author: BOARDMAN, Acting Chief Judge.

text:
    Leo WILLICK, Appellant, v. Helen E. WILLICK, Appellee.
    No. 81-2342.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1982.
    As Amended on Denial of Rehearing Oct. 6, 1982.
    Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for appellant.
    Alex D. Finch, Clearwater, for appellee.
   BOARDMAN, Acting Chief Judge.

Leo Willick (the husband) appeals portions of the final judgment of dissolution of his marriage to Helen E. Willick (the wife). We reverse on one point, but otherwise affirm.

On September 12, 1980, the wife filed a petition for dissolution of the parties’ marriage, also seeking, among other things, adjudication of the parties’ property rights. A pretrial conference was held on September 9, 1981. After final hearing held on September 21, 1981, final judgment was entered dissolving the marriage and, inter alia, ordering the husband to purchase from the wife her fifteen shares of stock in Wil-lick Industries, Inc. The husband’s motion for rehearing was denied. This appeal followed timely.

Unfortunately, the pretrial conference was not reported. However, the trial court stated at the final hearing:

THE COURT: I think the record should reflect that the Court conducted a pretrial conference in this matter with the attorneys and certain of the matters which were previously in dispute have been resolved and will not be tried today.
It has been agreed between Counsel . .. that Mrs. Willick owns shares of stock in the corporation which is closely held by the husband as president.
MR. FINCH [the wife’s counsel]: The children, the wife and the father.
THE COURT: Right. That it has been agreed that stock will be — the value of that stock will be determined by an impartial CPA firm locally.
[I]t has been agreed that the husband will pay to the wife the fair market value of the stock.

The husband denied having agreed to purchase the wife’s shares of stock in his corporation, his trial counsel stating:

We never agreed to — we would pay her for anything other than what the Court would order, and that was an issue as of the pretrial conference. We have no issue as to whether or not the shares are hers, and I brought it up. I said that it was my position, and has been my position from pleadings filed in this case, this Court can’t order him to buy her shares or liquidate her shares. That has always been an issue.
THE COURT: That was agreed upon.
This is no longer an issue. You agreed to that on behalf of Mr. Willick. I clearly and distinctly remember it. You agreed he would pay her the fair market value, and that was the reason for naming the CPA firm to do the appraisal.
Mr. Hayden [the husband’s counsel], you are not going to renege on an agreement you made at the pre-trial. That is no longer an issue in the case, and don’t argue with me. I am ordering it, you understand that?

Again, in his motion for rehearing, the husband reiterated his denial of an agreement to purchase the wife’s stock, stating:

That the Respondent never made any agreement as to the purchase of Petitioner’s stock and all parties were keenly aware of the fact that there was no issue as to stock since fifteen (15) shares were to be given to the Petitioner. Florida law would not allow the Court to order the Respondent to pay for the shares of stock of the Petitioner as the corporation was not a party to this action. Furthermore, as to the pre-trial conference and any agreement made therein, no terms were ever discussed, nor whether the stock was to be purchased at book value, market value, or the actual value at today’s price. Yet the Court apparently misunderstood the statement made by Respondent’s counsel that no issue existed. Earlier in the cause, Respondent’s counsel objected in writing that the corporation owned by the Respondent was not subject to the litigation and that the records of the corporation’s assets were not attainable pursuant to a notice to produce. A hearing was held and the Court ordered that Respondent was to produce the value of the assets of the corporation as it was a closely held corporation and such would tend to show the ability of the Respondent to pay alimony and solely as it related to the Respondent’s ability to respond to any subsequent award of support. At no tíme was it ever discussed between counsel before or after that hearing that the stock would be bought by the Respondent.. . . Again, at no time was it agreed that Respondent would buy the Petitioner’s stock and if anything such was assumed, then apart from not having any agreement, there could not have been in law a binding agreement since no terms were given, and most importantly, no consideration was given by Respondent for the agreement to purchase.

We agree with the husband’s contention that the trial court erred in making the conclusion recited in the final judgment that the husband had agreed to purchase the wifes shares of stock in the husband's corporation. While it was the court’s recollection that such an agreement was reached at pretrial conference, any such agreement should have been confirmed in a written order. Florida Rule of Civil Procedure 1.200(c) provides:

Pretrial Order. The court shall make an order reciting the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties about any of the matters considered and limiting the issues for trial to those not disposed of by admissions or agreements of the parties. The order shall control the subsequent course of the action unless modified at the trial to prevent injustice.

(Emphasis supplied). No such pretrial order was entered here, nor was any record of the pretrial proceedings made. Without such a transcript here, we have no way of knowing whether the stipulation relied on by the trial court was actually agreed upon.

The wife relies on Compass Enterprises, Inc. v. Earls, 397 So.2d 1039 (Fla. 5th DCA 1981), which states:

Although Florida Rule of Civil Procedure 1.200 contemplates a formal pre-trial conference after notice and followed by a formal written order, in actual practice it is common for counsel and the trial court to confer immediately before trial, especially in non-jury trial cases, to narrow the issues upon which evidence need be taken. The trial court is justified in accepting and relying upon the admissions and agreements of counsel at such conferences. ...

Id. at 1040. However, that case is inappo-site for two reasons. First and foremost, the conference in that ease was held on the day set for trial and final judgment was entered at the conclusion of the conference, the trial court’s ruling at conference having obviated the need for trial. Here, in contrast, the conference was held twelve days prior to the final hearing. Second, there was no dispute in Earls as to what occurred at the conference, only a later challenge by appellant concerning the propriety of the trial court’s action at that time. The other cases relied on by the wife are also inapplicable here.

We have considered the other point raised by the husband and find it to be without merit.

Accordingly, the portion of the final judgment of dissolution requiring the husband to purchase the wife’s stock in Willick Industries is vacated and the cause remanded for further proceedings concerning this issue. The judgment is otherwise affirmed.

RYDER and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Salvatore COMPARATO, Roger J. Suders and Angelo L. Ortiz, Appellants, v. STATE of Florida, Appellee.
    No. XX-306.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Rehearing Denied Oct. 20, 1982.

      Larry G. Turner and Thomas W. Kurrus, Gainesville, for appellants.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants raise numerous points on appeal, three of which merit more than summary discussion. The facts are as follows:

Appellants’ leased vans were seen by Chief Jones, who was patrolling the Keystone Airport, emerging in a single line from a bushy area at the end of a runway from which a plane was departing. One of the vehicles stopped at a hangar owned or leased by one Barney Cam and the remaining two proceeded from the runway onto the roadway. Chief Jones, who knew that Mr. Cam was suspected of involvement in drug operations and that there had been prior investigations pertaining to the illegal transportation of drugs at the Keystone Airport, followed the vehicles and stopped the lead one, which was driven by appellant Suders, approximately 2.1 miles from the airport to inquire why appellants were trespassing on the runways, contrary to posted signs forbidding such.

When Suders exited the vehicle, Jones smelled the odor of marijuana emanating therefrom. Suders told Jones that he had been transporting freight for Mr. Cam, which information further aroused Jones’ suspicion of criminal activity. Upon Jones’ request to view the freight, passenger Com-párate emerged, produced a wad of bills, and asked if the situation could be discussed, to which Jones responded negatively. The cargo area of the vehicle was then voluntarily opened and sealed packages found therein. Jones cut through the tape of a partially opened package and discovered marijuana. Suders and Compárate were arrested and a “BOLO” placed for the second vehicle, which was thereafter stopped and the driver, Ortiz, arrested after replying affirmatively to the arresting officer’s stated belief that the vehicle contained marijuana.

The vans were thereafter searched pursuant to a search warrant issued upon affidavits of the arresting officers sufficiently setting forth, among other things, the suspicious circumstances surrounding Jones’ initial observation of the vehicles, the apparent bribe, and the odor of marijuana emanating from the lead vehicle, as well as Jones’ knowledge of Mr. Cam’s reputation and prior investigation of the airport for illegal importation of controlled drugs. Cannabis was discovered in both vans and methaqualones in the van driven by appellant Ortiz.

Compárate, Suders and Ortiz pled nolo contendere to Count I of an information charging them with trafficking in cannabis in violation of Sections 893.135(l)(a) and 893.135(l)(a)(2), Florida Statutes. Appellant Ortiz also pled nolo contendere to Count II of that same information charging him with possession of a controlled substance in violation of Section 893.13(l)(e), Florida Statutes. Each appellant reserved the right to appeal the trial court’s denial of their motion to dismiss Count I on constitutional grounds, motion to suppress evidence seized pursuant to a warrant allegedly tainted by an illegal stop and prior warrant-less search, and motion for severance limited to the question of whether the amount of cannabis was more than 2,000 pounds. Because the latter legal issue, as reserved, would not be dispositive of the case, it was not properly preserved for appeal and will not be addressed herein. On the authority of State v. Benitez, 395 So.2d 514 (Fla.1981), we affirm the denial of the motion to dismiss.

Adverting to the motion to suppress, we conclude that Chief Jones had a reasonable suspicion to justify the initial stop of the vehicle and probable cause to believe it contained marijuana. We further conclude that the warrantless search of one of the sealed packages within the vehicle was constitutional under the “automobile exception” to the warrant requirement. United States v. Ross, -U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Assuming arguendo, that the warrantless search of the package, as urged by appellants, was unconstitutional under the doctrine enunciated in Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), such a conclusion does not necessarily invalidate the subsequently issued warrant. As stated in Neary v. State, 384 So.2d 881 (Fla.1980):

... A search warrant is not invalidated by inclusion of illegally obtained evidence in the supporting affidavit where the affidavit contains other valid allegations sufficient to establish probable cause.

