Johnson without pay and make that action retroactive to December 22, 1978. I otherwise concur in all other portions of the majority’s opinion.

      . 230.33 Duties and responsibilities of superintendent. — The superintendent shall exercise all powers and perform all duties listed below. . .;
      ******
      (7) PERSONNEL. — Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231 and in addition he shall have the following duties:
      ******
      (h) Suspension and dismissal. — Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the school board and notify the school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of-the instructional staff of charges made against him and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein.

      . 231.36 Contracts with instructional staff.—
      ******
      (6) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated. . . .

      . 230.23 Powers and duties of school board.— The school board, acting as a board, shall exercise all powers and perform all duties listed below:
      ******
      (5) PERSONNEL. — Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
      * * * * * *
      (g) Suspension and dismissal and return to annual contract status. — Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; provided, that no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed or returned to annual contract except as provided in chapter 231.

      . § 230.03(3), F. S.

      . In Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3d DCA 1962), the School Board, after hearing, approved dismissal of a teacher retroactive to the date of the teacher’s prior suspension by the superintendent. The teacher’s dismissal was affirmed on appeal but that point was not expressly presented to or decided by the Court.

      . See Board of Regents v. Roth, 408 U.S. 564, 92 S.ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971); Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 676 (1956).

      . Appellant points out that when a teacher has been suspended without pay such remains in effect until the teacher is exonerated. Even if the hearing results favorably to the teacher (so he says), such suspension remains in effect until final resolution in favor of the teacher after appeal to the State Board of Education, or subsequent appeal to the District Court, or even to the Supreme Court. While it appears to be true that if the final resolution is unfavorable to the teacher, his “termination” becomes effective from the date of the “suspension”, it would appear that pay does not continue to be suspended pending the various levels of appeal if the initial hearing before the school board results in a finding that the charges are not sustained, because by statute the teacher must then be immediately reinstated with back pay. Thus, the risk of the teacher being without pay pending a series of appeals is a likelihood only in those instances where the Board finds the charges sustained and determines to dismiss the employee.

      . Since a prompt hearing is in the interest of the suspended employee, he would necessarily have the right to waive any objection to a delay. The time periods involved in this case are neither condoned nor condemned as that is not an issue before us.

      . Cf. Webster v. South Florida Water Management Dist., 367 So.2d 734 (Fla. 4th DCA 1979).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PINELLAS CAREER SERVICES ASSOCIATION, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and the School Board of Pinellas County, Florida, Appellees.
    No. AB-52.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 7, 1981.
    John J. Chamblee, Jr. of Frank, Cham-blee & Kelley, Tampa, for appellant.
    Phillip P. Quaschnick and Joan Stewart, Tallahassee, for appellee/PERC.
    B. Edwin Johnson, Clearwater, for appel-lee/School Board.
   PER CURIAM.

AFFIRMED. School Board of Palm Beach County vs. PERC, 374 So.2d 527 (Fla. 1st DCA 1978).

ROBERT P. SMITH, Jr., Chief Judge, and JOANOS and THOMPSON, JJ., concur.


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    HOLLYWOOD, INC., Appellant, v. William G. ZINKIL, Sr., as Tax Assessor of Broward County, Florida, and City of Hollywood, Appellees.
    No. 78-1425.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, and Ellis, Spencer, Butler & Kisslan, Hollywood, for appellant.

      Ray H. Pearson, Larry S. Stewart and Bertha Claire Lee of Frates, Floyd, Pearson, Stewart, Richman & Greer, P. A., Miami, for appellees.
   HURLEY, Judge.

This appeal marks another milestone in the prolonged litigation to determine who “owns” a one and one-half mile stretch (approximately ten to twelve acres) of beach in Hollywood, Florida. The issue was submitted to a jury which found (1) that title to one section of beach (Block 205) was conveyed to the city by a 1927 deed; (2) that both sections of beach property (Blocks 205 & C) were dedicated for perpetual public use and were accepted by the city prior to July, 1930; and (3) that the citizens of Hollywood used both pieces of property in a manner which was adverse to the rights of Hollywood, Inc. for a period of at least twenty years after December, 1930. Our review of the record leads us to conclude that the jury’s first and second findings are based upon substantial, competent evidence. Thus, we affirm both findings and conclude that the city, as trustee for the people, is entitled to possession of both pieces of beach property to assure their continued availability to the public as open and free recreational areas. The jury’s finding of adverse possession, however, suffers from a fatal lack of evidence which requires a modification of the final judgment.

I

FACTUAL HISTORY

This case is no stranger to the appellate courts and since a brief factual history is necessary to understand the present status of the case, we excerpt the following portion of the Supreme Court’s opinion in Hollywood, Inc. v. City of Hollywood, 321 So.2d 65, 66-67 (Fla.1975): In the early 1920’s, one Joseph Young began the development of what later became the City of Hollywood (he called it Hollywood-By-The-Sea). Young planned a seaside resort to rival Atlantic City, then at its zenith, one which would appeal to all classes desiring the advantages of climate and oceanfront. The plan for the beachfront was that a thirty foot boardwalk would run the length of the city, paralleling the ocean and upland from it. Between the boardwalk and the water’s edge, the beach would be graded and maintained as a permanent bathing beach.

On January 11, 1924, the plat of Hollywood Beach Second Addition was recorded by Young’s Home Seekers Realty Company; on September 9, 1924, the plat of Hollywood Central Beach was recorded by the same company. On November 25, 1925, the Respondent, City of Hollywood, was created. In August, 1927, Young deeded to Respondent all of “the streets, drives, boulevards, alleys, ways, walks, avenues, parkways, and highways, by whatever name they may be termed, platted and described in that certain plat, also named in an amended plat, of Hollywood Central Beach”. Although Block 205 was not labeled on the plat, the then current price list made it clear that 205 was a “parkway”. Almost two years later, on April 25, 1929, two large money judgments were entered against Home Seekers Realty Company, leading to later execution sales and Sheriff’s deeds. The Respondent’s minutes of July 2, 1930, show that it had actual express notice of the proposed execution sale. On September 1, 1930, Highway Construction Company of Ohio, Inc., acquired title to Block C, Hollywood Beach Second Addition; later, on December 1, 1930, that same company acquired title to Block 205, Hollywood Central Beach. Thereafter, on February 18, 1931, Highway Construction Company conveyed title to Petitioner by fee simple deed, which Petitioner recorded February 21, 1931. In June, 1964, Respondent recorded its notice of claim of ownership.

II

PROCEDURAL HISTORY

In addition to the facts, a brief recap of the pleadings and earlier proceedings will also assist in understanding of the present appeal. Again, we quote from Hollywood, Inc. v. City of Hollywood, supra:

In August, 1964, the tax assessor for Bro-ward County sued both [Hollywood, Inc. and the City of Hollywood] for a declaratory decree and equitable relief, alleging that both parties claimed ownership of two miles of ocean-front beach and that the tax status of the land was unclear. In September, 1964, [the City] filed its cross-claim against [Hollywood, Inc.]. [Hollywood, Inc.] claims that its title to the land in question was derived from ,a Sheriff’s Deed issued to Highway Construction Company, which company subsequently conveyed its interest to [Hollywood, Inc.] in 1931. [The City] predicates its claim of ownership upon various acts and occurrences, including documentary and testimonial evidence reflecting ownership by virtue of a deed from the original owner, as well as ownership arising by dedication and prescription. The trial court held, inter alia, that [the City] possessed neither title nor other interest or rights in the property, and that title’ is in [Hollywood, Inc.].
The District Court of Appeal, Fourth District, reversed and remanded for a new trial, finding that the trial court erred in rejecting certain documentary and testimonial evidence bearing on the [City’s] claims of ownership by dedication. . . . The District Court advised the trial court, on remand, to consider the applicability of City of Daytona Beach v. Tona-Rama, Inc. [271 So.2d 765 (Fla.App.1973)] to the issue of prescription. . . . Additionally, the District Court rejected [the City’s] claim for a jury trial.
Id. at 67 (footnote omitted).

