author: BERANEK, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. George SEARLE and Kay Searle, Individually and as Executors of the Estate of Lisa M. Searle, et al., Appellees (two cases). TRAVELERS INDEMNITY COMPANY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, George Searle and Kay Searle, Individually, and as Executors of the Estate of Lisa M. Searle, etc., et al., Appellees.
    Nos. 76-2427, 76-2451 and 77-313.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1979.
    Rehearing Denied Feb. 13, 1980.

      Richard M. Gale and Stephens & Schwartz, Miami, for appellant, Liberty Mutual.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellant, Travelers.
    Michael Olin of Podhurst, Orseck & Parks, P. A., Miami, and Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for appellees, Searle.
   BERANEK, Judge.

These are consolidated appeals taken by two insurance carriers from a final judgment determining uninsured motorist coverage and from a subsequent order awarding attorneys’ fees against the carriers. The appellees were the uninsured motorist coverage claimants below.

The facts are as follows. Lisa Searle and Lucine Seropian were passengers in a car driven by Susan Connolly which was involved in an accident on May 13,1975, when it collided with a car driven by Donald Mitchell. The three girls in the Connolly car were killed and the parents of Lisa Searle were plaintiffs in a suit against Donald Mitchell who was alleged to be the negligent tortfeasor in the accident. It was also asserted that Mitchell was an “uninsured motorist.” Susan Connolly, the driver of the vehicle in which Lisa Searle was a passenger, was a resident of her parents’ home. Mr. and Mrs. Connolly owned two cars, one of which was involved in this accident. Lisa Searle resided with her parents who also owned two cars.

The insurance coverage issued in regard to the various automobiles involved in the accident and other automobiles owned by the various insured was as follows. The two cars in the Connolly household were covered by Liberty Mutual Insurance Company who had issued a single policy covering both cars. The Liberty policy provided uninsured motorist coverage of $50,000. Travelers Insurance Company had issued a policy covering the two Searle automobiles and this policy provided uninsured motorist coverage of $25,000. Mr. Mitchell was covered by an insurance policy issued by Aetna Casualty & Surety Company which provided limits of $100,000 and $300,000.

Suit was initially filed by various plaintiffs against the alleged tortfeasor Mitchell and a settlement was reached between Mitchell and all plaintiffs. As a result of this settlement, Aetna Casualty & Surety Company was dismissed and it was agreed that Aetna had paid its limits of $100,000 on the Searle liability claims against Mitchell.

After the above settlement, appellees, the parents of Lisa Searle, asserted they had an uninsured motorist claim against their own insurance company, Travelers, and against the company covering the Connollys, Liberty Mutual. This uninsured motorist coverage claim was sustained by the trial court and the insurers now seek to overturn the coverage ruling and the attorneys’ fees awarded incident thereto.

After a non-jury trial, the Circuit Court entered a final judgment on October 15, 1976. This judgment found that the Searles were entitled to stack the Travelers uninsured motorist coverage of $25,000 on each of the two Searle automobiles and the Liberty Mutual uninsured motorist coverage of $50,000 on each of the two Connolly automobiles. The court held that the Travelers coverage of $25,000 on two cars resulted in available uninsured motorist coverage of $50,000 and that an additional $100,000 uninsured motorist coverage was present under the Liberty Mutual policy by stacking the $50,000 per car coverage in that policy. The trial court concluded that after stacking the two Liberty coverages ($100,000) and the two Travelers coverages ($50,000) that the uninsured motorist claimants had a combined total of $150,000 uninsured motorist coverage.

The trial court concluded the available $150,000 uninsured motorist coverage exceeded the $100,000 liability coverage present under the Aetna policy, and that claimants had a meritorious uninsured motorist claim against appellants. The trial court also held that the $100,000 actually paid to the Searles on their liability claim against the tortfeasor Mitchell did not constitute a set-off which could be relied upon by the uninsured motorist carriers.

In short, the ruling was that the passengers’ two U.M. coverages could be stacked with host’s two U.M. coverages and that the total U.M. coverage was in excess of the liability coverage by some $50,000. After reaching this conclusion, the court concluded the liability coverage which had actually been paid was not a set-off which the U.M. carriers could rely upon. We find error and reverse.

Initially, it should be noted that Section 627.4132, Florida Statutes (1977) does not apply to this claim because the accident occurred before October 1, 1976. We are thus required to analyze the law of stacking and the definition of an insured prior to this anti-stacking statute.

We start with the proposition that stacking of various uninsured motorist coverages is generally proper in this type situation. In Lezcano v. Leatherby Insurance Co., 372 So.2d 214 (Fla. 4th DCA 1979), this Court specifically ruled that a passenger in an automobile who was injured by the negligence of a driver of another automobile may stack his own uninsured motorist coverage with that of his host driver in order to declare the negligent tortfeasor an “uninsured” motorist pursuant to Section 627.-727(3)(b), Florida Statutes (1975). In so holding this Court relied upon United States Fidelity & Guaranty Co. v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979). Therein the Third District Court of Appeal held an injured person driving a truck owned by another could stack his personal uninsured motorist coverage and the uninsured motorist coverage issued to the owner of the vehicle. The Third District rejected the carrier’s argument based on Government Employees Insurance Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977), which holds to the contrary. Appellants in the instant case rely upon the Taylor case as initially decided by the First District, however, the First District has since receded from this holding. See Main Insurance Co. v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977). Our Supreme Court in Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966), also supports the view that would allow some stacking under the present circumstances.

The above general discussion does not, however, definitely answer the questions presented. Here the trial court correctly allowed stacking of the two Travelers coverages but we conclude the court erred in stacking the two Liberty Mutual coverages. Lisa Searle, as a permissive passenger in the Connolly vehicle, could take advantage of the uninsured motorist coverage on that particular vehicle. She could not, however, take advantage of the additional coverage on the other Connolly automobile with which she had no relationship whatsoever. This result is supported by the Supreme Court’s decision in Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971). Lisa Searle did not become an insured under the two Liberty Mutual coverages by occupying one automobile insured by this carrier. The trial court erred in ruling to the contrary.

In view of these rulings we conclude ap-pellees could stack one Liberty coverage of $50,000 and their own two coverages of $50,000 for total uninsured motorist coverage of $100,000. This is precisely the amount of the tortfeasor’s liability coverage which was actually paid to the Searles. Under such circumstances, there was no valid uninsured motorist claim because the uninsured motorist coverage did not exceed the liability coverage. See Section 627.-727(3)(b), Florida Statutes (1975).

The trial court also erred in expressly ruling that the liability coverage would not be a set-off. See Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), which specifically holds that such coverage is a set-off. The trial court also erred in assessing attorneys’ fees based on the finding of a proper uninsured motorist claim.

The final judgment below is reversed and the matter remanded with directions to enter judgment in favor of appellants, the two uninsured motorist carriers.

REVERSED AND REMANDED.

DAUKSCH, JAMES C., Jr., and GREEN, OLIVER L., Jr., Associate Judges, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert B. ARBUCKLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-423.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1979.
    Rehearing Denied Jan. 25, 1980.
    Archie M. Odom of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Robert R. Arbuckle appeals his convictions of criminal conspiracy to possess more than one hundred pounds of cannabis with intent to sell or deliver, possession of more than one hundred pounds of cannabis with intent to sell or deliver, and importation of a controlled substance. §§ 777.04(3), 893.-13(l)(a)2, 893.13(l)(d), Fla.Stat. (1977). After reviewing the record, examining the briefs and hearing oral argument, we have concluded that Arbuckle has not demonstrated any reversible error in respect to his convictions.

We do, however, find error in the sentence imposed. The trial judge, apparently viewing the three offenses as a single transaction, pronounced a general sentence of fifteen years imprisonment and a $50,000 fine. Arbuckle’s offenses occurred in 1978 subsequent to the enactment of Section 775.021(4), Florida Statutes (1977), which mandated a separate sentence for each criminal offense. The trial court, therefore, should have imposed a separate sentence for each criminal violation. Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978).

We affirm Arbuekle’s convictions, but vacate the sentence imposed. We remand, and direct the trial court to impose separate sentences for each offense. The appellant is entitled to be present at resentencing.

GRIMES, C. J., SCHEB, J., and RAW-LINS, ROBERT W., Jr., Associate Judge, concur.