After excising reference to the aforementioned search from the affidavit for search warrant, we conclude that the remaining valid allegations are sufficient in themselves to establish probable cause.

Appellants also contend on appeal that the trial court committed error in sentencing them without the use of presentence investigation reports and consideration of same pursuant to Rule 3.710, Florida Rules of Criminal Procedure, and in imposing a fine of $2,181,848 against each appellant for trafficking in cannabis and an additional $272,000 against appellant Ortiz for possession of methaqualones. The State’s experts testified that the anticipated pecuniary gain for 2,000 pounds of marijuana was $1,015,-000 and $340,000 for 100,000 tablets of qua-ludes.

Rule 3.710, Florida Rules of Criminal Procedure, provides as follows:

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.

Where probation is not a viable alternative, the mandatory provision of the aforequoted rule is not applicable. See, Hargrave v. State, 366 So.2d 1 (Fla.1978); State v. Branson, 369 So.2d 945 (Fla.1979). Probation is not a permissible sentencing alternative with respect to any person found guilty of trafficking in cannabis. Section 893.-135(2), Florida Statutes. Accordingly, the trial court did not err in sentencing Com-par ato and Suders absent a PSI. However, because probation is a viable alternative with respect to one found guilty of possession of methaqualones, the trial court erred in sentencing Ortiz for that offense without a presentence investigation report and consideration of same. Angel v. State, 305 So.2d 283 (Fla. 1st DCA 1974); Johnson v. State, 355 So.2d 857 (Fla. 3rd DCA 1978).

Section 775.083(l)(a-g), Florida Statutes, sets forth the maximum fine which may be imposed for designated crimes and non-criminal violations. Subdivision (f) permits imposition of a fine higher in amount than as provided in subdivisions (a)-(e) but not greater than that amount “equal to double the pecuniary gain derived from the offense by the offender or double the pecuniary loss suffered by the victim.” That subdivision does not contemplate potential or anticipated, as opposed to actual, pecuniary gain. Subdivision (g) of Section 775.083(1) permits the imposition of a fine higher in amount than that allowed under subdivisions (a)-(f) but not greater than that “specifically authorized by statute.” Section 893.135(l)(a)(2), Florida Statutes, provides that:

(a) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree, which felony shall be known as “trafficking in cannabis.” If the quantity of cannabis involved:
(2) is 2,000 pounds or more, but less than 10,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $50,000.

Since a $50,000 fine is greater than the $10,000 fine allowable pursuant to subdivision (b) of Section 775.083(1), Florida Statutes, for the first degree felony, the former amount is the maximum amount which may be imposed upon a person found guilty of trafficking in over 2,000 but less than 10,-000 pounds of cannabis. Thus, the fines imposed upon appellants for commission of that offense were excessive. The trial court also erred with respect to the imposition of a fine in the amount of $272,000 against appellant Ortiz for possession of methaqualones in violation of Section 893.-13(l)(e), Florida Statutes. That provision provides, in pertinent part, that “any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 885.-084.” Section 775.083(l)(c), Florida Statutes, provides for a maximum fine of “$5,000, when the conviction is of a felony of the third degree.”

Accordingly, we affirm the judgments of conviction and reverse and remand the cause for resentencing consistent with this opinion.

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


text:
    Edward H. CLARK, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AL-130.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.
    Edward H. Clark, in pro. per.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Section 443.151(4)(b)3, Florida Statutes (1981), and Florida State University v. Jenkins, 323 So.2d 597 (Fla. 1st DCA 1975).

McCORD, BOOTH and WENTWORTH, JJ., concur.


author: SCHWARTZ, Judge.

text:
    ABEL, TONY AND ALDO CREATIVE GROUP, INC., Appellant, v. FRIDAY NIGHT INVESTORS, INC., Appellee.
    No. 82-763.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Rehearing Denied O.ct. 20, 1982.
    Leonardo P. Mendez, Miami, for appellant.
    Sams, Gerstein & Ward and Paul M. Rashkind, Miami, for appellee.
    Before SCHWARTZ, BASKIN and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The order vacating the final default judgment is reversed for reinstatement of the judgment because neither of the two indispensable prerequisites for granting that relief was demonstrated below. The affidavit of the defendant’s president that he had referred the complaint to an attorney whom he “thought” had responded was insufficient to demonstrate excusable neglect, particularly since the plaintiff subsequently gave notice, which was not responded to, of its intention to seek a default because no answer had been filed. Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3d DCA 1962). Moreover, the bare statement that the defendant had an unspecified “complete defense to the Complaint,” accompanied by a motion to dismiss claiming only technical deficiencies, was manifestly insufficient to show the existence of a meritorious defense. Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981).


author: WIGGINTON, Judge.

text:
    MARINAIR FREIGHT FORWARD, INC., d/b/a Graphic Productions Co., Appellant, v. FLORIDA DEPARTMENT OF COMMERCE, Appellee.
    No. AN-389.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1982.
    Michael H. Davidson, Tallahassee, for appellant.
    Don W. Davis, Gen. Counsel, and Stewart M. Lerner, Asst. Gen. Counsel, Dept, of Commerce, Tallahassee, for appellee.
   WIGGINTON, Judge.

The appellant, Graphic Productions, challenges a Department of Commerce final order denying its formal protest relating to bidding procedures for a proposed department printing project. Graphic contends that because the low bidder, Universal Printing, a Missouri corporation, was not registered to do business in Florida pursuant to Section 607.304, Florida Statutes (1981) at the time it submitted its bid, Universal should be disqualified and the contract awarded to Graphic (the second-lowest bidder).

We affirm because nothing in Chapter 607 requires a foreign corporation to register to do business in Florida before submitting a bid on a printing project.

In this regard the circumstances here are wholly dissimilar to Greenhut Construction Company, Inc. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971), relied upon by Graphic. In Greenhut, this Court reversed a judgment that would have permitted a contractor to bid on a construction project without prior registration. The result in Greenhut was dictated by the unique registration requirements of former Chapter 468, in which “contractor” was defined as one who, among other things, submits a bid to build. In effect the statute specified that to submit a construction bid is to engage in the business of a contractor, thus requiring that a contractor register to do business before bidding.

Here, however, Chapter 607 does not require the conclusion urged by Graphic that, in general, submitting a bid is the equivalent of doing business in Florida. We note that Universal registered with Florida’s Secretary of State within two weeks after the bids were opened. Graphic promptly requested and received this Court’s temporary stay, so Universal and the department have not entered into contract and work has not begun; that is, Universal has not yet “done business” within the meaning of Section 607.304.

Finally we reject Graphic’s contention that the department failed to live up to its Section 120.57 responsibilities in this case. At the department’s invitation, Graphic presented thorough legal argument in support of its protest. Although specifically given the opportunity to raise disputed issues of material fact, Graphic raised none. Therefore, we find that the department’s actions complied with Section 120.57.

Accordingly, we affirm the department’s order denying the protest and we dissolve the temporary stay previously issued in this cause.

MILLS and ERVIN, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Debra Morris PASTORIUS, Appellee.
    No. 82-134.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Motion for Clarification Denied Oct. 20, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Michael Brodsky, Miami, for appellee.
   HERSEY, Judge.

Debra Morris Pastorius was charged by Information with delivery of cannabis. She • filed a motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, on the basis that there were no disputed material facts and the undisputed facts did not establish a prima facie case of guilt.

Appellee’s motion alleged the following facts. Undercover police officers and co-defendant Bradley Pastorius, husband of ap-pellee, met between their cars in a parking lot. The officers’ car was parked twenty feet from and on the driver’s side of the other automobile. The officers and Bradley Pastorius discussed the purchase of marijuana. The conversation was not loud. Appellee, Debra Pastorius, remained in the passenger seat of her car. During the conversation, appellee got out of her car and asked her husband “Should I go get Tom?” Bradley replied, “Yeah, go get Tom.” Ap-pellee then walked out of view. Shortly thereafter, a blue van drove up and parked beside the officers’ vehicle. Appellee exited the passenger’s side of the van and walked to her car. The driver of the van, co-defendant Thomas Bernardi, exited the vehicle, opened the sliding passenger door and showed police officers a large green nontransparent plastic bag located on the floor behind the passenger seat. The officers opened the bag and saw within it numerous smaller bags of marijuana. Bradley Pasto-rius, Bernardi, and appellee were then arrested.

The state filed a sworn traverse admitting the facts but claiming that it would “prove through circumstantial evidence that the defendant, Debra Pastorius, knew that she was aiding and abetting Bradley Pastorius and Thomas Bernardi in the delivery of cannabis.”

To be sufficient, a 3.190(c)(4) motion to dismiss must allege that the material facts of the case are undisputed, set out those facts, and demonstrate that the undisputed facts fail to establish a prima facie case (or that they affirmatively establish a valid defense). If the undisputed facts as alleged in the motion do not meet this burden, then a response from the state is unnecessary and the motion may be summarily denied. If, however, the allegations do meet the test, then the burden shifts to the state. Under the latter circumstance, in order to avoid the effect of the motion, the state must either traverse a specific material fact that is alleged in the motion or allege one or more material facts not contained in the motion. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977).