Thereupon, both parties petitioned the Supreme Court for review by certiorari. The court issued the writ, heard argument, and, in a thorough opinion, affirmed the District Court’s decision except for that part which affirmed the denial of the city’s motion for a jury trial. The Supreme Court reasoned that the city was a “defendant in actual possession” as that term is used in Section 65.061, Florida Statutes (1973), and, therefore, the city was entitled to a jury trial “on the issues of dedication and actual possession of the property. . . . ” 321 So.2d at 71. The latter phrase was drawn from language in the city’s motion for a jury trial and referred to its allegation that it had “continuously, notoriously, uninterruptedly, openly and visibly maintained, assumed control over and used [the beach property] for the benefit of the public for more than twenty years.” Thus, the Supreme Court remanded the case for retrial by jury on the issues of dedication, prescription and adverse possession.

The case was retried before a jury in 1978. The city relied on three theories: deed, dedication and adverse possession. At the conclusion of the trial, the jury returned the following special verdict:

We the Jury, find as follows:
1. That the Home Seekers Realty deed of August, 1927, conveyed title to Block 205 to the City of Hollywood.
YES xx NO _
2. That there was a dedication and acceptance of Blocks 205 and C prior to July, 1930.
YES j«_ NO _
3. That after December, 1930, the City and its citizens used Blocks 205 and C adverse to the rights of Hollywood, Inc., for at least a period of 20 years.
YES xx NO _
So say we all.

Shortly thereafter the trial court entered a final judgment which recited the jury’s findings and concluded that the city “is the owner in fee simple and entitled to possession of the [beach property].”

Ill

DEDICATION

Although the city advanced several alternate theories, dedication was the primary claim. Thus, we first consider appellant’s contention that the evidence below was insufficient to support the jury’s finding of common law dedication and acceptance of Blocks 205 and C prior to July, 1930. Our yardstick is the seminal case on common law dedication in Florida, City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352 (1923), which held as follows:

“[C]ommon-law dedication” is the setting apart of land for public use, and to constitute it there must be an intention by the owner, clearly indicated by his words or acts, to dedicate the land to the public use, and an acceptance by the public of the dedication. This seems to be the general rule, and whether an express or an implied dedication is relied on, the intention of the owner to set apart the lands for the use of the public is the foundation and essence of every dedication.
The act of dedication is affirmative in character, need not be by formal act or dedication, may be by parol, may result from the conduct of the owner of the lands dedicated, and may be manifested by a written grant, affirmative acts, or permissive conduct of the dedicator. In fact, any manner in which the owner sees fit to indicate a present intention to appropriate his lands to public use meets the requirement of the law.
The means generally exercised to express one’s purpose or intention to dedicate his lands to the public use are by a (1) written instrument executed for that purpose; (2) filing a plat or map of one’s property designating thereon streets, alleys, parks, etc.; (3) platting one’s lands and selling lots and blocks pursuant to said plat indicating thereon places for parks, streets, public grounds, etc.; (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property, such as throwing it open in a town, fencing and designating streets thereon; (7) acquiescence of the owner in the use of his property by the public for public purposes.
As stated by McQuillan, a dedication by use for public purposes occurs only where it clearly appears that the use is with the knowledge and consent of the owner, or without his objection, and under such circumstances as fairly to give rise to,'the presumption that the owner intended to dedicate to such use. And mere uses by the public, although long continued, should be regarded as a license only, revocable at the pleasure of the owner, where it does not appear that any public or private interests have been acquired upon the faith of the supposed dedication, which would be materially impaired if the dedication were revoked.
Id. 98 So. at 353.

With these precepts in mind, we turn to the evidence in the case at bar. First, the city introduced a deed, dated August 24, 1927, from Home Seekers Realty Company (one of Young’s companies and a predecessor in title to Hollywood, Inc.) to the City of Hollywood. It referred to the amended plat of Hollywood Central Beach and conveyed:

All and singular the streets, drives, boulevards, alleys, ways, walks, avenues, parkways, and highways by whatever name they may be termed, platted and described in that certain plat.

However, the deed contained the following limitation:

PROVIDED, and this grant is made upon the express condition that all and singular the above described lands shall be used by the public or the grantee herein for the specific purposes for which they were platted, to-wit: Streets, drives, boulevards, alleys, ways, walks, avenues, parkways and highways and that upon any cessation or abandonment of such use thereof or any part thereof by the public or by the grantee herein, the title to such portion so abandoned shall immediately revert to the grantor herein and such grantor shall be immediately entitled to re-enter into full possession thereof.

The city claimed that the term “parkway” included the beach section denominated as Block 205. To support its contention, it offered into evidence Young’s original price list which expressly listed Block 205 as a “parkway.” The propriety of admitting the price list into evidence is beyond question for this issue was settled by this court on the first appeal when we said:

Extrinsic evidence such as parol evidence is permissible to explain ambiguities in a written instrument, particularly where such ambiguity is “latent” as distinguished from “patent”. The ambiguity in the 1927 deed was a latent ambiguity; therefore, the trial court erred in excluding the deed as well as the extrinsic evidence relating thereto.

City of Hollywood v. Zinkil, 283 So.2d 581, 584-585 (Fla. 4th DCA 1973) (citations omitted).

The price list, dated December 15, 1924, was prepared by Home Seekers Realty Company, which, as noted earlier, was one of Young’s companies. It lists 207 blocks of property, most of which are subdivided into lots with individual sales prices. The following listing for Block 174 illustrates the general pattern:

BLOCK 174
Lot 1 4,400.00
Lots 2 to 29 inclusive, each 3,850.00
Lot 30 5,225.00

Blocks 203, 204, 205 (one of the pieces of beach property in question) and 206 differ from the general property use. They appear on the price list with the following designations:

BLOCK 203
Dania Park
BLOCK 204
Hotel Site
BLOCK 205
Parkway
BLOCK 206
Park

Recalling that the August 24, 1927 deed dedicated all “parkways” for public use, the question for the jury’s determination was whether Young intended the beach property in Block 205 to be encompassed within his dedication of all parkways. To demonstrate Young’s intent, the city called several of Young’s former co-workers and employees to the witness stand. Each testified of Young’s unwaivering intent to dedicate the beaches for perpetual public use. Commenting on how the price list was utilized, Robert C. Habig, Young’s assistant sales manager, said that a large copy was exhibited under plate-glass on a tabletop in the room where customers met with salesmen to discuss the purchase of property. According to Habig, at Young’s specific instructions, all prospective buyers were assured “that all properties east of the Broad Walk was intended for the benefits of the city of — the people of the City of Hollywood forever; never be sold; never be any construction on it.” (Tr. 208). Habig said Young, himself, made this statement and Habig further testified that he heard Young tell his salesmen to include this statement in their sales presentations. Ha-big also noted that the price list specified certain blocks as “ocean front residence sections.” Since they faced the ocean, these lots were priced substantially higher than others in the city. This testimony is especially significant since all of the “ocean front residence sections” were to the west of the broad walk and beach, i. e., Block 205.