      . It was error for the trial court to have imposed a fine exceeding an aggregate amount of $20,000. On remand, the court may impose separate fines not exceeding $5,000 each for violation of Sections 777.04(3) and 893.13(l)(d), Florida Statutes (1977), and a fine not exceeding $10,000 for violation of Section 893.-13(l)(a)2. §§ 775.083(1 )(c), 775.083(l)(b), Fla. Stat. (1977).


text:
    In re Estate of Bernard J. HERSKOWITZ, Deceased. Judith HERSKOWITZ, Appellant, v. Marvin HERSKOWITZ, Appellee.
    No. 78-1956.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Feb. 4, 1980.
    Judith Herskowitz, in pro. per.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The order under review is affirmed upon a holding that (1) the trial court had jurisdiction to enter such order, James v. James, 64 So.2d 534, 536 (Fla.1953), and (2) the appellant waived for appellate purposes any objection thereto by (a) failing to object to, and, indeed, impliedly inviting the order appealed from in the trial court, Hawkins v. Perry, 146 Fla. 766, 1 So.2d 620 (1941); 3 Fla.Jur.2d “Appellate Review” 347 (1978), and (b) failing to appeal from, and complying with a prior order of the trial court which required the appellant to make substantially the same accounting as the order now under review. Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943); Herman A. Thomas, Inc. v. Sharpe, 309 So.2d 592 (Fla. 3d DCA 1975).


text:
    Raleigh DUPREE, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 79-98.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Jan. 22, 1980.
    Raleigh Dupree, Jr., in pro. per.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Patrick v. State, 336 So.2d 1253 (Fla. 1st DCA 1976); Wrich v. State, 350 So.2d 1114 (Fla. 2d DCA 1977); Section 948.06, Florida Statutes (1977).


text:
    The GRAND UNION COMPANY, INC., Appellant, v. Clara DAVIS, Appellee.
    No. 79-1041.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Feb. 15, 1980.
    Adams & Ward and Amy Shield Levine, Miami, for appellant.
    Ser, De Cardenas, Levine, Busch & Allen and Edward P. Busch, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Causeway Marina, Inc. v. Mandel, 276 So.2d 71 (Fla. 3d DCA 1973); Hayes v. Williams, 271 So.2d 200 (Fla. 1st DCA 1972); Watson v. Right, 309 So.2d 24 (Fla. 1st DCA 1975); Odoms v. Travelers Ins. Co., 339 So.2d 196 (Fla.1976).


author: DOWNEY, JAMES C., Associate Judge.

text:
    Mitchell WHITE and Eunice Mae White, his wife, Appellants, v. FEDERAL FINANCIAL CORPORATION, Appellee.
    No. 78-1404/NT4-61.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 1980.
    Rehearing Denied Feb. 11, 1980.

      Gary F. Large of the Law Office of Frank Henry Molica, P.A., Merritt Island, for appellants.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, Titusville, for appellee.
   DOWNEY, JAMES C., Associate Judge.

The issue involved on this appeal is whether appellants’ amended complaint alleged sufficient facts indicating a violation of the Florida Consumer Collection Practices Act so as to predicate service of process upon appellee under the Florida Long Arm Statute, Section 48.161, Florida Statutes (1977). The trial court concluded the predicate was insufficient and dismissed the amended complaint with prejudice. We conclude that in so doing reversible error resulted.

The record reflects that appellee is a Minnesota corporation with no office or resident agent in Florida. The accounts receivable of W. T. Grant Company, Bankrupt, were purchased by appellee. In an effort to coerce payment of one of those accounts owed by appellants appellee wrote letters and made telephone calls from outside the state to appellants. The manner in which the collection was undertaken offended appellants, resulting in their filing suit for violation of Chapter 559, Florida Statutes (1977). Service of process was effected pursuant to Section 48.161, Florida Statutes (1977). The trial court’s order denying a continuance and dismissing the complaint with prejudice is the subject of this appeal.

The amended complaint with which we are dealing was brought pursuant to Chapter 559, Florida Statutes. It alleged that appellee was a foreign corporation doing business in Florida as a collection agency pursuant to the definition found in Section 559.55, in that by itself or through others the telephone and mail were used to attempt collection of consumer claims owed or alleged to be owed by appellants to W. T. Grant Company. It was further alleged that appellee engaged in said business either directly or by the method of purchasing accounts from W. T. Grant, as prohibited by Section 559.73. The complaint charged that appellee 1) used simulated legal or judicial process to coerce payment, 2) willfully communicated with appellants on such a frequent basis as to harass them, and 3) disclosed information to a credit bureau concerning the alleged debt without disclosing that the debt was disputed.

The ■ trial court apparently felt that no adequate predicate for use of the Long Arm Statute was alleged because he considered the acts alleged in the complaint to be “transacting any business in Interstate Commerce,” which under Section 607.304, Florida Statutes (1977) would not constitute transacting business in this state. The latter statutory section referred to is part of the Florida General Corporation Act and does not control this case because the conduct with which appellee was charged is specifically held to constitute “doing business within this state.” Section 559.55(8)(a) provides:

“Doing business within this state” means entering the State of Florida physically to perform any activity included in the definition of a collection agency in subsection (4), or doing the same from within or without the state by telephone, telegram, mail, or any other form of communication.

Thus, the basis for resort to Section 48.161 is properly and adequately alleged.

Finally, appellee contends it was not a collection agency as defined in Section 559.-55(4)(a), since it was attempting to collect its own debts — not the debts of another. We hold that, while that distinction is valid, it does not change the thrust of appellants’ complaint. In Williams v. Streeps Music Co., Inc., 333 So.2d 65 (Fla. 4th DCA 1976), we held that the provisions of the Consumer Collection Practice Act were not restricted to collection agencies. Rather the language of the Act includes all unlawful attempts at collecting consumer claims. The First District Court of Appeal held likewise in Cook v. Blazer Financial Services, Inc., 332 So.2d 677 (Fla. 1st DCA 1976). A simple amendment to appellants’ Amended Complaint would correctly allege appellee’s true status in this matter, i. e. that appellee was attempting unlawfully to collect its own debts rather than the debts of another.

In view of the foregoing the order appealed from is reversed and the cause is remanded with directions to reinstate the amended complaint and for further proceedings.

LETTS, GAVIN K., and BERANEK, JOHN R., Associate Judges, concur.


text:
    Roslyn ZERLIN, Appellant, v. Sam COHEN, Appellee.
    No. 79-806.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.
    Rehearing Denied Feb. 15, 1980.
    Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellant.
    Fuller, Feingold, Weil & Scheer and Bernard C. Fuller, Miami Beach, for appellee.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. Cohen v. Lansburgh, 366 So.2d 154 (Fla.3d DCA 1979).


author: VANN, HAROLD (Ret.), Associate Judge.

text:
    MIKANTO CONSTRUCTION CORPORATION, Magnus Construction Corporation, and Fidelity and Deposit Company of Maryland, Appellants, v. DADE COUNTY, a Political Subdivision of the State of Florida, for the Use and Benefit of GORY ASSOCIATED INDUSTRIES, INC., INTERCOASTAL DIVISION, a Florida Corporation, Appellee.
    No. 79-1218.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.
    Rehearing Denied Feb. 11, 1980.

      Howard J. Hollander, Miami, for appellants.
    E. Paul Beatty, Henry M. Burch, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   VANN, HAROLD (Ret.), Associate Judge.

The appellants, defendants in the trial court, by this appeal challenge a final judgment in the amount of $10,747.21 plus interest awarded a materialman for materials delivered to a HUD construction project.

The materialman, Gory Associated Industries, Inc., allegedly delivered certain roofing materials to the construction site, valued at $22,134.34. Gory claimed it had received payment of $11,187.13 for these materials, so the instant suit was filed pursuant to Section 255.05, Florida Statutes (1975), seeking recovery of the balance due of $10,947.21. In answer thereto, the appellants claimed that Gory had not, in fact, delivered all the materials claimed and that even if it did, it had in fact received payment of $19,359.16 of the amount alleged due and owing. After trial of the cause, the trial court found in favor of Gory and entered the judgment appealed herein..

The appellants have raised two points on this appeal. Point I alleges that Gory failed to prove delivery of the alleged materials, and Point II alleged the trial court failed to set off against Gory’s claim the full amount paid to Gory by the appellants.

We affirm as to Point I. The record contains substantial competent evidence to sustain a finding that Gory had in fact delivered all of the materials alleged in its complaint. Inasmuch as this finding is supported by the evidence, we must affirm. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Continental Development Corporation of Florida v. Duval Title and Abstract Company, 356 So.2d 925 (Fla.2d DCA 1978).

The second point must be reversed. The appellants have shown, by unrebutted evidence, that they had in fact paid $19,-359.16 of Gory’s claim and it was error for the trial court not to apply that amount as a credit against said claim. Standard Accident Insurance Company v. Duval Lumber Company, 99 Fla. 525, 126 So. 643 (1930); Lehman v. Snyder, 84 So.2d 312 (Fla.1955); Gulf Stream Lumber Company v. Lathrop, 108 So.2d 55 (Fla.2d DCA 1959).

Therefore, the trial court’s finding that Gory had delivered the materials and that the appellants are liable for. the' unpaid portion of Gory’s account is hereby affirmed. The trial court’s determination of the amount of damages is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.

Affirmed in part; reversed in part and remanded.


text:
    Norman ROBBINS, Appellant, v. BLACKSTONE VALLEY NATIONAL BANK, Appellee.
    No. 79-1227.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.
    Rehearing Denied Feb. 15, 1980.
    Steinberg & Sorota and Samuel S. Sorota, Miami Beach, for appellant.
    Feinstein & Whitelock and Charles T. Whitelock, Fort Lauderdale, for appellee.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The final judgment appealed from is affirmed upon a holding that: (a) the parties through parol agreement stipulated to the entry of judgment upon the submission of certain briefs and memoranda, which stipulation was properly made a part of the record through a court order and could not later be challenged subsequent to the entry of judgment made pursuant to the stipulation, Hartford Fire Insurance Co. v. Redding, 47 Fla. 228, 37 So. 62 (1904) (court syllabus no. 12); Fla.R.Civ.P. 1.030(d); and (b) the foreign judgment herein was facially valid and was, therefore, entitled to be domesticated by the final judgment appealed from either under the full faith and credit clause of the United States Constitution [U.S. Const, art. IV, § 1] or as a matter of comity. Gaylord v. Gaylord, 45 So.2d 507 (Fla.1950); Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926); Barnett Bank of Clearwater, N. A. v. Folsom, 306 So.2d 186 (Fla.2d DCA 1975).


text:
    Edward CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1418.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1980.
    Rehearing Denied Feb. 20, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Denise Banjavie, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the record this court finds that the only evidence submitted to prove that the appellant violated the terms of his probation was in the form of hearsay reports as to his conduct while attending a drug rehabilitation program ordered by the court. The appellant testified in his own behalf and categorically denied any misconduct. Probation may not be revoked solely on the basis of hearsay. Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977). That rule is especially applicable when the probationer’s testimony directly contradicts the hearsay reports. When a defendant’s probation is sought to be revoked because of his failure to successfully complete a designated rehabilitation program, some evidence must be submitted to show that the defendant was in some manner responsible for such failure. Such evidence is completely lacking here.