The state neither denied a specific fact in its traverse nor presented material facts not contained in the motion to dismiss. Accordingly, the state’s pleading has the effect of a demurrer, admitting that the facts alleged in appellee’s motion to dismiss are the undisputed material facts. The state’s position, then, must stand or fall on a determination of whether these undisputed facts establish a prima facie case.

When a court considers evidence on a 3.190(c)(4) motion, “all inferences are resolved against the defendant.” State v. Upton, 392 So.2d 1013, 1015 (Fla. 5th DCA 1981). Here, the evidence supports inferences that appellee knew of and willingly aided in the drug transaction. She inquired if it was necessary to get Tom and voluntarily performed that task. Appellee obviously knew that Tom was nearby and it can be inferred that she was aware of the necessity for Tom to remain out of sight until a certain point in time. The circumstances were indicative of a drug transaction and the part played in that transaction by ap-pellee was a jury question.

The order granting the motion to dismiss is reversed and this cause is remanded for trial or other appropriate proceedings.

REVERSED and REMANDED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Ted ROZEMA, Appellant, v. Deborah L. M. WILSON, Appellee.
    No. AI-368.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    Rehearing Denied Oct. 22, 1982.
    Daniel S. Dearing, of Dearing & Smith, Tallahassee, for appellant.
    Paul M. Eakin, of Madigan, Parker, Gat-lin, Swedmark & Skelding, Tallahassee, for appellee.
   WIGGINTON, Judge.

At issue in this appeal is the enforceability of an oral agreement entered into between appellant, Dr. Ted Rozema, and ap-pellee, Deborah Wilson. Rozema, defendant below, sought to avoid performance under the agreement arguing the Statute of Frauds, Section 725.01, Florida Statutes, in a motion for partial summary judgment. Wilson, in her memorandum in opposition to the motion, argued the agreement was a contract for sale and fell within the UCC Statute of Frauds, Section 672.201, Florida Statutes. Moreover, she claimed the oral agreement fell within an exception to the rule, viz. Section 672.201(3)(b), and was therefore enforceable. The trial court agreed and denied the motion for partial summary judgment. Subsequent to that order, the court entered a final “order” in favor of Wilson for specific performance, in which it incorporated the prior order. The sole issue raised on appeal regards the trial court’s finding UCC Article II to be controlling, denying applicability of Section 725.01, and denying appellant’s motion for partial summary judgment. We reverse.

Wilson and Rozema are breeders of Paso Fino horses. Those horses, originating in the Spanish provinces of Andalusia and Cordela, were first introduced to this continent nearly 500 years ago when Columbus made his second voyage to the New World. They were a mixture of Spanish Jennet, Barb and Andalusian strains and were given new grazing lands at Santa Domingo. Some of those horses were taken to Puerto Rico, Colombia and Peru, and eventually made their way to North America where they became known as the “Paso Fino,” a light horse of great elegance and style, particularly suited for breeding, showing and pleasure riding.

In October, 1977, Wilson and Rozema orally agreed to breed two Paso Fino mares from Rozema’s ranch in North Carolina to Wilson’s Paso Fino stallion, Belmonte, in Tallahassee. Pertinent to the issue in this appeal, Wilson alleged in her complaint that the mare LaNoche was to be bred to Bel-monte for three consecutive years beginning in 1978. Although the details of the agreement as appear in the pleadings are conflicting, according to Wilson’s version, the first year’s foal would belong to Roze-ma, unless it was a stud colt, in which event, Wilson would have the right of first refusal should Rozema try to sell the colt. In addition, in the first year, she would be entitled to retain the offspring of the second mare bred to Belmonte, if any.

On the contrary, Rozema alleges in his counterclaim that Wilson’s entitlement to the first-year foal produced by the second mare was conditioned on LaNoche’s producing a foal in that same year. No provisions were made between the parties for either or both of the mares not settling.

In June, 1978, the mares LaNoche and Yocanda were transported to Tallahassee to perform their matronly duties, and, over a period of approximately three months, were presented to Belmonte. In September, they were picked up by appellant and returned to his ranch. Initially, it appeared that neither mare had settled. Later, however, in February, it became apparent that while LaNoche had not settled, Yocanda had; in August, 1978, she bore a filly foal.

Although it is disputed when and how Wilson demanded delivery of the foal to her under her version of the oral agreement, it is clear that Rozema retained possession of Yocanda’s foal. Wilson subsequently filed suit, primarily seeking specific performance.

Rozema moved for partial summary judgment alleging the agreement violated the Statute of Frauds, Section 725.01, as being impossible of performance within one year. Wilson argued that the agreement was a contract for sale, falling within Article II of the UCC and therefore the Code’s Statute of Frauds, Section 672.201(1). However, Wilson contended that the contract was nonetheless enforceable under Section 672.-201(3)(b), in that Rozema allegedly admitted to a contract for sale in his pleadings.

We disagree that the oral agreement amounted to a contract for sale. Nowhere in the initial pleadings has a contract for sale been alleged. Rather, Wilson and the trial court have backed into the UCC’s concept of a contract for sale by characterizing the unborn young of the mares as “goods.” Although Section 672.106(1) defines a contract or agreement as relating to the “present or future sale of goods,” it contemplates there being a “contract for sale” in the first instance. A “sale,” in turn, contemplates there being a seller and a buyer. Here, however, no showing has been made that the parties to the agreement ever intended a sale. Therefore, absent that intent, and a seller-buyer relationship, we need not reach the issue whether the agreement is subject to the exception to the UCC Statute of Frauds, for Section 672.201(3)(b) is similarly predicated on the existence of a contract for sale.

Having determined the oral agreement is not controlled by the UCC, Article II, we turn our attention to whether the agreement is unenforceable under the conventional Statute of Frauds, Section 725.01.

Under 725.01, an oral agreement would be enforceable unless it “is not to be performed within the space of one year from the making thereof ...” It is uncon-troverted in the record that the oral agreement entered into between Rozema and Wilson would extend over a period of three years of breeding. Therefore, the agreement is unenforceable as violative of the Statute of Frauds.

We reverse so much of the order of the trial court as is predicated on an enforceable contract, and remand with instructions that it grant appellant’s motion for partial summary judgment. We otherwise leave undisturbed the remaining portions of the final order.

SHIVERS and SHAW, JJ., concur.

      . Not subject to this appeal is that portion of the final order directing a verdict in favor of Rozema as to Counts II and III of Wilson’s complaint and finding Counts I and II of Roze-ma’s counterclaim to be without merit.

      . Whether part performance would apply to take the agreement out of the Statute of Frauds cannot be determined because the two versions of the agreement set forth in the pleadings are not in accord as to when either party had performed his or her part of the bargain. To hold otherwise would require this Court to make a contract for the parties, a result the Statute of Frauds was clearly intended to avoid.


author: MILLS, Judge.

text:
    Steven William THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. AM-212.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    Rehearing Denied Oct. 20, 1982.

      Steven William Thomas, pro se.
    No appearance for appellee.
   MILLS, Judge.

In this appeal from the trial court’s denial of his motion for post-conviction relief made pursuant to Rule 3.850, Florida Rules of Criminal Procedure, Thomas contends that his guilty plea was coerced and that he was denied effective assistance of counsel. We affirm.

The trial court properly denied Thomas’ 3.850 motion without hearing because the petition signed by Thomas states that “I declare that no officer of any branch of government (federal, state or local) has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter this plea.” Additionally, Thomas denied any coercion at the hearing. His claim of coercion is therefore refuted by the record. Loconte v. State, 382 So.2d 26 (Fla. 1st DCA 1979).

Thomas’ contention that he was denied effective assistance of counsel is refuted by the petition signed by him which declares that Thomas is satisfied with his attorney’s services and that his plea was voluntarily and knowingly made.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    ACADIA DEVELOPMENT CORPORATION, Miami Gardens Development Corporation and Fidelity and Deposit Co. of Maryland, Appellants, v. RINKER MATERIALS CORPORATION, a Florida corporation, Appellee.
    Nos. 81-1715, 81-1716.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Oct. 20, 1982.

      Richard H. W. Maloy & Associates and Richard H. W. Maloy, and Malcolm H. Friedman, Coral Gables, for appellants.
    Leiby & Elder and Larry R. Leiby, North Miami Beach, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

The defendants in this mechanic’s lien case, which are respectively the owner, general contractor and surety, appeal from a final judgment awarding $7,685.51, plus pre-judgment interest of $1,844.52, attorney’s fees and costs, in favor of the materi-alman-appellee, Rinker, upon a bond posted under Sec. 713.24(l)(b), Fla.Stat. (1977). We affirm.

Of the multiple issues raised on the merits of the plaintiff’s entitlement to a lien, the only one which requires discussion is the contention that the claim of lien was untimely recorded. The record establishes that Rinker and the general contractor, Miami Gardens, entered into an oral agreement under which Rinker supplied materials to the job site on open account; the last delivery under that credit arrangement occurred on May 7, 1977. Afterwards, the plaintiff sold to Miami Gardens on a C.O.D. basis only; accordingly, the final delivery of any kind to the development in question was made, in return for cash, on June 17, 1977. Because the claim of lien was filed and recorded on August 31,1977, more than 90 days after the last furnishing of materials on open account, the defendants contend that the action is barred by Sec. 713.08(5), Fla.Stat. (1977):

The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor ....

