author: PER CURIAM. BOYD, Justice,

text:
    Stacy Clyde JOLLIE, Petitioner, v. STATE of Florida, Respondent.
    No. 59158.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Nov. 24, 1981.
    Robert J. Buonauro, Orlando, for petitioner.
    No appearance for respondent.
   PER CURIAM.

This case involves the legal issue we recently resolved in Tascano v. State, 393 So.2d 540 (Fla. 1980), and a procedural issue regarding the jurisdiction of this Court which requires clarification in light of the 1980 amendment to article V, section 3, of the Florida Constitution. It is the latter issue which commands our attention here, and for which a recitation of the history of this case and of conflicting decisions on the Tascano issue is essential.

On January 2, 1980, the Fifth District Court of Appeal addressed a legal issue concerning requested jury instructions on which disparate views were then held among the district courts of the state. In Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980), a majority of the panel court concluded that this Court’s rule on requested instructions was mandatory. A contrary view had been expressed by a panel of judges in the First District Court of Appeal in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978). Despite their conclusion on the mandatory nature of the rule, however, the panel majority in Murray affirmed his conviction on the ground that the failure to give requested instructions in his situation was harmless error. Judge Orfinger agreed with the Taseano judges that the Court’s rule was optional, for which reason he concurred in the court’s affirmance of Murray’s conviction.

Other cases involving this very legal issue were pending in the Fifth District. Shortly after the Murray decision was published, the court entered orders summarily disposing of three of them—Knight v. State, 379 So.2d 1017 (Fla. 5th DCA 1980), Allen v. State, 380 So.2d 541 (Fla. 5th DCA 1980), and Jollie v. State, 381 So.2d 351 (Fla. 5th DCA 1980). Each of these dispositions read simply:

“Affirmed. See Murray v. State [citation].”

Petitions for certiorari were filed here in Murray, Knight, and Allen before April 1, 1980. A petition for review was filed in Jollie after that date. The intervention of the 1980 amendment placed Mr. Jollie in a different position than Messrs. Murray, Knight, or Allen with respect to the possibility of Supreme Court review. That fortuity, it will be seen, has created the procedural problem we now face.

We agreed to review the First District’s Taseano decision, and we eventually declared that our rule regarding requested jury instructions is indeed mandatory, quashing the district court’s contrary decision. Tascano v. State, 393 So.2d 540 (Fla. 1980). We accepted jurisdiction in Murray on the basis of direct jurisdictional conflict. The Murray decision conflicted on its face with the First District’s decision in Taseano by holding that the rule was mandatory rather than directory and conflicted with the result we reached in Taseano because it negated the mandatory effect of the rule by applying the harmless error doctrine. We have consequently this day, by separate opinion, quashed the district court’s opinion in Murray on the basis of Taseano, concluding that the harmless error rule should not apply. Murray v. State, 403 So.2d 417 (Fla. 1981). We have also accepted jurisdiction in Knight and Allen under the 1972 constitutional provision and granted relief in accordance with our decisions in Taseano and Murray. Knight v. State, 401 So.2d 1333 (Fla. 1981).

Petitioner Jollie’s treatment by the Fifth District Court of Appeal was identical to that of Allen and Knight. Jollie, however, became the victim of happenstance, delayed processing through the district court resulting in his case reaching this Court after the effective date of the 1980 constitutional amendment limiting Supreme Court jurisdiction.

Under our interpretation of the 1980 amendment, this Court will not reexamine the case referenced in a “citation PCA” to determine whether the contents of that case now conflict with other appellate decisions. Dodi Publishing Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla. 1980). In a similar light, if the referenced case is a final decision and not pending review in this Court, we will not reexamine the case referenced even when the district court filed that case contemporaneously with the citation PCA. Robles Del Mar, Inc. v. Town of Indian River Shores, 385 So.2d 1371 (Fla. 1980). The question which we must now confront is in what posture we should place a citation PCA where the cited case is either pending review in this Court or has previously been reversed by this Court. Restated, we must decide whether Mr. Jollie should be denied relief because he was the recipient of such a decision after the effective date of the 1980 amendment.

The quartet of Tascano-related cases from the Fifth District Court of Appeal presents the problem in sharp focus. We here endeavor to deal with this situation in a forthright manner in order to provide clear directions for the avoidance of future difficulties in like situations. This can be done without undermining the intent and purpose of the 1980 reforms.

Justice Thomas, the father of Florida’s district courts of appeal and the strongest advocate of the principle that the district courts “were meant to be courts of final appellate jurisdiction,” said this Court had no authority to “dig into a record to determine whether or not a per curiam affirmance by a district court of appeal conflicts.” See Lake v. Lake, 103 So.2d 639, 642-43 (Fla. 1958).

If in a particular case an opinion is rendered by a district court of appeal that prima facie conflicts with the decision of another district court of appeal or of the Supreme Court on the same point of law, the writ of certiorari may issue, and after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any conflict may be reconciled.

Id. at 643 (emphasis ours). This rule applies equally well under the 1980 amendment as it did under the amendment’s 1956 predecessor.

Prior to the 1980 amendment, a PCA decision which referenced another district court decision that this Court had reversed or quashed, was prima facie grounds for conflict jurisdiction. This long-standing policy decision was in effect well before the “record proper” doctrine was conceived and adopted in Foley v. Weaver Drugs, 177 So.2d 221 (Fla. 1965). The reasoning behind that policy decision continues to have validity. Common sense dictates that this Court must acknowledge its own public record actions in dispensing with cases before it. We thus conclude that a district court of appeal per curiam opinion which cites as controlling authority a decision that is either pending review in or has been reversed by this Court continues to constitute prima facie express conflict and allows this Court to exercise its jurisdiction.

The situation presented in this cause ordinarily applies only to a limited class of cases. The problem arises from the practical situation which faces all appellate courts at one time or another — that is, how to dispose conveniently of multiple cases involving a single legal issue without disparately affecting the various litigants. Traditional practice in dealing with a common legal issue in multiple cases, both in district courts and here, has been to author an opinion for one case and summarily reference that opinion on all the others. Being time- and laborsaving for a court, that practice should not be discouraged.

We believe, however, that there can be improvement in the procedure through which district courts can isolate for possible review in this Court those decisions which merely reference to a lead opinion, as we now have for review, as distinguished from those per curiam opinions which merely cite counsel-advising cases such as in Dodi Publishing. There are two prongs to the problem, and we believe each can be treated by the judges of the district courts without undue problems.

First, we suggest the district courts add an additional sentence in each citation PCA which references a controlling contemporaneous or companion case, stating that the mandate will be withheld pending final disposition of the petition for review, if any, filed in the controlling decision. In essence, this will “pair” the citation PCA with the referenced decision in the district court until it is final without review, or if review is sought, until that review is denied or otherwise acted upon by this Court. If review of the referenced decision is requested, the parties may seek consolidation here. In any event, the district courts’ withholding of the mandates will dispose of the need for separate motions to stay mandates in those courts. This simple process, moreover, can be accomplished administratively in the district courts, in the clerks’ offices, without significant activity by the judges either before or after the controlling decision is filed with or acted upon by this Court.

A second aspect of the problem calls for a different approach. We recognize that no litigant can guide the district court’s selection of the lead case, and that the randomness of the district court’s processing would control the party’s right of review unless the citation PCA is itself made eligible for review by this Court. To resolve fully this problem, we further suggest that the district courts devise one or more methods to distinguish a contemporaneous or companion case — for example, with distinguishing citation signals or by certifying that an identical point is at issue in the cited case — from cases which offer a mere counsel notification citation. We have no doubt that district court judges can produce one or more methodologies to preserve the review strictures of the 1980 amendment on the one hand, while on the other eliminating the possible injustice inherent in foreclosing review to some of several equally situated litigants.

We reaffirm that mere citation PCA decisions rendered in the traditional form will remain nonreviewable by this Court, for the reasons stated in Dodi Publishing and Robles Del Mar. The circumstances of those cases are clearly distinguishable from a district court PCA opinion which cites as controlling a case that is pending review in or has been reversed by this Court.

We grant review in this proceeding and quash the district court’s decision on the basis of our decisions in Murray v. State and Tascano v. State.

It is so ordered.

SUNDBERG, C.J., and OVERTON, ENGLAND and McDONALD, JJ., concur.

ADKINS, J., concurs in result only.

BOYD, J., dissents with an opinion.

ALDERMAN, J., dissents.

BOYD, Justice,

dissenting.

Invoking our discretionary jurisdiction under article V, section 3(b)(3), Florida Constitution, the petitioner seeks review of a district court of appeal decision which the court announced as follows:

Affirmed. See Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).
Jollie v. State, 381 So.2d 351 (Fla. 5th DCA 1980). That portion of article V, section 3(b)(3), upon which petitioner relies in asserting that this Court has power to review the decision provides:
The supreme court:
May review any decision of a distinct court of appeal . .. that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.