Accordingly, the order revoking probation and the judgment and sentence thereafter entered are hereby reversed with directions for further proceedings consistent herewith.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    HOLY CROSS HOSPITAL, Petitioner, v. Mary BERCIER, Respondent.
    No. 79-1675.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1980.
    Rehearing Denied Feb. 15, 1980.

      Mark Hicks of Daniels & Hicks, and Law Offices of H. Dane Mottlau, Miami, for petitioner.
    Ira W. Still, III, Pompano Beach, for respondent.
   DOWNEY, Chief Judge.

By Petition for Writ of Certiorari review is sought of an order of the judicial referee confirming termination of a medical mediation proceeding.

It appears from the petition that “On January 16, 1979, the respondent, Mary Bercier, filed a medical malpractice claim against the Hospital. This complaint was never served and a copy of it was never mailed to the Hospital. On March 7, 1979, (52 days later) an ‘amended complaint’ was filed. This complaint was served on the Hospital on March 12, 1979 (57 days later). No leave of court was sought or received for filing this complaint. The Hospital filed an answer to the complaint on March 14, 1979.

“A ‘Notice of Final Hearing’ was entered by the judicial referee on April 3, 1979, setting the final hearing for June 29, 1979. However, on May 17,1979, the clerk’s office issued its certificate terminating jurisdiction on the ground that:

A hearing has not been held within 120 days from the date of the filing of the claim and no extension order has been entered by the judicial referee.

The clerk’s certificate was entered four months after the original complaint was filed (but never served) and about seventy-one days after the ‘amended complaint’ was filed and served. On May 21, 1979, the Hospital filed a ‘Motion to Set Aside Clerk’s Certificate Termination of Jurisdiction’ and on May 31, 1979, the Hospital filed a ‘Motion For Clarification of Termination Order, and For Extension of Jurisdiction.’

“On June 18, 1978 (sic), Judge Orlando entered the following order on these motions:

1. That the original claim was filed on January 16, 1979; that the final hearing was not commenced within 120 days of original filing and defendant failed to file a Motion, or. otherwise seek, to extend jurisdiction beyond the 120 day period.
2. That jurisdiction of the above-entitled action has terminated as a matter of law on May 17,1979, and the parties may proceed in accordance with law.”

Upon the filing of the petition this court issued a rule commanding the respondent to file a response. Respondent filed a motion to dismiss the petition and a memorandum in support thereof, but failed to file any response.

We have considered the petition and respondent’s motion to dismiss and memorandum in support thereof and find that the judicial referee departed from the essential requirements of law. The written notice of hearing issued prior to the expiration of the 120 day period setting the final hearing for June 29, 1979 (a date beyond the 120 day period) constitutes an extension of time envisioned by Section 768.44(3), Florida Statutes (Supp.1978), albeit no formal motion to extend the time had been filed. Thames v. Melvin, 365 So.2d 813 (Fla. 1st DCA 1979). The record demonstrates there was adequate good cause for the extension as required by Medical Mediation Rule 20.160(e). We consider the respondent’s excessive delay in serving the complaint upon petitioner as good cause for the extension.

Accordingly, the Petition for Certiorari is granted and the order of the judicial referee .confirming termination of jurisdiction is quashed and the cause is remanded to the judicial referee for reinstatement of the medical mediation proceeding.

ANSTEAD, J., and CROSS, SPENCER C., Associate Judge, concur.

      . We assume petitioner means no leave of the judicial referee was obtained since this was a medical mediation proceeding.

      . It is clear this order was entered June 18, 1979.


author: HENDRY, Judge.

text:
    Edgar E. OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-856.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Edgar E. Oliver, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

The major issue raised by this appeal is whether the appellant, who failed to present or preserve any issue below with respect to a statute of limitations, can now assert the applicability of a statute of limitations for the crime for which he pleaded nolo contendere. We find that appellant is estopped to make such a claim. Oliver was originally charged with first degree murder, a capital offense having no statute of limitations. Thereafter appellant negotiated a plea with the state attorney; the trial court accepted his plea of nolo contendere to second degree murder. The appellee-state submits that the appellant, after having chosen to plead rather than stand trial on the original charge of first degree murder, cannot now rely upon Section 932.465(2), Florida Statutes (1973). The appellee asserts that Oliver is estopped from asserting a statute of limitations where, at the appellant’s inducement, the trial court convicted him of second degree murder incident to his negotiated plea of nolo contendere. It is well settled that a defendant cannot initiate error and then seek reversal based on that error. Jackson v. State, 359 So.2d 1190 (Fla.1978); King v. State, 373 So.2d 78 (Fla. 3d DCA 1979); Smith v. State, 345 So.2d 1080 (Fla. 3d DCA 1977). It would be wholly inconsistent for us to hold otherwise in the instant case; since the appellant caused and reaped the benefit of his negotiated plea; he cannot now change his position in an attempt to challenge the conviction on the grounds of a statute of limitations. Furthermore, the appellant neither presented the issue relating to the statute of limitations in the trial court nor preserved the issue for appeal when he pleaded nolo contendere. See, State v. Ashby, 355 So.2d 138 (Fla. 3d DCA 1978), and Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978).

The other points raised have been determined to be without merit.

The judgment of conviction is hereby affirmed.

Affirmed.

      . The Supreme Court of Florida denied certiorari. Smith v. State, 353 So.2d 678 (Fla.1979).


text:
    Frederick DIGGS, Appellant, v. McCOTTER MOTORS, INC., Appellee.
    No. 79-879.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Rehearing Denied Feb. 15, 1980.
    Stephen Cahen, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellee.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed upon the law as set forth in Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977), arid authorities cited therein.


text:
    H. R. C. INC., a Florida Corporation, Appellant, v. John GRAY and Jasper Lombardy and as co-partners, d/b/a 3601 Building, and Management Information Systems Company, a Florida Corporation, Appellees.
    No. 79-1231.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Rehearing Denied Feb. 11, 1980.
    Edward C. Tietig, Howard, Brawner, Lov-ett & Bender, Miami, for appellant.
    Lionel Barnet, Miami Beach, for appel-lees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The summary judgment under review is reversed because the defendants-appellees failed to establish conclusively that the plaintiff-appellant did not have the right of first refusal to purchase certain real property, which was the basis of the action below. Holl v. Talcott, 191 So.2d 40 (Fla.1966).


text:
    Bruno O. WEINSCHEL, Appellant, v. Sally A. WEINSCHEL, Appellee.
    No. 79-1590.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Rehearing Denied Feb. 15, 1980.
    Koeppel, Stark & Newmark and Robert L. Koeppel, Miami, for appellant.
    Smathers & Thompson and Cromwell A. Anderson, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The order of temporary alimony, child support and other relief is affirmed [save for paragraph 7 thereof] upon a holding that the order, although extremely extensive, was within the discretion of the trial court to enter as it is supported by substantial competent evidence in this record. Landy v. Landy, 62 So.2d 707 (Fla.1953); Gilbert v. Gilbert, 105 So.2d 379 (Fla. 3d DCA 1958); Annot, 1 A.L.R.3d 280 (1965). Paragraph 7 of the order under review is reversed in its entirety, however, upon a holding that the trial court in a marriage dissolution action has no authority to require a husband, as it did in this case, to maintain a life insurance policy for the benefit of his wife, to provide support for her in the event of his death, where, as here, there is nothing in the record which justifies an award of alimony after death. Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1978).


text:
    MAGNUS et ux., Finegan, Silver, Caesar et ux., Newman, D’Antonio, Haberman, Goff et ux., Gimble et ux., Rabinowitz et ux., Blumstein et ux., Citron et ux., Goldes et ux., Goodstein, et ux., Horowitz et ux., Kaufman et ux., Link et ux., Marks et ux., Meyers et ux., Steinberg et ux., Strasberg et ux., Trop et ux., Petitioners, v. CENTURY VILLAGE, INC., Respondent.
    No. 77-2436.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.

      George P. Ord, of Alley, Maass, Rogers, Lindsay & Chancey,-Palm Beach, for petitioners.
    F. Gregory Barnhart, of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., Palm Beach, for respondent.
   PER CURIAM.

This is a petition for common law certiorari seeking to review an order entered by the Circuit Court sitting in its appellate capacity. Review by certiorari in such circumstances requires more than a demonstration of mere error. Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979). Therein, this court quoted Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973), as follows:

It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.

Simply put, the petitioners are not entitled to a second appeal.

