author: ANSTEAD, Judge. HERSEY, Judge,

text:
    In re the ESTATE OF Reginald Hall JOHNSON, Deceased.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 27, 1981.

      Law Offices Thomas J. Woolley, Jr., Boynton Beach and Stanley A. Tucker of Tucker & Slawson, P.A., West Palm Beach, for appellant Kathleen Ross Johnson.
    Sam D. Phillips, Jr., West Palm Beach, for appellee Michelle Johnson Headley, as mother of Ross Johnson.
   ANSTEAD, Judge.

This is an appeal by Kathleen Ross Johnson, the adult daughter of the deceased, from an order of the probate court setting aside an attempted conveyance of homestead property.

Reginald Hall Johnson, hereinafter referred to as the decedent, died testate in Palm Beach County on February 10, 1979, survived by five children, including a four year old minor, Ross, who was then residing with the decedent’s second wife, Michelle Johnson Headley, in Dade County. The decedent’s four other children, Kathleen, Reginald Jr., Judith and Diane, were the offspring of the decedent’s first marriage. At the time of his death, the decedent owned a single-family residence located on real property less than one-half (%) acre situated in the municipality of Ocean Ridge.

On April 14, 1977, the decedent executed a revocable trust known as the “Reginald Hall Johnson Trust Agreement” wherein he designated himself as the trustee and lifetime beneficiary of the trust. The agreement provided for the disposition of trust assets upon the death of the decedent and included a provision that Kathleen, if she survived the decedent, was to receive the residence located in Ocean Ridge as a gift. Pursuant to the trust arrangement the decedent executed a quitclaim deed transferring his residence from himself, individually, to himself, as trustee. The quitclaim deed was delivered and recorded.

Upon his death, the decedent’s former wife, Michelle Johnson Headley, as mother and next friend of the minor child Ross, filed a petition seeking a determination that the real property located in Ocean Ridge was homestead property. The probate court granted the petition and set out its reasons in a written order:

The decedent did during his lifetime endeavor to divest himself of any interest in the homestead property by executing a revocable trust instrument, as well as a quitclaim deed, to himself as trustee which was subject to revocation under the terms of the trust. By retention of the complete control of the property with the absolute right to revoke the trust instrument and the deed, it is apparent that the testator intended to circumvent the constitutional restriction on testamentary disposition of the homestead while at the same time treating the property as his own during his lifetime. Any statutory basis for permitting said transaction would abrogate the constitutional protection accorded to a homestead as provided in Article X, Section 4 of the Constitution of the State of Florida, which must prevail over any statutory enactment.

We believe the trial court was correct in both its decision and reasoning.

Article X, Section 4(c) of the 1968 Florida Constitution, as amended in 1972, provides:

The homestead shall not be subject to devise .if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by his spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate. by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

The 1885 Constitution likewise allowed the holder of a homestead to alienate his homestead, although the term “gift” was not specifically included in its provisions.

In Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914), the decedent set up a revocable trust endeavoring to transfer his homestead to a trustee while his children were still living. By the terms of the trust, the decedent was to occupy the land for his own use and benefit during his lifetime, and the trustee, upon decedent’s death, was to convey the property to the decedent’s son for life, with the remainder going to the grandson then living. The other children of the decedent sought to set aside the property as homestead. In holding the transfer a nullity, the Florida Supreme Court stated the following:

Where the relation of husband and wife does not exist between the owner of property to which the homestead exemptions are attached and another living person, the constitution imposes no restrictions upon, but expressly recognizes, the power of the owner to alienate the property by a deed or mortgage executed by the owner alone, to take effect in the grantor’s lifetime as a vested, irrevocable right. Under the constitution and statute, the property upon which the law imposes the homestead exemptions and limitations is not subject to testamentary disposition when the testator is the “holder” of the homestead and leaves a wife or a child. That which the law forbids to be done directly cannot lawfully be done by indirection. If an attempted conveyance of homestead real estate is in legal and practical effect and operation a will, it may not be effective when the owner of the homestead leaves a wife or child.
* * * * * *
The conveyance alleged to have been made by Uriah Bowden to V. W. Shields as trustee carried if anything the bare legal title to the trustee, subject to the grantor’s right during his lifetime to di-, rect a conveyance of the title and the entire beneficial interest to others at his pleasure, as well as subject to ultimate disposition as directed by the trust deed made to the trustee. The interest attempted to be conveyed was not a vested right in the property to any of the beneficiaries named in the trust deed, but a contingent interest subject to the right of the grantor to direct a conveyance of the entire property to others at any time during the grantor’s life. In effect the entire beneficial interest and right in the specific property remained in the grantor and could not pass at all, without his consent, till after his death, thus making the trust deed not an absolute conveyance of a vested right in presentí, of the property alleged to be a homestead. See Smith v. Crocker, [Crocker v. Smith], 94 Ala. 295, 10 S.R. 258, 16 L.R.A. 576; 40 Cyc. 1085; Tuttle v. Rush, [Tuttle v. Raish], 116 Iowa 331, 90 N.W.Rep. 66. Because of the retention of the entire beneficial estate in the grantor during his life, the instrument in practical effect, is in the nature of a testamentary disposition of property alleged to be a homestead, and a testamentary disposition of homestead property is forbidden by law when the testator leaves a wife or a child.
If the property was and continued to be in fact and in law a homestead, the alleged trust deed not being an absolute conveyance of any vested estate in the land to take effect during the grantor’s life time, is apparently ineffectual for the purpose designed. 68 Fla. at 45 — 47, 66 So. 155. (Emphasis supplied).

We believe the interpretation placed upon the 1885 Constitution by the Johns court applies with equal force today and operates to prevent the attempted devise by trust at issue herein. The homestead provisions of the 1968 Constitution are not materially different from those of the 1885 Constitution. With one exception not pertinent here, the 1968 Constitution allows the unmarried owner of homestead property to alienate the homestead by mortgage, sale or gift, but such property is not subject to testamentary disposition where the owner leaves a spouse or minor child.

Appellant relies on Section 689.075, Florida Statutes (1977) to validate the conveyance. This section provides that a trust which is otherwise valid, including a trust the principal of which is composed of real property and which has been created by a written instrument, shall not be held invalid or an attempted testamentary disposition for any one or more of seven specified powers retained by the settlor, two of them being the power to revoke or amend the trust and the power of the settlor to retain the right to receive all or part of the income of the trust during his life or for any part thereof. Try as we may, we do not believe we can construe this statute to avoid the effect of the Supreme Court’s decision in Johns v. Bowden, supra.

Just as in the Johns case, it is obvious that the decedent here, as the settlor, was retaining all equitable right, title, possession and interest in the property until his death. If Section 689.075 was construed to authorize the devise of homestead property in the manner involved herein, it would contravene the homestead provisions of the Florida Constitution, as interpreted by the Florida Supreme Court in Johns, supra. We hold only that Section 689.075 does not authorize a disposition of homestead property that is prohibited by the Florida Constitution.

Accordingly, for the reasons set out above, the judgment of the trial court is affirmed.

BERANEK and HERSEY, JJ., concur.

HERSEY, J., concurs specially with opinion.

HERSEY, Judge,

concurring specially.

While I concur in the result reached here and agree, for the most part, with the rationale of the majority opinion, there is one point of departure that in my judgment requires a comment because of its potential effect in subsequent cases like this one. It seems to me that it is no longer correct to strike down the trust as a prohibited attempted testamentary disposition. Section 689.075 Florida Statutes (1979) provides that a trust containing various types of provisions like the one involved here “... shall not be held invalid or an attempted testamentary disposition .... ”

This trust of the homestead is invalid because it was and is neither a sale nor a mortgage nor a gift. Alienation of the homestead under appropriate circumstances must take one of these three forms or it is constitutionally infirm. Article X, Section 4(c) of the Florida Constitution. By definition the transfer in trust was neither a sale nor a mortgage. It could not have been a gift because the trust was revocable.

Therefore I would invalidate the attempted alienation of the homestead involved here and affirm the order from which this appeal was taken, leaving open the question of whether this form of alienation of the homestead might be valid if the trust was irrevocable and all of the other elements of a gift in trust were present.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    REES, INC., Appellant, v. Michael E. SOGAN et al., Appellee.
    No. 80-1319.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 19, 1981.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellant.
    Kevin A. Malone of Krupnick & Campbell, Fort Lauderdale, for appellee Sogan.
    Pomeroy, Betts, Pomeroy, Moses & Pom-eroy, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellee Niagara Machine & Tool Works.
   PER CURIAM.