For the very basic reason that this argument is contrary to the unambiguous words of the statute, we cannot agree. Sec. 713.-08(5) specifically does not provide that the 90 days runs from the last unpaid work or delivery; instead, it states that the critical time is the unqualified “final furnishing of the ... materials by the lienor,” which in this case took place less than 90 days before the claim of lien. Not only are we not empowered to “interpret” a statute by the judicial insertion of words which the legislature did not put there, Atlantic Coast Line R. Co. v. Boyd, 102 So.2d 709 (Fla.1958), acceptance of the defendants’ contention would permit those in their position largely to control the validity of mechanic’s liens by the device of paying only for the most recently supplied materials or labor. We will not adopt such a principle.

It is pointed out, however, in opposition to this view, that the very lien which is the subject of the plaintiff’s claim (and of the action itself) is the one provided by the core section of the mechanic’s lien law, Sec. 713.06(1), “for any money that is owed to him for labor, services, or materials furnished in accordance with his contract and with the direct contract.” [e.s.] Carrying the argument a step further, it is then said that there were in effect two “contracts” involved here, the open account and the C.O.D. arrangement; that since by definition the C.O.D. “contract” has been paid for and satisfied, the only lien asserted, and thus the pertinent “final furnishing” under See. 713.08(5), concerns the unpaid amounts for the supplies delivered on open account. While this reasoning has some surface rationality, it founders again on the reef of the statute itself. Sec. 713.01(1) simply states that

* * * As used in this part:
(1) ‘Contract’ means an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders as herein defined.

Under this definition it is plain that all the deliveries were part of the same “agreement for improving real property” under which Rinker furnished supplies for and to the appellants’ job. The fact that there was a change from deliveries being made on open account to C.O.D. did not effect a new or different agreement or “contract” as statutorily defined by 713.01(1), and incorporated into 713.06(1). It was merely a modification of the manner or method of payment for those materials which, as we have already seen, makes no difference in the application of 713.08(5).

The appellants also make a separate challenge to the attorney’s fees provided by the judgment on the ground that, since the record indicates that Rinker rejected an oral offer to settle the litigation for $15,000, compare Fla.R.Civ.P. 1.442, its recovery of substantially less than that disentitles it to such an award. We reject this claim on the basis of our adherence to the view that a claimant who succeeds in establishing a mechanic’s lien and receives a judgment in his favor in any amount whatever is necessarily the “prevailing party” under Sec. 713.29. Sharpe v. Ceco Corp., 242 So.2d 464 (Fla. 3d DCA 1970), cert. denied, 247 So.2d 324 (Fla.1971). Accord, American Insulation of Fort Walton Beach, Inc. v. Pruitt, 378 So.2d 839 (Fla. 1st DCA 1979), and cases cited; see also Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980). We do not believe that this conclusion conflicts with Monde Investments No. 2, Inc. v. R. D. Taylor-Made Enterprises, Inc., 344 So.2d 871 (Fla. 4th DCA 1977) or S. C. M. Associates, Inc. v. Rhodes, 395 So.2d 632 (Fla. 2d DCA 1981), cited by the appellants, which involved prelitigation tenders to the lienors in question. If any inconsistency indeed exists, we simply decline to follow those decisions.

The other points raised both on appeal and cross-appeal similarly present no error.

Affirmed.

      . While the final judgment clearly (and correctly, Jockey Club, Inc. v. Bleemer, Levine & Associates Architects and Designers, Inc. 413 So.2d 433 (Fla. 3d DCA 1982); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978)) awards interest from the date of the recording of the claim of lien, the parties have unaccountably proceeded, by arguing the issue as a point on the plaintiffs cross-appeal, as if the claim had not been allowed below.

      . We note that the $15,000 was not formally tendered and that the sincerity, not to mention the enforceability, see Davies v. Canco Enterprises, 350 So.2d 23 (Fla. 3d DCA 1977), of this offer is otherwise in serious question in the light of the defendants’ continued contesting of Rinker’s right to any lien at all, both below and on appeal, even after its counsel admitted to the trial judge that it could prove no more than $7,685.31 of a $25,000-plus claim of lien.


author: HOBSON, Acting Chief Judge.

text:
    Tommie J. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-181.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1982.

      Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The State charged appellant in a four-count information with two counts of manslaughter while driving under the influence of alcohol, in violation of section 860.01(2), Florida Statutes (1977); and two counts of manslaughter with culpable negligence, in violation of section 782.07, Florida Statutes (1975). A jury found him guilty of the two counts of manslaughter while driving under the influence of alcohol and found him guilty of two counts of vehicular homicide, in violation of section 782.071, Florida Statutes (1975), a lesser included offense of manslaughter with culpable negligence. See State v. Young, 371 So.2d 1029 (Fla.1979). The trial court sentenced him to fifteen year prison terms on the manslaughter convictions and five year prison terms on the vehicular homicide convictions, all sentences to run concurrently.

Appellant argues that, with respect to each death, he could not be convicted of both manslaughter and vehicular homicide and sentenced for both convictions.

With respect to each death, the separate counts in the information charged only a single homicide by different acts. Accordingly, only one sentence is proper for each death. See Miller v. State, 339 So.2d 1129 (Fla. 2d DCA 1976).

Thus, we reverse the two sentences for vehicular homicide. However, we affirm all four convictions and the two sentences for manslaughter.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIMES and CAMPBELL, JJ., concur.


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    BROWARD COUNTY, Appellant, v. PLANTATION IMPORTS, INC., Appellee.
    No. 81-1257.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 1982.

      Harry A. Stewart, Gen. Counsel, and James A. Thomas, Asst. Gen. Counsel, Fort Lauderdale, for appellant.
    Gary A. Esler of Esler & Kirschbaum, P. A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This appeal involves the constitutionality of the Broward County Consumer Protection Code enacted by county ordinance in 1977. The trial court found the code unconstitutional and Broward County has perfected this appeal.

In furtherance of the effort to minimize deceptive trade practices, the Broward County Commission passed certain ordinances which were designated as the Bro-ward County Consumer Protection Code. Among other things, it established a Bro-ward County Consumer Protection Board and the Broward County Consumer Affairs Division. The Consumer Affairs Division was authorized to bring consumer complaints to the Board to determine whether there was a violation of the Code. The Code purports to grant the Board certain powers, including the power to impose civil penalties for violation of the agency’s orders.

As appellee points out in its brief
Following the enactment of the 1977 Ordinances, the Broward County general counsel requested an opinion from the Attorney General of the State of Florida as to the authority of a charter county to enact a valid ordinance permitting a consumer protection board to impose civil penalties. That request resulted in the issuance of Attorney General’s Opinion 079-109 on December 18, 1979. In that Attorney General’s Opinion, the question presented by BROWARD COUNTY and the summary of the response from the Attorney General’s office was set forth as follows:
“QUESTION:
Does a charter county have the authority to enact a valid ordinance which permits the county’s consumer protection board to impose a civil penalty for violation of the board’s cease and desist orders?
SUMMARY:
Unless and until legislatively provided, a charter county does not have the authority to enact an ordinance which provides for the imposition of civil penalties by county agencies or which purports to authorize a county consumer protection board to impose a civil penalty for violation of that board’s cease and desist orders.”
Following receipt of the Attorney General’s Opinion, the Legislature of the State of Florida enacted Special Act, Chapter 80-463. That Special Act purported to authorize the Board of County Commissioners of Broward County to grant by ordinance, powers to the Bro-ward County Consumer Protection Board to impose certain civil penalties. Said Special Act provided that it would take effect, upon its approval by a majority vote, in a referendum held in conjunction with the general election in the County. By resolution, the Board of County Commissioners called a referendum and placed the Special Act on the ballot in the general election held in November, 1980. The Special Act received a majority in favor, and presumably became law upon the certification of the election results.

Subsequent to the effective date of Special Act 80-463, the Broward County Commission did not undertake to pass a new ordinance granting any powers to the Consumer Protection Board.

In January, 1981, Consumer Affairs served appellee with cease and desist demands involving five separate proceedings. Thereafter, appellee filed this suit for declaratory relief to declare certain sections of the Code and Special Act 80-463 to be invalid and unenforceable. The complaint presented three issues for the trial court’s consideration:

I. Prior to the enactment of Special Act 80-463, did the Broward County Commissioners have the authority to enact a valid ordinance which permits the County’s Consumer Protection Board to impose civil penalties?
II. Does the Legislature of the State of Florida have the authority under the Constitution of the State of Florida to enact a Special Act which authorizes a County Commission to enact an Ordinance permitting the County’s Consumer Protection Board to impose civil penalties?
III. Assuming the constitutional validity of Special Act 80-463, did the passage of said Special Act have the effect of validating the previous 1977 Ordinances permitting the County’s Consumer Protection Board to impose civil penalties?

The trial court granted a judgment on the pleadings in favor of appellee finding that the provisions of the Code “insofar as the provisions of said Ordinance purport to grant to the BROWARD COUNTY CONSUMER PROTECTION BOARD power to conduct proceedings and impose civil penalties, violate Article I, §§ 9 and 18, Article II, § 3, Article III, § 6, Article V, § 1 and Article VIII, § l(j) of the Constitution of the State of Florida, and are in contravention of Florida Statutes Chapter 125.69.” Next the judgment held that Special Act 80-463 grants no powers to the Consumer Protection Board but purports to authorize the Board of County Commissioners to grant certain powers to the Consumer Board by ordinance. The court declined to pass on the constitutionality of the Special Act because it was unnecessary in view of its ruling.