The issue litigated here was whether the lessor of a condominium recreation lease could, in its discretion, exact a $25 late charge for rents not paid within ten days after the date on which they were due. The condominium documents so provided and lessor filed suit in County Court seeking to enforce the $25 late charge against certain individual owners of condominium parcels. This case was tried before the County Court which found that the petitioners/defendants had violated the conditions of the lease and the $25 late charge was reasonable. They appealed to the Circuit Court asserting that there was no evidence to sustain the County Court’s decision. The Circuit Court concluded to the contrary affirming the County Court. Petitioners again assert the same argument to this court. We find that there has been no demonstration of error sufficient to warrant this court’s assuming certiorari jurisdiction.

Certiorari is, therefore, denied.

ANSTEAD, LETTS and BERANEK, JJ., concur.


author: LETTS, Judge.

text:
    John KEENAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1397.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 20, 1980.
    Richard L. Jorandby, Public Defender and Rendell F. Brown, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Glenn H. Mitchell and Marc E. Kirk, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal arises by way of a murder committed in September of 1974 for which the appellant was not indicted until January 1978. The Court gave a murder one charge but refused to charge on any lesser degrees of homicide because all lesser degrees were barred by the statute of limitations. The appellant was convicted as charged. We affirm.

The only point with merit on appeal presents an interesting nuance, for not only do we know that a jury must be charged on all lesser degrees of homicide, Brown v. State, 206 So.2d 377 (Fla.1968); Fla.R.Crim.P. 3.490, but we are also aware of the doctrine of “jury pardon” last enunciated in Lomax v. State, 345 So.2d 719 (Fla.1977) and State v. Abreau, 363 So.2d 1063 (Fla.1978).

The question of failure to charge on lesser offenses has been recently examined in the Third District which, after pointing out “it is the established law of this state . that on an indictment for first degree murder the defendant may not be convicted of any lesser offense ... on which the statute of limitations has run,” held that by definition no lesser offense exists in such a situation because any conviction returned as to such lesser offense would be a nullity, Holloway v. State, 362 So.2d 333 (Fla.3d DCA 1978).

We are in agreement with the foregoing; however, nowhere does Holloway speak to “jury pardon” as such. Nonetheless it remains our opinion that if there are no convictable degrees for the charged offense to be divided into, and no lesser offenses on which a conviction can be obtained, the concept of jury pardon is simply not applicable, except that a failure to carry the greater burden of proving the more heinous crime will permit the defendant to go free altogether rather than being convicted of a lesser offense. There are, of course, some crimes not divisable into degrees and with no lesser included offenses, which are apparently not rendered unenforceable because the jury pardon argument is not available. See State v. Thomas, 362 So.2d 1348 (Fla.1978) (possession of burglary tools); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), (uttering a forged instrument); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975), (conspiracy). In addition, and more to the point, our own Supreme Court in 1931 reached the exact same result as did Holloway. Perry v. State, 137 So. 798 (Fla.1931). True, Perry is an old decision, but it has not been overruled and it would appear to remain the law of Florida.

We conclude with an admission of puzzlement over the precise origin and effect in Florida of the quoted phrase “jury pardon.” We note that our Supreme Court has ruled that a defendant cannot waive instructions on lesser included offenses, State v. Washington, 268 So.2d 901 (Fla.1972) a holding which logically suggests that jury instructions on lesser offenses are not solely for the defendant’s benefit but also in some measure are for the benefit of society. Thus an accused who is guilty of some criminal offense will not go scot-free because the proof will not support the optimum conviction. In this same vein we also note the standard jury instruction which commands a jury to return a verdict for the highest offense proved. Such an instruction does not appear to be compatible with a concomitant power to pardon. If a jury possesses this as a “right,” it is illogical that it is not so instructed. How can the jury exercise its right to pardon if it is ignorant of it and is told quite to the contrary by the standard instructions? We are glad the result in this case does not require us to resolve this debate.

MOORE, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . However instructions were, given on justifiable and excusable homicide.

      . The statute on which this ruling was based has been repealed but its counterpart remains in Fla.R.Crim.P. 3.490 and 3.510.

      . In Ammons v. State, 88 Fla. 444, 102 So. 642, 644 (1924) the court noted: “What reason impelled the jury to return a verdict of murder in the second degree need not be inquired into, as a verdict of murder in that degree will be sustained if the evidence would support a verdict of a higher degree of homicide, because the defendant’s guilt as to every grade of unlawful homicide is involved upon a trial for murder in the first degree (citations omitted).”

      . Fla.Std. Jury Instr. (Crim.) 2.16

      . This concept of “jury pardon” appears to be written about in legal literature under the nomenclature of “jury nullification." Articles on the subject discuss this as a “power" of the jury rather than a “right,” of which the jury is not informed by instruction. In the fairly recent case of United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (D.C.Cir.1972) an issue before the court was whether the trial court erred in refusing to instruct the jury on its power to acquit in nullification of the law and evidence, and in the alternative, whether the trial court had erred in refusing to allow the defendants to argue the jury nullification doctrine to the jury. The court concluded that there was no error in either denial. See, for example, Dreyer, Jury Nullification and the Pro Se Defense: The Impact of Dougherty v. United States, 21 Kansas L.Rev. 47 (1972); Simson, Jury Nullification in the American System: A Skeptical View, 54 Tex.L.Rev. 488 (1976); Scheflin, Jury Nullification: The Right to Say No, 45 S.Calif.L.Rev. 168 (1972); and Stolt, Jury Nullification: The Forgotten Right, 7 New England L.Rev. 105 (1971).


author: ROBERT P. SMITH, Acting Chief Judge: BOOTH, Judge,

text:
    Larry TURNER, James Benner Bailey, Jr., William G. Brooker, Richard Lee Rieser, Howard Gene Kilgore, and John Michael Haddon, Petitioners, v. Louie L. WAINWRIGHT, Respondents. Larry Edward TURNER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    Nos. KK-260, MM-471, MM-448, NN-84, NN-198, PP-246 and LL-128.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1980.

      Richard A. Belz, and Thomas A. Daniel, of Florida Institutional Legal Services, Inc., Gainesville, for petitioners and appellant.
    Michael H. Davidson, Gainesville, Jim Smith, Atty. Gen., and Carolyn M. Snur-kowski, and David P. Gauldin, Asst. Attys. Gen., Tallahassee, for respondent and appel-lee.
   ROBERT P. SMITH, Acting Chief Judge:

Does the open public meetings law, Section 286.011, apply to parole revocation meetings of the Parole and Probation Commission, or would the constraints of that law unconstitutionally invade clemency prerogatives of the executive branch, in violation of Article IV, Section 8, and Article II, Section 3, Constitution of Florida? Last year in Thomas we stated that Section 286.011 applies “to all meetings of the Parole and Probation Commission.” We now reexamine that question in the light of the Commission’s constitutional objections to these three petitions for a writ of habeas corpus, contesting petitioners’ imprisonment resulting from nonpublic meetings of the Commission,.and Turner’s appeal from the Commission’s declaratory statement that its parole revocation meetings are constitutionally exempt from the public meetings law. The petitions for habeas corpus and the administrative appeal appropriately raise the issues. Jackson v. Mayo, 73 So.2d 881 (Fla.1954); State v. Sampson, 297 So.2d 120 (Fla. 4th DCA 1974); Sections 120.565, 120.68, Florida Statutes (1977).

Turner’s case is typical of Brooker’s and Bailey’s. Turner is imprisoned by the Department of Corrections, of which respondent Wainwright is head, by reason of a decision of the Parole and Probation Commission, on May 11, 1978, revoking Turner’s liberty on mandatory conditional release from a sentence of the Circuit Court of Dade County. “Mandatory conditional release” or MCR is release of a prisoner, “as if on parole,” when the prisoner has served the prescribed prison term less gain-time and good-time allowances. Turner’s original sentence and, consequently, his MCR or parole status, would have terminated February 9, 1978, had Turner not been arrested in August 1977 for violations of his release conditions which were the basis of the Commission’s revocation order of May 11, 1978.

The Commission on May 5, 1978, gave Turner an opportunity to be heard and to present evidence on the charges of MCR violations. On May 11, 1978, four members of the Parole and Probation Commission met at Tallahassee and, at a meeting that admittedly was not open to the public, press, petitioner, petitioner’s counsel, or other interested persons, voted to revoke Turner’s release. Thereupon the Commission entered a written order revoking Turner’s release status and returning Turner to Florida State Prison.

Numerous decisions have now acknowledged that the open public meetings law, Section 286.011, serves to “promote a state interest of the highest order,” by tending to “enhance and ' preserve democratic processes.” E. g., Byron Harless, Schaffer, Reid and Assoc., Inc. v. State ex rel. Schellenberg, 360 So.2d 83, 97 (Fla. 1st DCA 1978), and cases cited. In defense of its failure to comply with Section 286.011 in the revocation of Turner’s release, the Commission’s position is simply this: that its function in revoking MCR and parole orders is a function of the executive branch and is, more particularly, akin to the pardon power, which historically and constitutionally is a matter of executive grace, to be exercised on occasions and in a manner determined by the executive, free of legislative or judicial control. Thus, the Commission urges, paroles like pardons are of exclusive concern to the executive and the legislative branch is foreclosed from such control as is exerted by the open public meetings law. The constitutional sources of the Commission’s argument are Article II, Section 3 (“Branches of government”), Constitution of Florida (1968), providing:

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.

