text:
    STATE of Florida, Appellant, v. Gary Clark COHEN, and John Chris Davis, Appellees.
    Nos. AE-113, AE-114.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Feb. 23, 1982.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellant.
    Robert M. Harris of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellees.
   PER CURIAM.

This is a consolidated’appeal from summary dismissal of Count II of the State’s information charging appellees with attempted sale of cocaine. The trial judge dismissed the charges because the substance sold to an undercover agent as cocaine was later identified as lidocaine, an uncontrolled substance. In dismissing the charges the judge indicated that the State would have to present evidence of possession of cocaine with intent to sell and this would be impossible since the substance was not cocaine. We disagree. Possession is not a necessary element of the charge under Section 893.-13(l)(a), Florida Statutes.

Criminal attempt occurs when (1) there is intent to commit a crime, and (2) there is an overt act which (3) falls short of the ultimate design due to circumstances independent of the will of the attemptor. Robinson v. State, 263 So.2d 595 (Fla. 3d DCA 1972); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967). Here, we have evidence of the third element of attempt. The existence of a substance other than cocaine serves only to lower the charged offense from sale of cocaine to attempted sale of cocaine. The sale of an uncontrolled substance instead of cocaine is not a defense to attempted sale if the State can prove the other two elements of the attempt.

Although we find no Florida cases directly on point, the federal case of United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976), is factually similar in that it involved a conviction for attempted distribution of heroin when the substance was in fact uncontrolled procaine. The court reversed because Oviedo’s conduct did not provide a strong objective basis for determination of criminal intent without the objective evidence of the heroin. However, that court recognized that the defendant could be found guilty of attempted sale of heroin, even absent existence of the drug, if the objective acts of the defendant were consistent with a criminal enterprise.

We find that the reasoning in United States v. Oviedo is consistent with Florida law on attempt, and the defendants should not be allowed to escape prosecution because an independent circumstance intervened to prevent the crime which they intended to commit and acted to carry out. The State should be allowed to present evidence of defendants’ intent as well as objective acts marking their conduct as criminal in nature. Thereupon, the trier of fact can decide whether the defendants are guilty of an attempted sale of cocaine even absent the major objective element of the controlled substance itself.

We REVERSE and REMAND.

SHAW and JOANOS, JJ., and CAW-THON, VICTOR M., Associate Judge, concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    SUNTIDE CONDOMINIUM ASSOCIATION, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES & CONDOMINIUMS, Appellee.
    No. YY-238.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 23, 1982.

      F. Shields McManus, McManus, Stewart • & Ferraro, Stuart, for appellant.
    Richard E. Gentry, Division of Florida Land Sales and Condominiums, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of final agency action in the form of a cease and desist order which requires that appellant refrain from assessing a condominium’s common expenses equally against each unit owner. Appellant contends that the Division is without authority to enter such a cease and desist order, and ..that the Division’s order in this case violates the constitutional prohibition against the impairment of contractual obligations. We find that the Division has the authority to enter a cease and desist order, but the record is inadequate to permit review of the constitutional issue ..presented. We therefore affirm the order as to the Division’s authority, and relinquish jurisdiction to the Division for further proceedings which will develop a record permitting review of the constitutional issue.

Appellant represents a condominium which was being formed in 1975, with a proposed declaration of condominium which provided that expenses for the common elements of the condominium be assessed equally against each unit owner. This assessment method was in accordance with § 711.14, Florida Statutes (1974), which provided that common expenses may be assessed “according to the declaration .. . . ” At least two contracts for the purchase and sale of Suntide Condominium Units were executed prior to July 1, 1975, when the statute [now § 718.115] was amended to provide that common expenses must be assessed against unit owners “in the same proportions as their ownership interest in the common element.” Although the contracts were formally executed prior to the effective date of the statute, these contracts contained a clause permitting the developer to cancel the contract unilaterally if he determined not to submit the property to a Condominium Plan of Ownership. The proposed declaration was executed prior to, but formally recorded after, the effective date of the statutory amendment.

A complaint was filed with the Division and an administrative hearing was held as to the propriety of a cease and desist order. The hearing officer determined that the Division’s cease and desist powers, pursuant to § 498.051, Florida Statutes, relate only to advertising and sales practices and are thus inapplicable in this instance. The Division rejected the hearing officer’s conclusion as to the inapplicability of § 498.051, and entered an order that appellants must cease and desist from any common element assessment scheme which is contrary to the proportion of ownership formula required by § 718.115(2).

The Division’s authority is delineated in the “Condominium Act,” Chapter 718, Florida Statutes. Part V, which mainly relates to presale disclosure, also grants the Division an ongoing regulatory authority as to the ownership, operation, and management of residential condominium units. See § 718.501(1), Florida Statutes. This section provides that the Division “may issue cease and desist orders pursuant to § 478.171” [now § 498.051] if the Division has reasonable cause to believe that a violation of any provision of Chapter 718 has occurred. See § 718.501(1)(b)1, Florida Statutes. While § 498.051 is contained in the “Florida Uniform Land Sales Practices Law,” it has been specifically incorporated by reference in Chapter 718. See generally In re Opinion for the Governor, 60 So.2d 321 (Fla.1952). The Division therefore has the authority to enter a cease and desist order in accordance with its regulatory authority as to the ownership, operation, and management of residential condominium units.

Article I, section 10 of the Florida Constitution provides that “no ... ex post facto law or law impairing the obligation of contracts shall be passed.” See generally, Fleeman v. Case, 342 So.2d 815 (Fla.1977). While the condominium in the present case was not legally created (by recording the declaration in accordance with § 718.104(2)) until after the effective date Qf the contested amendment to § 718.115, nevertheless the developer and purchaser may have made, prior to the effective date of the amendment, a contract entitled to article I, section 10, protection. However, the present record does not contain the factual predicate necessary for a determination of this issue.

Article I, section 10, protection is afforded only to those obligations which result from valid and binding contracts. Cf., King v. Duval County, 128 Fla. 388, 174 So. 817 (1937). In the present case the developer has reserved a unilateral right to cancel the agreement by electing not to submit the property to a Condominium Plan of Ownership. While the introductory clause of the agreement indicates that a proposed Condominium Plan was promulgated, neither the agreement nor the record in this case indicates when the developer elected to submit the property to the Plan, thereby binding himself to the agreement and creating a legally recognized contract. Article I, section 10, protection did not attach until the contract was so created, and it is thus essential for resolution of the constitutional issue that the record reveal whether the election was made, and the contract created, prior to the effective date of the amendment to § 718.115.

In determining that the Division was without authority to enter a cease and desist order, the hearing officer did not address the issue of whether the amendment to § 718.115 was intended to apply retroactively so as to encompass condominiums subject to contracts existing prior to the effective date of the statutory amendment. The hearing officer also failed to consider whether the present case involves a legally recognized contract which preexisted the statutory amendment, and a factual predicate was not adequately developed on this issue. In entering its final order the agency likewise did not address these issues. Accordingly, this court will relinquish jurisdiction to the Division for further proceedings on these issues. See Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). Such proceedings should develop a record sufficient for determination, if necessary, of the constitutional question presented by this appeal.

The order appealed is affirmed as to the Division’s authority to enter the contested order, and jurisdiction is otherwise relinquished for further proceedings in accordance with this opinion.

BOOTH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    Faustino DE LA PAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1413.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 22, 1982.
    Markus & Winter and Laurie S. Silvers and Kenneth N. Feldman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Scholl v. State, 94 Fla. 1138, 115 So. 43 (1927); Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (Fla.1979).


author: SCHWARTZ, Judge.

text:
    Luis DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1597.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 22, 1982.
    Levine & Finger, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   SCHWARTZ, Judge.

On motion of the defendant, who was accused of being the “Bird Road rapist,” eight informations which charged him with separate crimes of sexual battery with the use of a firearm were consolidated for trial. The jury found him guilty of seven. On this appeal from the resulting convictions and consecutive sentences to life imprisonment, Diaz claims error only in the exclusion of evidence that another, allegedly similar criminal offense occurred when he was already in jail. We affirm.

It is not necessary to determine in this case whether, as the defendant contends, we should adopt a “liberal” view of the admissibility of so-called “reverse Williams rule” evidence that a defendant did not commit a crime supposedly like the one with which he is charged. This is because, even under the authorities which exemplify that approach, e.g., Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486 (1933); State v. Bock, 229 Minn. 449, 39 N.W.2d 887 (1949); State v. Garfole, 76 N.J. 445, 388 A.2d 587 (1978), it is apparent that the trial judge did not abuse his discretion in concluding that there was no unique or distinctive feature common to the various incidents in question and that Diaz’s non-involvement in the later offense was therefore irrelevant to the only pertinent issue, whether he was guilty of those for which he was being tried. State v. Garfole, 80 N.J. 350, 403 A.2d 888 (1979); see generally, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970); cf. Drake v. State, 400 So.2d 1217 (Fla.1981); White v. State, 407 So.2d 247 (Fla.2d DCA (1981).