What follows is a sampling of the city’s evidence supporting its contention that Young dedicated the beach property for public use. John M. Kagey, head of Young’s Miami sales force testified that

[Young] thought the best advantage there would be for the folks that the beach was going to be made a public beach and every property owner in Hollywood be a participant in the ownership of that beach. It was going to be a public beach and none of it was for sale. (Tr. 666).
[Young said] we was [sic] offering a public beach and it was the only one in the area, and it ought to help stimulate sales, to make that area more in demand. (Tr. 674).

James W. Dickey, who worked as a salesman in 1924 for Young’s Hollywood Land and Water Company and who later became publisher of the Fort Lauderdale News, described a mass meeting held in 1924 at which an individual named Pringle, another Young employee, addressed a large group and told them that he was acting on Young’s instructions. Then, according to Mr. Dickey, Pringle held up what he described as a deed and told the crowd that young had dedicated the beach to the public.

The city also introduced a number of documentary exhibits, many issued by Young’s companies, which further demonstrated Young’s intent to develop the beach as a public recreational area. We quote only a few. The Hollywood Reporter of April 1, 1923 (a Young publication), contained this statement:

Between the Broad Walk and the ocean is a beautiful strip of coastline that will be graded down to the water’s edge and dedicated to the city as a permanent bathing beach.

In April, 1294, O. E. Behymer, an editorial writer for Young’s Hollywood Reporter, wrote:

Hollywood-by-the-Sea will have a different story to tell. Here there will be no riparian rights along the ocean frontage to exclude the public. For a distance of five miles one of the most beautiful beaches in Florida will be forever dedicated to the people, never to be privately owned or built upon, a great pleasure rendezvous for the throngs that will visit this delightful resort city. A Broad Walk of concrete, thirty feet wide, will traverse the entire distance, and beyond it an appealing stretch of lovely sand beach, beautified with waving palm trees, will always extend a cordial invitation to lovers of the sea.

Similarly, a 1926 edition of a Young company pamphlet entitled “Joseph W. Young—Properties, Inc., Hollywood-by-the-Sea— in Florida” contained a pictorial review of the development of the city. A photograph of the beach area is particularly significant for it is sub-titled: “All Year Surf Bathing on Hollywood’s 6 Mile Free Beach.” (Emphasis supplied.)

On the issue of acceptance by the city, the record is replete with testimony of continued and uninterrupted use by the public throughout this time period. Although Hollywood, Inc. disputed the foregoing testimony of dedication and acceptance, we find that the trial record is a veritable cornucopia of competent evidence to support the jury’s finding of dedication and acceptance prior to July of 1930.

IV

ADVERSE POSSESSION

Next, we consider the jury’s finding of adverse use or possession. Though it is well-settled that a public entity may obtain fee simple title by adverse possession, Levering v. City of Tarpon Springs, 92 So.2d 638 (Fla.1957); Kelly v. City of Cocoa, 188 So.2d 862 (Fla. 4th DCA 1966), we hold that there was insufficient proof in the case at bar to support the finding of adverse possession. There is no evidence that the City of Hollywood, having gained entry to the land as a permissive user, notified Hollywood, Inc., or its predecessor in title, that the city claimed an ownership interest in the beach other than by dedication. Consequently, since the city always used the land consistent with its dedicated purpose, it is legally impossible to sustain a finding of adverse possession.

We dealt with an analogous situation in Yates v. Bass Ranch, Inc., 379 So.2d 710 (Fla. 4th DCA 1980). There the permissive use was a tenancy at will and we held:

This placed the burden on appellant to show a termination of the voluntary nature of the tenancy, “for the law presumes that once a man goes into possession as a tenant, the relationship continues until the contrary is made to appear.” [Citation omitted.] The tenant’s disclaimer and disavowal of the landlord’s title must be conveyed to the landlord by clear, positive and distinct notice.
Id. at 711-12

The same point was made by the court in Tallent v. Barrett, 598 S.W.2d 602, 605 (Mo.App.1980):

Also, if the possession of those in residence is permissive at its inception, then their possession, no matter how long it continues, will not divest the other heirs of their titles unless such possession becomes hostile and such hostility is effectively brought home to all the owners and remains so for the necessary statutory period of time.

This principle also applies to the case at bar. The jury found that the City of Hollywood obtained permissive use of the land though common law dedication. See City of Palmetto v. Katsch, supra; Mingledorff v. Crum, 388 So.2d 632 (Fla. 1st DCA 1980). Thus, as a matter of law, before such permissive use could undergo the metamorphosis of adverse possession, it was incumbent upon the city to prove that it effectively notified Hollywood, Inc., or its predecessor in title, of the city’s new and adverse claim of ownership. This it failed to do.

Clearly, the city regarded the beach as public and so advertised this fact. But there is no evidence that the city either directly notified Hollywood, Inc. of its claim of ownership of the beach in fee simple or, alternatively, that the city used the land in a manner inconsistent with its dedicated purpose so as to put Hollywood, Inc. on constructive notice of the city’s claim. On the contrary, the city ignored and failed to contradict two letters from Hollywood, Inc., dated August 2, 1945 and June 17, 1948, in which Hollywood, Inc. asserted an ownership interest in the land. Indeed, as late as June 22, 1964, when the city filed a public notice of claim, it adhered to the position that it held the land through dedication. It stated:

That the CITY OF HOLLYWOOD makes claim to the property hereinabove described, as follows:
Lot “C”, HOLLYWOOD BEACH SECOND ADDITION, according to the plat thereof recorded in Plat Book 4, Page 6, of the public records of Broward County, Florida was dedicated for the perpetual use of the public on January 8, 1924. .. .
Block 205, HOLLYWOOD CENTRAL BEACH, according to the plat thereof recorded in Plat Book 4, Page 20, of the public records of Broward County, Florida was dedicated to the perpetual use of the public and deeded to the CITY OF HOLLYWOOD....

We are compelled to hold that the absence of proof of notification is fatal to the city’s present claim of ownership by adverse possession. As we suggested in Yates v. Bass Ranch, Inc., supra, the sine qua non of adverse possession is adverse use. Adverse use or “[hjostility imports denial of the owners’ title, and possession, however open and long it may be, is not adverse without such a denial of the rightful owner’s title.” Application of Kamakana, 58 Haw. 632, 574 P.2d 1346, 1351 (1978). All that was shown in the case at bar is that the City of Hollywood accepted and continued to maintain the land as a beach and recreation area. Such use is consistent with the dedicated purpose and consequently is not adverse to the interests of Hollywood, Inc.

V

THE DISSENT

Chief Judge Letts has authored a lucid, penetrating dissent which deserves a direct response. Its primary theme is that the jury’s multiple findings must be affirmed since they comport with the Supreme Court’s decision in Hollywood, Inc. v. City of Hollywood, supra. (“Its pronouncements must be our bible. ... I would affirm in toto for that reason . . . . ” Post, at 538. “That inconsistency, if any, results from the supreme court’s . . . opinion. . . . Accordingly, I would affirm. . . . ” Post, at 540.) We respectfully reject this assessment.

Mindful of our responsibility under Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we have carefully reviewed the Supreme Court’s opinion together with the parties original pleadings and our prior decision. We are fully satisfied that the Supreme Court never reached the question whether dedication, prescription and adverse possession are compatible or mutually exclusive. Rather, the Supreme Court merely analyzed the case prospectively with an eye toward retrial. In that context, the court remarked that the city had “several legally independent theories.” 321 So.2d at 67-68. However, the court’s statement was nothing more than a factual observation about the content of the city’s pleadings. Of course, the court also implicitly confirmed the long-standing rule that a party may simultaneously pursue alternate claims for relief. See Rule 1.110(g), Fla.R.Civ.P.