And Article IV, Section 8 (“Clemency”), providing:

(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.
(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.
(c) There may be created by law a parole and probation commission with power to supervise persons on probation and to grant paroles or conditional releases to persons under sentences for crime. The qualifications, method of selection and terms, not to exceed six years, of members of the commission shall be prescribed by law.

We agree with the premise from which the Commission’s argument proceeds: that the legislative branch is without authority to prescribe either the occasions for exercising the pardon power or the manner and procedure for its exercise. Singleton v. State, 38 Fla. 297, 21 So. 21 (1896), struck down an act which purported to grant a convicted felon clemency by restoring his competency to testify, forfeited in those days by conviction. Ex parte White, 131 Fla. 83, 178 So. 876 (1938), nullified an act which purported to require commutation to a life prison term of any death sentence affirmed by an equally divided Supreme Court. In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla.1976), held that the Administrative Procedure Act of 1974 could not lawfully constrict the executive’s clemency powers under Article IV, Section 8(a), of the 1968 Constitution. Sullivan v. Askew, 348 So.2d 312 (Fla.1977), cert. den., 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977), held that the clemency powers prescribed by Sections 8(a) and (b) are not subject to constitutional due process strictures as interpreted and enforced by the judicial branch. From this we conclude that the open public meetings law, Section 286.011, could not constitutionally be held to require compliance by the Governor (even assuming he could “meet” with someone in the exercise of exclusive gubernatorial responsibilities), or by the Governor and Cabinet, in dispensing pardons and the other forms of clemency authorized by Article IV, Section 8(a), Constitution of Florida (1968).

Since 1968 the constitutional authority for paroles has been housed with pardons and other clemency measures in Article IV, Section 8. Yet subsection 8(c) is of a character different from 8(a), which grants certain clemency powers outright to the Governor, or to the Governor and Cabinet. Subsection 8(c) provides that a Parole and Probation Commission, having parole powers, “may be created by law.” Concerning this the Commission concedes that subsection 8(c) was not self-executing, that the legislature was given power to call parole and the Commission into existence; but the Commission urges that, once created by law, it partakes of the executive’s immunity from legislation in dispensing pardon-like paroles. In the terms of subsection 8(c), the Commission urges that it could be and was “created by law,” but that legislation cannot control its exercise of powers which historically are those of an unfettered executive branch.

The Commission’s argument hangs precariously on the 1968 Constitution’s consolidation of various “clemency” powers in Article IV, Section 8, after 28 years in which the parole power was housed separately from pardon powers in the miscellany of the 1885 Constitution, Article XVI, Section 32. The Commission’s argument also misreads the history and justification of pardons, which are founded and sustained on considerations not shared by paroles.

In the common law of England the pardon power was a matter of kingly grace; and, as befits regal things, it was all the more wonderful because its exercise was inexplicable and idiosyncratic. As one did not question the king, no further explanation was required but that, by “a private act of grace from an individual happening to possess power,” the law’s judgment and sentence were set aside.

As a part of Florida’s constitutional scheme in the twentieth century, the pardoning power has been justified as a means, to correct judicial errors,

to prevent pauperization of families, to prevent unwarranted incidence of the punishment on the convict’s family instead of on him as intended, or where through the particular condition surrounding incarceration of the prisoner, he should be released irrespective of the views of the accused or his friends in the matter [Davis, ante fn. 5 at 469.]

In 1931, Attorney General Fred Davis likened the pardon power to “that exercised by courts of bankruptcy who in our civil law system relieve debtors to individuals at the expense of their creditors, because the public welfare demands that such relief be granted . . . .” He suggested a social utility in pardons which we may suppose was irrelevant to the justification of kingly grace: because the executive “has generously exercised its power to release the better class of prisoners after they have served a reasonable portion of their sentences without requiring them to serve in full,” pardons had reduced from 8,769 to 2,600 the number of prisoners that would in 1931 have been incarcerated in Florida State Prison. Davis, ante fn. 5, at 469-70.

While regal overtones still accompany pardons, it is apparent that, in the early twentieth century, pardons became more broadly justified and more systematically granted than the pardons of any king of history or folklore. The Pardon Board — the Governor and Cabinet were so designated by the 1885 Constitution — evolved a species of pardon which did not instantaneously obliterate the conviction, which was the characteristic of earlier pardons, but instead released the convict from further prison service on condition of his continuing good behavior.

As is usually the case, the law’s rationalization of its movement lagged behind the movement itself. Although parole as we know it today had no basis in constitutional terms until 1940, it was “common knowledge” that, for many years before, “the Pardon Board of Florida has granted a type of release that has been loosely referred to as a ‘parole’ even by the Supreme Court of Florida.” See, e. g., State ex rel. Morenco v. Mayo, 131 Fla. 271, 175 So. 806 (1937). Conceptually, pardons in the sense of paroles passed through the intermediate stage of “conditional pardons,” by which the convict was released with a “pardon” having its full and ancient effect upon his guilt, but not until he died in compliance with the condition that he “hereafter lead a sober, peaceable, and law-abiding life.” E. g., Ex parte Alvarez, 50 Fla. 24, 28, 39 So. 481, 482 (1905); State ex rel. Brown v. Mayo, 126 Fla. 811, 812, 171 So. 822, 823 (1937).

Parole was first authorized as such by a 1940 amendment adding Article XVI, Section 32 to the 1885 Constitution:

The Legislature may create a Parole Commission empowered to grant paroles or conditional releases or probation under official supervision to prisoners or persons charged with criminal offenses, and may provide for the qualification and method of selecting the Commission members and for their term of office the length of which shall be wholly within the discretion of the Legislature.

The legislature acted in 1941 to create the Parole Commission and to regulate, in some detail, its organization and procedure. Chapter 20519, Florida Laws (1941); Chapter 947, Florida Statutes (1941).

Although the parole power founded on Article XVI, Section 32, was thus distinguished constitutionally and in operation from the pardon power founded on Article IV, Section 12 of the 1885 Constitution, the doctrinal association of parole with the Pardon Board did not die easily. Sheppard v. Mayo, 46 So.2d 729, 730 (Fla.1950), spoke of a “parole” granted for a specific term “pursuant to authority given the Pardon Board under Section 12, Article IV of the Constitution . . . .” See also La Barbera v. State, 63 So.2d 654 (Fla.1953); Clark, op. cit. supra fn. 7, 11 U.Fla.L.Rev. at 69. But in 1954 the Supreme Court drew a sharp distinction between a 1935 “parole”, granted by that name by the Pardon Board, and the parole that was available, at the time of the decision, from the Parole Commission. Beal v. Mayo, 70 So.2d 367 (Fla.1954). The issue was whether Beal was subject to re-commitment in 1953 for violation of conditions of the “parole” granted by the Pardon Board in 1935. Beal’s violation evidently occurred after 1946, when his original sentence would have expired. Although the Parole Commission’s power to revoke a parole order terminated upon expiration of the term of the original sentence, the Court held that was not true of a “parole” granted by the Pardon Board in 1935. Noting that the Pardon Board’s constitutional authority is “only” to commute punishment and to grant pardon after conviction, the Court held that the Pardon Board’s 1935 order, though in terms a parole, “was in law a conditional pardon . . . ,” which could be granted and accepted on any conditions satisfactory to the Pardon Board and to the convict, including a condition that his good behavior continue beyond the original term of his sentence. For the violation of that condition, the Court held, “recommitment ... is proper notwithstanding the fact that the period of original sentence has expired . . . .” Beal, 70 So.2d at 368.

Despite the generic relationship of pardons and paroles during the years in which those remedies were available only at the hands of the Pardon Board, exercising king-like powers which no legislature or court could question or cancel, after 1940 the parole power rested entirely in Article XVI, Section 32 of the 1885 Constitution, now similarly expressed by Article IV, Section 8(c), of the 1968 Constitution. Placing the 1940 parole amendment in the executive article of the 1968 Constitution, where it is arrayed with Section 8(a)’s historic executive powers to “grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses,” does not replant parole in the ancient and impenetrable garden of kings. The placement of parole powers in the executive article “is functional” only, not necessarily indicative of executive exclusivity. Cf. Article IV, Sections 7(b), 8(b) (other legislative powers in executive article).

The historic and constitutional distinction between the executive’s pardon power and its parole power decides this case. The pardon power rests upon “self-executing constitutional provisions,” by which

. the people of this state chose to vest sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace. [Sullivan v. Askew, 348 So.2d 312, 315 (Fla.1977)]

The parole power, on the other hand, is reposed only in “a parole or probation commission” which “may be created by law,” and has been so created, but need not have been, and which is subject to all laws, substantive or procedural, addressed to it by the legislature. If there were no parole and probation commission “created by law”, neither the Governor, nor the Governor and Cabinet, as Pardon Board or by any other name, could grant parole in the sense of conditionally excusing a prisoner from further prison service of his sentence but leaving intact the original judgment and sentence. See Sellers v. Bridges, 15 So.2d 293, 295 (Fla.1943), so defining parole as authorized by the 1940 constitutional amendment and Chapter 947.