The decision of which the petitioner seeks review — an affirmance of the judgment appealed, rendered without opinion except for a citation of authority — does not, and under article V, section 3(b)(3) as amended in 1980 cannot, “expressly and directly” conflict with another decision. Therefore we lack the authority to consider the petition for review.

Prior to the amendment of April 1, 1980, this Court had the authority to consider a petition for certiorari to review a district court of appeal decision on the ground of direct conflict, even when the decision brought here for review was rendered without opinion. In order to establish that the Court had jurisdiction the petitioner had to demonstrate, by reference to the record, that a legal issue had been brought before the court on appeal, and that the decision, in passing upon the legal issue, was in direct conflict with another district court decision or a decision of the supreme court. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965). See Note, Conflict Certiorari Jurisdiction of the Supreme Court of Flori da: The “Record Proper”, 3 Fla.St.U.L.Rev. 409 (1975). By adopting the 1980 amendment, however, restricting that category of review to decisions that “expressly and directly” conflict, the people have taken away that authority.

The intent of the framers and the adopters of the 1980 amendment has already been addressed by this Court. The public discussion and debate that preceded the approval of the amendment “provides a frame of reference by which to ascertain the intent of the voters in adopting the amendment.” Jenkins v. State, 385 So.2d 1356, 1363 (Fla. 1980) (England, J., concurring) (footnote omitted). During that period of public discussion, the framers of the amendment, as well as other legal and constitutional experts, told the public what effect the amendment would have if adopted:

At hearings before the legislature and in countless meetings with representatives of The Florida Bar, The Conference of Circuit Judges of Florida, the Appellate Judges’ Conference, The League of Women Voters as well as other interested organizations too numerous to recount, members of this Court represented that one of the intents and effects of the revision of section 3(b)(3) was to eliminate the jurisdiction of the Supreme Court to review for conflict purposes per curiam decisions of the district courts of appeal rendered without opinion, regardless of the existence of a concurring or dissenting opinion. These same representations were made consistently to the public at large preceding the ballot on the proposed amendment. There can be little doubt that the electorate was informed as to this matter, because opponents of the amendment broadcast from one end of this state to the other that access to the Supreme Court was being “cut off,” and that the district courts of appeal would be the only and final courts of appeal in this state. With regard to review by conflict certiorari of per curiam decisions rendered without opinion, they were absolutely correct.
The pertinent language of section 3(b)(3), as amended April 1, 1980, leaves no room for doubt. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. The dictionary definitions of the term “express” include: “to represent in words”; “to give expression to.” “Expressly” is defined: “in an express manner.” Webster’s Third New International Dictionary, (1961 ed. un-abr.). The single word “affirmed” comports with none of these definitions.

Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980).

The holding of Jenkins was that under the new constitutional amendment, this Court may not review, on grounds of conflict, a district court decision rendered without opinion even though a dissenting judge filed a “comprehensive opinion which recited the facts extensively and concluded that the trial court had erred.” Id., 385 So.2d at 1357. In Dodi Publishing Co. v. Editorial America, S. A., 385 So.2d 1369, 1369 (Fla. 1980), we held that we did not have jurisdiction to review a district court decision rendered without opinion other than a citation of authority saying:

We reject the assertion that we should reexamine a case cited in a per curiam decision to determine if the contents of that cited ease now conflict with other appellate decisions. The issue to be decided from a petition for conflict review is whether there is express and direct conflict in the decision of the district court before us for review, not whether there is conflict in a prior written opinion which is now cited for authority.

Since the issue is “whether there is express and direct conflict in the decision . . . before us for review,” it follows that we simply cannot consider petitions for review based on conflict when the decision is not accompanied by an opinion expressing any view on a question of law. A citation of authority is not an opinion.

In Robles Del Mar, Inc. v. Town of Indian River Shores, 385 So.2d 1371 (Fla.1980), we again held that we lacked jurisdiction to review a district court decision rendered without opinion but with a citation of authority. We noted, however, that the case cited by the district court in issuing the decision sought to be reviewed, was filed on the same day and was “a final decision of the district court.” Id. at 1371. By “final” we meant that the cited, contemporaneous decision was no longer subject to being reviewed by this Court. That unfortunate language, holding open the question upon which today’s decision is in part predicated, was our first relapse into the much decried tendency to think of the district courts of appeal as “way stations on the road to the Supreme Court.” Lake v. Lake, 103 So.2d 639, 642 (Fla. 1958). A decision of a district court of appeal is “final” when it has been disposed of by that court on rehearing or the time for seeking rehearing has expired. One does not have to wait and see whether supreme court review is sought before calling such decisions “final.”

The 1980 amendment demonstrated an intent that the Supreme Court, in the exercise of its discretionary jurisdiction, be limited to hearing cases having important ramifications for the state’s jurisprudence. The change was motivated in part by a desire to preserve the resources of the Court for the task of maintaining harmony and uniformity of decisions as legal precedents. The amendment represents an express negation of the idea of the Supreme Court, except in exercise of its appellate jurisdiction, as the court of last resort for the individual litigant in his quest for individual justice. Jenkins v. State, 385 So.2d 1356 (Fla. 1980); England, Hunter, and Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980). Today’s decision places an emphasis on the justice of the petitioner’s cause that the constitution does not permit.

The majority opinion says that even before Foley v. Weaver Drugs, Inc., a district court decision without opinion but citing a case that had been reversed by the supreme court provided prima facie ground for the exercise of conflict certiorari jurisdiction. I have been unable to find any decisional or documentary authority for that statement. The majority cites only “common sense,” and refers us to Justice Thomas’s formulation of conflict certiorari jurisdiction in Lake v. Lake, 103 So.2d 639 (Fla. 1958).

In his advocacy of the restrictive approach to conflict jurisdiction, Justice Thomas was in essence pleading for self-restraint on the part of the Court, to the end that the district courts would come to be regarded as courts of final appellate jurisdiction. By “prima facie” conflict it seems clear that he meant conflict of principles announced in opinions. But even Justice Thomas acknowledged that conceivably conflict certiorari jurisdiction might exist in the absence of an opinion. In such a case, the fact that “a conflict had arisen” would “appear from the restricted examination required in proceedings in certiorari.” Id. at 643. What would Justice Thomas have examined in the absence of an opinion stating the legal basis for the decision? In such a context the “restricted examination required in proceedings in certiorari” must have meant examination of the “record proper” as subsequently relied upon in Foley v. Weaver Drugs, Inc. Thus any pre-Foley review of decisions without opinion would have been on the basis of conflict appearing on the “record proper.”

My understanding of the effect of the 1980 amendment, based on its history, its interpretation in Jenkins, Dodi Publishing and Robles Del Mar, and on other authorities, is that by adding the word “expressly,” the people intended to overrule Foley and, for purposes of discretionary “conflict” review jurisdiction, do away with the concept of the “record proper.”

The addition of the term “expressly” should vastly improve supreme court practice under section 3(b)(3). The much-maligned and confusing doctrine of “record proper” will have been interred, saving the justices immeasurable time and effort in locating alleged decisional conflict. The clerk’s office will be able to screen petitions to ascertain if they are supported by a written opinion of a district court, and those without such support will simply be returned to the filing attorney. The court’s review process for exercising its discretion will be expedited considerably by the district court’s discussion of the point of law brought for review, enabling significantly shorter jurisdictional briefs. Moreover, where jurisdiction is accepted, the court will have a better basis for making an informed decision since the written opinions of the appellate courts will most likely analyze both sides of the same issue.

England, Hunter, and Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147, 181 (1980) (emphasis supplied) (footnote omitted). Yet the majority today, in discussing the practical problems of the district courts’ appellate processes, still speaks of the adversely affected party’s “right of review” and the Court’s duty to “acknowledge its own public record actions in dispensing with cases before it.” Opinion of the Court at 420. Does this mean the clerk cannot simply return petitions for review of unexplained decisions to the filing attorneys? Must the Court consider every petition for review? Are the people powerless to remove a category of discretionary review jurisdiction?

I had thought that the whole point of the revision of conflict jurisdiction was to disallow petitions for review of decisions without opinion. We would thereby gradually put an end to the practice by attorneys of automatically seeking review on behalf of the adversely affected litigants. But the Court today, in making what appears to be a very narrow exception, is opening the gate the voters thought they had firmly closed. Experience teaches us that narrow classes have a tendency to expand. The Court’s decision is a challenge to the ingenuity of lawyers, and prompts me to repeat the words of Justice Thornal: “If I were a practicing lawyer in Florida, I would never again accept with finality a decision of a District Court.” Foley v. Weaver Drugs, Inc., 177 So.2d at 234 (Thornal, J., dissenting).