Thus, we believe our colleague is factually in error when he suggests that the Supreme Court’s opinion “approved of, and went off on, far too many theories that do not gel.” Post, at 538. Whether the theories “gel” — whether dedication, prescription and adverse possession can coexist or come into being in a sequential order — was not an issue before the Supreme Court and, consequently, its opinion is not instructive on that question. On the other hand, this is precisely the issue now before us.

In analyzing the legal significance of the jury’s findings, it is important to remember that the jury did not find dedication and adverse possession at one and the same time. Rather, it found dedication and acceptance prior to July, 1930, and adverse possession after December, 1930, and for a period of twenty years thereafter. This crucial distinction saves the verdict from being fatally inconsistent. It seems patently obvious that a permissive use which is consistent with the dedicator’s intent cannot, at the same time, be adverse to the dedicator’s ownership rights. On the other hand, it is certainly within the realm of possibility for a dedicated or permissive use to become adverse if there is proof of actual or constructive notice to the dedicator that the permissive user claims the property other than by dedication. It is the latter requirement for proof which places us in disagreement with our dissenting colleague who seems to take the position that with the mere passage of time, “dedication . . . [is] susceptible to ultimate ripening into fee simple title.” Post, at 539.

For a permissive use to become adverse possession there must be proof that the permissive user utilized the property in a manner inconsistent with the dedicated/permissive use, or, alternatively, that the permissive user notified the dedicator in a clear, positive and distinct way that it claimed title or ownership other than by dedication. Since it is certain that the city maintains the beach property in a manner consistent with the dedicated purpose, we need only consider the second possibility, i. e., clear, positive and distinct notice. Again, as stated earlier, the record contains no proof that the city notified Home Seekers Realty Company or its successor-in-title, Hollywood, Inc., that it claimed the beach property other than by dedication. Thus, as a matter of law, the proof is insufficient to support a finding of adverse possession.

The dissent’s example of the silent home owner, post, at 539, is beguiling. Yet, if we add a few facts and make the home owner a non-resident landlord and the letter writer a tenant/permissive user, then the example is truly instructive and relevant to the case at bar. Despite the fact that our colleague might be “chagrined,” it is legally certain that if a tenant/permissive user notifies a landlord that the tenant claims a right to the property other than by the tenancy/permissive use, a landlord’s silence will redound to his detriment. See Ballard v. Gilbert, 55 So.2d 723 (Fla.1951); Kilvert v. Clark, 152 Fla. 35, 10 So.2d 795 (1942); Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41, 42 (1909); Wilkins v. Pensacola City Co., 36 Fla. 36, 18 So. 20 (1895).

Finally, we wish to note our general agreement with Judge Letts’ remarks, post, at 540, regarding Hollywood, Inc.’s recent assertion of an ability to utilize its rever-sionary rights to gain additional development rights for its property adjacent to Blocks 205 and C. Yet, we wish to emphasize that this issue was not before the trial court and, thus, is not properly before this court. Therefore, we expressly decline to pass upon it.

To summarize, the Supreme Court’s holding in Hollywood, Inc. v. City of Hollywood did not foreclose jury consideration of the issues of deed, dedication and adverse possession. But, once the jury decided that the beach property had been dedicated and accepted prior to July, 1930, the jury could not also find adverse possession unless it found actual or constructive notice by the city. Since there was no evidence of any notice by the city, the jury’s finding of adverse possession cannot be sustained.

VI

FINAL JUDGMENT & CONCLUSION

As a result of the jury’s verdict, the trial court concluded that the city “is the owner in fee simple ... [of the beach property].” Inasmuch as we have determined that the jury’s finding of adverse possession (which would have conveyed title in fee simple absolute) cannot be sustained, we must consider the legal effect of the jury’s findings of dedication and conveyance by deed. Starting with dedication, we note that such a finding does not result in a transfer of title to the property. As stated by two law review commentators:

Acceptance of a common law dedication does not pass the fee in land. The interest acquired by the municipality is generally held to be in the nature of an easement, with the public having a right of user and nothing more. The dedicator retains the fee simple title, and it is subject to the easement only as long as there is compliance with the terms of the dedication.

Note, 7 U.Fla.L.Rev. 82, 83 (1954) (footnotes omitted). See also 2 R. Boyer, Florida Real Estate Transactions, Chapter 30 (1970). Thus, pursuant to dedication, the city is the perpetual holder of an easement which guarantees public access and use of the beach property.

The deed of August 24, 1927, which pertains only to Block 205 of the Hollywood Central Beach, has the same practical result as dedication though it is phrased in slightly different legal terminology. By virtue of the jury’s implied finding that Block 205 was a “parkway” and thereby encompassed in the August 24, 1927 grant, we hold that the city is vested with a fee simple determinable as to that piece of property. See Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948). Hollywood, Inc. as the successor in interest to the grantor retains a possibility or right of reverter in Block 205. See Biltmore Village, Inc. v. Royal, 71 So.2d 727 (Fla.1954); 22 Fla.Jur.2d Estates, Powers and Restraints, § 115, 116 (1980); Botts, Removal of Outmoded Restrictions, 8 U.Fla.L.Rev. 428, 442-446 (1955). To reiterate, these considerations merely underscore the fact that the city holds both pieces of beach property as the trustee of the public and so long as the property is used for the public’s benefit the beach shall remain accessible to all.

Accordingly, the final judgment is affirmed in part and reversed in part and the cause is remanded with instructions to enter a final judgment finding that the City of Hollywood holds Block 205 of the Hollywood Central Beach by a fee simple determinable ,and that it holds Block C of the Hollywood Beach, second edition, as a permissive user through dedication.

ANSTEAD, J., concurs.

LETTS, C. J., dissents in part and concurs in part.

LETTS, Chief Judge,

dissenting in part and concurring in part:

The difficulties I have had with this case arise not so much from judicial disagreements within this courthouse as from the Supreme Court case of Hollywood, Inc. v. City of Hollywood, supra, hereinafter referred to as the Hollywood opinion. To me the Hollywood opinion approved of, and went off on, far too many theories that do not gel. Nonetheless its pronouncements must be our bible and I cannot now fault the trial judge, the lawyers or the jury for the results reached. I would affirm in toto for that reason, subject to the certification hereinafter stated.

I acknowledge that there may be inconsistency in finding both dedication and adverse use present at one and the same time. As the Developer argues in an excellent brief, the possession by the city has been by way of a dedicated permissive easement which cannot ripen into fee simple title and has never been adverse at all. Thus it is reasoned that dedication and adverse user cannot go hand in hand and are in fact incompatible.

Yet as I read and reread the supreme court’s Hollywood opinion, I cannot blame the trial judge for instructing the jury on both theories nor can I hold the jury’s dual findings to be reversible error. It is true that the actual holding in Hollywood appears to send the case back for a new trial principally on the issue of common law dedication. Nonetheless the opinion is replete with references to the concomitant presence of adverse possession, prescriptive rights, adverse user, quieting title under Chapter 65.061 of the Florida Statutes and “actual” possession. None of these legal words of art are found to be incompatible with dedication anywhere in the opinion and the last one, “actual possession,” is of particular significance. As used in the opinion, the “actual possession” appears to be discussed in the context of a suit to quiet title which the court held would be appropriate in this cause. It goes without saying that a successful quiet title suit results in a “good fee simple title.” (See subparagraph [4] of the same statute.) Accordingly, I have little doubt that our Supreme Court saw no inconsistency in discussing dedication under common law and simultaneously that that dedication was susceptible to ultimate ripening into fee simple title.