The opinion of the Attorney General 079-109 referred to above holds that as originally enacted the Broward County Consumer Protection Code violates Article I, Section 18 of the Florida Constitution because it authorizes an administrative agency to impose a penalty without such authority being “provided by law.” The Attorney General points out that the phrase “provided by law” as used in the Constitution means as provided by an act of the legislature. The Consumer Code in question, having been enacted by a charter county by ordinance, could not measure up to that requirement. We agree with the Attorney General’s opinion and hold that the provision of the Code authorizing the assessment of penalties was unconstitutional and thus unenforceable when written.

Appellant contends that in any event the constitutional infirmity was rectified when the legislature enacted 80-463 and the Broward County electorate approved it in November, 1980. At that point, it is argued, the power to assess penalties vested in the Board. Appellee, however, contends that the Special Act did not purport to ratify and approve the prior act of the County Commission in authorizing the Board to assess penalties. On the contrary, the Special Act simply granted the County Commission the power to so authorize the Consumer Board, and since the County Commission lacked the power to act when it initially passed the Consumer Code, the legislature could not ratify that unauthorized act by subsequent legislation.

We believe the appellee’s argument is correct in both respects. The wording and tenor of the Special Act do not purport to empower the Consumer Board. The Act provided:

Section 1. The Board of County Commissioners of Broward County is authorized to grant, by ordinance, all necessary powers to the Broward County Consumer Protection Board, including, but not limited to, the power: ...

Furthermore, the rule in Florida is that a validation act cannot validate a lack of power in a city or county to act in the first instance. As the court said in Beaty v. Inlet Beach, 151 Fla. 495, 9 So.2d 735 (1942):

A validation Act cannot validate a lack of power in the municipality to act in the first instance. That power must first exist, and then be improperly exercised, in order for a validation act to become effective.

See also State v. Mellick, 68 So.2d 824 (Fla.1953). Cf., City of Sebring v. Harder Hall, Inc., 150 Fla. 824, 9 So.2d 350 (1942). Appellant suggests that having Broward County reenact the consumer code which empowers the Consumer Board to levy penalties would be a purely formalistic process. The foregoing rule belies that suggestion.

Accordingly, we affirm the judgment appealed from.

AFFIRMED.

GLICKSTEIN, J., concurs.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

The only argument made by the county in defense of its ordinance in the trial court was that the subsequent act of the legislature authorizing the county to enact a consumer protection ordinance complete with penalties, somehow validated the original ordinance. I agree with the majority’s conclusion that the county’s assertion is without merit.


text:
    Frederick R. WAGNER, Appellant, v. Barbara A. WAGNER, Appellee.
    No. 82-48.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 1982.
    C. Lavon Ward, Fort Lauderdale, for appellant.

      Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Higgins v. Higgins, 408 So.2d 731 (Fla. 1st DCA 1982).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: SHARP, Judge.

text:
    Dorothy J. CHRISTMAS, Appellant/Cross-Appellee, v. Dewey A. CHRISTMAS, Jr., Appellee/Cross-Appellant.
    No. 81-339.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Burke D. Chester, Daytona Beach, for appellant/cross-appellee.
    Wesley A. Fink, of Fink, Loucks & Sweet, Daytona Beach, for appellee/cross-appel-lant.
   SHARP, Judge.

Dorothy J. Christmas appeals from an order modifying a final judgment of dissolution of marriage by prospectively terminating Dr. Dewey A. Christmas’ obligation to pay alimony. Dr. Christmas cross-appeals the amount of attorney’s fees awarded to the appellant. We affirm the judgment of the trial court as modified by this opinion.

When the final judgment of dissolution was granted in 1973, the wife was thirty-four years of age and a college graduate with previous experience teaching Spanish. The parties had been married for eight years and had two minor children, ages five years and eighteen months. The husband was a medical doctor whose adjusted gross income for 1972 was over forty-six thousand dollars ($46,000). 1972 was his second full year in private practice.

In the final judgment the wife was awarded custody of the children, the marital home as lump sum alimony, seven hundred dollars ($700) per month alimony [not designated rehabilitative or permanent] and five hundred dollars ($500) per month in child support. The trial court also stated:

Respondent is in good health, a college graduate and qualified to pursue gainful employment as a school teacher and she, looking to the future, should continue her education as necessary to maintain her competency for employment in her chosen field. Under present conditions, considering the age of the children and the fact that they have not yet entered grade school, respondent should be awarded alimony in addition to the lump sum award and child support sufficient to maintain her and the children. As hereinafter provided, respondent should be awarded reasonable attorney’s fees and costs of these proceedings should be assessed against petitioner. The necessity for continuing periodic alimony as herein awarded should be reviewed upon the parties youngest child attaining grade school age.

When the children attained school age, the husband filed a petition for modification alleging that the alimony was in fact rehabilitative in nature and the children were now in school. The husband alleged further that the wife was willfully refusing to seek employment. The wife counter-petitioned seeking an increase in alimony and child support citing as a substantial change in circumstances the husband’s increased earning capacity, the increased needs of the children, and the deteriorating physical condition of the home.

During the course of discovery in this case, it became apparent that the wife would seek additional alimony because of a disabling back condition. In response, the husband filed a supplemental petition seeking custody of the children because of the wife’s disability. By pre-trial stipulation the husband agreed to withdraw his custody claim if the wife dropped her claim that she was permanently and totally disabled.

The trial court found that the original award by the late Judge Leon Stewart was in fact rehabilitative in nature. The court determined that the wife was capable of finding employment as a school teacher and ordered that the husband’s alimony obligation be prospectively terminated effective September 1981. At the same time the trial court increased the husband’s child support obligation from $500.00 to $800.00 per month and ordered the husband to pay the wife’s attorney a reasonable fee in the amount of seven thousand two hundred dollars ($7,200).

We have considered appellant’s jurisdiction argument and the cross-appeal regarding the size and terms of the attorney’s fee award in this case and find them to be without merit. However, the record is replete with unrefuted evidence that the appellant suffered a disabling back injury during the course of the marriage. The medical evidence and lay testimony strongly suggest that the wife’s condition may seriously hamper her physical ability to perform adequately on the job. The ability to secure employment is meaningless if one is physically incapable of performing at a sufficiently adequate level to retain the position. We therefore hold that the trial court erred only in not reserving jurisdiction to award permanent alimony at a later time if appellant’s physical condition so warrants. Savino v. Savino, 411 So.2d 342 (Fla. 4th DCA 1982); Smith v. Smith, 406 So.2d 71 (Fla.2d DCA 1981); Nichols v. Nichois, 304 So.2d 497 (Fla. 1st DCA 1974). See also Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981).

Accordingly, the judgment is affirmed in part and remanded with instructions to reserve jurisdiction to award the wife alimony in the future.

AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

COWART, J., and BROWNLEE, JACKSON, O., A.J., concur.

      . The modification proceedings were protracted and involved more than 140 hours of legal labor by the wife’s attorney.


author: ORFINGER, Chief Judge.

text:
    Crystal A. TUBBS, as Personal Representative of the Estate of Carole A. Tubbs, Deceased, Appellant, v. James F. DRESSLER, as Personal Representative of the Estate of F. Eugene Tubbs, Deceased, and Compass Insurance Company, a foreign corporation, Appellees.
    No. 81-993.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Joan H. Bickerstaff and Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule, Boyd & Graham, Melbourne, for appellant.
    Ernest H. Eubanks of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for Academy of Florida Trial Lawyers, amicus curiae.
   ORFINGER, Chief Judge.

Questions of interspousal and interfamily immunity present themselves again. On July 4, 1978, while riding as a passenger in a private aircraft owned and piloted by her husband, F. Eugene Tubbs, Carole Tubbs and her husband were killed when the plane crashed. Carole was survived by four children, appellant Crystal Tubbs, who is personal representative of her mother’s estate, Kelly Tubbs, Michael Tubbs and Patrick Tubbs. Both Michael and Patrick were the children of Eugene and Carole Tubbs; Crystal and Kelly were not related to Eugene Tubbs by blood or adoption.

The present action was filed by appellant, as personal representative of the Estate of Carole Tubbs, against the Estate of Eugene Tubbs and Compass Insurance Company, his insuror, to recover damages sustained by Carole’s estate and by her heirs, under and to the extent of coverage provided by a policy of aircraft liability insurance issued by Compass and owned by Eugene Tubbs. The action was dismissed on the grounds that the doctrines of interspousal and inter-family tort immunity absolutely barred all claims by the estate of Carole Tubbs or her heirs against the estate of her deceased husband or his insurer. This appeal follows. We reverse.

We address these issues:

1. Does the doctrine of interspousal immunity bar the action on behalf of the deceased wife’s estate against the deceased husband’s estate and his in surer, when the claim is for the coverage provided by the husband’s liability insurance policy?
2. Does the doctrine of either inter-spousal or interfamily immunity bar a wrongful death action on behalf of the deceased wife’s children against the deceased husband’s estate and his insurer, when the claim is for the coverage provided by the husband’s liability insurance policy?

Section 768.19, Florida Statutes (1977) says:

When the death of a person is caused by the wrongful act, negligence, default or breach of contract or warranty of any person ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person ... that would have been liable in damages if death had not ensued shall be liable for damages ... notwithstanding the death of the person injured.... (emphasis added).

Appellee argues that since the deceased wife would not have been entitled to maintain an action and recover damages from her husband had she lived, because of the doctrine of interspousal immunity which is still recognized in this state, neither her survivors nor her estate have any of action under the wrongful death statute.