We reject the Commission’s contention that the 1940 constitutional amendment limited the legislature’s power to “creating” the Commission, and withheld power to regulate it. Any executive commission which “may be created by law” may be created on conditions of obedience to laws not inconsistent with the Constitution. The 1941 Legislature, creating the Commission, extensively regulated the Commission and its organization, powers, and duties. The Legislature did not simply call its creature into existence and leave it to operate according to its own inscrutable wisdom — “an administrative Frankenstein, once created, [acting] beyond the control of its Legislature creator.” Such a legislative purpose would be “incapable of execution.” Marsh v. Garwood, 65 So.2d 15, 21 (Fla.1953). Legislation forbids the parole of capital felons for 25 years, and that legislation is constitutional, though the legislature could not so constrain the executive’s pardon power. The legislature has subjected the Commission to the procedural requirements of Chapter 120, and the Commission in some measure has complied. Sections 947.071, 120.53, Florida Statutes (1977); Fla.Admin.Code Chapter 23-15 (Practices and Procedures), Chapter 23-16 (Parole), Chapter 23-17 (Mandatory Conditional Release).

The Parole and Probation Commission is therefore subject to the open public meetings law, Section 286.011, and it is thereby required to open to the public all meetings at which official acts are to be taken, including meetings to decide issues of parole and MCR revocation. Our decision in State ex rel. Gerstein v. Howard, 334 So.2d 611 (Fla. 1st DCA 1976), cert. den., 341 So.2d 1086 (Fla.1976), is not to the contrary. That was a decision without’ opinion in a case which the circuit court decided on procedural as well as substantive points, and in which an affirmance could well have been based on considerations peculiar to that case, not governing this one. See Acme Specialty Corporation v. City of Miami, 292 So.2d 379 (Fla. 3d DCA 1974).

When the Commission met to consider the revocation of Turner’s mandatory conditional release, on May 11,1978, it did so at a meeting not open to the public, press, petitioner, petitioner’s counsel, or other interested persons. Its meeting was in violation of Section 286.011, and its decision to revoke Turner’s conditional release was “void ab initio.” E. g., Town of Palm Beach v. Gradison, 296 So,2d 473, 477 (Fla.1974). The Commission’s orders revoking the release status of the other petitioners were similarly void.

We have considered Judge Booth’s dissenting view that the 1978 amendment to Section 947.06, forbidding any grant of parole except by majority vote of the Commission “in a meeting to which the public shall have the right to be present,” implies a legislative exemption from Section 286.011, and permission to meet privately, when the Commission meets to deny or revoke parole. The Commission does not suggest such a construction of the 1978 act; and we think it inappropriate and, in any event, foreclosed by the further amendment to Section 947.06 in 1979:

All matters relating to the granting, denying, or revoking of parole shall be decided in a meeting at which the public shall have the right to be present.

The question of remedies remains to be considered. Turner urges that he should be released from confinement and discharged entirely because the Commission’s jurisdiction over him terminated on February 9, 1978, when his original sentence would have expired had he not been granted mandatory conditional release. Because the Commission’s revocation order was void, he urges, nothing intervened to prevent the expiration of his sentence. Yet clearly his arrest for parole violations, in August 1977, intervened; and notwithstanding the expiration of Turner’s original term, the Commission had jurisdiction in May 1978 to enter a proper order in proceedings timely begun during Turner’s period of mandatory conditional release, and thereafter timely carried to a conclusion. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gibbs v. Cochran, 142 So.2d 276 (Fla.1962). The issue, therefore, is whether constitutional and statutory safeguards standards can now be satisfied, long after Turner was arrested and long after his original sentence would have expired, by an open public meeting and decision of the Commission complying with Section 286.-011.

It is not at all obvious that the Commission should now be given the opportunity, in a public meeting, to remake a decision it illegally made many months ago. As a result of illicit private meetings by the Commission, Turner and the other petitioners have spent many months in prison. We must consider whether, by that fact alone, the Commission has acquired an irresistible interest in now validating its prior, void decisions. Section 286.011’s requirement of open public meetings rests on the assumption that decisions will be wiser, or will seem to be wiser, if made in public. Certainly it would not do to order or permit the Commission to revoke these paroles offhandedly in a public meeting full of ceremony but without substance. Gradison, 296 So.2d at 477.

In other circumstances the Supreme Court has granted the Commission thirty days to correct prior defects in parole revocation proceedings, although the prisoner was imprisoned throughout the Court’s consideration of his petition. Means v. Wainwright, 299 So.2d 577 (Fla.1974); Demar v. Wainwright, 354 So.2d 366 (Fla.1978). It is not altogether clear whether the original sentences in those cases would have expired before the Court’s decision, had parole not been irregularly revoked. Even assuming that Means, Demar and Gibbs v. Cochran would ordinarily justify allowing the Commission a limited time in which to decide the revocation issues in meetings satisfying Section 286.011, the logistical task is exacerbated by the fact, here represented by Turner’s petition, that many others are similarly held in Florida’s prisons by virtue of Commission revocation decisions made in meetings violating Section 286.011. We are now holding, pending disposition of these cases, other and similar petitions for habeas corpus by Florida prisoners. Turner’s petition requested that we grant relief to the entire class he claims to represent. We initially denied class status to Turner’s petition, but we continue to hold that request under consideration on petition for rehearing.

If as Turner says there are numerous prisoners in his circumstances, a decision to deny the class relief would simply flood this court with individual petitions. If the class of affected prisoners is numerous, it may be doubtful that any action required of the Commission concerning them, within a period as short as thirty days, could be more than ceremonial. Conversely, extending the period for Commission compliance would extend a number of illegal imprisonments.

In these cases, therefore, we withhold remedies pending further briefs by the parties. Within twenty days from this date, the Commission will file a further response to Turner’s petition for writ of habeas corpus, answering with particularity its allegations in Count II concerning a class of similarly affected prisoners. Within twenty days thereafter the parties will file further briefs on the question of remedies.

It is so ORDERED.

ERVIN, J., concurs.

BOOTH, J., dissents, with an opinion.

BOOTH, Judge,

dissenting.

These cases present an attempt to apply Florida Statute § 286.011, The Sunshine Act, to the deliberative processes of the Parole and Probation Commission. This, in my opinion, is an inappropriate extension of the Sunshine Act.

At the outset it must be noted that each petitioner was duly afforded a hearing on the charge of violation of his parole. The correctness of the Commission’s determination that each petitioner was in fact guilty of violating his parole is not in question here. Also, no question has been raised by petitioners as to the fairness of the hearings. All fundamental rights were afforded. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); King v. Florida Parole and Probation Commission, 306 So.2d 506 (Fla.1975). Petitioners’ basic contention is that because the deliberations of the Commission were not open to the public the revocations of their parole resulting from those deliberations are void.

There is a serious question as to whether any of the petitioners have standing to challenge the proceedings below on this ground. First, the record does not reveal that there was any request made by any petitioner that the deliberations of the Commission be made public, or that any other objection was made and preserved at the time when the alleged lack of compliance with the Act could have been remedied by the Commission. Failure to comply with the Sunshine Act is not fundamental error and the question must, therefore, be raised where, as here, the facts on which the claim of non-compliance is based were known to petitioners. These petitioners, however, allowed the proceedings to continue without objection, and on receiving the adverse result of the Commission, claim violation of the Sunshine Act.

Another impediment to the raising of the question at this time is the fact that all petitioners were admitted to parole by the Commission after the effective date of the Sunshine Act, in proceedings not in compliance with that Act. If, as petitioners contend, the Sunshine Act applies to the Commission, then their paroles were not validly granted. By petitioners’ own argument, their paroles are equally as void as the revocations of those paroles and no basis for complaint exists.

Leaving aside these questions, however, my more basic disagreement with the majority view is the ultimate determination that the Sunshine Act applies to the deliberative process necessary for the exercise of the executive function of parole. There can be no question as to the nature of the ultimate power exercised here under Marsh v. Garwood, 65 So.2d 15 (Fla.1953), wherein the Supreme Court held that parole is “strictly a function of the executive.”

The majority has reasoned, however, that because the Legislature was empowered by the Constitution and did pass the enactments which established the Parole and Probation Commission and has also passed other acts pertinent to the operation of that body, the Commission has been converted into a legislative body and hence subject to the Sunshine Act. By this reasoning, the Fifth District Court of Appeal, recently created by legislative enactment, is also a creature of the Legislature and functions legislatively. Obviously, the great Doctrine of Separation of Powers is not so easily destroyed. Acts of the Legislature describe, define and fund the various functions of other branches of government, but the ultimate power exercised by those branches, including most particularly the decision-making processes of the judicial and executive branches, remain independent.

This Court’s decision in Owens v. State, 300 So.2d 70 (Fla. 1st DCA 1974) is not to the contrary. In the Owens case, this Court upheld Florida Statute § 775.082 which requires that one convicted of a capital felony serve a 25-year minimum sentence before becoming eligible for parole. As against the claim that the statute encroached on the power of the executive, we held in Owens that the Legislature was not restricted “from establishing minimum conditions under which parole may be granted,” any more than it is precluded from requiring the courts to impose certain minimum sentences. The Supreme Court affirmed that decision in an opinion which recognizes that § 775.082 is a part of the “acknowledged legislative function of prescribing punishments for crimes.” The Supreme Court in the Owens opinion notes that the placement of the executive, legislative and judicial functions in the various Articles of the Constitution is functional and does not change the basic nature of the power delegated. The Legislature, in prescribing the minimum sentence requirement, established a line of demarcation between the legislative prerogative to prescribe punishment for crimes and the executive function of parole. That statute and the Owens decisions do not support legislative encroachment on the Commission’s deliberations.