As to the question of whether the property in question was in fact adversely held by the City, I disagree with the majority and find abundant evidence in the record that it was, as did the jury. I have read the transcript of the charge conference and find ample support for my earlier contention that the Hollywood opinion reads too much like a legal encyclopedia that speaks on all sides of the issue. At trial each party wanted to present jury instructions taken verbatim from the decision, over the strenuous objections from their opposite number. The Developer cogently argued at that same conference that the dedication, if any, had been revoked by the sheriff’s deeds and that the only way the city could prevail would be by adverse possession. Furthermore although the Developer submitted a verdict form asking the jury to find that the property was either “legally owned” by the City or the Developer by way of (a) deed, or (b) dedication, or (c) prescription, it argued at the charge conference that it would be perfectly proper for the jury to “find all three ways.” This is the exact opposite of its contention on appeal.

The majority appears to me to decide that because there was evidence of dedication (which I agree there was), this evidence by necessity dissolves the conflicting evidence of adverse possession. The evidence may in fact be inconsistent, but the presence of the former does not ipso facto dissolve the evidence of the latter. Further I am of the opinion that the supreme court in the Hollywood opinion conceded evidence of adverse use in this case and I note that the successor to the original developer is claiming that, (1) it owns the property by way of subsequent sheriff’s deeds despite the dedication, and (2) it has written letters to the City saying that it owns the two disputed parcels, and that any right to use the beach is a mere license that may be revoked when future development plans so dictate. These claims are not consistent with a permissive grant, and in my view the record adequately demonstrates that the City considers itself in sole, final, open, notorious possession and control of the beach which it has exclusively patrolled, occupied, used and improved. Unlike the majority I do not find the failure to contradict these letters to be fatal. If someone wrote me a letter claiming that he, not I, owned my house, I would be chagrined indeed to lose it if my silence was held to be assent.

My use of the word “exclusively” in the preceding paragraph deserves further comment, because the Developer argues, in the alternative, that even if the possession is open, notorious and hostile, it is still not of the exclusive variety required for the kind of adverse possession which will ripen into fee simple title because not only the City but every member of the public enjoys access to and use of the beach. I reject this argument. The City is but an entity of the public, see Downing v. Bird, 100 So.2d 57, 61 (Fla.1958), and it is the public which enjoys the beach to the exclusion of any intruding private interest such as that of the developer. While not stated in such express terms, I am confident that the sense and wording of the supreme court’s Hollywood opinion does not envisage that the actual possession by the public at large is somehow other than exclusive possession by that same public. (See discussion on page 71 of the opinion.)

I would be less than fair if I ignored authority which indicates that the form of adverse use enjoyed by the public, as distinct from an individual owner, is the kind that ripens by prescription into a perpetual easement rather than the fee simple title here awarded by the trial judge in his final judgment. See Hunt Land Holding Company v. Schramm, 121 So.2d 697 (Fla. 2d DCA 1960) and Downing v. Bird, supra. However, these two cited cases involve a ditch and a road respectively rather than a beach, which latter is better likened to a park or playing field than a mere right-of-way. Moreover, there is authority which suggests that a public entity can obtain fee simple title by adverse possession. See Kelley v. City of Cocoa, 188 So.2d 862 (Fla. 4th DCA 1966); and Levering v. City of Tarpon Springs, 92 So.2d 638 (Fla.1957); and Kramer v. City of Lakeland, 38 So.2d 126 (Fla.1949). I ascribe to this authority. As Professor Boyer points out, “there is no rule prohibiting the state or its agencies from acquiring a title by adverse possession.” 2 R. Boyer, Real Estate Transactions 814 (1979). He also notes that for adverse possession to occur “the acts of ownership and occupancy must be sufficient to hoist the claimant’s Jolly Roger over the land so that all may observe it.” Boyer, Id. 809. There is evidence a plenty in the record that the City flew its flag high over this beach with every intention of repelling all who would commercially exploit it or lay claim to any use of it, other than as fellow members of the public.

As an aside, but in answer to a claim laid down in the Developer’s brief, I do not perceive that the distinction between the City obtaining a prescriptive easement by adverse use and a fee simple title by adverse possession, would make any difference to the bottom line result in this case. The successor Developer argues in its reply brief that if it, as distinct from the City, is a fee owner, it can still at this late stage, some 60 years on, utilize the beach acreage to calculate zoning density and required open space in connection with development of its contiguous properties. The specific zoning regulations of Hollywood are not before us, but I would be surprised if the regulations would, without a quid pro quo or a retention of a right to do so, permit a developer to return to the scene and enjoy such a double dipping 50 years after he had already dedicated the property as a public beach.

The jury made two findings in this case. The first was a dedication to the City and the second a finding of adverse possession by the City. In my view there was plenty of evidence as to both, yet the majority opinion has chosen one over the other. Common sense dictates that the jury’s verdict really was a finding that the beach belongs to the City not the developer regardless of the possible inconsistent “legalese” involved.

Accordingly, I would uphold the finding of adverse user and at long last have an end to this case after fifteen years of struggle, subject only to the certification hereafter suggested. As it stands now the majority has not disposed of the controversy by a long chalk and another endless battle will be joined over whether the developer can use the open space of the beach to calculate its density per acre on its adjoining properties.

To me the problem here is not insufficiency of the evidence but possible inconsistency in the verdicts. That inconsistency, if any, results from the supreme court’s Hollywood opinion, for which I cannot fault the lawyers or the trial judge. Accordingly, I would affirm and certify the following question to the supreme court:

IS THE JURY FINDING OF COMMON LAW DEDICATION INCOMPATIBLE WITH EITHER, THE FINDING OF ADVERSE USE, OR THE FINAL JUDGMENT AWARD OF FEE SIMPLE TITLE, UNDER THE FACTS STATED AND THE LAW POSTULATED IN THE CASE OF HOLLYWOOD, INC. v. CITY OF HOLLYWOOD, 321 So.2d 65 (Fla.1975)?

This case cries out for such a certification. The matter is of extraordinary public importance and the holding in the Hollywood opinion is confusing at best and inconsistent at worst.

      . Hollywood, Inc. v. Markham, 182 So.2d 503 (Fla. 2d DCA), cert. denied, 188 So.2d 815 (Fla.1966); City of Hollywood v. Central Council of Improvement Associations of Hollywood, Inc., 232 So.2d 769 (Fla. 4th DCA), cert. denied sub nom. City of Hollywood v. Hollywood, Inc., 238 So.2d 111 (Fla.1970); City of Hollywood v. Zinkil, 235 So.2d 70 (Fla. 4th DCA 1970); City of Hollywood v. Zinkil, 283 So.2d 581 (Fla. 4th DCA 1973), quashed in part and remanded sub nom. Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975); Hollywood, Inc. v. Zinkil, 339 So.2d 1190 (Fla. 4th DCA 1976), cert. denied sub nom. Hollywood, Inc. v. City of Hollywood, 348 So.2d 948 (Fla.), cert. denied, 434 U.S. 997, 98 S.Ct. 635, 54 L.Ed.2d 491 (1977).

      . Although the Supreme Court characterized the city’s various theories as “legally independent,” it is clear that the city never attached significance to the distinction between adverse possession and prescription. The best example of the city’s attitude is found in the following statement by its attorney at the charge conference following the second trial: “I think, when you say ‘prescription and adverse possession,’ they are interchangeable.” (Tr. 1147). This of course, is not correct, (see Downing v. Bird, 100 So.2d 57 (Fla.1958), but it demonstrates that the city was not concerned with the issue of “title”; rather, its paramount concern was “use” — the preservation of the public’s right to perpetual and uninterrupted use of the beach property. From the outset in 1964 when the city filed its cross-claim against Hollywood, Inc. it recognized that Hollywood, Inc. may have acquired reversionary rights in the property. This possibility, however, has never been deemed significant by the city. Indeed, this point is best made by the city’s brief filed in this court:
      The CITY is aware that in the event of dedication or prescription, the CITY’S interest is an easement, an incorporeal hereditament, as distinguished from title, a corporeal right, Downing v. Bird, 100 So.2d 57 (Fla. 1958). As a practical matter, it makes little difference.