Under article V, section 3(b)(3) as amended in 1980, a decision rendered without opinion other than a citation of legal authority does not establish any precedent and therefore cannot expressly and directly conflict with another decision on a question of law. The publication of such a decision announces the result to the litigants and to the public. But the report of such a decision does not reveal what principle of law was applied to the case, nor what the facts of the ease were.

After 1956, when the people adopted the constitutional amendment creating the district courts of appeal and establishing the decisional conflict certiorari jurisdiction of the supreme court, there began a lively controversy that continues to the present day.

It was early recognized that the district courts of appeal were to be courts of final appellate jurisdiction and that the “conflict” basis for certiorari jurisdiction was designed to allow the supreme court the supervisory role of resolving legal conflicts among the districts and maintaining uniformity of decisions. Lake v. Lake, 103 So.2d 639 (Fla. 1958); Ansin v. Thurston, 101 So.2d 808 (Fla. 1958).

In light of the emphasis in Ansin v. Thurston and Lake v. Lake on decisions as precedents, in Seaboard Air Line R. R. v. Branham, 104 So.2d 356, 358 (Fla. 1958), the Court said that the term “decision ” as used in the constitution “comprehends both the opinion and judgment.” But a debate began on the question of whether to emphasize uniformity of written appellate court precedents or uniformity in the decisions of appellate courts.

In Foley v. Weaver Drugs, Inc., 177 So.2d 221 (1965), the majority reasoned that the judgment of a case constitutes the decision, “and the opinion merely sets forth the reasons supporting the judgment . . ..” Id. at 224. Justice Drew, who had espoused the restrictive decisions-as-precedents view in Ansin v. Thurston, concurred with the majority in Foley, and wrote that the Court needed to be able to review decisions rendered without opinion in order to maintain uniformity. Such decisions, he reasoned, did constitute precedents to judges and lawyers who knew what legal questions had been ruled upon by the lower court judge.

In Gibson v. Maloney, 281 So.2d 823 (Fla.), cert. denied, 398 U.S. 951, 90 S.Ct. 1871, 26 L.Ed.2d 291 (1970), the majority said, “It is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction .... When comparing decisions it may be necessary to consult the record to some extent.” Id. at 824. See also Seaboard Air Line R. R. v. Williams, 199 So.2d 469 (Fla. 1967), cert. denied, 390 U.S. 920, 88 S.Ct. 851, 19 L.Ed.2d 979 (1968).

Prior to the 1980 amendment, the difficulties and ambiguities of conflict certiorari jurisdiction were sueh that the question of whether this Court should focus on conflict of precedents or conflict of decisions was a fairly debatable one. My predecessors, former colleagues, . and present colleagues struggled with the problem and argued about it with eloquence. But the question is debatable no longer.

Being of the opinion that the Court has no jurisdiction of this case, I would deny the petition for review.

       As an example of the possibilities, see the certification on rehearing in Griffin v. State, 389 So.2d 261 (Fla. 4th DCA 1980), pending in this Court (No. 59,964), which states: [W]e certify that our affirmance in this case passed upon the same questions we certified ... in Lawrence v. State [388 So.2d 1250 (Fla.App.)].... The decision in this case should abide the decision in Lawrence.


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    Robert A. STANCIL, Appellant, v. STATE of Florida, Appellee.
    No. 80-2008.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Robert Stancil challenges the trial court’s refusal to classify him as a youthful offender under the Florida Youthful Offender Act, section 958.011, Florida Statutes (1979). We reverse.

A grand jury indicted Stancil for first-degree murder on March 4, 1980, and he entered a plea of guilty to second-degree murder. At the time of the offense, Stancil was sixteen years of age. The trial court accepted his plea and ordered a predisposition report. In that report the Department of Health and Rehabilitative Services recommended that Stancil be placed in a program in accordance with the Youthful Offender Act. Stancil filed a motion also asking that he be classified as a youthful offender. The court refused and sentenced him to life imprisonment.

The relevant portions of section 958.04, Florida Statutes (1979), state:

(1) The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
(2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
(a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.

The court accepted Stancil’s plea to second-degree murder which is a first-degree felony. § 782.04(2), id. Stancil committed the offense while sixteen years of age, and he had not previously been classified as a youthful offender. Thus, he argues, the court had to sentence him under the Youthful Offender Act. The state, relying on Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980), argues on the other hand that Stancil did not meet the criteria of section 958.04(l)(a) because he was under eighteen years of age when he committed the offense and had been indicted rather than “transferred” for prosecution from the juvenile division. We reject the reasoning of Postell and follow Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), in which the First District Court of Appeal perceived the problems inherent in denying an indicted child the benefits of the Florida Youthful Offender Act. In Goodson the court stated, “if we were to accept the Postell rationale, under the disjunctive language in section 958.04(l)(a), a 13-year-old indicted child would be ineligible for youthful offender treatment, . . . where as a 19-year-old indicted person, never within the scope of chapter 39, would be eligible. We do not think the legislature could intend this result.” Id. at 1337.

Thus, we hold that even though Stancil was indicted and not literally “transferred,” he met the criteria of section 958.04(1) for classification as a youthful offender. Thus, the trial court had to sentence Stancil as a youthful offender. Killian v. State, 387 So.2d 385 (Fla. 2nd DCA 1980).

We are aware that the Legislature has amended section 958.04 in chapter 80-321, Laws of Florida, entitled:

An act relating to corrections; amending s. 958.04, Florida Statutes; removing the requirement that under certain circumstances a person must be classified as a youthful offender; providing that certain criteria be considered in determining whether to classify any person as a youthful offender; providing an effective date.

We applaud the Legislature for recognizing the need to allow a trial judge discretion in applying the Florida Youthful Offender Act. Nevertheless, we are bound to apply the statute to Stancil as it read at the time of his offense. See Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), aff’d., 330 So.2d 10 (Fla.1976).

Accordingly, we vacate Stancil’s sentence and direct the trial court to resentenee him under the Act.

OTT and CAMPBELL, JJ., concur.


author: FERGUSON, Judge.

text:
    T.G.B., Jr., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2236.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Nov. 20, 1981.

      Max P. Engel, Fort Myers, and Akhtar Hussain, Hialeah, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   FERGUSON, Judge.

The trial court adjudicated the juvenile T.G.B. as delinquent based on a finding that he had committed arson, burglary and theft.

T.G.B. was one of five persons seen by Officer Dunlop fleeing a building shortly before a fire broke out and was one of four apprehended after a foot chase. Officer Pitts testified that nearly fifty persons hurriedly exited the building at the same time, carrying or dropping stolen merchandise.

There is no evidence that T.G.B. carried or dropped stolen merchandise when he exited the building. There is no evidence that he committed an arson nor that he aided or abetted another in the commission of that offense. The trial court could reasonably have found the direct and circumstantial evidence sufficient to establish that T.G.B. entered the structure with intent to commit an offense therein, to wit, theft, and that at the time of entry, the premises were not open to the public and T.G.B. had no invitation or license to enter. § 810.02, Fla.Stat. (1979). Intent may be shown by circumstantial evidence. R.A. v. State, 400 So.2d 1059 (Fla.3d DCA).

Accordingly, we affirm the adjudication of delinquency but only as to the offense of burglary.


author: PER CURIAM.

text:
    AUTO-OWNERS INSURANCE COMPANY, etc., Appellant, v. Garnett S. ROGERS, Appellee.
    No. 80-487.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 23, 1981.
    Janet R. DeLaura, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant.
    Bruce T. McKinley, of Stromire, West-man, Lintz, Baugh, McKinley, • Antoon & Pearce, Cocoa, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Robert L. ENGRAM, Appellant, v. STATE of Florida, Appellee.
    No. XX-204.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Rehearing Denied Nov. 20, 1981.

      Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Engram appeals his conviction of robbery, and, although one of the three points he has raised has merit, we find that the error was harmless and affirm.

Engram and two others were charged with robbing two men in a parking lot in Pensacola. Only one of the three, Harold Robinson, was apprehended at the scene. Robinson implicated Engram and his co-defendant, Sims. Later, Robinson entered into a plea bargain with the prosecutor in which he agreed to plead guilty and cooperate with the state in exchange for a sentence not to exceed one year. Imposition of the sentence was to be withheld until after the consolidated trial of Sims and Engram.