Affirmed on the authority of Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981); Jacobson Mfg. Co. v. Cross Mfg. Co., 396 So.2d 825 (Fla. 4th DCA 1981).

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: NESBITT, Judge.

text:
    John Edmund COBY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-528.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 27, 1981.

      Bennett H. Brummer, Public Defender and David J. Finger, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The issue before us is whether the defendant was entitled to disclosure of the identity of a confidential informant pursuant to Florida Rule of Criminal Procedure 3.220(a)(l)(i). Under the circumstances presented, we find that he was, and reverse the defendant’s adjudication of guilty on the violation of probation and remand the cause to the trial court to first determine, in an in-camera hearing, if disclosure as to the identity of the confidential informant would have been of material assistance to the defense; and, in the event that it would, for the trial court to require disclosure and then re-try the defendant.

On October 3, 1977, the defendant was placed on three years probation following & plea of nolo contendere. On January 1, 1979, he was charged with violating his probation by possession and sale of heroin and cocaine to a police officer on August 23, 1978 and again on August 28, 1978. Negotiations for the sale were initiated through a confidential informant who was present throughout the first transaction. The same was true with respect to the second transaction except the confidential informant was not actually present when the contraband and money were exchanged.

Only the police officer and the defendant testified at the probation revocation proceeding. The police officer’s testimony was confusing with respect to the physical size of the defendant. Otherwise, the police officer was relatively certain as to the defendant’s identity as the offender. The defendant did not deny that the policy officer purchased the contraband from someone. He does, however, deny that he was the one who sold the narcotics. His defense was “misidentification.” The defendant’s position is that the disclosure of the confidential informant’s identity is significant to the issue of identification. The trial court denied defendant’s motion to compel disclosure of the confidential informant or to conduct an in-camera hearing. It is from the denial of that motion that the defendant pursues this appeal.

It is settled that a defendant has the right to utilize the discovery provisions of Florida Rule of Criminal Procedure 3.220 at probation revocation hearings as well as at trial. Hines v. State, 358 So.2d 183 (Fla.1978). In Treverrow v. State, 194 So.2d 250 (Fla.1967), the Supreme Court established some of the guidelines to be considered in determining whether an exception to the state’s privilege against non-disclosure of a confidential informant exists. In this case, all of the factors articulated are applicable because: (1) it was the prosecutor who first referred to the confidential informant; (2) the confidential informant participated to a substantial degree in the transaction; (3) the accused denied guilt; and (4) there after was no independent evidence of the accused’s guilt.

This court has previously recognized the right to disclosure of a confidential informant’s identity when the defendant’s identity is an issue and the state offers no corroborating testimony. State v. Anderson, 329 So.2d 424 (Fla.3d DCA 1976); Monserrate v. State, 232 So.2d 444 (Fla.3d DCA 1970). Although the conviction of a defendant in a primary trial as well as a probation revocation hearing may validly rest upon the testimony of one witness, Wright v. State, 182 So.2d 264 (Fla.3d DCA 1966), where the disclosure of an informant’s identity is essential to a fair determination of the cause, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it may be error not to require it.

In this case, the state did no seek, pursuant to Florida Rule of Criminal Procedure 3.220(a)(4), to deny disclosure based upon subtantial risk of physical harm to the confidential informant. Ultimately, disclosure or non-disclosure of a confidential informant rest upon balancing of the respective interest according to the circumstances of each case. Garcia v. State, 379 So.2d 441 (Fla.3d DCA 1980). However, where a proper showing occurs, the privilege against non-disclosure will totally give way in favor of disclosure. State v. Hassberger, 350 So.2d 1 (Fla.1977).

On remand to the trial court, the defendant’s substantial interests may be completely protected by the trial court ordering the disclosure of the confidential informant at an in-camera hearing. State v. Williams, 369 So.2d 416 (Fla.3d DCA 1979). Should the testimony of the confidential informant disclose the defendant as the seller of the contraband, the trial court’is authorized to confirm its previous findings and determinations and enter an appropriate sentence. In the event the trial court finds that the disclosure by the confidential informant tends to exculpate the defendant then it is directed to afford the defendant a plenary probation revocation hearing.