At the time this case was decided by the trial court, and at the time of oral argument before this court, the first issue (inter-spousal immunity) would have been controlled by Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980), and we would have been constrained to affirm the trial court’s dismissal of the action seeking damages for the wife’s estate. Since oral argument here, the Supreme Court has decided a series of cases which, although they do not directly address the precise factual circumstance before us here, nevertheless indicate to us a change of thinking by that court, and a modification of the doctrine.

Before reviewing these cases, it is important that we briefly summarize the public policy reasons upon which the doctrine of interspousal and parental tort immunity has been based. As stated in Raisen,

In Gaston v. Pittman, 224 So.2d 326 (Fla.1969), we recognized the validity of the public policy arguments supporting the doctrine: that interspousal tort actions disturb domestic tranquility; cause marital discord and divorce; cause fictitious, collusive and fraudulent claims; cause a rise in liability insurance; and promote trivial actions. Again, in Orefice v. Albert, 237 So.2d 142 (Fla.1970), we acknowledged as the established policy of this state that suits will not be allowed among members of a family unit for tort, and we said “[t]he purpose of this policy is to protect family harmony and resources.”

Id. at 354. Interspousal immunity and parental immunity thus find their support in similar policy reasons.

In Ard v. Ard, 414 So.2d 1066 (Fla.1982), the Supreme Court modified the doctrine of parental immunity to the extent that the negligent parent is protected by liability insurance, citing to other states which have abolished or limited immunity, and saying:

For many of these states, a major justification for this abrogation has been the development and widespread use of liability insurance. The presence of this type of insurance cannot create a liability where none previously existed, but, rather, forms the basis for the recognition of the change in conditions upon which the public policy behind the immunity is based. Several policy reasons have been relied on to justify this immunity. They include the preservation of domestic harmony and tranquility; depletion of the family assets in favor of the claimant at the expense of the other family members; danger of fraud and collusion between the parent and child when insurance is involved; interference with parental care, discipline, and control; and the possibility of inheritance by the parent of the amount recovered by the child.

The Court conceded that where such insurance exists, “... the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier.” 414 So.2d 1066.

But for the bar created by the doctrine of interspousal immunity, a cause of action on behalf of Carole Tubbs would exist. On the basis of Ard as it applies to the parental immunity, there is no reason in logic or public policy to conclude that the same principles do not also apply to inter-spousal immunity. Nothing compels us to a contrary conclusion. We find further support for this position in the language of Hill v. Hill, 415 So.2d 20 (Fla.1982), where, in refusing to abrogate interspousal immunity for intentional torts committed by one spouse against the other, the court said:

We also point out that in this circumstance we are unable to modify our immunity doctrine as we did with parental immunity in Ard v. Ard, 414 So.2d 1066 (Fla.1982), because insurance coverage is not available for intentional torts.

The action here is for a negligent tort, and is against the insurer which allegedly has coverage. We thus hold, for the reasons set forth in Ard, that interspousal immunity for negligent acts is waived to the extent of the negligent spouse’s available insurance coverage. We will certify this question to the Supreme Court as a matter of great public importance.

What we have said about issue 1 also applies to issue 2. Ard has modified the doctrine of parental tort immunity by permitting an action by children against a parent to the extent of available insurance coverage, and that is all that is requested by the plaintiff in this action. Thus, parental immunity is no bar under the facts of this case.

Because the briefs were filed and the case was argued before Ard, appellant had asked us to hold that the right of the surviving children to sue was governed by the opinion in Shiver v. Sessions, 80 So.2d 905 (Fla.1955). In that case, the plaintiffs were the four children of Martha Dona Sessions, deceased, who was shot and killed by her husband (the children’s stepfather), who then killed himself. Suit was filed by the children against the estate of their stepfather, to recover damages sustained by them by reason of their mother’s death. The statute under which the action was brought required that, as a condition of suit, the wrongful act or negligence must be such “as would, if the death had not ensued, have entitled the party injured thereby to maintain an action ... and to recover damages in respect thereof ...” The trial court dismissed the action on the ground of interspousal immunity. The court held that the wrongful death statute created a new and independent right of action in the survivors, separate, distinct and independent from that which might have been sued on by the injured person, had he or she lived; that the wife’s disability to sue the husband was a personal disability and did not inhere in the tort itself, and that

it is unreasonable to imply that the Legislature intended to bar the “right of action” created by the Act on account of a disability to sue which is personal to a party having an entirely separate and distinct “right of action” and which does not inhere in the tort — or “cause of action” — upon which each separate right of action is based.

Appellee suggests that Shiver was overruled by Raisen, and also cites Horton v. Unigard Insurance Company, 355 So.2d 154 (Fla.1978), where Shiver is distinguished. Since only the insurance proceeds are sought here, we need not decide whether Shiver supports appellant’s theory or whether it was indeed overruled by Raisen, and we leave that question for another day. The facts of this case are controlled by the decision in Ard, which was not available to the trial court when it dismissed the action below.

The order of the trial court dismissing the action is reversed, and the cause is remanded for further proceedings consistent herewith.

We certify the following question as being of great public importance:

IS THE DOCTRINE OF INTERSPOUSAL IMMUNITY, LIKE THE DOCTRINE OF PARENTAL IMMUNITY, WAIVED TO THE EXTENT OF AVAILABLE LIABILITY INSURANCE, WHEN THE ACTION IS FOR A NEGLIGENT TORT CAUSING INJURY OR DEATH?

REVERSED and REMANDED. Question certified.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . At the time of the crash, all four children were under 21 years of age, and thus “minor children” under section 768.18(2), Florida Statutes (1977). The statute has since been amended and defines “minor children” for purposes of the statute as those under 25 years of age.

      . The action was brought under the 1953 wrongful death statute, which permitted suit by the surviving children. The current statute requires the personal representative of the decedent to bring the action, “who shall recover for the benefit of the decedent’s survivors.” § 768.20, Fla.Stat. (1981). Each beneficiary must be specifically identified in the complaint, § 768.21, Fla.Stat. (1981).

      . Two of the children of Carole Tubbs were not related to Eugene Tubbs by blood or adoption. We have not overlooked the argument that the doctrine of family immunity does not apply to their right to recover against Eugene’s estate, but in the light of our holding here, we need not address that question.


text:
    HAAS, BOEHM & BROWN, INC., Appellant, v. Robert B. PARSONS, Appellee.
    No. 82-119.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Margaret E. Sojourner of Haas, Boehm, Brown & Rigdon, P. A., Daytona Beach, for appellant.
    Berrien H. Becks, Jr., of Becks, Becks & Wiekersham, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Landers v. Milton, 370 So.2d 368 (Fla.1979).

DAUKSCH, COBB and COWART, JJ., concur.


text:
    Jacqueline Joan STANGHERLIN, Petitioner, v. Melvin KELLY, Sheriff of Hernando County, Florida, Respondent.
    No. 82-1040.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.

      H. Michael Evans, of Mosley & Evans, P. A., Clearwater, for petitioner.
    James Martin Brown and James E. Kelly, Asst. State Attys., Tavares, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for respondent.
   SHARP, Judge.

Stangherlin petitioned this court for a Writ of Habeas Corpus to secure her release from the custody of the sheriff of Hernando County, where she is being held without bail following her arrest for conspiracy to commit first-degree murder and first-degree murder. Pursuant to Florida Rule of Criminal Procedure 3.131(b), when Stangh-erlin was not charged by information or indictment within 21 days from the date of her arrest, she timely moved for an adversary preliminary hearing to determine probable cause of the charges against her. At the hearing, the state’s case consisted primarily of hearsay and an affidavit of a former co-defendant who had entered into a plea bargain with the State. However, there was some competent evidence to establish a prima facie case against petitioner and, therefore, we deny the writ.

As pointed out in Pierce v. Mims, 418 So.2d 273 (Fla. 2d DCA 1982), Rule 3.131(b)(3) has changed the procedure and proofs in probable cause hearings for adversary preliminary hearings. It provides:

(3) Witnesses. All witnesses shall be examined in the presence of the defendant and may be cross-examined. (Emphasis added.)

It was therefore necessary that the State establish probable cause that a charged offense was committed and that Stangherlin committed it with competent evidence.

Three witnesses testified for the State. The two police officers, Blackman and Phillips, were primarily able to testify only about what others (not present in court and not one of the co-defendants) told them. Blackman introduced a statement by a co-defendant, Colandro, which (had he testified in court) would have been sufficient to constitute probable cause. The officers’ only non-hearsay testimony established that a human being was dead. Blackman testified he located a body and identified it as Roman Stangherlin from dental records.

The third witness, Modzelewski, testified that he helped the two co-defendants, Jackie Stangherlin and Powlowski, take away a body from Powlowski’s shop and he buried it on his property. He testified that both Powlowski and Jackie told him it had been a Mafia killing, and that Roman’s death had been an accident. Jackie set it up, but Roman was only supposed to be injured. This testimony is sufficient to establish probable cause that the petitioner was an accessory or a conspirator to have her husband physically battered, during the course of which he was killed. We think this was a sufficient showing at the adversary hearing pursuant to Rule 3.131(b).

The State argues that a belated indictment and the trial judge’s subsequent denial of bail to the petitioner somehow alter the impact and applicability of the Rule. We disagree. The Rule is very clear. Failure to promptly indict and failure to establish probable cause at an adversary hearing with competent evidence results in the release, pending trial, of a person charged with a felony. See Pierce v. Mims.