During the trial, Robinson testified on two separate occasions. On the first occasion, counsel for Sims cross-examined Robinson extensively regarding the fact that he had entered into a deal with the state. Robinson stated that he knew that his testimony at the trial had a lot to do with the sentence he would receive, and admitted that he had lied about the existence of the bargain during an earlier deposition. Robinson also admitted that he would lie to stay out of jail. This line of questioning was not objected to by the prosecutor. Later in the trial, Robinson was recalled by the State. On re-cross examination, he was asked whether he understood “that if you don’t testify at this trial in favor of the State, your sentence may i be increased?” This time, the prosecutor objected and asked for a mistrial. Thereafter, a discussion was held outside the presence of the jury. The judge ruled that it was improper for defense counsel to refer to the plea bargain, and that they were not entitled to present the specifics of the bargain to the jury. However, he determined that he could cure the error by explaining to the jury that it was up to the court to decide if the defendant had kept the bargain.

Defendants have the right to introduce evidence of the conditions of a plea bargain entered into between the State and one of its witnesses so that the jury may properly pass upon the credibility of the witness. Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976). We therefore agree with appellant that the ruling that the defendants could not present the details of the plea bargain was error, but find that the error was harmless in the case at bar. In this case, the jury was well-informed that Robinson had agreed to cooperate with the State by testifying against the defendants in exchange for some type of reduced sentence. The only detail of the bargain that was not presented to the jury was the maximum length of the sentence which could be imposed by the judge if he found that Robinson had kept his end of the bargain. Since the jury knew about the deal, and Robinson repeatedly admitted that he had lied on many occasions, and that he would lie to stay out of jail, the jurors were sufficiently apprised of evidence enabling them to judge his credibility. There is no reason to believe that they would have weighed Robinson’s testimony any differently if they had been aware of the technical detail of the maximum possible sentence.

Therefore the judgment and sentence are AFFIRMED.

McCORD and SHIVERS, JJ., and MASON, ERNEST E. (Retired), Associate Judge, concur.


author: BASKIN, Judge.

text:
    Martha SPIKES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-668.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Martha Spikes was convicted and sentenced to life imprisonment for the second-degree murder of her child. She challenges the voluntariness of her confession, the trial court’s refusal to instruct the jury on the lesser included offenses of assault and battery, and the trial court’s failure to sentence her as a youthful offender under section 958.04, Florida Statutes (1979). We affirm her conviction but vacate her sentence and remand for resen-tencing.

Detective Hanek decided to obtain a statement from defendant Spikes after he learned that she was the last person to see her child. Detective Hanek questioned her at her home and, later that day, spoke with her at the police station. In an interview room, he advised her of her rights. Although she uttered no verbal response, Ms. Spikes nodded her head from time to time. Officer Hanek left the room and Officer Maye entered accompanied by defendant’s mother. When Officer Maye asked defendant Spikes if the first officer had advised her of her rights and if she understood what they meant, she nodded. After her mother left the room, defendant asked what had happened to a man who had beaten his child to death. Officer Maye explained that he did not know the case to which she referred. Defendant Spikes then proceeded to describe how she had covered the baby’s nose and mouth and related other circumstances pertaining to her child’s death. These statements were uttered by defendant Spikes of her own accord and not in response to questioning by Officer Maye.

Miranda warnings are a prerequisite to custodial interrogation, and the state must establish a waiver of constitutional rights prior to interrogating a person who is in custody. Fex v. State, 386 So.2d 58 (Fla. 2d DCA 1980). Because defendant Spikes volunteered her statement without police interrogation, the state was not required to establish that she had waived her rights. See Eleuterio v. Wainwright, 587 F.2d 194 (5th Cir.), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979); Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); Dempsey v. State, 238 So.2d 446 (Fla. 3d DCA), cert. denied, 240 So.2d 646 (Fla.1970).

We find no error in the court’s refusal to instruct the jury on the elements of assault and battery as lesser included offenses of second-degree murder. Martin v. State, 342 So.2d 501 (Fla.1977) and Brown v. State, 245 So.2d 68 (Fla.1971) serve as authority for our affirmance of the court’s action.

We find merit in defendant’s contention that the court was required to sentence her as a youthful offender under section 958.04, Florida Statutes (1979), which provides:[]

958.04 Eligibility for youthful offender; classification.—
(1) The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
(2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
(a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.

Defendant Spikes was nineteen years old at the time the offense was committed. Her presentence investigation report disclosed no prior record. Although it is punishable by life imprisonment, second-degree murder is classified a first-degree felony. § 782.04(2), Fla.Stat. (1979). These circumstances, argues defendant Spikes, bring her within the statute’s mandate that she be sentenced by the court as a youthful offender for a period of incarceration not to exceed four years followed by a period of not more than two years to be served in a community control program under section 958.05(2).

In State v. Goodson, 403 So.2d 1337 (Fla.1981), the supreme court ruled that the statute provides mandatory classification as a youthful offender if the statutory prerequisites are satisfied. Although defendant Spikes failed to raise the issue before the trial court, we may consider fundamental sentencing errors raised for the first time on appeal. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

For these reasons, we affirm defendant’s conviction but vacate her sentence and remand for resentencing in accordance with this opinion.

      . The legislature amended the statute, effective October 1, 1980, chapter 80-321, Laws of Florida, by removing its mandatory provisions. The amendment does not apply to defendant Spikes.


author: ORFINGER, Judge.

text:
    Andrew J. MASKER, Appellant, v. Richey T. SMITH, d/b/a Richey’s Used Cars, Appellee.
    No. 80-1146.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.
    Rehearing Denied Nov. 6, 1981.

      Joseph H. Williams of Troutman, Parrish & Williams, P.A., Winter Park, for appellant.
    J. Joaquin Fraxedas, Orlando, and Robert C. Cooper of Cooper & Rissman, P.A., Orlando, for appellee.
   ORFINGER, Judge.

Appellant, as plaintiff below, contends that the trial court erred in entering a summary final judgment in favor of appel-lee in this action brought on separate counts of negligence, breach of warranty and strict liability. We affirm.

Plaintiff alleged that eleven days after purchasing a used 1957 automobile from defendant, a used car dealer, the brakes on the car failed when he attempted to stop at a stop sign, as a result of which he went through the stop sign into the path of an automobile approaching the intersection, and suffered injuries in the resulting collision. He contended in the first count that defendant had repaired the brakes prior to selling the car to plaintiff, and had done so negligently. Count II alleged a breach of implied warranty of fitness and Count III relied on strict liability in tort, alleging that defendant had created an unreasonable risk of harm by placing the car on the market with a defect in the braking system.

I. THE NEGLIGENCE COUNT. To support his motion for summary judgment on this count, defendant filed an affidavit specifically stating that during the few days of his ownership of the vehicle in question, no repairs were made to the automobile or to its braking system. To counter that, plaintiff relied on deposition testimony of John Young, the former owner of the car, and his mechanic, both of whom could not recall having any work done on the brakes, although they both conceded the possibility that the brakes had been worked on during the approximately five years of Young’s ownership.

The testimony of Young and his mechanic was “negative” testimony which has no probative value. It was not positive evidence that they had not repaired the brakes and did not create an issue of fact on the question of repairs by appellee.

Nevertheless, appellant says that even if appellee did not inspect the brakes, he had a duty to inspect them before selling the car, and since he concedes that he did not inspect the brakes, he breached this duty and is thus responsible for the resultant damages caused by virtue of the brake failure.

Plaintiff submitted an affidavit of an accident reconstruction expert in which the expert testified that he had torn the brake system down after the accident and discovered that in an earlier repair to the brakes an O-ring had been improperly installed in a wheel cylinder, thereby permitting brake fluid to leak and eventually causing the brakes to fail for lack of fluid. The record also shows that plaintiff had driven the auto briefly before purchasing it and for eleven days after purchasing it without noticing any brake problem prior to the actual failure. This evidence leads to the inescapable conclusion that the defect in the brake system was latent and could not have been discovered by appellee unless he tore the brake system apart as did the expert witness.

Whatever may be the duty of a used car dealer to inspect a vehicle prior to sale for defects which could or might be discovered by reasonable and customary inspection, a point not before us and therefore one which we do not decide, we are not aware of any duty on such dealer to discover latent defects which by their very nature could not be discovered by a reasonable and customary inspection. The summary judgment was properly entered on the negligence count.

II. BREACH OF WARRANTY. It is undisputed that the sales agreement between the parties stated that the vehicle was purchased “as is.” Appellee relies on section 672.2-316(3)(a), Florida Statutes (1979), which says:

Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.

Appellant recognizes the statute, but says that an issue of fact exists as to the elimination of the warranties under Knipp v. Weinbaum, 351 So.2d 1081 (Fla.3d DCA 1977). In that case, the court held that the disclaimer of implied warranties, to be effective, had to be part of the basis of the bargain between the parties and that there was conflicting evidence in the record as to the intended meaning of the disclaimer. Here there is no conflict because appellant offered nothing to the trial court to challenge the effectiveness or meaning of this provision. The record thus shows the disclaimer in the sales agreement and nothing else. Without more, we are constrained to give the intended effect to the disclaimer as required by the statute, because there is nothing in the record to create an issue of fact that “the circumstances indicate otherwise.” The trial court was correct in granting a summary judgment on Count II.