      HOLLYWOOD, INC. contends that the final judgment below is erroneous even if the CITY did prove dedication prior to 1930 because dedication does not vest the CITY with fee simple title. If the CITY proved ownership by adverse possession this question is moot. On the other hand if the CITY proved dedication the type of title it receives is of little or no practical significance. The use and purpose of the land is public beach: —Any contention that the CITY may someday attempt the [sic] sell the land borders on the ludicrous. Courts will still be open to the citizens in the event their elected officials ever attempted to oust them of their beautiful public beach — an asset of such magnitude that deprivation thereof would seriously impair the present and future attractiveness of their CITY.

      . Although the jury’s verdict speaks in terms of “adverse use,” an element common to both adverse possession and prescription, the city argued to the jury and requested instructions on adverse possession. See footnote 2 for further explanation. Thus, we take the jury’s response to question # 3 on the special verdict to be a finding of adverse possession. The parties have also taken this position in arguing the case on appeal.

      . Downing v. Bird, 100 So.2d 57 (Fla.1958).

      . See 2 R. Boyer, Florida Real Estate Transactions, Chapter 30 (1979).

      . I have not ignored the Developer’s claim that the dedication of one of the Blocks by deed, as distinct from platting, was for the use of the beach as a “parkway.” However, circa 1930 a parkway was not necessarily a multi-laned road with a divider strip. See Cobb v. Milwaukee, 60 Wis.2d 99, 208 N.W.2d 848 (1973).

      . The majority has here found the exact opposite.

      . The term “legally owned” is itself a choice of language which raises all sorts of interesting nuances.

      . “COUNSEL FOR DEVELOPER: If you want to say, ‘And/or,’ so they could find all three ways — I agree with you that they could, and 1 wasn’t intending to say it has to be one or the other.
      THE COURT: And all you have to do is: After ‘upon’ would be to type—
      COUNSEL FOR DEVELOPER: ‘Deed and/or dedication.’ ”


author: HURLEY, Judge.

text:
    Arvella BURMEISTER, et al., Appellants, v. AMERICAN MOTORISTS INSURANCE COMPANY, et al., Appellees.
    No. 79-1729.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    David M. Conlon, Okeechobee, for appellants.
    A. Craig Cameron of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for appellees.
   HURLEY, Judge.

At issue is whether the trial court erred in directing a verdict in favor of the defendants in a slip and fall case. We conclude that the plaintiff adduced sufficient circumstantial evidence to permit the jury to resolve the question of the storekeeper’s constructive knowledge of the dangerous condition and, consequently, we reverse.

On April 5, 1977, Mr. and Mrs. Burmeis-ter went to shop at the Sears Roebuck store in Fort Pierce. They parked in the lot and walked toward the store entrance. Mrs. Burmeister, however, slipped and fell as she attempted to step up onto a concrete sidewalk. Her husband testified that she stepped into a gouge in the edge of the sidewalk which measured approximately twelve to fourteen inches in length and about two to three inches in depth, he also testified that he looked in the gutter and in the vicinity of the gouge but did not see any debris. Though he had earlier stated in his deposition that the gouge “was new, sort of new, it was fresh,” he qualified this statement at trial by testifying, “It wasn’t old looking ... I can tell if it was fairly new but not real new.”

Defendants moved for a directed verdict at the close of the plaintiffs’ case and again at the conclusion of the entire case. The trial court, however, reserved ruling and submitted the case to the jury. The verdict was for the plaintiff with a finding that Mrs. Burmeister had been thirty per cent negligent. At a post-trial hearing, the court vacated the verdict and granted a directed verdict in favor of the defendants.

It is well accepted that a storekeeper must exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe. Unquestionably, this duty extends to the approaches to the premises. Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla. 1st DCA 1974). But, “[i]n order to recover, a plaintiff must show either that the . . . [storekeeper] had actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the . . . [storekeeper] should have known of it and taken action to remedy it or guard the plaintiff from harm therefrom.” Id., at 668.

Actual notice was not an issue in the case at bar and thus we are concerned only with the issue of constructive notice. In this respect, it is recognized that “[p]roof that a dangerous condition existed long enough so that it should have been discovered by the . . . [storekeeper] may be proved like any other fact, by circumstantial evidence.” Winn-Dixie Stores, Inc. v. Williams, 264 So.2d 862, 863 (Fla.3d DCA 1972); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla.3d DCA 1979). Also, since the issue on appeal is the propriety of granting a directed verdict, we must view the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the Burmeisters and all conflicts in the evidence must be resolved in their favor. Marlowe v. Food Fair Stores of Florida, Inc., 284 So.2d 490 (Fla.3d DCA 1973).

Applying these well known principles to the facts in the case at bar, we believe that the plaintiffs’ evidence, albeit circumstantial, was sufficient to require submission of the case to the jury. Cf. Miami Shores Village v. Lingler, 157 So.2d 716 (Fla.3d DCA 1963). Mr. Burmeister’s testimony as to the absence of debris at the scene, coupled with his opinion that the gouge was “fairly new but not real new,” was an adequate evidentiary basis to support the jury’s implied finding that the condition had existed long enough to put the store on constructive notice of the danger involved. Therefore, we reverse the order on appeal and remand the cause with instructions to reinstate the jury’s verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HERSEY and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge. LETTS, Chief Judge, ANSTEAD, Judge,

text:
    Gerald STANG, Appellant, v. STATE of Florida, Appellee.
    No. 79-2286.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 7, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant argues that his otherwise proper conviction on two counts of forgery should be reversed solely because the information and statement of particulars under which the state went to trial erroneously listed April 27, 1979 as the date of the offenses. As appellant knew at the time of trial, the offenses had occurred a week earlier, on April 20. After several witnesses had testified, the state realized that the date listed in the charging documents was incorrect and successfully moved to amend the statement of particulars. The trial court then essentially sought to start the trial over by suggesting that appellant recall all the witnesses who had already testified, and make an amended opening statement to the jury if he so desired. The trial proceeded, and a tape recording of appellant confessing to the crimes was introduced in evidence. As noted, appellant was convicted. We affirm.

At issue is whether an otherwise valid conviction must be voided whenever the state proceeds to trial under charging documents containing an erroneous date. Certain language in State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) appears to support appellant’s contention that the “harmless error” rule cannot be applied in such situations.

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; . . . the state (may not) remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

298 So.2d at 378, 379.

However, given the holding in Beamon (that defendant, who obtained a judgment of acquittal on grounds that the proof adduced at trial regarding the date of the offense differed from the date alleged in the bill of particulars, was estopped from asserting a double jeopardy defense in a retrial based on the same incident), it is clear that the aforecited language is dicta. The Beamon dicta was evidently found not controlling by this court in Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979), affirmed 397 So.2d 288 (Fla. 1981) in which, after jeopardy had attached, the state was permitted to amend a statement of particulars to correct a one-day discrepancy as to the date of the offense. The court stated:

The granting of the state’s motion to amend the statement of particulars did not so prejudice the appellant as to hinder him in the preparation or presentation of his defense. To allow the defendant in a criminal case, with full knowledge of the crime alleged against him and with knowledge of a technical error of one day’s date on a pleading, to wait in ambush for the state until the jury is sworn then spring his trap is tantamount to asking the court to referee a game of hide and seek.