The State also argues that Article I, Section 14 of the Florida Constitution and Rule 3.131(b)(5) conflict with each other, and therefore the Rule should not be applicable to persons charged with a capital offense. But we are not dealing with the right to bail in this situation. If the Rule applies, petitioner is entitled to release without bail. Further, this provision of the Florida Constitution gives individuals rights to bail under various circumstances. It gives the state no corresponding rights to hold individuals without bail. The State may hold a person without bail unless this power is limited by the constitution, or statute, or rule.

For the reasons stated herein, we deny the writ.

ORFINGER, C. J., and COBB, J., concur.

      . Some of the testimony was double and triple hearsay: what the witness was told by another person who heard it from someone else.

      . Defense counsel timely objected to the affidavit and the hearsay evidence.

        . State v. Merritt, 86 Fla. 164, 99 So. 230 (1924).

      . [EJvery person charged with a crime ... shall be entitled to release on reasonable bail ... unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.
      Art. I, § 14, Fla.Const.


text:
    PAVER DEVELOPMENT CORPORATION and Aetna Insurance Company, Appellant, v. Patrick McDEVITT, Appellee.
    No. AH-234.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    R. Clark Robinson of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellant.
    Alex P. Lancaster, Sarasota, for appellee.
   MILLS, Judge.

In this workers’ compensation appeal, we affirm the deputy commissioner’s assessment of a 20 percent penalty against Paver Development and Aetna, employer/carrier (E/C), pursuant to Section 440.20(8), Florida Statutes (1981).

The following facts are pertinent:

23 June 1981 — The deputy commissioner ordered the E/C to pay compensation to McDevitt, the claimant herein.
15 July 1981 — Aetna sent the check for McDevitt to Robinson, the E/C’s attorney.
23 July 1981 — Robinson received the check in the mail.
27 July 1981 — Robinson sent McDevitt’s check to Lancaster, the claimant’s attorney.
29 July 1981 — Lancaster received the check in the mail.

The E/C first contend that payment was timely made on 15 July 1981 since that was the date the check was mailed. This contention is without merit. Clay Hyder Truck Lines v. Atherton, 400 So.2d 1295 (Fla. 1st DCA 1981), is inapplicable. The “date of mailing” in that case refers to the date of mailing to claimant or his attorney, not the date of mailing to the E/C’s attorney.

The E/C next contend that the deputy commissioner’s order is insufficient as a matter of law because it contains no ultimate findings of fact or conclusions. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Though the order might be more complete, it is legally sufficient. It states that “through error and omission or oversight, the draft was not forwarded by mail until after the 30th day.”

Finally, the E/C contend that because payment was not intentionally delayed, the deputy commissioner erred in assessing the penalty. In Crowell v. South Broward Hospital District, 378 So.2d 801 (Fla. 1st DCA 1979), this Court upheld the denial of a penalty where the judge found no intent on the part of the employer to delay payment to the claimant. However, the E/C’s interpretation of Crowell is incorrect. That case does not hold that penalties must be excused where there is no intent to delay. The assessment of a penalty is within the discretion of the deputy commissioner. We find no abuse of that discretion.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    William STEWART, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-344.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    William Stewart, in pro. per.

      Malcolm S. Greenfield, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Stewart, a prisoner at Avon Park Correctional Institution, appeals from a commission decision that established his presumptive parole release date. Stewart argues that because the commission is prohibited from applying as aggravating circumstances any factors that are used in arriving at the matrix time range, Section 947.165(1), Florida Statutes (1979), the commission erred by scoring his matrix time range with “robbery” as the offense characteristic and then applying the following aggravating factor: “Large amount of cash stolen by threat of weapon was never recovered.”

The record reflects that Stewart pled guilty in connection with a robbery in which he personally took a large amount of money from a bank teller. Because this indicates that returning the money was, at one point, within Stewart’s knowledge and ability, the commission did not err in considering his failure to make restitution as an aggravating factor. See Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360 (Fla. 1st DCA 1982); White v. Florida Parole and Probation Commission, 394 So.2d 472 (Fla. 4th DCA 1981); Fla.Admin.Code Rule 23-19,03(l)(c)(l). We note that failure to make restitution is not an element of robbery. § 812.13(1), Fla.Stat. (1979). Cf. Bell v. State, 394 So.2d 979 (Fla.1981).

Accordingly, the commission’s action is affirmed.

MILLS and ERVIN, JJ., concur.


text:
    Steve HUSKY, Petitioner, v. Honorable Louis SAFER, Judge, Circuit Court, Fourth Judicial Circuit, In and For Duval County, Florida, Respondent.
    No. AH-491.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Louis 0. Frost, Jr., Public Defender, and Teresa J. Sopp, Asst. Public Defender, for petitioner.

      Jim Smith, Atty. Gen., Kent A. Zaiser, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner Husky has sought a writ of prohibition to prevent further action under a circuit court order of September 17, 1981, directing him to show cause why he should not be held in indirect criminal contempt for violating an order of August 26, 1981, entered upon notice and hearing attended by petitioner. The latter order prohibited certain actions by petitioner which were, in effect, declared violative of a prior June 22,1981, order determining dependency of a child, M. E. M., and ordering her to have no contact with petitioner.

Petitioner’s reliance upon the reasoning of In re. S. M. G., 291 So.2d 43 (Fla. 4th DCA 1974), is misplaced because of our conclusion that the August 26 order directed to petitioner is limited to conduct reasonably regarded as “interfering with ... or violating [the June 22nd] order of the court.” § 39.412, Florida Statutes. Although we find no perfect parallel in previous cases involving indirect criminal contempt, cf., Ryals v. United States, 77 F.2d 97 (5th Cir. 1935); State ex rel. Huie v. Lewis, 80 So.2d 685 (Fla.1955); Bryant v. State, 363 So.2d 1141 (Fla. 1st DCA 1978); Somerstein v. City of Miami, 319 So.2d 158 (Fla. 3d DCA 1975), we conclude that the order in question is within the statutory intendment, and that petitioner has failed to show entitlement to relief by writ of prohibition.

DENIED.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Douglass J. ARLOTTA, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-416.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.

      Appellant pro se.
    Malcolm S. Greenfield, Gen. Counsel, and Earl H. Archer, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

We have before us appellee’s motion to accept late brief, appellant’s motion for sanctions for appellee’s tardy service of the answer brief, and appellee’s motion to strike appellant’s appendix in that the documents contained therein are not part of the record and were not presented to the Florida Parole and Probation Commission (Commission) for its consideration during Arlot-ta’s § 947.173, Fla.Stat. (1981), review. Appellant contends that the documents are in his Department of Corrections file and should have been considered by the Commission, so should be before the Court. Ap-pellee contends that to admit the appendix would result in the Court having to decide factual issues. We grant appellee’s motion to accept a late brief, deny appellant’s motion for sanctions, and grant, for the following reasons, appellee’s motion to strike appellant’s appendix.

Section 120.68(5)(c), Fla.Stat. (1981), dictates that the record for judicial review be compiled by the agency and that it contain the final order plus documents considered by the agency prior to its action. Theoretically, Arlotta cannot know if the documents contained in his appendix are in his Department of Corrections file, because § 945.10(2), Fla.Stat. (1981), prohibits revealing the contents of the Department of Corrections file to the inmate. Further, even if the documents are in his Department of Corrections file, that is no guarantee that the Commission was aware of them.

Section 947.173(1), Fla.Stat. (1981), requires the inmate to set forth “in writing, with individual particularities,” the reasons for the review request. If Arlotta takes issue with factual predicates relied upon by the Commission in its action, he should have done so at his § 947.173 review; the documents in question should have been presented to the Commission at that time. See Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360, 1363 (Fla. 1st DCA 1982).

This Court’s function under the Administrative Procedure Act, Chapter 120, Florida Statutes, is to review agency action to determine if it is supported by the record. Documents not made part of the record and not presented to the agency for consideration cannot be considered by this Court. Accordingly, appellant’s appendix to his initial brief is stricken.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

      . This action does not preclude appellant Arlot-ta from submitting the documents to the Commission for consideration as new information. Section 947.174(2), Fla.Stat. (1981), permits the Commission to grant special reviews in its discretion and when it determines that it is appropriate to review. See McClain v. Florida Parole and Probation Commission, 416 So.2d 1209, 1210 (Fla. 1st DCA 1982).


text:
    Teddy Warren KELLY, Appellant, v. STATE of Florida, Appellee.
    No. AK-415.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Barry W. Beroset of Murphy, Beroset, Parks & Oberhausen, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Kelly appeals the denial of his motion for post-conviction relief. We affirm.

The commission of the intended felony is not a lesser included offense of burglary. Estevez v. State, 313 So.2d 692 (Fla.1975).

State v. Sarmiento, 397 So.2d 643 (Fla.1981), and Hoberman v. State, 400 So.2d 758 (Fla.1981), issues are not retroactively available in 3.850 proceedings. Williams v. State, 406 So.2d 1246 (Fla. 1st DCA 1981), review pending.

The evidence produced below does not reveal that discovery violations, if any, prejudiced Kelly.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    Robert KING, Appellant, v. STATE of Florida, Appellee.
    No. AL-43.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.

      Robert King, pro se.
    No appearance for appellee.
   PER CURIAM.

King appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant alleges that his conviction was obtained by a guilty plea not made voluntarily, that his sentence is in excess of the maximum authorized by law, and that he was denied effective assistance of counsel. Such allegations, if true, constitute grounds for relief. In denying the motion the trial judge relied on the presentence investigation report prepared by the Florida Parole and Probation Commission, the court file, and “communication with defendant’s court-appointed attorney.” Although these sources may contain information showing that appellant is not entitled to relief, the initial court order and the subsequent court order denying appellant’s motion for rehearing were devoid of the required attachments. The lower court was required to attach those portions of the files and records which conclusively show that King is entitled to no relief or to hold an eviden-tiary hearing on the motion. Fla.R.Crim.P. 3.850.

Accordingly, this case is REVERSED and REMANDED for proceedings consistent with the rule and this opinion.

MILLS, SHIVERS and WIGGINTON, JJ., concur.


author: McCORD, Judge.

text:
    GRAND UNION COMPANY, Appellant, v. James PINKSTON and Division of Workers’ Compensation, Appellees.
    No. AL-155.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Guy A. Gladson, Jr., of Gladson & Sullivan, Coral Gables, for appellant.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   McCORD, Judge.

Appellant/employer appeals the deputy commissioner’s ruling that appellee/claim-ant is entitled to temporary total disability benefits from July 27, 1981, and that maximum medical improvement occurred first on September 23, 1980. The record does not contain competent substantial evidence to support either finding. Therefore, we reverse.

The remaining point raised by appellant has been considered and found to be without merit.

Affirmed in part and reversed in part.

BOOTH and WENTWORTH, JJ., concur.


text:
    Jimmy Frank HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. AM-168.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Jimmy Frank Harris, pro se.
    No appearance for appellee.
   PER CURIAM.

Upon consideration of the response and attached transcript submitted pursuant to our order of August 6, 1982, 417 So.2d 845, in this cause, we affirm the order denying appellant’s Fla.R.Crim.P. 3.850 motion for post-conviction relief.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Allen Wayne OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. AM-170.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Allen Wayne Oliver, in pro. per.
    No appearance for the State of Fla., ap-pellee.
   PER CURIAM.

AFFIRMED. Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978).

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Thomas A. CAPRIE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AN-142.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1982.
    Appellant pro se.
    Earl H. Archer, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

Appellee’s motion to dismiss is granted. See Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); and Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). Appellant's contention that he relied upon representations made to him during plea negotiations, concerning his parole release date, does not relate to ex post facto application of the Florida Parole and Probation Commission’s rules, but to the validity of his guilty plea. See Fla.R.Crim.P. 3.850.

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Donald ROBERTS as Manager of Holiday Inn, 8221 North Trail, Appellee.
    No. 81-70.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.

      Judith M. Goldman of Knowles, Blalock, Coleman, Landers & Walters, Bradenton, for appellee.
    Thomas M. Gallen of Miller, Gallen, Kak-lis & Venable, Bradenton, for amicus curiae Whitfield Zoning Dist.
    Alan H. Prather of Mann & Fay, Braden-ton, for amicus curiae Manatee County.
   PER CURIAM.

The state appeals a county court order ruling Chapter 25996, Laws of Florida 1949, as amended by Chapter 74-529, (the Act) unconstitutional and dismissing the charges against appellee Donald Roberts. We affirm.

Appellee was charged by information with unlawfully erecting or maintaining a flashing or animated sign, in violation of Whitfield Zoning Board Regulation 5.17(e)(a). He moved to dismiss the information on the ground, inter alia, that the regulation in question was unconstitutional. After hearing, the trial court granted this motion. This appeal followed timely.

The Act created the Whitfield Zoning District within a portion of Manatee County. The trial court predicated its ruling on a finding that the Act interfered with the jurisdictional duties of the County Commission of Manatee County, thereby violating Article III, Section 11(a) of the Florida Constitution, which provides: “There shall be no special law or general law of local application pertaining to: (1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies;

In upholding the special act which created the Pinellas County Planning Council against the assertion that it violated Article III, Section 11(a), our supreme court in Pinellas County Planning Council v. Smith, 360 So.2d 371 at 374 (Fla.1978), explained:

Only when the purpose of a special act is to usurp the rights or powers conferred by general law is the statute unconstitutional. In those cases where a special act has been held unconstitutional it has provided for the complete transfer of power from a state officer to a newly created or designated person or agency.

Both Chapter 25996 and the act giving the Board of County Commissioners of Manatee County specified zoning authority, Chapter 25999, Laws of Florida 1949, were enacted during the same term of the legislature. Each chapter delineated the territory it covered, and the grant of zoning power to the Manatee County Commissioners never included the Whitfield area. In addition, Section 17 of Chapter 25996 provides:

In the event zoning authority is given Board of County Commissioners by special or general legislation this Act and the authority of Whitfield Zoning District shall take priority in exercising zoning and land use jurisdiction in the territory included in said district and the power and jurisdiction of said district shall in no wise be restricted or limited thereby regardless of any conflict between the two Acts.

Chapter 63-1599, an act pertaining to zoning in Manatee County, by its own terms repealed Chapter 25999 and amendments thereto.

Section 4(b) of the 1963 Act provided: “Manatee County may exercise any of the powers granted under the provisions of this Act in the total unincorporated area within its boundaries except those powers granted to the Whitfield Zoning District.” (Emphasis added.)

Thus it cannot be said that chapter 25996 usurped rights or powers conferred by general law, since at the time of its enactment there existed no general law conferring zoning authority over the Whitfield area on the Manatee County Board of County Commissioners. Manatee County has never elected to exercise zoning authority under the subsequently enacted Chapter 163, and the amendment to section 125.01, which granted zoning authority to county commissioners in 1971, limited the grant to such powers as were not inconsistent with special laws. Unlike the situation in Brandon Planning & Zoning Authority v. Burns, 304 So.2d 121 (Fla.1974), in which the special act establishing the Brandon Planning & Zoning Authority was held unconstitutional because it removed the authority to zone the Brandon area from the Hillsborough County Commission, Manatee County has never had zoning authority over the area encompassed by the Whitfield Zoning District. Thus the special act creating the district did not affect the jurisdiction or duties of the Manatee County Commissioners and did not violate Article III, Section 11(a).

Following consideration of the original briefs filed and oral argument thereon, we requested the parties to brief and orally argue the following question:

Does the legislature have the power to delegate its police power to zone real property to Whitfield Zoning District, a nonelected body, and if so, was this power appropriately exercised in enacting the special act creating the district?

Having reviewed the arguments made, the authorities cited to us, and other authorities revealed by our own research, we conclude that the legislature did not have the power to delegate the zoning power within the Whitfield Zoning District boundaries to the district. This is so because the power to zone is a legislative power, the delegation of which is prohibited by Article II, Section 3 of the Florida Constitution: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Our supreme court in State v. Atlantic Coast Line Railroad, 56 Fla. 617, 47 So. 969 (1908), interpreted similar language in the 1885 Constitution to mean that

[t]he Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.

56 Fla. at 636-37, 47 So. at 976.

More recently in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1979), the supreme court rejected an invitation to abandon the doctrine of nondelegation of legislative power when it struck down a law which empowered the Division of State Planning to designate areas of critical state concern. The court explained that, unlike the federal constitution and some other state constitutions, the second sentence of the separation of powers clause in the Florida Constitution represented a limitation of power.

Many Florida decisions examine the validity of legislative delegations of authority to administrative agencies. In the field of zoning, the disputes generally arise over whether a particular municipality has made a proper delegation of authority to its zoning board. These cases are instructive because the same restrictions which apply to the legislature’s delegation of legislative authority are applicable when municipalities seek to delegate the legislative authority granted to them under Article VIII, Section 2 of the Florida Constitution. City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972). In Clarke v. Morgan, 327 So.2d 769 (Fla.1976), the supreme court discussed a number of cases in which the courts reached differing results depending on the extent to which the delegation of authority included meaningful standards to guide the agencies in their administration of the various city zoning ordinances. Significantly, in those cases which invalidated the ordinances, the authority sought to be delegated involved much less than the power to zone. In fact, we know of no instance in Florida other than the Whitfield Zoning District in which the absolute power to zone has been vested in an administrative body.

Zoning is unquestionably a legislative function. County of Pasco v. J. Dico, Inc., 343 So.2d 83 (Fla. 2d DCA 1977).

While it is clear that certain functions in the execution of zoning plans can and must be entrusted to administrative boards or officers, it is equally clear that the power to zone, as such, involves legislative functions which cannot be so delegated under constitutional principles of separation of governmental powers.

Annot., 58 A.L.R.2d 1083 at 1086 (1958). “It has frequently been held that the legislative body may not delegate to administrative officials the power to establish zones or zone boundaries, since the power is of the essence of the legislative function.” Id. at 1089.

The special act challenged here delegates this function in its entirety to an administrative body. Sections 6 and 8 of the Act, while they do establish guidelines of a sort, do not constitute the type of guidelines which sufficiently restrict the agency’s discretion. The sections simply outline the kind of zoning to be done and its general purpose. There is no direction whatsoever with respect to the actual drawing of boundaries. Under the Act, five persons appointed by the governor have carte blanche authority to impose land use restrictions throughout the district. The zones, as adopted, have the force of law, but they have not been enacted by a legislative body lawfully empowered to enact laws.

We therefore hold that the special act creating the Whitfield Zoning District, Chapter 25996, Laws of Florida 1949, as amended by Chapter 74-529, is an unauthorized delegation of legislative power, contrary to the provisions of Article II, Section 3 of the Florida Constitution, and is consequently unconstitutional. Accordingly, the trial court’s order so ruling and discharging appellee is AFFIRMED.

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

      . We also requested an amicus curiae brief from Whitfield Zoning District, which graciously complied.