III. STRICT LIABILITY IN TORT. Appellant asks the court to extend the doctrine of West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), to the seller of used goods. We see no basis for such extension. In West, the court said:

Strict liability does not make the manufacturer or seller an insurer. Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence.

Id. at 90.

Imposing liability on the seller of used or second hand goods for latent defects for which he is not responsible and which he could not discover by the exercise of reasonable care would make such dealer a virtual insurer against every kind of defect. See Fuquay v. Revels Motors, Inc., 389 So.2d 1238 (Fla. 1st DCA 1980). The trial court was correct in granting the summary judgment on Count III.

Finding no error, the judgment below is AFFIRMED.

SHARP and COWART, JJ., concur.

      . See, e. g., Seaboard Air Line Railway Company v. Myrick, 91 Fla. 918, 109 So. 193 (1926); Seaboard Coastline Railroad Company v. Welfare, 350 So.2d 476 (Fla. 1st DCA 1977).

      . Latent defect. A hidden or concealed defect. One which could not be discovered by reasonable and customary inspection. Black’s Law Dictionary, (5th ed. 1979).

      . Cf. McNamara Pontiac, Inc. v. Sanchez, 388 So.2d 620 (Fla. 5th DCA 1980), where there was an issue of fact as to the intention of the parties as to the meaning of the “as is” provision.


text:
    DEPARTMENT OF REVENUE, STATE OF FLORIDA, Appellant, v. DAVE MARLER BOATS, INC., et al., Appellees.
    No. WW-207.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Rehearing Denied Nov. 20, 1981.
    Jim Smith, Atty. Gen. and Jeff Kielbasa, Asst. Atty. Gen., Tallahassee, for appellant.

      David W. Palmer and David W. Palmer, II, Crestview, for appellees.
   PER CURIAM.

AFFIRMED. On Appeal, see Department of Revenue v. Anderson, 389 So.2d 1034 (Fla. 1st DCA 1980); Davis v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977). On cross-appeal, see Rule 9.020(g), Fla.R.App.P.

ERVIN, J., LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: SCHWARTZ, Judge.

text:
    Randolph E. KOUT and Mary Ann Berlin, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF REAL ESTATE, Appellee.
    No. 80-1927.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    As Amended on Denial of Rehearing Nov. 16, 1981.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and David M. Rogero, Miami, for appellants.
    Frederick H. Wilsen and Bruce Douglas Lamb, Tallahassee, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

The hearing officer found that the appellant-licensees had not committed the offenses of which they were accused and concluded that the charges against them should be dismissed. On review, the Board of Real Estate nevertheless entered an order suspending their licenses for 90 days on the asserted ground that the facts found by the officer established violations of Section 475.25(l)(b), Florida Statutes (1979). Our analysis of the findings reveals that this determination was completely incorrect. See Waltman v. Florida Real Estate Commission, 254 So.2d 32 (Fla. 3d DCA 1971); Rivard v. McCoy, 212 So.2d 672 (Fla. 1st DCA 1968), cert. denied, 219 So.2d 703 (Fla. 1968); see generally, Pauline v. Borer, 274 So.2d 1, 3 (Fla.1973). The order below is therefore completely unsupported by the conclusions reached by the trier of fact and accordingly must be reversed. Section 120.-57(l)(b)(9), Florida Statutes (1979); Chakford v. Strum, 87 So.2d 419 (Fla.1956); Gruman v. State, Department of Revenue, 379 So.2d 1313 (Fla. 2d DCA 1980). The cause is remanded with directions to dismiss the proceedings.

Reversed.

      . Pursuant to the discretionary authority conferred by Section 120.57(l)(b)(9), Fla.Stat. (1979), we have awarded attorney’s fees to the appellants in the sum of $2,000.


author: DAUKSCH, Chief Judge.

text:
    William R. HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 81-263.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 6, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a sentence where the nineteen year old appellant was not afforded the statutory benefits under section 958.04, Florida Statutes (1979). He is entitled to classification as a youthful offender. Evans v. State, 398 So.2d 1018 (Fla. 5th DCA 1981); Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980); Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981). The sentence is vacated and this cause is remanded for resentencing in accordance with the statute and applicable case law.

SENTENCE VACATED AND REMANDED.

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


author: WENTWORTH, Judge.

text:
    Russell Dale WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. YY-447.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Rehearing Denied Nov. 20, 1981.

      Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant Williams asserts error in the imposition of his 15-year sentence for second degree murder, to be suspended after 10 years’ incarceration and completed by 5 years’ probation. He also contends the trial court erred in failing to sentence him pursuant to Chapter 958, Florida Statutes, the Youthful Offender Act. We find merit in both points and reverse for resentencing accordingly.

The state concedes the split sentence imposed in this case does not meet the requirements of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), that incarceration as a condition of probation shall be limited to a period of less than one year. Appellant is incorrect, however, in his further assertion of entitlement to a 10-year maximum incarceration upon resentencing. The Villery opinion states the restraint to be only that the court may not “impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” That language, in the circumstances before the court, clearly refers to the entire term previously imposed, including the conditional period of incarceration. The maximum sentence in this case is therefore a total term of 15 years, or such greater sentence as may be imposed for proper reasons articulated by the court, excluding retaliatory or vindictive motivation, in accordance with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also, Cunningham v. State, 385 So.2d 721 (Fla.3d DCA 1980); Russell v. State, 386 So.2d 285 (Fla. 4th DCA 1980); and Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979).

With respect to appellant’s status as a youthful offender, there is no dispute that he was under 21 years of age and met the criteria of § 958.04(2), Florida Statutes, as to absence of specified previous convictions. But the state contends that the offense of second degree murder under § 782.04(2), Florida Statutes, to which appellant pled nolo contendere, is not “a crime which is, under the laws of this state, a felony of the first . . . degree” [emphasis supplied] within the terms of § 958.04(l)(b). The terminology in question is defined by § 775.-082(3), Florida Statutes, to include a felony which is punishable, “when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” Section 782.04(2), Florida Statutes, provides appellant’s offense of second degree murder “shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in § 775.082 . . . . ” [emphasis supplied] In view of that language and the provision of § 775.021(2) applying Chapter 775 definitions to “offenses defined by other statutes,” we conclude that second degree murder under § 782.04(2) may not, as the state contends, be classified a life felony, beyond the purview of Chapter 982, because it may be punished by life imprisonment. Instead, the precisely stated classification of “life felony,” in existence at the time Chapter 982 was adopted, was contained in § 775.082(3), Florida Statutes, limiting that class of felonies to those for which one may be punished as follows: “For a life felony, by a term of imprisonment for life or for a term of years not less than 30." [e.s.] No such minimum penalty has been prescribed for second degree murder, which instead falls within the class of first degree felony and is expressly so designated by § 782.04(2).

We conclude accordingly that the authorization of imprisonment for “a term of years not exceeding life” under § 782.04(2) does not reasonably support classification of the offense as a life felony for Chapter 958 purposes, contrary to the express provision that the offense “shall constitute a felony of the first degree.” We also note that the general classification section of Chapter 775 includes as a “felony of the first degree” an offense which “when specifically provided by statute [is punishable] by imprisonment for a term of years not exceeding life . . . . ” Section 775.082(3)(b), Florida Statutes. As above noted, the latter statute limits life felonies to those having a penalty of “a term of years not less than 30,” which is not true for appellant’s offense of second degree murder under § 775.082(3)(b). That offense is accordingly not excluded by the clear language of the youthful offender law but instead is within its explicit terms requiring such classification for one otherwise qualified whose offense “is, under the laws of this state, a felony of the first . . . degree . . . .” § 958.04(l)(b) and (2). Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980); Blue v. State, 402 So.2d 1339, (Fla. 1st DCA 1981). Accord Stancil v. State, (Fla.2d DCA, 1981), FLW 128; Dade County v. Goldstein, 384 So.2d 183 (Fla.2d DCA 1980).

The sentence appealed is therefore reversed and the cause remanded for resen-tencing in accordance herewith.

ERVIN and JOANOS, JJ., concur.


text:
    FOSTER WHEELER ENERGY GROUP, Continental Insurance Companies, and Underwriters Adjusting Company, Appellants, v. Armand FAIRHURST, Appellee.
    No. XX-448.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 20, 1981.

      Joseph M. Mason, Jr., Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellants.
    Maureen Emmet-Miller, Watson, Gold-stein, Earle, Douglass & Dubbeld, St. Pe-tersburg, for appellee.
   PER CURIAM.