Reversed and remand with directions.


text:
    Joseph Hubert ADDERTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-834.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 20, 1981.
    Bennett H. Brummer, Public Defender, and Ronald Gottlieb, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Maier, 378 So.2d 1288 (Fla.3d DCA 1979); United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537.


text:
    Lionel NAZCO, as Personal Representative of the Estate of Ramon Sanchez, Deceased, Appellant, v. Pablo LOPEZ, Volkswagen Insurance Company, Leona N. Martinez, Administratrix of the Estate of Oscar Martinez, Deceased, and The Travelers Insurance Company, Appellees.
    No. 80-778.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 29, 1981.
    Del Castillo & Knott and Adolfo Del Castillo, Coral Gables, for appellant.
    Amy Shield Levine, George, Hartz & McNary, High, Stack, Lazenby, Bender, Pa-lahach & Lacasa and R. Scott Boundy, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The Final Judgment for Plaintiff entered on March 27, 1980, pursuant to the verdict and an additur accepted by the defendants, is affirmed. The final judgments entered on March 10, 1980 and March 11, 1980, obviously intended to be superseded by the final judgment of March 27, 1980, are reversed and vacated.

Affirmed in part; reversed in part.


author: FERGUSON, Judge.

text:
    The CITY OF CORAL GABLES, Appellant, v. George DODARO, Appellee.
    No. 80-1194.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 27, 1981.
    Robert D. Zahner, Coral Gables, for appellant.
    No appearance, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

The City of Coral Gables, appeals from an order of the appellate division of the circuit court granting a petition for mandamus and ordering the City’s trial board to reconvene pursuant to provisions of the City Charter to determine whether an employee’s transfer in employment constitutes an unlawful penalty. The provision in question is Section 25 of the Charter of the City of Coral Gables which authorizes the convening of a Trial Board to investigate and determine the propriety of an action where an officer or employee of the City has been removed, suspended, laid off, or reduced in grade.

George Dodaro was employed by the City of Coral Gables as a cashier at the Biltmore Golf Course. On June 4, 1979, he was notified by the City Manager that his employment was terminated. Dodaro requested and was granted a hearing before the City’s Trial Board pursuant to Section 25 of the City Charter. After presentation of the evidence, the City Attorney announced that he was withdrawing the charges against Dodaro and reinstating him in the same job classification he held prior to the termination. Dodaro was reinstated to employment but transferred from the Golf Course to the Venetian Pool.

Dodaro now contends that the transfer from the Golf Course to the Venetian Pool constitutes a demotion in that it deprives him of a substantial part of the income he previously received from the City of Coral Gables. From oral argument we gather that petitioner received commissions from the Golf Course Pro Shop for sales of sporting goods. There is nothing in the record which sheds any light on the nature of the arrangement through which he received the additional compensation, particularly whether it was a supplemental income paid to Dodaro by the City of Coral Gables as part of his wages and salary. As a consequence of the transfer action, Dodaro no longer receives income from commissions.

Dodaro sought to re-open his case before the Trial Board. The City Attorney who prosecuted the case against Dodaro rendered an opinion to the City Commission concluding that the Trial Board no longer had jurisdiction in the Dodaro matter. Based on that opinion the Commission passed a resolution which barred the Trial Board from further hearing of the case. The matter had not been placed on the agenda of the City Commission, nor was the Trial Board notified of the action until some nineteen days later. Fortunately we are able to resolve the issue raised by this appeal without review of the City’s apparently unusual administrative procedures in this case.

We hold that if an employee who is purportedly transferred laterally, suffers a substantial reduction in income paid to him by the employer, he then makes a pri-ma facie case that he has been demoted no matter that the job title is the same. Comparative salaries is one factor the court will consider in determining whether a job transfer in public employment is actually a demotion. Board of County Commissioners v. State, 111 So.2d 476 (Fla.3d DCA 1959).

The writ of mandamus directs the Trial Board to reconvene to determine an. issue not previously raised, i. e., whether the transfer is actually a reduction in grade in light of the alleged substantial reduction in pay.

Where an aggrieved employee makes a timely request for review of city action, Section 25 provides that the “trial board shall thereupon investigate and determine the propriety of such action....” [emphasis supplied].

Here the writ compels the performance of a ministerial act or mandatory duty where there is a clear legal right in the employee, a corresponding duty of the City, and a want of any other adequate remedy. See, e. g., State ex rel. Blatt v. Panelfab International Corp., 314 So.2d 196 (Fla.3d DCA 1975). Though mandamus is a legal remedy, granting of the writ is governed by equitable principles. Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976).