372 So.2d at 533, 534. This language appears especially pertinent to the case at bar.

In deciding Hoffman, our court relied heavily on Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972), in which a five-day variance between the true date of the offense and the date as alleged in the bill of particulars was held immaterial. The Fifth District Court of Appeal has recently concluded that Howlett was impliedly overruled by Beamon, but seeks to explain the Hoffman holding on the basis that the permitted amendment to the statement of particulars occurred before any evidence was submitted. Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). This attempt to separate the Howlett and Hoffman holdings is unconvincing since jeopardy had already attached in both cases. There would not seem to be any compelling logic behind a scheme whereby the state may amend an erroneous bill of particulars after the jury has been impaneled and sworn, as in Hoffman, but may not amend an erroneous bill of particulars after several witnesses have testified where, as here, the trial court has afforded defendant the option of starting the trial over with the same jury.

In Jefferson, the Fifth District Court of Appeal reversed defendant’s conviction on the basis that the proof adduced at trial fixed the date of the crimes as June 18-19 while the bill of particulars specified the date as June 20 or June 21. While it is possible to distinguish Jefferson from the current case on the basis that in Jefferson, the state never sought to amend the bill of particulars to conform with the evidence as adduced at trial, it is clear that Jefferson is in direct conflict with our earlier holding in Howlett.

It is ironic that appellant relies on the Beamon dicta to void his conviction when the Beamon holding virtually assures that appellant may be retried for the same offenses under a proper information and statement of particulars. In this light, we recall the language of the United States Supreme Court in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974): “The law does not require that a defendant receive a perfect trial, only a fair one.” 417 U.S. at 448, 94 S.Ct. at 2365, 41 L.Ed.2d at 194. In view of the trial court’s willingness to allow the defendant to restart this trial following the permitted amendment to the statement of particulars, it would be difficult not to characterize the trial as “fair.”

However, recognizing that Judge An-stead in his dissent is of the opinion that the Beamon decision out of our Supreme Court is contrary to our holding here and being of the opinion that the matter is one of great public importance, we hereby certify the following question:

DOES THE ABOVE QUOTED DICTA FROM BEAMON DEMAND REVERSAL OF THE CASE AT BAR OR DOES THE RECENT SUPREME COURT VERSION OF HOFFMAN PERMIT AF-FIRMANCE?

AFFIRMED.

LETTS, C. J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

LETTS, Chief Judge,

concurring specially-

Justice may indeed be blind, but Judges should not be blinded. It is apparent that the defendant knew all along with what crime he was charged and on what date it was committed. Nonetheless he chose to wait in ambush, secure in the thought that he could defeat the prosecution by exposing a scrivener’s error of which he was only too well aware. Judge Schwartz speaking for the Third District has dubbed such tactics as “gotcha” defenses and has denounced them. See Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980).

Notwithstanding Judge Anstead’s dissent, it is hard for me to envision that this is the kind of prejudice that allows a defendant to go free. The accused visited the result upon himself by relying on a technical mistake as his sole defense and should not now be heard to complain. In so saying, however, I cannot fault the defense for the tactics employed. After all they had the Beamon decision to lean on. The answer to our certification will soon enough establish if they were correct and we are wrong.

I need search for no citation in support of the basic premise that our function is to see that justice is done, not done in. Here it would appear to me that if we reverse this conviction, justice will not be served. Moreover, the Supreme Court affirmance of our Hoffman decision indicates that enquiry by the trial judge into the circumstances, coupled with prior knowledge by the defense, goes a long way toward permitting any amendment. Under the totality of the facts now before us I am convinced the amendment should have been allowed.

ANSTEAD, Judge,

dissenting:

In my view this case should be reversed under the holdings in State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) and Hoffman, supra. In Beamon the Supreme Court stated:

Where there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; .. . the state (may not) remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

298 So.2d at 378, 379.

In Hoffman, the holding in Beamon was modified to the extent that the state may now be allowed to amend if the state can demonstrate a lack of prejudice to the defendant. In this case the state wholly failed to demonstrate such a lack of prejudice. To the contrary, prejudice affirmatively appears on the face of the record.

This was a prosecution for forgery. In both the information and a bill of particulars the state specified the date of the offense to be a time that later turned out to be in error by one week. In his opening statement at trial counsel for the defendant told the jury that his sole defense was that the state would be unable to prove the date specified in the information and bill of particulars and that the defense would be able to affirmatively establish that any checks involved were passed on an entirely different date. In a phrase, the defense put all its eggs in one basket, relying on the state’s inability to prove the critical date. Subsequently, the state called a number of witnesses, and sure enough, it turned out that indeed the state had gotten the date wrong. However, the state did not move to amend the information and bill of particulars until it had presented virtually all of the evidence it had as to the date of the offense. At that time it finally dawned on the state that it had made a serious mistake. The trial court, noting that the defendant had obviously known the true date all along, allowed the state, over the strenuous objection of the defendant, to amend its information and bill of particulars. In essence, the state was allowed to allege one date in an information and bill of particulars, and then, after proving a different date, was allowed to amend the date to conform to the evidence. And the defendant, having in essence already advised six jurors that his only defense would be the state’s inability to prove the date specified, was sent back out to face those same six jurors, his “defense” now obviously in shreds. The natural result was that he was convicted.

Now, it may be quite true that the defendant deserves conviction since the state proved its case and the defendant is not here claiming that the evidence was insufficient. But, the process by which the state secures a conviction must be fair, and in my view allowing the state to proceed on an amended information and bill of particulars in this case was totally unfair. The law is absolutely clear that a defendant is entitled to an acquittal if the state fails to prove the date of the offense set out in a bill of particulars. State v. Beamon, supra. The jury is given a specific legal instruction on this point. See Florida Standard Jury Instructions in Criminal Cases, Second Edition, General Instruction 2.09. However, after such an acquittal the state is free to retry the defendant on an information alleging the correct date. State v. Beamon, supra.

In Hoffman v. State, supra, it was held that the state may be permitted to amend the information and bill of particulars, if the state can affirmatively demonstrate that the defense would not be prejudiced thereby. Factually, in Hoffman, the mistake as to the date was only one day, the state sought to amend before evidence was presented, and it was demonstrated that the defendant had not predicated his defense on the mistake. That picture is a far cry from the one presented here where the mistake as to the date was substantial, the state had put on virtually all of its evidence (as to the date) and the defendant relied on the state’s mistake for his sole defense, as he was entitled to do under Beamon, supra. I cannot imagine any greater prejudice than forcing the defendant to go back out and face the same jury stripped of the only defense he has claimed at trial. I would reverse, not to direct appellant’s acquittal, but rather to order that there be a new, and fair, trial before a new jury.

      . In support of this conclusion, the Supreme Court cited our prior decision in Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972), stating “Howlett and now Hoffman hold that a statement of particulars can be amended if such amendment will not prejudice the defend-' ant.” Hoffman v. State, supra. Actually, in Howlett, it was alleged in both the information and the statement of particulars that the crime in question occurred on January 11, 1970, or shortly thereafter, but at trial it was established that the crime had occurred on January 6. However, at no time did the state move to amend either the information or the statement of particulars to reflect the correct date. This court nonetheless upheld Howlett’s conviction reasoning that the defendant suffered no prejudice since his defense was not based upon “alibi nor any other theory in which the time element might have been an important part.” 260 So.2d 880.


text:
    Kenneth G. RENICK and Susan B. Renick, Appellants, v. Marlene MILLION, Appellee.
    No. 80-2172.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 7, 1981.
    Glenn H. Mitchell of Spillias & Mitchell, West Palm Beach, for appellants.
    No appearance for appellee.
   PER CURIAM.