Upon consideration, we have concluded that the carrier’s payment on January 4, 1978 of interest on compensation payable under a worker’s compensation order should be deemed “compensation” within the meaning of that term as used in the two year statute of limitations provision of Section 440.19(2)(b), Florida Statutes (1979). In so deciding we follow the rationale of Lockett v. Smith, 72 So.2d 817 (Fla.1954), and find that interest owed by the employer/carrier on sums due to the claimant for disability compensation serves to compensate the claimant, rather than to penalize the E/C. Cf. Ferlita v. Florida Art Stucco Corporation, 74 So.2d 893 (Fla.1954). The December 14, 1979 letter from the E/C’s attorney to claimant’s attorney indicates that the only possible obstacle to the E/C’s acceptance of liability was the receipt of medical confirmation of a causal relationship between the claimant’s current ear problems and his industrial accident. We think this interpretation is one that reasonably could be made, notwithstanding the letter’s further qualification “if the applicable Statute of Limitations has not expired,” since the claimant’s ear problems and Dr. Rubin’s treatment occurred well within the two-year period, and the statute had not run when the letter was written. The E/C cannot, intentionally or otherwise, mislead a claimant into believing that his injury would be considered compensable if adequately shown by adequate medical proof to be causally related to his industrial accident, and then interpose the statute of limitations as a defense after the time for filing a formal claim has expired. Pate v. Bay County School Board, IRC Order 2-3076 (19 ); Shockley Plumbing Inc. v. Yarbrough, IRC Order 2 — 2450 (19 ); Catalano v. Hillsborough County Board of Public Instruction, 249 So.2d 24 (Fla.2nd DCA 1971). The December 28, 1979 letter from claimant’s attorney to the E/C’s attorney, enclosing a December 17, 1979 letter from Dr. Rubin relating the claimant’s current ear problems to his accident, adequately demonstrates the claimant’s reliance upon the indications from the E/C’s attorney’s letter of December 14, 1979 that the claim for medical benefits would be accepted. In view of the self-executing nature of the worker’s compensation law, we conclude that the deputy commissioner’s refusal to apply the statute of limitations to bar the medical claim in this instance was justified. See Southern Culvert Pipe Co. v. Oswalt, 382 So.2d 1365 (Fla. 1st DCA 1980). We also affirm the deputy commissioner’s finding that Dr. Rubin’s treatment of the claimant was of an emergency nature, rendering it impracticable for the claimant to seek prior authorization, and that the medical evidence was sufficient to establish a causal relation between the condition for which the claimant was treated and his prior industrial accident. We further find without merit the contention by the E/C that since no formal claim was filed, the award of attorney’s fees was error. The claimant’s January 15,1980 letter requesting a hearing on his request for medical benefits satisfies the requirement of a “claim” for purposes of awarding attorney’s fees. See Car Stop Unlimited, et al. v. Salmon, 404 So.2d 172 (Fla. 1st DCA 1981).

AFFIRMED.

BOOTH, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: JOANOS, Judge.

text:
    REGENCY WOOD CONDOMINIUM, INC., a non-profit Florida Corporation, Appellant, v. BESSENT, HAMMACK AND RUCKMAN, INC., a Florida corporation; Holmberg Construction Company, a Florida corporation; Southern Townhouse Corporation, a Florida corporation; Houdaille Industries, Inc., a Florida corporation; Jax Utilities Construction Co., a Florida corporation; and Regency Utilities, Inc., a Florida corporation, Appellees.
    No. ZZ-69.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 20, 1981.
    Joseph P. Milton and Thomas R. Ray, Jacksonville, for appellant.
    Stephen H. Durant, Stephen D. Halker, E. Robert Williams, John S. Duss, IV, Herbert R. Kanning, Betsy C. Cox and Richard C. Stoddard, Jacksonville, for appellees.
   JOANOS, Judge.

Regency Wood, a condominium association, brought suit against the 'condominium developer and various entities allegedly responsible for the design, construction, maintenance or repair of a part of the common elements (specifically, Greencastle Drive) for which Regency Wood has the duty of care under the declaration of condominium. After motions to dismiss alleging numerous grounds were filed by each defendant, the first complaint was dismissed with leave to amend. Regency Wood then filed an amended complaint which was substantially identical to the original, an, after memorandum were filed by each side, the “amended” complaint was again dismissed with leave to amend. Instead of amending, however, Regency Wood’s attorney notified the judge that his client wished to stand on the complaint as it read and sent an order for the judge to sign dismissing the complaint with prejudice. The trial court then entered the final order of dismissal appealed from by Regency Wood. We hold that dismissal of the amended complaint was improper and reverse.

According to the allegations of the amended complaint, the developer, Southern Townhouse, dedicated Regency Wood, Phase II to condominium ownership on August 27, 1973 and retained majority control over the condominium association until January 8, 1976. In construction of the condominium, the developer contracted with Bes-sent, Hammaek and Ruckman, Inc. to provide engineering services and develop plans and specifications. Holmberg Construction was hired as general contractor and Houd-aille Industries was the sub-contractor responsible for the construction of the sanitary sewer and underdrain system for Greencastle Drive.

Regency Wood alleged that latent defects (depressions) appeared in Greencastle Drive during the spring of 1974 and again in the spring of 1976 at the location where the drain and sewer system crossed under the road. On the latter occasion, large underground holes were discovered which the developer employed Jax Utilities Construction Co., Inc. to repair. The depressions and cracks in the road reoccurred in May to August of 1977. Inspection revealed a broken sewer pipe and an improperly constructed drainage system. Jax Utilities again attempted to repair. All repairs of the road and underlying drainage system from 1974 through 1977 were made without Regency Wood’s knowledge or approval. Finally, in June of 1979, the problem reappeared revealing, on inspection, large holes resulting from improper drainage, engineering, construction and/or repair.

Relying on these allegations, Regency Wood filed its complaint on November 28, 1979 and sought recovery under four counts. Count I alleged that the repeated depressions resulted from the negligence of the defendants in drainage design, excavation, supervision, installation, repair, and diagnosis of the problem. Count II alleged that Regency Wood was a third party beneficiary of the various contracts entered into between the developer and the engineer, the contractor, and those companies responsible for repair or maintenance of Greencas-tle Drive. Regency Wood stated that it did not have copies of the contracts but believed that the defendants had copies. Under Count III, Regency Wood alleged that Regency Utilities owned the easement to Greencastle Drive and owed Regency Wood a duty, which was breached, to properly maintain and repair the easement. Count IV alleged that by reason of the contracts mentioned in Count II, each defendant owed a duty to Regency Wood which was breached.

Most of the grounds for dismissal raised by the appellees do not, in our opinion, require lengthy discussion. Dismissal was not warranted for failure to attach the contracts , failure to state a cause of action for negligence , or failure to properly allege a class action under Florida Rule of Civil Procedure, Rule 1.221. In addition, the third party beneficiary count should not have been dismissed without reviewing the contracts, and Regency Wood was never given the opportunity to obtain the contracts through use of discovery.

The ground relied upon by the trial judge in her order and argued most thoroughly by the parties is the contention that Regency Wood’s suit is barred by the statute of limitations in § 95.11(3)(a) and (c), Florida Statutes, 1979. That section provides, in pertinent part:

95.11 Limitations other than for the recovery of real property.-—
(3) WITHIN FOUR YEARS.—
(a) An action founded on negligence.
(c) An action founded on the design, planning or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer; except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event the action must be commenced within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

The trial judge found from the allegations of the complaint that the cause of action arose in 1974 and, therefore, under the four year limitation period of § 95.11(3), the action was barred.

Regency Wood argues that § 95.11(3) was not properly applied in this case. In January 1977, the legislature adopted § 718.124, Florida Statutes, entitled “Limitation on Actions by Associations,” which provides:

The statute of limitations for any actions in law or equity which a condominium association or cooperative association may have shall not begin to run until the unit owners have elected a majority of the members of the board of administration.

According to the allegations of the complaint, the developer maintained majority control of the association until January 8, 1976. If § 718.124 applies, the four year period of § 95.11(3) would not begin to run until January 8, 1976, and the complaint, filed on November 28, 1979 would be timely-

The appellees have argued that § 718.124 is inapplicable for several reasons. Citing B & J Holding Corporation v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1978), they contend that § 718.124 applies only to a cause of action arising out of Chapter 718, while the theories of recovery in this case arise out of common law. The appellees’ reliance on B & J Holding is misplaced. The statute in B & J Holding (§ 711.24, Florida Statutes (1973)) created a cause of action for purchasers of a condominium who relied on false or misleading advertising. The final paragraph of § 711.24 provided that “[ujnder no circumstances shall a cause of action created or recognized under this section survive for a period or [sic] more than five years after the closing of the transaction.” (e. s.) Since the plaintiffs in B & J Holding sued under contract and implied warranty theories, not § 711.24, the court’s summary conclusion that the limitations period of § 711.24 did not apply was easy to understand. The statute in this case by its terms applies to “any actions in law or equity which a condominium association . . . may have . . . . ” Unlike § 711.24, there is no justification in the language of § 718.124 for limiting its application to actions under Chapter 718; in fact, the opposite intent is expressed.