Affirmed.

      . In fact, the points of similarity were both meager and commonplace. They consisted of the facts that the subsequent incident occurred in the same general Bird Road area and involved an approach to a woman by a man wielding a pistol who had physical characteristics and an accent very roughly equivalent to those described by some of the victims of the instant crimes.
      On the other hand, the incident took place more than eight months after the last of the crimes involved in' the trial. Moreover, since the offender was frightened away before anything else occurred, it was not even demonstrated that a sexual assault had been so much as intended. Finally, and most significantly. there was no showing of the rather unusual use of blinking headlights to attract the victim’s attention, which was a feature of seven of the offenses charged. Diaz argues that this is insignificant because the eighth incident did not bear this distinctive characteristic. This “eighth” charge was tried with the other seven, however, not because it would have been otherwise admissible in a trial of the “headlight” cases under the Williams rule, but because the defendant himself moved to consolidate them all in a single trial. This was obviously a strategic move which, although it backfired against him, was calculatedly based on the jury’s supposed unwillingness to believe that the same person, Diaz, committed the dissimilar acts in question (as well as being the subject of widely disparate initial descriptions by the victims). The doctrine of invited error precludes Diaz from affirmatively, and for his own purposes, seeking the introduction of a “non-distinctive” crime in the state’s case and then bootstrapping that evidence into the introduction on his behalf of offenses which were otherwise similarly irrelevant, merely because they were perpetrated by someone else. See, White v. State, 348 So.2d 1170 (Fla. 3d DCA 1977).

      . Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . Compare, e.g., People v. Edmond, 200 Cal.App.2d 278, 19 Cal.Rptr. 302 (1962); Dorsey v. State, 620 P.2d 1261 (Nev.1980); People v. Velillari, 84 Ill.App.3d 333, 39 Ill.Dec. 713, 405 N.E.2d 466 (1980), cited by the state.

      . Commonwealth v. Murphy, supra; State v. Bock, supra; see generally, Kersey v. State, 73 Fla. 832, 74 So. 983 (1917); Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979).

      . See note 1, supra.

      . We note also that the evidence was excluded on the state’s in limine motion to do so and that the defendant did not again proffer the testimony during his case in the trial itself. See Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981) (failure to object during trial to evidence ruled admissible on motion in limine precludes appellate review); Jones v. State, 360 So.2d 1293, 1296 (Fla. 3d DCA 1978) (failure to renew objection to admission of evidence which was subject of unsuccessful motion to suppress precludes appellate review).

      . At 400 So.2d 1219, the court said:

        Williams v. State holds that evidence of similar facts is admissible for any purpose if relevant to any material issue, other than propensity or bad character, even though such evidence points to the commission of another crime. The material issue to be resolved by the similar facts evidence in the present case is identity, which the State sought to prove by showing Drake’s mode of operating.
      The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant. The only similarity between the two incidents introduced at trial and Reeder’s murder is the tying of the hands behind the victims’ backs and that both had left a bar with the defendant. There are many dissimilarities, not the least of which is that the collateral incidents involved only sexual assaults while the instant case involved murder with little, if any, evidence of sexual abuse. Even assuming some similarity, the similar facts offered would still fail the unusual branch of the test. Binding of the hands occurs in many crimes involving many different criminal defendants. This binding is not sufficiently unusual to point to the defendant in this case, and it is, therefore, irrelevant to prove identity.

      .In White, it was stated:
      The state argues that there was more than ‘a mere general similarity’ between the two crimes, as required by Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974). Those similarities are said to be (1) the assailant in both crimes admonished his victims not to scream or make any noise, (2) the eyes of both victims were taped and then wrapped with material torn from a sheet or a curtain, (3) both victims were tied up, (4) both victims were raped, (5) the assailant spoke in a strange voice to disguise his real voice, and (6) in each crime the assailant told each victim about himself — although his story varied on the two occasions. The state asserts that those similarities are so unique as to point to only one person — the appellant.
      We think that the similarities between the two cases are those that are apt to appear in any rape case and that they fall far short of furnishing a basis for inference that appellant was the attacker.


text:
    J. A. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2183.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 17, 1982.
    Bennett H. Brummer, Public Defender and Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

J. A. L. was adjudicated a delinquent on the grounds that he was guilty of burglary of a Radio Shack store and grand theft of its property. We have determined that the evidence does not support the burglary finding but conclude to the contrary as to the grand theft charge. Hence, we reverse in part and affirm in part.

At about midnight on July 4, 1980, J. A. L. and three other juveniles, including his wife, were seen by a police officer walking on N.W. 7th Street in Miami. They had nothing in their hands. A short time later, they emerged from an alley carrying pieces of apparently new stereo equipment. One hurriedly left the scene. When the officer questioned those remaining, including J. A. L., the respondent stated — and later testified — that they had taken the material from a garbage dumpster in the alley. An immediate investigation revealed that the dumpster was behind a Radio Shack which had obviously been burglarized through a large hole which was clearly visible in the rear of the building. Radio Shack employees confirmed that a large quantity of property had been taken from the store — including not only the pieces taken from J. A. L. and his companions, but others which were never retrieved, as well as additional items found still in the dumpster.

Although J. A. L. was charged with and found guilty of the burglary, the wholly circumstantial evidence was insufficient to demonstrate that he had either committed or aided or abetted in the commission of the break-in itself. The facts obviously do not preclude the acceptability of J. A. L.’s express and implicit explanation of the incident — that not he, but unknown others, had committed the burglary; that they had placed the loot in and near the dumpster while transporting it from the scene; and that they had left some items behind, one of which was discovered and taken by the respondent. Indeed, it may be fairly said that J. A. L.’s version was not only not unreasonable, but not unlikely. In any event, the record certainly does not meet the high and familiar standards as to the quality of circumstantial evidence required to support the appellant’s adjudication for burglary. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); McArthur v. State, 351 So.2d 972 (Fla.1977); R. A. L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981), and cases cited; compare Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981).

J. A. L.’s own story, however, demonstrates his guilt of the remaining charge. As he told the investigators and the court, he intentionally appropriated to his own use an obviously new and valuable item which he knew was not his and which plainly had been stolen from, or at least had not been voluntarily abandoned by its true owner. Under the established law, this conduct constituted a grand theft of that property. Sec. 812.014, Fla.Stat. (1979); Burger v. State, 83 Ala. 36, 3 So. 319, 320 (1887) (“This charge asserted nothing more than that the horse could be the subject of larceny, even though, at the time, he had been removed, or had strayed from the premises of his owner. It is scarcely necessary to cite authorities in support of this proposition.”); Flemister v. State, 121 Ga. 146, 48 S.E. 910 (1904); People v. Csontos, 275 Ill. 402, 114 N.E. 123 (1916); Warren v. State, 146 Tex.Cr.R. 478, 176 S.W.2d 326 (1943) (cigar boxes stolen from sidewalk in front of store after delivery there); Taylor v. State, 62 Tex.Cr.R. 611, 138 S.W. 615 (1911), and cases cited; Annot. — Stolen Money or Property as Subject of Larceny or Robbery, 89 A.L.R.2d 1435 (1963); Annot.—Larceny by Finder of Property, 36 A.L.R. 372 (1925); 52A C.J.S. Larceny §§ 14, 17 (1968); W. LaFave & A. Scott, Handbook on Criminal Law § 85 (1972).

For these reasons, the finding of guilt of burglary is stricken from the order under review, which is otherwise affirmed.

Affirmed in part, reversed in part.

      . In addition to what has been related, the officer testified that J. A. L. and his wife were well-groomed and dressed, a fact inconsistent with having crawled through the hole on the way in or out of the Radio Shack. Moreover, in accordance with their claim that they were going to catch a bus home after having eaten at a nearby Burger King, they seemed to have no vehicle available to remove the numerous bulky items taken from the store, including many which were already inexplainably gone.

      . There was evidence that the amplifier J. A. L. was carrying was valued at over $100.


author: DANIEL S. PEARSON, Judge.

text:
    Jack Bernard FARBER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-599.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 22, 1982.

      Philip Carlton, Jr. and Thomas A. Wills, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

“The Constitution does not require that sentencing be a game in which a wrong move by a judge means immunity for the prisoner.” Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947).

We affirm the sentence under review upon a holding that (1) the trial court has jurisdiction to increase the penalty imposed upon the defendant at any time during and prior to the conclusion of the same sentencing hearing, and (2) any such increase offends neither Florida Rule of Criminal Procedure 3.800, nor the double jeopardy provisions of the State or Federal Constitutions.