Based on a complaint seeking permanent injunctive relief, Kenneth and Susan Renick obtained a temporary restraining order to prevent Marlene Million from harassing them with threatening and profane phone calls. At a subsequent hearing, the trial court determined that injunctive relief was not proper to restrain a criminal act and, therefore, dissolved the temporary restraining order. We express no opinion on the merits of the action because at issue here is a temporary order, the issuance or dissolution of which is clearly within the discretion of the trial court. We find that appellants have failed to demonstrate any abuse of discretion in the dissolution of the tempo--rary restraining order.

AFFIRMED.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: RYDER, Judge.

text:
    ADCA CORPORATION, Appellant, v. George BLUMBERG and Blumberg Realty, Inc., Appellees.
    No. 80-1436.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 1981.
    Robert G. Jacobson, P. A. of Farr, Farr, Haymans, Moseley & Emerich, Port Charlotte, for appellant.
    No appearance for appellees.
   RYDER, Judge.

ADCA Corporation appeals from the directed verdict adverse to its claim for rescission of contract. We reverse.

ADCA sued Blumberg in several counts, including rescission of a handwritten contract for return of $12,000.00 earnest money. Testimony at trial showed that ADCA’s agent negotiated purchase of a restaurant from Blumberg. A handwritten contract was signed by Blumberg, but ADCA entered into the contract in the name “Falcon Industries, Inc.,” a corporation that ADCA mistakenly thought was in existence. ADCA gave $5,000.00 to Blum-berg at the time of signing the contract, and there was conflicting testimony over whether $7,000.00 was later paid. Neither party appeared for closing, although they were “ready, willing and able” to close.

At the close of ADCA’s case, Blumberg moved for directed verdict on the ground that a party of the contract, Falcon Industries, Inc., was not a party to the action. The court granted the motion.

We hold that ADCA was a proper party to assert its rights in the action below. ADCA supplied the funds for which it now seeks return, and its agent entered into the contract, mistakenly in the name of a corporation which no longer existed. We are not certain that ADCA was a stranger to the transaction below, but even such a stranger may bring an action for rescission of a contract if his legal or equitable rights are affected thereby. See International Realty Associates, Inc. v. McAdoo, 87 Fla. 1, 99 So. 117 (1924).

The order granting the directed verdict below is vacated, and the case remanded for new trial.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    Kenneth Glen ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 81-129.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 1981.
    Jerry Hill, Public Defender and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The state charged appellant with attempted sexual battery by a person eighteen years of age or older upon a child eleven years of age or younger. Pursuant to a plea bargain, he pled guilty to the offense of lewd assault upon a child under the age of fourteen years. The conditions of the bargain were that he would be considered for treatment as a mentally disordered sex offender but, in any event, would receive a prison sentence of no longer than ten years. Subsequently, the court ordered appellant treated as a mentally disordered sex offender and, upon the completion of the treatment, sentenced him to nine years in prison, retaining jurisdiction over the first one third of the sentence.

Despite the fact that appellant’s sentence was within the terms of the plea bargain, he contends that the court erroneously adjudicated him guilty of attempted sexual battery, the maximum penalty for which was thirty years, rather than lewd assault, the maximum penalty for which was fifteen years. He argues that the court may have imposed a higher sentence under the misapprehension that he had committed a first degree felony rather than a second degree felony.

It does appear that the court adjudicated appellant guilty of attempted sexual battery and sentenced him for that crime. Nevertheless, it is evident from the record that the judge knew the details of appellant’s offense and had studied appellant’s PSI. We are satisfied that the judge knew what punishment he thought was appropriate for appellant and that it would have made no difference had he realized that the crime for which appellant was being sentenced was lewd assault rather than attempted sexual battery. Therefore, since the resentencing of appellant would serve no purpose, we direct that the records be corrected to reflect appellant’s conviction for lewd assault.

We also vacate the court’s reservation of jurisdiction over the first one third of the sentence because appellant committed the offense prior to June 19, 1978, the effective date of section 947.16(3) Florida Statutes (Supp.1978). Rodriguez v. State, 380 So.2d 1123 (Fla.2d DCA 1980).

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


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, ex rel., Ramiro Joseph ORTEZ, Petitioner, v. Ted BROUSSEAU, a Judge of the Circuit Court of the Twentieth Circuit, In and For Collier County, Florida, Respondent.
    No. 81-1370.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 1981.

      Douglas M. Midgley, Public Defender and John D. Offutt, Asst. Public Defender, Naples, for petitioner.
    Joseph P. D’Alessandro, State Atty. and Lee Hollander, Asst. State Atty., Naples, for respondent.
   GRIMES, Acting Chief Judge.

Petitioner seeks to prohibit his criminal trial on the ground that he is entitled to be tried as a juvenile.

Petitioner is sixteen years old. The state filed direct informations against him for attempted sexual battery and burglary. After several postponements at the instance of both sides, the trial was scheduled for June 19, 1981. On the day before the trial, petitioner filed motions to transfer the charges for adjudication against him as a child. The state stipulated to petitioner’s assertion that he had not previously been found to have committed two delinquent acts, one of which would constitute a felony if committed by an adult. Nevertheless, the court ruled that petitioner had waived his right to be tried in juvenile court by having waited until the day before trial to file his motions to transfer.

The applicable portion of section 39.-04(2)(e) states:

The state attorney may:
4. With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the ease shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony. (Emphasis added.)

Since petitioner had not committed the requisite prior offenses, his right to be tried as a juvenile was mandatory. The only question is whether he waived the right by waiting so long to make his motions. Respondent argues that motions to transfer under this statute are equivalent to motions to dismiss which are controlled by Florida Rule of Criminal Procedure 3.190 and that under this rule petitioner’s motions were untimely. There is much to be said for placing a time limit upon the right to make a motion to transfer. However, the statute is silent in this respect, and there is no court rule which specifies when such a motion must be made. In view of petitioner’s substantive right to be tried as a juvenile under these circumstances, we are reluctant to read in a time limit where none is stated. Accordingly, we hold that petitioner had a right to make a motion to transfer under section 39.04(2)(e)4 at any time until his criminal trial commenced. Cf. Carter v. State, 382 So.2d 871 (Fla.5th DCA 1981), holding that once a sixteen year old had been convicted in a criminal trial, it was too late to request a transfer to juvenile court.

The juvenile division of circuit court is without jurisdiction over a person who is entitled to be tried in the criminal division. State ex rel. Sumner v. Williams, 304 So.2d 472 (Fla.2d DCA 1974). It seems to us that the converse should also be true. Since petitioner made a valid motion to transfer his case to the juvenile division for adjudication pursuant to chapter 39, the criminal division of the court lost jurisdiction over his prosecution. Therefore, the court is hereby prohibited from trying petitioner as an adult, and petitioner’s motions for transfer must be granted.

OTT and DANAHY, JJ., concur.

      . Of course, the state could have filed a petition for delinquency and then sought to have the case transferred for criminal prosecution pursuant to section 39.04(2)(e)3, Florida Statutes (1979).

      . The respondent’s apprehension that the petitioner waited to file his motions to gain an advantage under the speedy trial rules is misplaced because the speedy trial time was tolled while the cases were pending in criminal court. W. M. v. Tye, 377 So.2d 225 (Fla.4th DCA 1979).