The second argument made by appellees is that the legislature did not clearly express an intention that § 718.124 be retroactively applied to a cause of action arising out of events occurring prior to the statute’s effective date. Citing Foley v. Morris, 339 So.2d 215 (Fla.1976), and Homemakers, Inc. v. Gonzales, 400 So.2d 965 (Fla.1981), appellees contend that if the intent is not sufficiently manifested, the statute should be prospectively applied only. In response, Regency Wood points out that at the time § 718.124 became law, the association’s cause of action was still viable. Regency Wood argues that the statute did not revive a claim, it merely extended the previous statute of limitations under § 95.11. See, e. g. Mazda Motors of America v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978).

In Foley, the Florida Supreme Court refused to retroactively apply an amendment to a statute of limitations which had the effect of shortening the statute. The Court quoted two district courts of appeal decisions reaching the same result on the rationale that if there was a reasonable doubt as to the legislature’s intention to apply the statute retroactively, the doubt should be resolved in favor of the party whose cause of action was dismissed. Finally, the Court noted that “in the absence of a clear manifestation of legislative intent to the contrary, statutes of limitation are construed as prospective and not retrospective in their operation, and the presumption is against any intent to make such a statute retroactive.”

This Court in Mazda Motors stated that the Foley decision was intended to apply only where the statute of limitations was shortened. The court reasoned that where, as in this case, the statute extended the period of limitations, it does not impair a vested right; hence, it was not “retroactive legislation.” Our analysis in Mazda Motors was apparently rejected in Homemakers, Inc., where the Florida Supreme Court held that a provision which would have the effect of lengthening the limitations period for an existing cause of action was prospective only. According to the Court, “a statute of limitations will be prospectively applied unless the legislative intent to provide retroactive effect is express, clear and manifest.” Thus, our duty in this case is to determine whether the legislature intended § 718.124 to apply to causes of action which accrued prior to the effective date of that statute. In this regard, the statute in this case is distinguishable from the statute in Homemakers, Inc.; we determine that § 718.124 was intended to apply to causes of action which accrued prior to the effective date of the act.

The statute construed in Homemakers, Inc. was subject to several amendments over a two year period with the effect that some causes of action under the original provision were shortened while others were lengthened. Along with one of these amendments, the legislature enacted a “savings clause,” which provided a one year grace period for the filing of causes of action that would be prematurely barred by the new statute of limitations. The plaintiff in Homemakers, Inc., argued that the “savings clause” should be applied to lengthen her pre-existing cause of action. Finding no indication of any legislative intent that the provision be used to lengthen a cause of action, the Court noted that “the obvious purpose of enacting a savings clause is to satisfy the constitutional mandate that to shorten a period of limitation, the legislature must by statute allow a reasonable time to file actions already accrued.”

Just as the obvious purpose of the provision in Homemakers, Inc. was to apply to a shortened limitations period, the obvious purpose of § 718.124 was to lengthen the limitations period for particular causes of action. Section 718.124 was intended to prevent a developer from retaining control over an association long enough to bar a potential cause of action which the unit owners might otherwise have been able and willing to pursue. To this end, the statute provides that an association’s cause of action does not accrue until the unit owners have acquired control over the association. The legislature’s intention to apply this provision to pre-existing causes of action which were viable at the effective date of the statute is expressed through its application to “any actions . . . which a condominium association . . . may have . (e. s.) As of the effective date of § 718.124, Regency Wood had a viable cause of action against the developer and its contractors for the damage to one of the association’s common elements. Under the specific language of the statute, this action was deemed not to have accrued until January 8,1976, the date when majority control over Regency Wood by unit owners was alleged to have occurred. Regency Wood had four years from that date to file its complaint. Thus, looking at the allegations of the complaint, Regency Wood’s cause of action was timely filed and dismissal was improper.

REVERSED and REMANDED for reconsideration consistent with this opinion.

ROBERT P. SMITH, Jr., Chief Judge, and THOMPSON, J., concur.

      .Although the failure of Regency Wood to substantially amend the complaint might have justified a dismissal with prejudice, the judge was within her discretion in hearing further argument on the original grounds of the motions to dismiss and in allowing leave to amend. Since the trial judge did not view Regency Wood’s breach of the rules as justification for dismissal with prejudice, we do not feel it appropriate to uphold the dismissal for that reason.

        . Sachse v. Tampa Music Co., 262 So.2d 17 (Fla. 2nd DCA 1972).

      . See, e. g., Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1980).

      . A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973).

      . Sachse v. Tampa Music Co., supra.

      . Although the statute of limitations defense is ordinarily brought as an affirmative defense, the trial judge was correct in her statement that the statute of limitations may be raised by motion to dismiss if the facts supporting the defense appear on the face of the complaint.


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

text:
    W. R. GRACE & CO. and CNA Insurance Group, Appellants, v. Gerald L. MARSHALL, Appellee.
    No. ZZ-489.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 20, 1981.
    Wendell J. Kiser and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Ernest M. Jones, Jr., of Jacobs, Valentine, Groseclose & Miller, P. A., Lakeland, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier contest the deputy commissioner’s interpretation and application of section 440.49(l)(c), Florida Statutes (1979), by an order that both found Marshall permanently and totally disabled, due to loss of wage earning capacity, and that Marshall should be evaluated for vocational rehabilitation. The deputy thus ordered payment of chapter 440 benefits for permanent total disability from the date of maximum medical improvement, some 13 months before the compensation order, and ordered Marshall referred to the Division of Labor for vocational rehabilitation evaluation.

Section 440.49(l)(c), enacted in 1979 as chapter 79-40, § 37, Fla. Laws, provides:

Prior to adjudicating an injured employee to be permanently and totally disabled, the deputy commissioner shall determine whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

Because the statute is plainly procedural, it is applicable to Marshall’s case notwithstanding that the subject injury occurred in 1977. See Myers v. Carr Constr. Co., 387 So.2d 417 (Fla. 1st DCA 1980). We find that the deputy complied with the statute, fairly construed, by determining in the same order that claimant probably could and in his best interest should be rehabilitated with appropriate training, and that claimant is now permanently and totally disabled due to loss of wage earning capacity. To require the complete course of rehabilitation evaluation, reference to an appropriate facility, and the prescribed training as conditions to recognizing a claimant’s present permanent disability, would leave claimant either without compensation for his present disability or in receipt of an adulterated type of temporary disability benefits extending beyond the date of his maximum medical improvement. Because the statute permits the construction that best serves what we conceive to be the best interests of all affected parties and the harmonious administration of chapter 440, we adopt that construction and affirm the deputy’s order in this and other challenged respects.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Todd Edwin HYDE, Appellant, v. STATE of Florida, Appellee.
    No. AC-26.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 20, 1981.
    Richard M. Powers, Flynn & Powers, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On Hyde’s appeal from a judgment of conviction entered on his nolo con-tendere plea, reserving the right to appeal the court’s denial of his motion to suppress evidence of Hyde’s field of growing marijuana plants, we find the search did not offend Fourth Amendment standards and that the court properly denied the suppression motion. However, there being no available record showing that the nolo con-tendere plea was accepted by the court after the required inquiries to Hyde, Fla.R. Crim.P. 3.170(j), 3.172, Hyde was free to withdraw his plea and the court erred in failing to allow withdrawal. The judgment must be vacated and the case remanded for further proceedings.

REVERSED.

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


author: PER CURIAM. HURLEY, Judge,

text:
    POMPANO BEACH POLICE AND FIREMEN’S PENSION FUND, Petitioner, v. Orestes J. FRANZA, Respondent.
    Nos. 79-2511, 79-2514.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 23, 1981.
    Stephen H. Cypen of Cypen & Nevins, Miami Beach, for petitioner.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

We have for review an order of the circuit court, sitting in its appellate capacity, which reversed the Pompano Beach Police and Firemen’s Pension Fund’s denial of Orestes J. Franza’s application for disability retirement and directed the Fund to pay and process the disability application.

In an abundance of caution the Fund filed both a petition for writ of certiorari (Case No. 79-2511) and a notice of appeal (Case No. 79 — 2514) to review the order of the circuit court. Thereafter the Fund sought to consolidate the cases. By order we granted the motion to consolidate both of said cases and directed that they proceed in accordance with Florida Appellate Rule 9.110(a)(1). However, since the matter was appealed to the circuit court and can only be reviewed here by certiorari, as successive appeals are not available, we treat the matter as a petition for writ of certiorari. We quash the order of the circuit court.