At Farber’s sentencing hearing, the trial court first pronounced a sentence of six years incarceration followed by four years probation. Defense counsel then inquired, “Credit for time served, Your Honor?” and the court responded, “Yes, he gets credit for time served.” The State then advised the court that because the defendant had been in custody under the mentally disordered sex offender program for some two-and-a-half years, the credit for that time served would absorb a substantial portion of the incarceration and lead to the defendant’s release within a brief period of time, “which is not what I thought the intent of this court was.” The court, expressing a desire that Farber receive substantial treatment and incarceration before release, then announced that it was going to amend the sentence, and over defense counsel’s objection, sentenced Farber to ten years in prison to be followed by five years probation. Thereafter, the sentencing hearing was recessed.

In our view, “the pronouncement by the court of the penalty imposed upon the defendant,” that is, the sentence, see Fla.R. Crim.P. 3.700, does not occur until the pronouncement is final. The pronouncement is final, at the earliest, when the sentencing hearing comes to an end. At least until that moment arrives, the trial court has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease,' any earlier, in effect inchoate, pronouncement.

The application of this bright-line rule is not dependent on some reason to justify the change in sentence. It matters not whether the penalty earlier stated is a slip of the tongue or intentional. Whether the defendant, through counsel, has supplied incomplete information to the court leading to a more lenient sentence than would have been imposed, see Williams v. State, 365 So.2d 201 (Fla. 1st DCA 1978), or, as here, the trial judge was simply unaware of information which, once revealed, led him to change his mind, is irrelevant to the trial court’s authority to change the sentence. So long as the change occurs at the same sentencing hearing, for whatever reason or for none at all, it is valid. Since the sentence is not “imposed” until the sentencing hearing is concluded, the increase of sentence during the sentencing hearing is not an increase of an imposed sentence or a “resentencing,” and neither double jeopardy, see Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Jones v. State, 297 So.2d 93 (Fla. 2d DCA 1974), nor Florida Rule of Criminal Procedure 3.800 is a bar to the increase.

While our holding is supported by Williams v. State, supra, in that the increased sentence there approved was imposed at the same sentencing hearing, we hesitate to rely, as the State would have us, on Williams v. State as controlling. First, to the extent that Williams may be read to limit the trial court’s power to increase the sentence where the sentence pronounced is based on incomplete information, we would, as we have said, impose no such limitation. Second, to the extent that Williams gratuitously indicates that a sentence is not final until the “completion and filing of the form of judgment and sentence,” it is expressly inconsistent with Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977), see also Toombs v. State, 404 So.2d 766 (Fla. 3d DCA 1981); Ward v. United States, 508 F.2d 664 (5th Cir. 1975), and inconsistent with every other case cited herein holding, at least implicitly, that the oral pronouncement of the penalty made at the sentencing hearing constitutes the sentence.

Instead, we find greater support for our holding in Troupe v. Rowe, supra. There the court held the withdrawal of a sentence violative of double jeopardy, because the record reflected that after the sentence was pronounced, “a recess was taken, during which other court proceedings were had, following which the hearing resumed.” Of this the court said:

“There can be no doubt but what the court had made an express ruling and had sentenced the defendant. What later ensued was more in the nature of a ‘rehearing’’ rather than a ‘resumption’ of a continued hearing. A final, conclusive judgment and sentence had been pronounced before such ‘resumption.’ In this posture, a defendant cannot be recalled because of a different assistant state attorney wishing further to pursue his insistence upon an adjudication being made and thereupon to reopen the case ... . ” Troupe v. Rowe, 283 So.2d at 858 (emphasis supplied).

Presumably, had the sentencing hearing in Troupe been continuous and the same, as in the present case, or even a scheduled later continuation of the hearing, the result would have been otherwise.

Since the rule we announce is simply that any change of sentence can be made within the same sentencing proceeding, it leaves undisturbed those cases which, bottomed on the assumption that a sentence has already been imposed, hold that the sentence cannot be increased after the hearing at which it is pronounced has been clearly concluded, see Royal v. State, 389 So.2d 696 (Fla. 2d DCA 1980) (Rule 3.800 violated by increase of sentence on the day following conclusion of sentencing hearing); Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1980) (court without jurisdiction to increase sentence five months after termination of initial sentencing hearing); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978) (court “had no authority” to increase sentence after defendant taken across the street to county jail where he began serving sentence); Flowers v. State, supra (court “without power” to increase sentence two days after hearing at which original sentence pronounced, and such increase constitutes double jeopardy).

Our holding conforms with the realities of court proceedings. At the sentencing hearing, the parties are heard, air their reasons for the imposition of one penalty or another, and presumably and hopefully bring to the attention of the court any information which bears upon an appropriate sentence. It should make absolutely no difference in a defendant’s sentence, as it would were we to adopt the position urged by Farber, that a court precipitously utters the penalty before, rather than after, hearing the State’s full position; or that a court misstates the sentence only to be immediately corrected by one or another of the parties. While “no man with four aces howls for a new deal,” another player may. By our holding, any player, even the dealer, may call for a new deal before the pot is taken.

Affirmed.

      . Rule 3.800 allows a court at any time to correct an illegal sentence, or to reduce or modify to include any of the probation provisions of Chapter 948, Florida Statutes, a legal sentence within certain prescribed times. The rule does not authorize the increase of a legal sentence. Royal v. State, 389 So.2d 696 (Fla. 2d DCA 1980).

      . No attack on .the sentence has been made on the grounds that it constituted an illegal sentence under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

      . The record reflects the hearing began at 12:28 p. m. and ended at 1:30 p. m. All of the foregoing transpired during the same uninterrupted hearing.

      . We need not decide the academically interesting questions not presented by this case (1) whether the sentencing hearing is at an end when another case is called, the defendant remains in the courtroom, and the defendant’s sentence is then revisited, but see Troupe v. Rowe, 283 So.2d 857 (Fla.1973) (suggesting that if the sentencing hearing were continued, not reopened, increased sentence would be permissible); (2) whether the sentencing hearing is at an end when the court declares it over, the defendant leaves the courtroom and is immediately called back and his sentence increased, but see Williams v. United States, 422 F.2d 1318 (5th Cir. 1970), and cases cited therein (increased sentence approved where imposed same day before defendant left courthouse).

      .If, however, the change in sentence occurs because, for example, the court vindictively enhances the punishment initially meted out, or imposes additional punishment based on improper considerations, the sentence may, of course, be challenged on that ground, which is distinct and separate from the court’s jurisdiction to impose it. Such a challenge has not been made here.

      . It is not clear from Andrews whether the Public Defender’s advice to the court that the defendant was entitled to credit for time served leading to the increase of sentence came during the same session of court or much later. But since Andrews actually began to serve the sentence imposed, that fact alone is an impediment to increasing the sentence. See United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874); United States v. Vera, 615 F.2d 1152 (6th Cir. 1980); Ward v. United States, supra; United States v. Sacco, 367 F.2d 368 (2d Cir. 1966). Compare United States v. Hilburn, 625 F.2d 1177 (5th Cir. 1980) (where sentence of fine and imprisonment changed to one of imprisonment only, intervening tender of fine, not accepted by clerk, does not constitute execution of sentence).

      . P. Dickson, The Official Rules, 156 (1978) (attributed to J. F. Parker, If Elected, I Promise).


author: SHIVERS, Judge.

text:
    ST. REGIS PAPER COMPANY, Appellant/Cross Appellee, v. J. B. WATSON, Sr., Appellee/Cross Appellant.
    No. MM-51.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.
    Rehearing Denied Feb. 25, 1982.

      William G. Cooper, of Kent, Watts, Dur-den, Kent & Mickler, Jacksonville, for appellant/cross appellee.
    Mitzie Cockrell Austin, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Prid-geon, Helpling & Austin, Gainesville, for appellee/cross appellant.
   SHIVERS, Judge.

Appellant St. Regis Paper Company (St. Regis) appeals the granting of a new trial on inadequate punitive damages to Estate of J. B. Watson, Sr. (Watson). Mr. Watson died after institution of the suit.

Watson, a retired farmer, employed Hudson as professional consulting forester to represent his interests in selling all of his planted pine timber located on approximately 180 acres of land in Levy County. Hudson contacted St. Regis which then had two of its foresters perform a timber cruise on Watson’s timber to ascertain the quantity.

St. Regis informed Hudson it would purchase Watson’s timber for $57,500 based on its “timber cruise” showing 2300 cords of timber at $25.00 per cord. But thereafter, a written contract was entered into between St. Regis and Watson whereby Watson agreed to sell all of the timber on his land for $52,900. According to the terms of the contract the purchase price was to be paid in two payments, $29,900 on or about the date of the contract (February 1976) and $23,000 on January 2, 1977.