The majority relies on this court’s opinion in Florida Parole and Probation Commission v. Thomas, 364 So.2d 480 (Fla. 1st DCA 1978) wherein this court correctly held that the decision to take an appeal was not formal action arrived at in a “meeting” of the Commission thereby rendering the Sunshine Act inapplicable. The opinion further contains the following gratuitous statement (364 So.2d at 481):

“[T]he Sunshine Law would apply to all meetings of the Parole and Probation Commission.”

Prior to the Thomas decision, this court’s affirmance in State ex rel. Gerstein v. Howard, of the well-reasoned decision of the Circuit Court for the Second Judicial Circuit, established that the Sunshine Act did not apply to the Commission. That remained the state of the law until the Thomas decision was rendered- May 19,1978, raising a question as to the applicability of the Act to the Commission. The Legislature’s reaction to the dicta in the Thomas decision was a prompt repudiation. The major revision of Chapter 947, reported out of Committee three days prior to the Thomas decision was, after Thomas, recalled to Committee and § 947.06 was amended, effective June, 1978, to add the last two sentences (underscored) pertinent here, as follows:

“Meeting; when commission may act.— The commission shall meet at the call of the chairman and from time to time as may otherwise be determined by the chairman. The formulation and approval of the legislative budget request, the making of recommendations to the Governor and Cabinet in matters of executive clemency and modification of acts and decisions of the chairman as provided in ss. 947.04(1) shall be by a majority vote of the commission. No prisoner shall be placed on parole except as provided in ss. 947.172 and 947.174 by a vote of a majority of the commission in a meeting to which the public shall have the right to be present. Persons not members or employees of the commission may participate in deliberations concerning the granting and revoking of paroles only upon the prior written approval of the chairman of the commission.” (e. s.)

Effective May 11, 1979, the Legislature further amended Florida Statutes, § 947.06 (Chapter 79 — 42, Laws of Florida), to read as follows:

“Meeting; when commission may act.— The commission shall meet at regularly scheduled intervals and from time to time as may otherwise be determined by the chairman. The making of recommendations to the Governor and Cabinet in matters of executive clemency and modifications of acts and decisions of the chairman as provided in s. 947.04(1) shall be by a majority vote of the commission. No prisoner shall be placed on parole except as provided in ss. 947.172 and 947.174 by a panel of no less than two commissioners appointed bv the chairman. AH matters relating to the granting, denying, or revoking of parole shall be decided in a meeting at which the public shall have the right to be present. Persons not members or employees of the commission may participate in deliberations concerning the granting and revoking of paroles only upon the prior written approval of the chairman of the commission.” (e. s.)

Both the 1978 and the 1979 amendments create new procedures which afford members of the public access to meetings on matters relating to parole. The 1979 amendment provides that all such matters “shall be decided” at a meeting in which the public has a right to be present. In both amendments, the Legislature has preserved the distinction between “deliberations” of the Commission and meetings of the Commission at which parole matters are “decided”. The deliberations of the Commission are not required to be at meetings, nor is the public entitled to be present. See, Florida Statutes, § 947.23(6). This court must assume that the Legislature adopted the particular wording of a statute advisedly and for a purpose. Lee v. Gulf Oil Corp., 148 Fla. 612, 4 So.2d 868, 870 (Fla.1941).

The procedures created by the 1978 and 1979 amendments became effective after petitioners’ paroles were violated and revoked, and are not applicable. The history and content of these amendments to Chapter 947 repudiate the Thomas case, dicta, supra, and defeat petitioners’ contention that the Sunshine Act applies to the Commission.

The Sunshine Act was never intended to apply to the deliberations of the executive or the judicial branches of government. Its extension into those areas is totally unwarranted and violates basic concepts of separation of powers. The purpose of the Act as indicated by the title of Chapter 286, Florida Statutes, “Public Business, Miscellaneous Provision,” is to ensure that all public business be conducted in public. Such purpose is to be applauded, particularly as applied to the expenditure of public funds. However, the public interest is ill-served by the majority view which requires wholesale release of persons charged with, and convicted of, parole violations or the re-deliberation of the Commission’s admittedly correct determinations at public expense. This is an exercise in futility which serves neither the rights of these petitioners nor the public and is contrary to the intent and purpose of the Sunshine Act.

Petitioners’ paroles were revoked in accordance with procedures in effect at the time of their revocation, which procedures complied with all constitutional, statutory and case law requirements.

I respectfully dissent.

      . Section 286.011(1), Florida Statutes (1977):
      All meetings of any board or commission of any state agency or authority . . . , except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.

      . Florida Parole and Probation Comm’n v. Thomas, 364 So.2d 480, 481 (Fla. 1st DCA 1978):
      “It is clear that requisite to the application of the Sunshine Law is a meeting of two or more public officials. . . It is equally clear that the Sunshine Law would apply to all meetings of the Parole and Probation Commission.”

      . At the time of Turner’s mandatory conditional release in April 1976, Section 944.291, Florida Statutes (1975), provided:
      (1) A prisoner who has served his term or terms, less allowable statutory gain-time deductions and extra good-time allowances, as provided by law, shall, upon release, be under the supervision and control of the [Department of Offender Rehabilitation] as if on parole, but in no event shall such supervision extend beyond the maximum term or terms for which he was actually sentenced.
      (2) The provisions of this section shall not apply to prisoners who, at the time of sentence, could not have earned at least 180 days’ gain-time.
      Full responsibility under Section 944.291 was once committed to the Parole and Probation Commission, Section 944.291, Florida Statutes (1973); but certain of its functions were transferred to the Department of Offender Rehabilitation by Chapter 75-49, Fla. Laws. See also Chapter 77-120, Section 50, Fla. Laws. The Department is now designated the Department of Corrections. Chapter 78-53, Fla. Laws; Section 944.291, Florida Statutes (1978 Supp.). Section 944.291 was amended in 1978 to allow MCR supervision no longer than “2 years as determined by the Parole and Probation Commission.” Chapter 78-223, Fla. Laws.

      . Section 947.24, Florida Statutes (1977), provides:
      In any event, the period of parole shall not exceed the maximum period for which the person has been sentenced.

      .Davis, Function of the Pardon Board as a Part of Our Legal System, 4 Fla.L.J. 467, 468 (1931), quoting Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161, 1163 (1927):
      “We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

      . E. g., In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla.1976); Sullivan v. Askew, 348 So.2d 312 (Fla.1977).

      . Clark, Parole in Florida, 11 U.Fla.L.Rev. 68, 71 (1958).

      . See Vocelle, Two Years of Parole and Probation in Florida, 18 Fla.L.J. 35, 39 (1944):
      The provisions of the amendment to the Constitution of Florida, and the laws enacted thereto, give the Parole Commission exclusive power and jurisdiction in the granting of paroles, but do not otherwise abrogate or change the powers of the State Board of Pardons. It must be evident, however, that the operations of the Parole Commission are entirely different from the granting of pardons. The commission does not hold public hearings and no application for parole is necessary to invoke its jurisdiction. It is required that the commission study every individual case coming within its jurisdiction....

      . Article IV, Section 12, Fla.Const. (1885):
      Pardon board. — The Governor, Secretary of State, Comptroller, Attorney General and Commissioner of Agriculture or a major part, of them, of whom the Governor shall be one, may upon such conditions, and with such limitations and restrictions as they may deem proper, remit fines and forfeitures, commute punishment and grant pardon after conviction, in all cases except treason and impeachment subject to such regulations as may be prescribed by law relative to the manner of applying for pardons.

      .Section 947.24, Florida Statutes (1941) had provided that no parolee “shall be discharged . by the commission prior to the expiration of the term for which he was sentenced, or until he shall have been duly pardoned . . .” That was held to mean, unambiguously, “that the jurisdiction of the parole commission to revoke is measured by the time of the original sentence . . . .” Easterlin v. Mayo, 69 So.2d 181, 182 (Fla.1954). Chapter 63-83, Fla. Laws, codified that decision:
      When a person is placed on parole the commission shall determine the period of time the person shall be on parole, and such time shall not exceed [a] maximum term for which he has been sentenced.

      . Owens v. State, infra n. 15, 316 So.2d at 538, fn. 4.

      . The Court stated:
      Parole, therefore, is not an act of amnesty or forgiveness — as some suppose. It does not put an end to sentence legally imposed. Rather, it is a continuation of sentence. . The Florida Parole Commission is given statutory authority to determine the terms and conditions under which the prisoner may secure parole. Once secured, and upon the terms and conditions imposed by the Commission, prisoners become parolees (trustees outside prison walls, as it were) but prisoners amenable to discipline, direction, and supervision of prison system officials none the less.

      . Cf. City of Cape Coral v. GAC Utilities, Inc. of Florida, 281 So.2d 493, 496 (Fla.1973).

      . Section 775.082(1), Florida Statutes (1977):
      A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole [unless a death sentence is imposed].

      . Owens v. State, 316 So.2d 537 (Fla.1975); Owens v. State, 300 So.2d 70 (Fla. 1st DCA 1974); app. dism., 305 So.2d 203 (Fla.1974).

      . The Sunshine Act was effective September 12, 1967. The record does not indicate dates of any hearings other than that of petitioner Turner on May 5, 1978. Dates of orders of parole and revocation of parole of petitioners are as follows:
      PAROLED REVOKED
      Turner 4/ 1/76 5/11/78
      Brooker 7/25/74 7/14/75
      Bailey 4/20/71 5/ 6/76
      Haddon 4/20/76 9/ 2/78

      . Owens v. State, 316 So.2d 537, 538 at note 6 (Fla.1975).