Franza had been a member of the Pension Fund for almost five years when he filed an application with the Fund’s Board of Trustees for disability retirement from the position of Police Chief of the City of Pompano Beach on the basis of a back injury and heart condition incurred in the line of duty. Following a hearing, the Board denied Franza’s application. On review by the circuit court, the findings of the Board regarding Franza’s heart condition were reversed and the court ordered the Board to process Franza’s disability application. When its motion for rehearing was denied, the Fund instituted these proceedings to challenge the appellate decision of the circuit court. Our review of this case has convinced us that the circuit court’s reversal was not justified by the record before it.

At a hearing before the Board of Trustees of the Pension Fund three doctors testified and the Board had the benefit of a report of a fourth doctor. Three of the medical experts opined that Franza was not able to perform the duties of the job classification. One of those three experts believed Franza could perform most of the duties, but was particularly concerned over his ability to handle the responsibility factor. Thus, even the testimony of these three doctors fails to prove that Franza is totally disabled to perform the duties involved. As the court held in Nuce v. Board of Trustees, 246 So.2d 610 (Fla. 3rd DCA 1971), the disability provision of the retirement system involved does not provide for partial disability and, thus, the appellant was not entitled to retirement for the service connected cardiac disease.

However, even if the medical evidence from the three doctors referred to demonstrated a service connected total disability, the fourth doctor, Dr. Marangoni, testified that Franza was able to perform the duties of the office involved. This doctor is a Fellow of the American College of Cardiologists and American College of Physicians; he is board certified and appears to have excellent medical credentials. His testimony, though in conflict with the other doctors in varying degrees, is neither inherently incredible nor improbable and thus it alone constitutes substantial competent evidence upon which the Board of Trustees could rest their decision. As the court stated in Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3rd DCA 1976):

The question of the weight and credibility of the evidence is for the administrative agency and not the reviewing court, even though the court may have reached a different conclusion on the same testimony. [Citations omitted] The court should not substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses. [Citation omitted] . . .
Neither the circuit court in its appellate capacity, nor this court should reweigh the conflicting evidence. [Citations omitted] — 339 So.2d at 304.

See also Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1981).

Since we find the record contains substantial competent evidence supporting the agency decision, it was error for the circuit court in its appellate capacity to overturn that decision.

Accordingly, the petition for writ of cer-tiorari is granted; the order of the circuit court is quashed; and the matter is remanded to the circuit court with directions to reinstate the decision of the Board of Trustees.

DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.

HURLEY, J., dissents, with opinion.

HURLEY, Judge,

dissenting.

I respectfully dissent. In my view the lower court was justified in disregarding the testimony of Dr. Marangoni on the basis that it was inherently incredible. It is simply unrealistic to suggest that the position of police chief in a growing metropolitan community is not stressful. This is the underlying premise of Dr. Marangoni’s testimony which, in my view, is so patently untenable as to render it unworthy of belief.

Prior to making its determination concerning the heart disability, the Board received reports from four doctors and heard three of them testify. With the exception of Dr. Marangoni, these sources were consistent in concluding that Franza’s heart condition rendered him totally disabled as the police chief of Pompano Beach. The difference between Dr. Marangoni’s conclusions and those of the other doctors stems from his perception of the functions performed by a police chief. While Dr. Maran-goni’s written report reflects an initial finding that Franza was “totally disabled” and recommends retirement, his subsequent reading of the job code for the police chief caused him to reconsider. Based on the outline of duties provided therein, Dr. Mar-angoni testified that he did not believe it portrayed a stressful occupation, but rather, one that was “all sedentary.” Consequently, he concluded that Franza could function as the Chief of Police of Pompano Beach despite his heart condition. This, I submit, defies common sense.

When reviewing a decision of a lower tribunal, the circuit court’s scope of review is limited to determining whether the decision was supported by competent substantial evidence and was in accord with the essential requirements of law. DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957); McCray v. County of Volusia, 400 So.2d 511 (Fla. 5th DCA 1981); Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980). Since the Board apparently relied on Dr. Marangoni’s testimony as opposed to the other medical evidence presented, the concern herein is whether his testimony constituted “substantial competent evidence” sufficient to support the Board’s action. The following excerpt from DeGroot v. Sheffield, supra, offers some guidance:

We have used the term “competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. ... In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent.”

95 So.2d at 916 (citations omitted). See also, Duval Utility Co. v. Florida Public Service Comm’n, 380 So.2d 1028 (Fla. 1980); 1 Fla.Jur.2d Administrative Law §§ 172-75 (1977). Absent such substantial supporting evidence, an appellate court will reverse the findings of a lower tribunal. Miami Transit Co. v. Dalton, 156 Fla. 485, 23 So.2d 572 (1945).

While, according to the job description, the police chief’s functions are largely directory, the responsibility factor involved is also emphasized. In fact, it is dealt with separately in the job code under the topic “Distinguishing Features of the Position.” It is this ultimate responsibility, present in all the “sedentary” and supervisory functions regardless of delegation, which caused the other doctors to find that Franza was totally disabled.

In contrast, Dr. Marangoni’s approach is to view the various ministerial and supervisory functions of the police chief as separate and distinct from the responsibility therefor. This perception of the individual duties as existing in the abstract is so strained as to be unacceptable. Clearly, occupying the position of Police Chief of the City of Pompano Beach, a growing city with a population of approximately 55,000 at the time Franza sought disability retirement, is stressful. While it is not the function of an appellate court to reweigh and reevaluate evidence, the court does have the right to reject “inherently incredible and improbable testimony or evidence.” Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976). Consequently, I believe that the Circuit Court, sitting in its appellate capacity, was entitled to disregard Marangoni’s testimony and to find that “the only legally competent evidence herein shows [Franza] to be permanently incapacitated ‘from regular and continuous duty’ as Police Chief due to heart disease.”


text:
    Patricia Ann COLE, a minor by and through her parent, natural guardian and next friend, Patricia Viola Leach and Patricia Viola Leach, in her own right, Appellants, v. Morley Allen LEACH and South Carolina Insurance, Appellees.
    No. 80-2219.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 19, 1981.
    Michael P. Lesniak of James & Lesniak, P. A., Fort Pierce, for appellants.
    S. Carol McLean and Marjorie D. Gadari-an of Jones & Foster, P. A., West Palm Beach, for appellees.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

This dog bite case met its demise in the initial pleading stage. The complaint did not allege that the defendant owned the dog. Defendant’s motion to dismiss not only alerted the court to the absence of any allegation concerning ownership of the dog, but also gratuitously alleged, apparently as the coup de grace, that the dog was, in fact, owned by the plaintiffs. Being satisfied that the defendant was not the owner of the dog, the court dismissed the complaint with prejudice on that ground. We reverse.

The complaint was in three counts. Count I alleged, in substance, that while the minor plaintiff, Patricia Ann Cole, and her mother were social guests in the home of the defendant, the latter carelessly and negligently caused an assault and battery upon the person of the minor plaintiff in the presence of a dangerous dog when the defendant either knew or should have known that violent behavior on defendant’s part in the presence of the dog would cause the dog to attack and injure persons in its immediate vicinity, and that as a consequence of defendant’s conduct in causing the assault and battery upon the person of the minor plaintiff, the dog did enter into the fray and bite the minor plaintiff. Count III was the derivative claim of the minor plaintiff’s mother.

Had plaintiffs’ cause of action against the defendant been founded upon the statutory liability of a dog owner under Chapter 767, Florida Statutes, the complaint surely would have to allege defendant’s ownership of the dog in order to successfully withstand a motion to dismiss. But here, plaintiffs travel on a legal theory entirely unrelated to ownership of the dog, namely, common law negligence of the defendant. Although the complaint might have been more artfully drafted, we hold that it sufficiently alleges defendant’s negligent conduct and the minor plaintiff’s injury proximately resulting. One whose negligence causes injury to another is liable for all of the consequences that naturally and proximately flow from such injury, Cone v. Intercounty Telephone and Telegraph Company, 40 So.2d 148 (Fla.1940), including injury from an intervening cause when such intervening cause is itself a reasonably forseeable consequence of the tort-feasor’s conduct, Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980), the question of whether the intervening cause was reasonably foreseeable being one for the trier of fact. Gibson v. Avis Rent-A-Car Systems, Inc., supra.

Count II did not allege a valid cause of action. The order dismissing the complaint with prejudice is reversed as to Counts I and III, and this cause remanded to the trial court for further proceedings. Upon the issuance of mandate in this cause, the court is authorized, in the exercise of its discretion and in the interest of justice, to permit amendment to the complaint.

REVERSED AND REMANDED.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

      . We are concerned only with the sufficiency of the allegations of the complaint, not with the truth of the allegations or with any defenses that might be affirmatively pleaded.