Watson maintained that at the time of the above contract, Hudson was also acting as an agent for St. Regis and was to receive additional compensation from St. Regis. Watson asserted that the contract price of $52,900 was not the fair market value of the timber at the time of sale to St. Regis and both St. Regis and Hudson knew this. Watson claimed that Hudson, as an undisclosed agent of St. Regis, represented to him that $52,900 was the fair value of his timber; that Watson relied on the advice of Hudson; and that as a result, he was wrongfully deprived of his property.

The trial court submitted to the jury a special verdict consisting of two issues. On Watson’s allegation that St. Regis intentionally, willfully and maliciously deprived him of the fair market value of his property (the first issue before the jury) Watson sought compensatory and punitive damages. The compensatory damages claimed amounted to the difference between the contract amount of $52,900 and the actual fair market value. St. Regis admitted at trial that it, in fact, had cut 3,317.45 cords or $82,911.25 worth of Watson’s timber as compared to the 2300 cords or $52,900 that it had contracted to purchase. It confessed judgment as to its liability for compensatory damages.

The second issue before the jury was whether the payment to Hudson of the contract’s $23,000 final installment constituted delivery of said sum to Watson (who never received it).

The initial payments consisted of checks to J. B. Watson, Sr., for $23,000; to J. B. Watson for $3,726 for “reforestation”; to Hudson for $3,174 for a 6% brokerage fee, totaling $29,900, plus a $4,600 “finder’s fee” payment to Hudson. The final payment of $23,000 due January 2,1977, was in dispute.

The material parts of the jury’s special verdict read:

Issue # 1
(X) We find for the Plaintiff, The Estate of J. B. WATSON, SR. on the issue of fraud and deceit, and assess compensatory damages of $30,011.25, and assess punitive damages of $5,585.25 against Defendant, ST. REGIS PAPER COMPANY.
Issue # 2
(X) We, the jury, find for the Defendant, ST. REGIS PAPER COMPANY, on the issue of delivery of the final payment of $23,000.00.

Subsequently, Watson filed a motion for new trial asserting the damages were grossly inadequate. The trial court granted Watson a new trial as to the amount of punitive damages which St. Regis has appealed. Watson asserts the trial court erred in failing to grant him a directed verdict on the alleged failure of St. Regis to make the final payment of $23,000 to him.

We affirm.

St. Regis contends its employees made mistakes in mathematically calculating the cordage at the time its timber cruise was conducted. While a fraud may have existed, St. Regis argues, the degree was not extreme based on the facts and circumstances presented. We must reject this argument. Deceit or actual fraud differ from mistake or negligence. They differ with respect to the necessary state of mind of the one sought to be held accountable. Watson v. Jones, 41 Fla. 241, 25 So. 678 (1899).

Although there is substantial competent evidence which would support an opposite finding, the jury found St. Regis guilty of fraud and deceit. There is substantial competent evidence to support this finding and to support the trial court’s order granting a new trial on the basis of inadequate punitive damages. As a general rule, a trial court’s decision on a motion for new trial is clothed with a presumption of correctness and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Morin v. Halpern, 139 So.2d 495 (Fla. 2d DCA 1962). A stronger showing of an abuse of discretion is required to reverse the trial judge when he has granted a motion for new trial than when he has denied one. Givens v. Lederle, 556 F.2d 1341 (5th Cir. 1977).

Watson presented evidence that St. Regis paid $4,600 to Hudson, the forester, whom Watson had employed to obtain a sale of his timber. St. Regis obtained roughly $80,000 worth of timber for $50,-000, and it knew that Watson was paying Hudson for his work in effecting the sale. St. Regis also knew that the written contract contained no reference to the payment to Hudson. The evidence disclosed that no employee of St. Regis had informed Watson of the payment St. Regis made to Hudson.

Because of the foregoing factors, we conclude that the trial court did not err in granting a new trial as to the amount of punitive damages. Exemplary or punitive damages are allowed and awarded as a punishment to the defendant and as a warning and example to deter it and others from committing similar offenses in the future. Richards Co. v. Harrison, 262 So.2d 258 (Fla. 1st DCA 1972).

In that case we held that:

In determining the amount of punitive or exemplary damages, the pecuniary circumstances of defendant are material and must be considered since an amount that would be pecuniary punishment to a man of small means would not necessarily serve as punishment to one of large means. Miami Beach Lerner Shops, Inc. v. Walco Manufacturing of Florida, Inc., 106 So.2d 233 (Fla.App.1958). It follows that if a punitive award is insufficient to serve as punishment, it cannot serve as a warning to deter him from committing a similar offense or engaging in similar conduct in the future. Hutchinson v. Lott, 110 So.2d 442 (Fla.App.1959). In Lehman v. Spencer Ladd’s, Inc., 182 So.2d 402, the court at page 404 held:
“.. . the allowance of evidence of financial worth of the tortfeasors, will make possible the attainment of the objective and purpose of punitive damages, if a defensible one remains, i.e. punishment of each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt.”

Richards Co., supra, at 263-264.

The trial court correctly admitted evidence of the financial resources of the defendant. This properly gave the trial judge a standard in determining whether the award of punitive damages is “either inadequate or excessive.” See, Spencer Ladd’s, Inc., v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964). The evidence revealed St. Regis’ stipulated net worth to be one billion dollars.

St. Regis has not sustained its burden of showing that the lower court abused its discretion in determining that a $5,585.25 punitive damages award is an insufficient deterrence to such continued acts by St. Regis.

Consequently, we are unable to say that the trial court abused its discretion in granting a new trial. When the amount of a verdict is so inadequate as to shock the judicial conscience a new trial should be granted. See, DeVane v. Bauman, 90 So. 192 (Fla.1921).

On the other issue, Watson contends St. Regis failed to introduce any evidence to show that the forester Hudson had the apparent authority to collect the final payment of $23,000 to Watson, and that Watson is not bound by payment to Hudson.

There is substantial competent evidence for the jury’s finding that St. Regis discharged its obligation on the final payment due under the contract of $23,000. The jury could have concluded that St. Reg-is was directed by Watson to follow Hudson’s instructions as to payment by letter, that the letter was an express holding out to St. Regis of Hudson’s authority to collect the payment.

Further, Watson should not complain of faulty instructions to which he did not object in the trial court.

The cause is remanded for new trial as to the issue of assessment of punitive damages alone.

AFFIRMED.

ERVIN and LARRY G. SMITH, JJ., concur.


text:
    SHOWELL INDUSTRIES, INC., et al., Appellants, v. HOLMES COUNTY, a subdivision of the State of Florida, Appellee.
    No. TT-194.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.

      Robert Scott Cox of Isler, Brown, Smoak & Watson, Panama City, for appellants.
    Gerald Holly, Chipley, for appellee.
   PER CURIAM.

Showed Industries, Inc. (Showed) and its insurance carrier appeal the trial court’s order dismissing their third party complaint for contribution against Holmes County. We reverse.

This case arose from an intersection collision involving an employee of Showed and a Mrs. Ellenburg on June 8, 1976. Mrs. El-lenburg filed suit against appellants on January 27, 1978, for injuries suffered in the accident. Appellants answered the complaint and filed a third party complaint against Holmes County on August 16, 1979. The third party complaint alleged that Holmes County was negligent in its maintenance of the intersection.

Holmes County filed its motion to dismiss alleging that the third party complaint was barred by Section 768.28(6), Florida Statutes (1975), the statute of limitations for claims against the State or its political subdivisions, since no claim was filed against Holmes County within three years from the date of the accident. The trial court agreed and dismissed the third party complaint.

Section 768.28(6), Florida Statutes (1975), states that no action shad be instituted against the State or one of its political subdivisions unless a claim has been presented and denied within three years from the date the claim accrues. The crucial issue in this case, therefore, is when did Showed’s claim, if any, against Holmes County accrue. The trial court held that appellant’s cause of action accrued on the date giving rise to the underlying tort claim. A claim for contribution, however, does not accrue until a judgment has been entered against the defendant, third party plaintiff, or until the defendant has paid the claim. See ITT Rayonier, Inc. v. Southeastern Maintenance Co., 620 F.2d 512 (5th Cir. 1980).

Prior to one of the above contingencies happening, the defendant, third party plaintiff, has only a possibility of a claim against the third party defendant. We hold therefore that the statute of limitations did not begin running against appellants’ claim for contribution until the date a judgment was entered against Showed or until the date Showed paid Mrs. Ellenburg’s claim for damages, whichever was earlier. As noted in Keleket X-ray Corp. v. United States, 275 F.2d 167 (D.C.Cir.1960), the fact that the statute of limitations has run against the original plaintiff’s action does not bar a suit for contribution since that cause of action does not arise until payment.