      . Id. at note 4.

      . In State ex rel. Gerstein v. Howard, 334 So.2d 611 (Fla. 1st DCA 1976), cert. denied 341 So.2d 1086 (Fla.1976), this court affirmed without opinion the order of the Circuit Court, Leon County, the Honorable Donald O. Hartwell, presiding, as follows:
      “Basically, the question before this Court is whether the investigative records, discussions and meetings of the Defendant Commission in the determination and granting of paroles is subject to Section 286.011, Florida Statutes, commonly referred to as the Government in the Sunshine Law.
      Were this Court to grant the relief requested it would in effect invalidate every parole in this State granted under similar circumstances . .
      * * * * * *
      The Legislature certainly possesses a broad area of power with respect to paroles. However, when acting in the exercise of its constitutional responsibility its [Commission’s] power is full and complete.
      It is the opinion of this Court that the Parole and Probation Commission, forming a part of the Executive Branch of Government, is not subject to the Government in the Sunshine Law under the clear exception provided in such law when exercising its constitutional power . . . ”

      . On May 16, 1978, a House and Senate Conference Committee reported out of committee House Bill 936 (78-417; Laws of Florida), a major revision of Chapter 947, Florida Statutes, regulating the Parole and Probation Commission.
      Three days later, on May 19, 1978, this Court handed down its decision in Florida Parole and Probation Commission v. Thomas, 364 So.2d 480 (Fla. 1st DCA 1978). On June 2, 1978, the conference committee recalled the Bill which had then passed the House and was under consideration in the Senate. The Bill was amended, reported out of committee, and passed as amended to read as quoted above in the opinion, with the underscored sentences added.

      . Deliberation: “The act of weighing and examining the reasons for and against a choice or measure . . . ; a discussion and consideration by a number of persons of the reasons for and against a measure — often used in plural . ” Webster’s Third New International Dictionary, Unabridged, at 596.

      . Decide: “to come to a decision, presumably after some consideration, . . [the time for deliberation is then passed, he has decided —John Marshall].” Webster’s Third New International Dictionary, Unabridged, at 585.


text:
    Rudolph Joseph MILAZZO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1749.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    J. Edward Worton, Key West, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 20, 1978 (359 So.2d 923) affirming the judgment and convictions of the Circuit Court of Monroe County, Florida, in the above styled appeal, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 377 So.2d 1161, by its opinion and judgment filed December 13, 1979, and mandate now lodged in this court, disapproved a portion of this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause July 7, 1978 is withdrawn, the opinion and judgment of this court filed June 20, 1978 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the Circuit Court (Rule 3.16(b), Florida Appellate Rules).


author: SCHWARTZ, Judge.

text:
    Earnest Daniel PAYNE, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-2095.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Bennett H. Brummer, Public Defender, and Clark D. Mervis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Payne appeals from his conviction for possession of a felony amount of marijuana. His most substantial argument, which is based on Purifoy v. State, 359 So.2d 446 (Fla.1978), is that the state did not carry its burden of affirmatively demonstrating that more than five of the 7.7 grams of Cannabis sativa, L. seized from him was contraband, rather than lawful stalks or stems. Because, unlike the situation in Purifoy, the defendant made no claim or showing below that any of the 7.7 grams was in fact not proscribed under Sec. 893.02(2), Fla.Stat. (1977), this contention is without merit. The principle set forth in the Purifoy case applies, as is stated at 359 So.2d 449, only “where a portion of the substance introduced by the state as contraband is claimed by the defendant to be nonprohibited matter.”

The other points raised by the appellant likewise present no basis for reversal. See Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979); Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979); Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977); Sec. 924.33, Fla. Stat. (1977).

Affirmed.


text:
    Coy L. NOLEN, Appellant, v. Sylvan H. SARASOHN, Miller, Sarasohn, Waldman & Hillman, P. A., and Miller, Sarasohn, Waldman, Hillman & Fabian, P. A., Appellees.
    No. 78-2393.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Sinclair, Louis, Siegel & Heath and Paul Siegel, Miami, for appellant.
    Adams & Ward and Robert C. Ward, Miami, for appellees.
    Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Coy Nolen, the plaintiff, appeals a summary judgment for the defendant professional association on the ground that his action for medical malpractice is barred by the statute of limitations.

Coy Nolen was hospitalized for a seizure disorder on September 4,1968, and an x-ray study known as an intravenous pyleogram was ordered. The test was performed on September 6 by Dr. Sarasohn, whose report in medical terms stated that there was nothing out of the ordinary with regard to the bones seen on the x-ray. This report was incorrect as the x-ray showed an abnormality of the spine’s bone structure which raises a suspicion of a tumor. On March 22, 1973, Nolen was hospitalized again for seizure disorder and another intravenous py-leogram was performed on March 23 by Dr. Carl Fabian, an associate of Dr. Sarasohn (in the defendant professional association). Dr. Fabian noted an abnormality and after examining the 1968 x-ray it was found by him to be present at that time. Nolen was told of the abnormality, but was never told that the same abnormality appeared on his 1968 x-ray. He underwent surgery for removal of the tumor (which was about 90% removed) and upon his release was immediately admitted to the VA Hospital for radiation therapy. Thereafter, Nolen became paraplegic as a result of the inability to completely remove the spinal tumor. In February 1975 he consulted a lawyer as to whether he had a cause of action against the neurosurgeon who performed the April 1973 operation for -removal of the spinal cord tumor. Nolen was informed he had no cause of action against the neurosurgeon; but in December 1975 it was suggested that he may have a cause of action for the missed diagnosis of the 1968 x-ray. Subsequently, in January 1977 Nolen filed the instant medical malpractice action against Dr. Sarasohn and his professional association, Miller, Sarasohn, Waldman & Hillman, and its successor in interest, Miller, Sara-sohn, Waldman, Hillman & Fabian. The association moved for summary judgment on the ground that Nolen’s cause of action accrued in March 1973 at the time he underwent the surgery for removal of the tumor and, therefore, the filing of the instant cause of action in January 1977 was beyond the two-year time limit prescribed in Section 95.11, Florida Statutes. After hearing argument of counsel, the trial court entered summary judgment for the association. Nolen appeals.

At the onset, we note that the statute of limitations with regard to medical malpractice was amended several times from 1968 through 1975 (when Nolen contends he first was made aware that the 1968 x-ray was incorrectly read). Prior to July 1,1972, a four-year statute of limitations was applicable. Section 95.11(6), Florida Statutes (1971). From July 1972 through December 31, 1974, there was a two-year limitation. Section 95.11(6), Florida Statutes (1973). A new limitation statute was enacted and remained in effect from January 1 — May 19, 1975. Section 95.11(4)(a), Florida Statutes (Supp.1974). Finally, there is a currently worded statute effective May 20, 1975. Section 95.11(4)(b), Florida Statutes (1975).

It is unclear which of the above statutes was relied upon by the defendants in support of their motion for summary judgment and by the trial court in the entry of final summary judgment. Nevertheless, regardless of which statute may be applicable, the general principle of law is that the running of the statute is tolled until the claimant, through the exercise of reasonable diligence, is put on notice as to either the negligent act or the injury caused thereby. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). In fact, this principle of law is embodied in the following language of the last three statutes cited above: “. from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.”

A perusal of the record convinces us that contrary to the contention of the defendant association, there remains a disputed question of fact as to whether Nolen knew or through the exercise of due diligence should have discovered that his 1968 x-ray had been misinterpreted by Dr. Sara-sohn. First, although Dr. Fabian informed him of the abnormality in 1973, the doctor did not tell him that the abnormality appears in his 1968 x-ray. Second, in his affidavit Nolen stated that he did not understand the 1973 x-ray reports which contained many technical medical terms. There being no evidence to suggest that Nolen possessed any medical knowledge beyond that of an ordinary lay person, the contents of these reports need not as a matter of law be imputed to him. See Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979). Last, upon being discharged from North Miami General Hospital in April 1973, Nolen was immediately admitted to the VA Hospital where he received heavy doses of radiation therapy and pain killers. Being so sedated, it may be that he had no opportunity to request his hospital records or consult an attorney. In short, if Nolen can prove that he could not have discovered until December 1975 that his 1968 x-ray was misinterpreted, then his cause of action would be within the applicable statute of limitation.

There being a genuine issue of fact as to when Nolen discovered or through the use of due diligence should have discovered the incident giving rise to the instant cause of action, summary judgment should not have been granted. See Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979) and cases cited therein.

Accordingly, the summary judgment is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

      . 95.11 Limitations upon actions other than for the recovery of real property. — Actions other than those for the recovery of real property can only be commenced as follows:
      (4) WITHIN FOUR YEARS. — Any action for relief not specifically provided for in this chapter.

      . (6) WITHIN TWO YEARS. — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery, or false imprisonment; an action arising upon account of an act causing a wrongful death; and an action to recover damages for injuries to the person arising from any medical, dental, optometric, chiropodial, or chiropractic treatment or surgical operation, the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

      . (4) WITHIN TWO YEARS.—
      (a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

      . (4) WITHIN TWO YEARS.—
      (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
      (b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health-care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no^event to exceed 7 years from the date the incident giving rise to the injury occurred.