Affirmed.

      . Resolution 22739 reads: “Be it resolved by the Commission of the City of Coral Gables : that the opinion of the City Attorney that the Trial Board no longer has jurisdiction on this matter and that the Trial Board should not be polled to resume the Dodaro hearing shall be and it is hereby upheld.”

      . One board member wrote to the City Manager expressing surprise that the jurisdiction of the Trial Board had been resolved by the Commission without notice to the Board. Three of the five Board members filed affidavits expressing agreement with the allegations contained in Dodaro’s Petition for Writ of Mandamus.

        .See, e. g., Tascano v. State, 393 So.2d 540 (Fla.1980) (Case No. 55,394, opinion filed June 5, 1980). “Shall” is mandatory, not discretionary nor directory language. See also Holloway v. State, 342 So.2d 966 (Fla.1977).


text:
    J. C. VEREEN & SONS, INC., Appellant, v. CITY OF MIAMI, Appellee.
    No. 80-1321.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 27, 1981.

      Prunty, Ross, Olsen & Israel and John W. Prunty, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Terry V. Percy, Asst. City Atty., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The appellants, J. C. Vereen & Sons filed a declaratory action against the appellee, City of Miami, seeking recission and cancellation of conditional deed of dedication. After a nonjury trial, judgment was entered for the City of Miami on a finding that the property had not been abandoned and that the City was vested with complete fee simple title. We affirm.

By this appeal Vereen claims under two theories: (1) common law abandonment and (2) the statutory provisions of Sections 255.-22 and 255.25, Florida Statutes (1975).

Vereen was the owner of real property with a 300 foot front along the east side of North Miami Avenue between 3rd and 4th streets. In 1953 Vereen sought a variance to encroach five feet onto property zoned but not used for street along a seventy-five foot strip. The application was rejected. The City then offered to grant Vereen the variance if Vereen would agree to dedicate to the City a conditional warranty deed to the 75' by 5' strip of property. Vereen accepted the offer. The variance was granted and by conditional deed of dedication Vereen conveyed the strip of land “for street and sidewalk purposes.” By terms of the instrument of conveyance it was understood that possession of the property would not pass to the City of Miami until the City widened North Miami Avenue abutting the seventy-five foot strip of land upon which the variance had been granted. It was also understood that the encroachments for which the setback variance had been granted would be removed by Vereen when the City commenced widening the street. The requirement to remove encroachments was further made a covenant to run with and bind the property.

The reverter clause in the instrument of dedication provides as follows:

Should the grantee, by formal declaration of the Commission of the City of Miami, Florida, repeal its Ordinance creating the setback on the (subject property), then and in that event, this dedication ...., shall revert immediately to the grantor herein.

We give attention first to Vereen’s argument under the common law theory of abandonment. Abandonment is a question of intent and he who asserts it has the burden of proving it. Dade County v. City of North Miami Beach, 69 So.2d 780 (Fla.1953). In Dade County, supra, the court held that seventeen years of non-use did not constitute an abandonment on the grounds that non-use is only evidence that may or may not point to abandonment. The court noted:

It is obvious that the county was engaged in this and other extensive recreational projects, that require large outlays and that it was proceeding cautiously. It is also obvious that this was an overflow project, that portions of it were to be converted into fishing areas which required a kind of improvement new to park development. The evidence shows conclusively that the county has had this and other projects for park purposes in mind for years and that it is proceeding with them as it deems best, as circumstances warrant, as the need for them arises and means permit. The evidence shows that plans for further improvement of the park are in contemplation as soon as means and conditions justify.

Id. at 783.

Florida cases hold that there is no abandonment because of failure to improve an area where the need for the improvement has not arisen. Earle v. McCarthy, 70 So.2d 314 (Fla.1954); Dade County v. City of North Miami Beach, supra; Leslie Enterprises Inc. v. Metropolitan Dade County, 293 So.2d 73 (Fla. 3d DCA 1974). The testimony of Donald Cather, Director of Public Works for the City of Miami, suggests that the widening of North Miami Avenue may be a necessary part of a broad scheme of later development. On cross-examination by the City he stated:

As far as I know and to the best of my knowledge, we have no plans actively designed at the present time to widen Miami Avenue. The entire plan for widening is a general plan effecting community development, development of Government Centers, final development of the People Mover, the downtown People Mover Route, the Rapid Transit, and at the time plans that might effect the street widening of Miami Avenue.