Regarding the appropriate statute of limitation for Showed’s claim for contribution, we hold that the three-year statutory period allowed in § 768.28(6), Florida Statutes (1975), for claims against the State controls over the one-year statutory period allowed in the Uniform Contribution Among Tortfeasors Act, § 768.31(4)(c), Florida Statutes (1978). See Beard v. Hambrick, 396 So.2d 708 (Fla.1981), and Dubose v. Auto-Owners Insurance Co., 387 So.2d 461 (Fla. 1st DCA 1980), regarding a conflict between the statute of limitations for claims against the State and the general statute of limitation for wrongful death actions.

Accordingly, the order of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

McCORD, BOOTH and SHIVERS, JJ., concur.


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    Robert A. CIRNIGLIARO, Appellant, v. FLORIDA POLICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. AB-61.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.
    Bert J. Harris, III, of Dunty & Harris, Lake Placid, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a final order of the Florida Police Standards and Training Commission (“Commission”) revoking appellant Cimigliaro’s certificate which had been issued under Section 943.14, Florida Statutes. On April 11, 1980, a formal hearing was held pursuant to Section 120.57(l)(b), Florida Statutes, and the hearing officer issued the recommended order on October 21,1980. The Commission accepted the hearing officer’s findings of fact, but rejected some of the conclusions of law as well as the recommendation that the certificate not be revoked.

The facts as found by the hearing officer and accepted by the Commission are as follows. Appellant was employed during the summer of 1972 as an assistant manager and new business development officer with the Security National Bank in Brent-wood, New York. John Laura, a friend of appellant who was selling franchises in a Golden Products distributorship, sent potential franchisees to appellant to apply for loans. Laura told appellant that for each loan application approved he would give appellant $100.00 from his commission for selling the franchises. After accepting $900.00, appellant discovered the money was coming not from Laura’s commission, but directly from the loan applicants. He stopped accepting the payments. When one of the loans went into default the applicant disclosed the kickback.

The United States District Attorney for the Eastern District of New York filed an information charging appellant with violating 18 U.S.C. § 656 by knowingly and willfully embezzling, abstracting, purloining and misapplying less than $100.00 of the bank’s money. Appellant pled guilty, was adjudged guilty and convicted, received a suspended sentence, and was placed on probation. The probation expired in April 1974 after he fulfilled all of the terms.

Appellant moved to Florida in March 1973 and worked as a vice-president at a Homosassa Springs Bank. He did not initially inform the bank of the conviction. The bank learned of the conviction in 1975 through the Citrus County Sheriff’s office and appellant was allowed to resign.

Having an interest in becoming a police officer, appellant sought training sponsorship from the Chief of the Crystal River Police Department. The hearing officer found that appellant:

explained to Chief Matthews that he had been convicted of a misdemeanor “involving about $100.00 in dealing with a bank” as the chief remembers the conversation. Chief Matthews spoke with someone named Ken at the [Commission] headquarters in Tallahassee about Mr. Cirnig-liaro’s conviction, and asked him if he could become a police officer. Ken said to send his prints (fingerprints) in and he, Ken, would take it from there. Chief Matthews did as he was instructed. He also sent in an application form on which he checked a box indicating that the applicant “is of good moral character and has not been convicted of a felony or a misdemeanor involving moral turpitude. A thorough background investigation has been conducted and is attested to by John A. Matthews, Chief of Police, Crystal River Police Department.”
At the time of Mr. Cirnigliaro’s application for certification, the Commission did not conduct independent background investigations on the applicants’ good moral character. It relied on the sponsoring police agency to conduct those investigations. Mr. Cirnigliaro’s application was accompanied by a set of his fingerprints as required by the Commission.

Appellant completed police training and was issued a certificate. He worked part-time for the Crystal River Police Department and was also deputized by the Citrus County Sheriff’s Department. The Sheriff fingerprinted all new employees and in this way learned of appellant’s conviction, but hired him anyway.

The hearing officer noted the testimony of a number of witnesses as to appellant’s good moral character and found that he was in fact of good moral character at the time of the hearing.

In his conclusions of law in the recommended order the hearing officer noted that in order to be a police officer one must not have been convicted of a misdemeanor involving moral turpitude, § 943.13(4). Further, before July 1,1980, the effective date of Section 943.145, Fla.Stat., the Commission arguably had only the implied authority to revoke certificates. Authority for such implied power is found in State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). The hearing officer concluded that pursuant to Section 943.145, however, the Commission has express authority to deny or to revoke certification for certain enumerated reasons. Under that Section certificates can be denied (or reactivation refused) for failure to meet the qualifications of Section 943.13 or of standards promulgated in Commission rules; certificates can be revoked for failure to maintain the qualifications of Section 943.13 or of standards promulgated in Commission rules. The hearing officer, by reading the two sections in pari materia, attributed significance to the use of the words “meet” in Section 943.145(2)(b) and “maintain” in Section 943.145(3)(a), giving the Commission authority to revoke certificates only for failure to maintain Section 943.13 qualifications. The hearing officer concluded that appellant had not failed to maintain good moral character since his certification and the Commission was without authority to decertify for failure to initially meet Section 943.13 qualifications, especially in light of the principle that grounds for license revocation are to be strictly construed in favor of the licensee citing Lester v. Department of Professional and Occupational Regulation, 384 So.2d 923 (Fla. 1st DCA 1977). The hearing officer further noted that courts have held that legislative provision for exercising an administrative power in a particular way precludes its exercise in any other way, citing Kirk v. Publix Super Markets, 185 So.2d 161 (Fla.1966) and Bloch v. Board of Business Regulation, 321 So.2d 447 (Fla.2d DCA 1975). Finally the hearing officer noted that while appellant’s certificate could be ^evoked for failure to disclose a fact, the facts showed appellant had told his sponsoring agency about the conviction, and provided fingerprints to the Commission — no other disclosures were required. The hearing officer recommended dismissing the complaint against appellant.

The Commission, in the final order, accepted the hearing officer’s findings of fact and his conclusion that under Section 943.-13(4) Fla.Stat., to be a police officer one must not have been convicted of a misdemeanor involving moral turpitude as the term is defined by law. The remainder of the conclusions were rejected as inconsistent with the facts as found and accepted. Specifically, the Commission found the conclusions inconsistent with the fact that appellant had pled guilty to and been convicted of violating 18 U.S.C. § 656. With regard to the Commission’s decertification authority, the Commission determined the hearing officer’s conclusions based on Section 943.145 were erroneous because they would require retroactive application of that section, but legislation is presumed to be effective prospectively only unless it is expressly indicated otherwise. Appellant had been charged not with failure to maintain his qualifications, but with not having been qualified initially. “The issue is not whether [Cimigliaro] has maintained a good moral character subsequent to certification but whether he met the basic requirements of Section 943.13(4), Florida Statutes, for certification to start with.” The Commission concluded that pursuant to Section 943.13(2) it had authority to certify those who met the requirements of Section 943.13 and satisfactorily completed a training program.

Although the authority to decertify those who have been erroneously granted certification, without meeting the basic requirements of Section 943.13, F.S., is not explicit in the language of the statute[,] the power to certify necessarily and by fair implication carries with it the authority to decertify. State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979).

Since it had determined it had authority to decertify appellant, the Commission concluded it had no alternative but to decertify pursuant to Rule 11B-I6.05(l)(a), Fla.Admin.Code, which reads:

11B-16.05 Revoke, annul, suspend or deny certification.
(1) The Police Standards and Training Commission shall revoke, annul, or suspend certification issued by the Commission qualifying an individual as eligible under provisions of Chapter 943, Florida Statutes, or deny certification upon showing that such individual or certificate holder:
(a) has been convicted of a felony or misdemeanor involving moral turpitude in the State of Florida or of any offense committed elsewhere which, if committed in Florida, would be a felony or a misdemeanor involving moral turpitude under the laws of the State of Florida, (emphasis in final order)

The Commission annulled and revoked appellant’s certificate.

The primary issue on appeal is whether the Commission erred in rejecting the hearing officer’s conclusions of law as to the Commission’s authority to revoke appellant’s certificate. Appellant argues that neither Section 943.13 nor Section 943.14(2) provides for Commission authority to revoke certificates once they have been issued: Section 943.13 only sets forth the qualifications to be met and Section 943.-14(2) provides only initial certification authority. Appellant also contends that State Board of Education v. Nelson does not provide authority for revocation in light of later cases which affirm the principle that grounds for license revocation must be strictly construed because of the penal nature of the action, citing Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Further, appellant argues, the Nelson case only provides authority to revoke for failure to meet initial qualifications. Finally, appellant argues that the hearing officer’s findings of fact, which the Commission accepted, established that appellant had disclosed all information necessary for certification and the Commission had notice of the conviction when it certified appellant and should be estopped from reconsidering the conviction after certification.

Appellee asserts that Section 943.13(4) is explicit and contemplates no exceptions: one who has been convicted of a misdemeanor involving moral turpitude cannot be certified to be a police officer. Since Section 943.13(4) establishes this as a condition precedent, a certificate issued without the condition having been met would be void ab initio. As to Section 943.145, appellee argues that the hearing officer erred in applying that section to this case, since the section does not provide for retroactive application. Even under that section, it would be presumed in applying the revocation criteria that the certificate had been properly issued initially and the hearing officer’s distinction between meeting and maintaining qualifications is irrelevant and would lead to an absurd result should an applicant obtain certification by deceiving the Commission as to qualifications.

In our opinion whether the revocation authority of the Commission is viewed as inherent in the authority to certify under Section 943.14(2) or as expressly provided for in Section 943.145 (Supp.1980), the Commission was authorized to revoke appellant’s certificate because he did not possess the requisite qualifications for a police officer in this state under Section 943.13(4).

Before Section 943.145 was added to the statute the applicable sections of the statute were Section 943.13 and Section 943.14. Section 943.14(2) provides that the Commission will issue a certificate to anyone who complies with the training program “and the qualifications for employment in Section 943.13 .... ” Section 943.13 provides:

After August 1, 1974, any person employed as a police officer shall:
(1) Be at least 18 years of age.
(2) Be a citizen of the United States, notwithstanding chapter 74-37, Laws of Florida, or any act of the Legislature passed during the 1976 Regular Session.
(3) Be a high school graduate or its “equivalent” as the term may be determined by the Commission.
(4) Not have been convicted of a felony or of a misdemeanor involving “moral turpitude” as the term is defined by law and who has not been released or discharged under any other than honorable conditions from any of the Armed Forces of the United States.
(5) Have his fingerprints on file with the Commission or an agency designated by the Commission.
(6) Have passed an examination by a licensed physician, based on specifications established by the Commission.
(7) Have a good moral character as determined by investigation under procedures established by the Commission.

We have held that the authority to issue a certificate includes the authority to revoke the certificate. State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). The rationale for the decision in Nelson is applicable in this case.

In Nelson, as a basis for the conclusion that the State Board of Education had implicit authority to revoke teaching certificates, the court cited the legislative grant of general authority to the Board to provide rules and regulations for certification of teachers and the Board’s “legislatively mandated responsibility to see to ‘the improvement of the state system of public education.’ ” Id. at 116. Similarly, pertaining to the instant case, the Commission, pursuant to Section 943.14, is responsible for police training programs and certification, and pursuant to Section 943.12 has the power to establish minimum standards for the employment and training of officers and promulgate rules and regulations for the administration of Chapter 943.

The Commission also would have had authority to revoke under Section 943.-145(3)(a)(Supp.1980) for failure to maintain the qualifications established in Section 943.13. Appellant was never qualified to be employed as a police officer and it would have been impossible for him to maintain the qualification that he “shall ... [n]ot have been convicted of a ... misdemeanor involving ‘moral turpitude’ as the term is defined by law ...” because he was in fact convicted of such a misdemeanor. The hearing officer made a distinction between meeting and maintaining qualifications and concluded that: “[Cimigliaro] has not gone below the age of 18, lost his United States citizenship, or lost his good moral character. Since certification he has not committed any crime.” Such a finding is distinct from a finding that he has never been convicted of a misdemeanor involving moral turpitude; this is what Section 943.13(4) requires. The recommended order emphasized appellant’s present good moral character. Having good moral character is treated independently of Section 943.13(4) in Section 943.13(7). There may well be a distinction that can be made between initially meeting the requirements of having good moral character and maintaining that character subsequent to certification, but the same cannot be said of the requirement found in Section 943.13(4). Whether someone possesses good moral character is a somewhat subjective question and the answer may vary from time to time; however, a conviction of embezzlement provides objective proof of the impossibility of maintaining the qualification of not having been convicted of a misdemeanor involving moral turpitude. We disagree with the interpretation placed on the statute by the hearing officer whereby in order to maintain qualification number (4) under Section 943.145, as opposed to number (7), appellant need only have avoided conviction of a misdemeanor involving moral turpitude subsequent to his certification. It does not require a relaxed construction of the statutory language in order to reach our conclusion.

Appellant argues that the Commission should be estopped from revoking his certificate based on prior misconduct because appellant, through Chief Matthews, informed the Commission of the conviction and inquired whether appellant could be certified under the circumstances. With regard to that argument, we make the following observations. The hearing officer as the trier of fact found that Chief Matthews recalled being informed appellant “had been convicted of a misdemeanor involving ‘about $100.00 in dealing with a bank.’ ” The hearing officer concluded: “The facts here indicate that he told his sponsoring agency, the Crystal River Police Department, about his prior conviction and the Chief of Police made an inquiry to the Commission about what to do under such circumstances.” However, we note that after the chief inquired of “Ken” at Commission headquarters and was directed to “send his prints (fingerprints) in and he, Ken, would take it from there,” the prints were sent in together with an application on which Chief Matthews went ahead and checked a box indicating “Applicant .. . [i]s of good moral character and has not been convicted of a felony or a misdemeanor involving moral turpitude.” It is pertinent to recall here the hearing officer’s finding that at the time appellant was certified, the Commission did not conduct independent background investigations of applicants, relying instead on the sponsoring agency to do so. In any event, it has been held that “[ajdministrative officers of the state cannot estop the state through mistaken statements of the law.” Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), and a mistaken conclusion as to the nature of the conviction and whether it involves moral turpitude would not preclude the Commission from revoking appellant’s certificate.

The statute clearly contemplates that one who has been convicted of a misdemeanor involving moral turpitude shall not be employed as a police officer and since appellant has had such a conviction he never possessed and cannot possibly maintain the qualification required by Section 943.13(4). The Commission had either implied or express authority to revoke the certificate.

There is a great deal of evidence in the record to show that appellant was of good moral character at the time of the hearing and has performed well as an officer. It is unfortunate that the legislature has not provided in the statute for instances of rehabilitation, however, the clear import of Section 943.13(4) is that one who has at any time been convicted of a misdemeanor involving moral turpitude cannot be employed as a police officer in this state.

The order of the Commission is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., MILLS, J., and BEN C. WILLIS, Associate Judge, concur.

      . It has been held that embezzlement is a crime involving moral turpitude. State v. Snyder, 187 So.2d 381 (Fla.1939).


text:
    Stephen Wayne NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. UU-209.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied Feb. 23, 1982.

      Michael Allen, Public Defender, and Melanie Ann Hines, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Nettles appeals his conviction for first degree murder raising several issues, only two of which merit extensive discussion: 1) Whether a defendant is denied a fair trial when the jury is death-qualified, and 2) whether appellant’s incriminating statements should have been suppressed? We resolve both questions adversely to appellant, and affirm the judgment of conviction.

Nettles was indicted for first degree murder in the killing of Donald Attaway. The defense made numerous pre-trial motions to have the death penalty stricken as a possible penalty, all of which were denied. The prosecutor challenged and the judge excused for cause any juror who was adamantly opposed to the death penalty. During his rebuttal to defense closing argument, the prosecutor announced the state would not seek the death penalty. Appellant was convicted for first degree murder and received a life sentence.

Appellant argues that by excluding all persons who would not impose the death penalty under any circumstances the state obtained a jury that was more likely to return a conviction of the crime charged, thereby denying defendant a fair and impartial jury drawn from a representative cross section of the populace. Appellant also urges that it was improper to exclude from the guilt or innocence phase of the trial those opposed to the death penalty who could fairly apply the law on the question of guilt.

We first address the question of standing. This issue was indirectly raised by the state by the filing of a notice of supplemental authority citing Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981), in which the court ruled that a defendant who does not receive the death penalty has no standing to challenge the exclusion of jurors opposed to the death penalty. Without determining whether the issue was properly raised, we respectfully disagree with the Fourth District. Assuming appellant’s thesis concerning the lack of impartiality of the “death-qualified” jury to be correct, he would have suffered harm by virtue of the exclusion of all jurors adamantly opposed to the death penalty.

We next deal with the question of whether such a jury is sufficiently representative to meet constitutional requirements. A review of Florida and federal cases reveals that this question has been resolved adversely to appellant’s position. In Riley v. State, 366 So.2d 19 (Fla.1978), the appellant urged that he was entitled to have persons who were unalterably opposed to the death penalty on his jury for the determination of guilt or innocence and suggested that a second jury qualified pursuant to the Witherspoon standards could be impaneled for the sentencing phase. The Florida Supreme Court rejected this argument because it found “no compulsion in law or logic to so structure capital case trials.” Accord Jackson v. State, 366 So.2d 752 (Fla.1978); Gafford v. State, 387 So.2d 333 (Fla.1980); Maggard v. State, 399 So.2d 973 (Fla.1981). We find the decisions of the Florida Supreme Court in this area consistent with that of the U. S. Supreme Court in Witherspoon which concluded that a jury composed of only those who were not absolutely opposed to the death sentence was sufficiently representative on the issue of guilt. See Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.), reversed and remanded on other grounds 637 F.2d 525.

The law is not so well-settled with regard to the impartiality of such a jury. In Witherspoon, 391 U.S. at 520, note 18, 88 S.Ct. at 1776, the Supreme Court stated:

Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt.

Thus, the court left open the question of whether a jury which is death-qualified is more prone to convict of the crime charged than one on which adamantly opposed persons are seated. The Witherspoon court declined to resolve the question because the data produced by the petitioner were “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” 391 U.S. at 517, 88 S.Ct. at 1774. Subsequent to Witherspoon, several defendants have accepted the court’s invitation to prove the point, and the courts which have addressed the issue are not in agreement.

In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), the Fifth Circuit appears to have rejected the argument outright on the basis that the state’s interest in evenhanded application of its laws, and in providing an impartial jury, are too fundamental to risk a defendant-prone jury by allowing inclusion of those adamantly opposed to the death penalty, even at the guilt phase of the trial. The Seventh Circuit, and the Eighth Circuit, have accepted in theory the proposition that a death-qualified jury could be more conviction prone and therefore not impartial. The Seventh Circuit, in the Townsend and dark cases, found that the evidence still is not sufficient to establish a lack of impartiality. The Clark court noted that new studies (as well as those considered in Townsend) did show a pattern of correlation between a juror’s attitude toward the death penalty and his attitude toward conviction, but the court nevertheless could not say that these new studies were sufficient to dispel the “ ‘fragmentary and tentative’ nature of the data or significantly increase the empirical evidence on the question.” 538 F.2d at 762. The Eighth Circuit, in Grigsby v. Mabry, supra, remanded to the Federal District Court for an evidentiary hearing on the question.

We are inclined, following the Fifth Circuit’s reasoning in Spinkellink, to reject outright appellant’s contention with respect to jury impartiality. However, we feel there is adequate basis for a decision affirming the lower court without rejecting appellant’s impartiality argument as a matter of law. Here, appellant’s “proof” consisted of a transcript of testimony given by a psychologist in another trial, which was accepted by the trial judge in lieu of live testimony. This witness gave her expert opinion, based upon her own psychological studies and experiments, as well as the studies, surveys and opinions of others that a death-qualified jury is more guilt-prone than a jury not so qualified. Although we do not question the expertise of the witness, at the same time we do not find the presentation on this issue overly persuasive, and we have no difficulty in accepting the trial judge’s failure to be convinced by it. It is well settled that expert testimony is not binding on the trier of facts. South Venice Corp. v. Caspersen, 229 So.2d 652 (Fla. 2nd DCA 1969); Trolinger v. State, 300 So.2d 310 (Fla. 2nd DCA 1974); State v. Ward, 374 So.2d 1128 (Fla. 1st DCA 1979). The court has discretion to accept or reject the opinion of an expert even though it is uncontroverted. Robertson v. Robertson, 106 So.2d 590 (Fla. 2nd DCA 1958). Behm v. Division of Administration State Dept. of Transportation, 292 So.2d 437 (Fla. 4th DCA 1974), approved 336 So.2d 579 (Fla.1976).

Appellant urges, however, that the prosecutor’s behavior in first demanding the death penalty and then changing his position during closing argument distinguishes this case, necessitates more stringent review, and compels the conclusion that Nettles was deprived of a fair trial. Appellant urges that the prosecutor knew from the beginning that the death penalty would not be invoked by the state and only pursued it in order to get a death-qualified jury. Since we are unable to conclude, based on this record, that the prosecutor acted in bad faith, we find it unnecessary to further address appellant’s contentions on this point. We observe, however, that in view of the nature of the evidence, which might reasonably justify the conclusion that appellant committed a cold-blooded and ruthless killing after stalking his prey as a hunter would game, we cannot say that it was a foregone conclusion that a jury would not be called upon to consider the death penalty. Therefore, we affirm on this issue.

We also affirm the trial judge’s ruling that appellant’s various inculpatory statements were voluntarily given and therefore admissible. The relevant facts are as follows:

At approximately 8 p. m. on August 9, 1979, Nettles shot and killed Donald C. Att-away in the parking lot of the TG&Y in Callahan, Florida. Based on an eyewitness description, Nettles was stopped at a roadblock near Folkston, Georgia. Officer Harris of the Callahan Police Department testified he arrested Nettles, advised him of his constitutional rights and asked him if he wanted to make a statement. Nettles said “No.” Nettles was taken to the Charlton County, Georgia Jail, placed in a cell and again asked if he wanted to make a statement. He stated,“Why, you are going to fry me.” Harris replied, “Well, if you do cooperate it will make it a little easier.” Nettles then asked Sheriff Gibson, the local sheriff, what he should do and was told he would have to make that decision himself. At this point, Nettles apparently changed his mind about talking and stated he would make a statement after his father, who lived in Folkston, arrived.

Shortly thereafter, Officer Hines, also of Florida arrived at the jail. He advised Nettles of his constitutional rights and again Nettles said he would make a statement after his father came. Hines testified that in advising Nettles of his rights, “I asked him if he would talk with us without benefit of a lawyer because we would not be able to have one furnished at that time.” After speaking with his father, Nettles gave Hines an oral statement, agreeing to put it in writing later. He waived extradition and was returned to Florida that same evening. Enroute to Florida, Harris again advised Nettles of his rights and Nettles made certain inculpatory statements. Upon arrival at the Nassau County Jail, after being booked and again warned, Nettles gave a written statement.

Appellant first urges the statements were induced by Officer Harris’ comment. We note that, in fact, appellant did not make a statement in response to this comment. After speaking with Sheriff Gibson he merely indicated a willingness to do so at a later time. He actually made the statement only after seeing his father and after he had again been given the Miranda warnings. Looking to the totality of the circumstances, we cannot conclude that Harris’ statement was such an inducement or promise of leniency as to make the subsequent confession involuntary. In Interest of G. G. P., 382 So.2d 128 (Fla. 5th DCA 1980), State v. DeConingh, 396 So.2d 858 (Fla. 3rd DCA 1981); and see Hawkins v. Wainwright, 399 So.2d 449 (Fla. 4th DCA 1981). Furthermore, even if this comment should be considered as holding out an improper inducement or suggestion of benefit, its effect was sufficiently attentuated by the conversation with Sheriff Gibson, the arrival of appellant’s father, and the additional warnings by Officer Hines, so ias to remove any suggestion that his statements were obtained by improper means. Compare Brewer v. State, 386 So.2d 232 (Fla.1980); Gaspard v. State, 387 So.2d 1016 (Fla. 1st DCA 1980); State v. Outten, 206 So.2d 392 (Fla.1968); State v. Oyarzo, 274 So.2d 519 (Fla.1973).

Appellant next urges the confessions were fatally tainted because of Officer Hines’ confusing comments regarding the right to counsel. At first blush, Hines’ comments would appear to be misleading and confusing. However, questioning of Hines at the trial revealed that he simply explained to Nettles that he was entitled to an attorney, and if Nettles requested an attorney there would be no continuation of the conversation until one was available. Nettles never indicated he wanted an attorney. Taking the entire conversation into account, we conclude that Nettles was adequately apprised of his right to counsel and of his right to remain silent unless counsel was present.

Finally, appellant argues that the repeated attempts at interrogation after Nettles expressed a desire to remain silent constituted harassment in violation of Miranda.

In Miranda, 384 U.S. at 473-474, 86 S.Ct. at 1627 the court stated:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court found that a reasonable interpretation of this language meant only that the right of a defendant to cut off questioning must be “scrupuously honored.” The court specifically noted that it did not mean that a person who had invoked his right to remain silent could never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Nor did the passage mean that the police officer could cease questioning and then resume it after only a momentary respite. In Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969), the court addressed the admissibility of a confession obtained after the defendant initially stated he did not want to answer questions without consulting an attorney. In concluding that the initial assertion of the right to counsel does not preclude a later waiver of the right to counsel, the court cited State v. Bishop, 158 S.E.2d 511 (N.C.1968):

The vice sought to be removed is the evil of continued, incessant harrassment by interrogation which results in breaking the will of the suspect, thereby making his statement involuntary.

Id. at 325. Consistent with the interpretations later announced by the Mosley court, the Bishop court determined Miranda did not mean law enforcement officers could never resume questioning after a defendant invoked his right to remain silent. Here, Nettles was arrested at a roadblock near Folkston, Georgia. He was given his rights and refused to talk. He was then taken to the Charlton County Jail where the above described conversation with Officer Harris took place. Both at the time of arrest and at the jail, Harris merely asked Nettles if he wanted to talk. The questions were brief and nonspecific as to details of the crime. Such questions can hardly be considered “continued, incessant harrassment” designed to break the will of the suspect. In response to Harris’ second query, Nettles agreed to talk once his father arrived. We construe this as a clear indication he had changed his mind and was now willing to make a statement. A defendant is entitled to waive his right to remain silent, the question becoming whether the waiver was freely and intelligently made. Franklin v. State, 324 So.2d 187 (Fla. 1st DCA 1975). The record here does not indicate Nettles’ waiver was anything other than voluntary.

Appellant’s other issues can be disposed of summarily. All of the alleged errors involve matters in which the trial judge has significant discretion, and appellant has failed to show any abuse of that discretion. See Ashley v. State, 370 So.2d 1191 (Fla. 3rd DCA 1979); Chaney v. State, 267 So.2d 65 (Fla.1972); Thomas v. State, 326 So.2d 413 (Fla.1976).

Accordingly, the judgment of conviction is AFFIRMED.

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

      . All persons who could not impose the death penalty under any circumstances are excluded.

      . Those who would not impose the death penalty under any circumstances.

      . Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

      . The Florida cases cited in the preceding paragraph dealt with the question of the representativeness of the jury, not its impartiality. The Florida Supreme Court has not specifically addressed the impartiality issue. It would seem, however, that since the acceptance and application of appellant’s thesis would result in the necessity for dual juries in every capital case, the rationale employed by the court in these cases would apply as well to the question of impartiality.

      . “... The state has decided that the parties’ right under the Sixth and Fourteenth Amendments to an impartial trial and the state’s interest in the just and evenhanded application of its laws, including Florida’s death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment .... (citations omitted) The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality. Accordingly, the petitioner’s contention is without merit.” Spinkellink, 578 F.2d at 596.

      . United States ex rel. Townsend v. Twomey, 452 F.2d 350 (7th Cir. 1972), cert. den. 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98; United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976), cert. den. 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781.

      . Grigsby v. Mabry, 438 F.Supp. 1372 (E.D.Ark.), reversed and remanded on other grounds 637 F.2d 525 (1980).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Since appellant did not request counsel, we are not concerned with the recent holding of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, which extended the Miranda rule so as to preclude further police questioning after the accused clearly asserts his right to counsel.


text:
    FLORIDA MANOR and Gallagher Bassett Insurance Service, Appellants, v. Johnnie HURST, Appellee.
    No. AD-91.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied Feb. 16, 1982.

      James B. Cantrell, of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

The order appealed is AFFIRMED.

Claimant, who suffered a compen-sable accident on July 7, 1980, petitions for appellate attorney’s fees on authority of Section 440.34(5), Florida Statutes (1980 Supp.). As we pointed out in Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981), appellate fees are not available in connection with claims governed by the 1979 amendments to Chapter 440, except in narrow instances. However, through the restoration of pre-1979 fee language in Section 440.34(5), the 1980 Legislature has allowed a reviewing court to award an appellate attorney’s fee in its discretion for accidents occurring on or after July 1, 1980, though no fee was awardable by the deputy commissioner. See Ship Shape, supra; ch. 80-236 §§ 14, 29, Laws of Florida. Accordingly, appellee’s petition for fees is granted in the amount of $2,000.

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


author: PER CURIAM. ERVIN, Judge, specially

text:
    HARRIS CORPORATION, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. AD-181.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.

      Brian C. Ellis, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Linda C. Procta, Asst. Atty. Gen., and John Browdy, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Harris Corporation appeals pursuant to § 120.68 Fla.Stat. (1979) an order of the Governor and Cabinet as head of the Department of Revenue. We reverse.

The appellant is a manufacturer of electronic equipment. The appellee is attempting to collect sales tax on some of this equipment for the period June 1, 1974, through June 30, 1978. The only issue is the interpretation of the relevant statute of limitations. Section 95.091(3) Fla.Stat. (1979) provides that:

Except as otherwise provided by law, the amount of any tax may be determined and assessed within 3 years after the first day of the month following the date on which the tax becomes due and payable. However, this limitation shall be tolled for a period of 2 years by a request for inspection and examination of a taxpayer’s books and records by the taxing authority within that period, in which event the period for which tax due may be determined and assessed shall be the 3 years immediately preceding the first day of the month in which a request for inspection and examination of the books and records has been made by the taxing authority.

In the instant case the Department notified Harris of a proposed' audit and requested inspection of Harris’ books on January 28,1977. On June 25,1979, two years and 5 months later, the Department issued a proposed assessment for the period January 1, 1974, through June 30, 1978, later amending the assessment to be for the period June 1, 1974, through June 30, 1978. Harris contests the assessment for the period June 1, 1974, through May 31, 1976, contending that it is barred by the statute of limitations above.

The Department’s application of the statute is clearly expressed in the following excerpt from a Division of Administrative Hearings Recommended Order:

The running of the statute was “tolled” by the issuance of the Department’s notice of assessment on January 28, 1977. At that point, 942 days of the three-year limitation period had run. The two-year “tolling” period expired on January 28, 1979, with no action having been taken by the Department. The three-year limitation period therefore resumed on January 29, 1979. The Department issued its notice of proposed assessment on June 25, 1979, after 147 additional days had expired on the three-year “clock.” The total period expiring before issuance on the notice of assessment was, therefore, 1,089 days, or less than the three-year limitation period provided for in Section 95.-091(3), Florida Statutes.

This would be a reasonable interpretation if the statute did not include the second clause “. . . in which event the period . . . shall be the 3 years immediately preceding. ...” Recalling maxim that the courts should give effect to all the legislative language, this language requires the Department to make its assessment within 2 years of its request for inspection if it is to take advantage of the tolling provision. Applied to the facts of this case, the Department had until January 29, 1979 in which to assess Harris for the period from January 1, 1974. By failing to file its assessment by that date, the Department could no longer apply the tolling provision. The statutory limitation period reverted to three years as if there had been no tolling of the time. Therefore, when the assessment was made on June 25,1979, only those taxes due on or after June 1, 1976 were subject to the assessment.

The order is REVERSED and the cause REMANDED for proceedings in accord with this opinion.

BOOTH and THOMPSON, JJ., concur.

ERVIN, J., specially concurs with written opinion.

ERVIN, Judge, specially

concurring.

Under the particular circumstances of this case, I concur with the majority’s opinion of reversal. Were the statute not one involving a period of limitation, and were the agency not the state’s taxing authority, I would feel obliged to follow the general rule stating that an administrative construction of a statute by one charged with its enforcement is entitled to great weight and will not be overturned except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the state’s constitution or the plain intent of the statute. See King v. Seamon, 59 So.2d 859, 861 (Fla.1952); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); Green v. Stuckey’s of Fanning Springs, Inc., 99 So.2d 867 (Fla.1957); State ex rel. Biscayne Kennel Club v. Board of Bus. Reg., 276 So.2d 823 (Fla.1973); Ft. Pierce, etc. v. Florida Public Service Com’n., 388 So.2d 1031, 1035 (Fla.1980); ABC Liquors, Inc. v. Dept. of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); State Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA, 1981).

Despite the above rule, it is doubtful the Department of Revenue can claim that it is charged with enforcing a statute of limitations, rather than one directly related to its taxing authority and one which the agency has special responsibility in providing its expertise by interpretation. Additionally, because the statute is susceptible to differing constructions as to the length of its applicability, we are confronted with another statutory maxim to the effect that taxing statutes or statutes conferring authority to impose taxes must be strictly construed, and that if they are so drawn that the legislative intent is in doubt, such statutes should be construed most strongly against the government, and liberally in favor of the taxpayer or citizen. De Vore v. Gay, 39 So.2d 796 (Fla.1949); State ex rel. Tampa Electric Co. v. Gay, 40 So.2d 255 (Fla.1959); Department of Revenue v. Brookwood Associates, Ltd., 324 So.2d 184 (Fla. 1st DCA 1975).

I am content to draw the line here in favor of the taxpayer as to a statute of limitations affecting the obligation to pay a tax that is ambiguously drawn. I would, however, be otherwise frugal in imposing our own particular construction upon a statute which is susceptible to differing interpretations once the appropriate administrative body has addressed the issue and has applied to it its own expertise in the subject matter which it is charged to administer. As we observed in Framat Realty, Inc., supra, 407 So.2d at 242: “[T]he judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views.”