When questioned as to whether there were any plans for street widening in the area, Charles Baldwin, Chief of the Highway Division of Dade County Public Works Department, responded that “A plan is being developed from 1-95, which is essentially South 3rd Street to the Miami River...” We note that these streets are in the same downtown area.

In Carlor Company, Inc. v. City of Miami, 62 So.2d 897, 902 (Fla.1953), the supreme court stated:

It is the duty of public officials to look to the future and plan for the future. In erecting public buildings and public improvements, it is likewise the duty of public officials to build and plan not only for the present but for the foreseeable future....

The case of Woodlawn Park Cemetery Co. v. City of Miami, 104 So.2d 851 (Fla. 3d DCA 1958) relied upon by Vereen is not applicable. The court there, in finding an abandonment, held that the act contemplated by the instrument of conveyance which would activate the reverter clause, had affirmatively been done by the City of Miami. That is not the situation in this case where there is neither unconditional dedication, nor affirmative act activating reverter.

The reasoning of the court in Dade County, supra, in finding that there had been no abandonment seems appropriate here. No time was specified in the deed for abandonment to become effective (here the land would revert to the grantor if the city repealed the zoning ordinance); equity abhors a forfeiture against the public; improvements of the kind for which the dedication was made usually move slowly; and the county is moving in the direction of widening North Miami Avenue as part of a broad scheme of redeveloping downtown Miami.

Vereen also argues the fact that it was billed by the City for repair of sidewalk, and by the county for taxes, which it has paid, is further evidence of abandonment. We disagree. The bills in question bear dates from 1954 to 1974 and were clearly not the responsibility of Vereen. This issue is presented in Leslie Enterprises, Inc. v. Metropolitan Dade County, supra, where we affirmed the trial court’s determination that the appellant was entitled to equitable reimbursement for back taxes in accordance with § 195.106 Florida Statutes. By the same principle, Vereen is also entitled to reimbursement from the City for costs and repairs to the sidewalks on the dedicated land.

We consider next Vereen’s agreement under Sections 255.22 and 255.23, Florida Statutes (1975). Vereen is entitled to reconveyance under Section 255.22 only if he proves (a) he conveyed the land to the City without receipt of valuable consideration, (b) the city failed to use such property for the specific purpose dedicated for a period of sixty consecutive months, and (c) he is owner of land adjoining such property or at least one side.

First, the issue of consideration. The recitation of consideration in a deed raises a presumption thereof, Crockett v. Crockett, 145 Fla. 311, 199 So. 337 (Fla.1940); Wise v. Wise, 134 Fla. 553, 184 So. 91 (Fla.1938), but is open to explanation by parol proof as to actual receipt of the consideration. Florida Moss Products Co. v. Leesburg, 93 Fla. 656, 112 So. 572 (Fla.1927). Where the payment of a valuable consideration becomes a material question, it must be affirmatively proved by the party relying upon it, and such payment cannot be proved by the mere recital of it in the deed. Ellis v. Everett, 79 Fla. 493, 503, 84 So. 617 (1920); Lake v. Hancock, 38 Fla. 53, 20 So. 811 (Fla.1896).

It is undisputed from the record that the City made no payment of money to Vereen as consideration for the dedication. The issue then is whether the granting of the requested zoning variance is valuable consideration which supports the conveyance of an interest in real property from -a private person to a municipal government. A municipality has no authority to enter into a private contract with a property owner for the amendment of a zoning ordinance subject to various covenants and restrictions in a collateral deed or agreement when such an agreement results in a contracting away of police powers. Harnett v. Austin, 93 So.2d 86 (Fla.1956). Where, however, as here, a party seeks a variance and not a change or amendment in the zoning ordinance and there is no contracting away of police power, the deed or contract will be upheld. See, e. g. Harnett, supra, at 90 (applicant seeking outright change in zoning ordinance, not variance); Broward County v. Griffey, 366 So.2d 869 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 756 (Fla.1980) (zoning change; deed valid where no bargaining away of police power); Housing Authority of City of Melbourne v. Richardson, 196 So.2d 489 (Fla. 4th DCA 1967) (contract valid, no change in pre-ex-isting criteria and obligations). Compare Troup v. Bird, 53 So.2d 717, 720 (Fla.1951) (rezoning is change in existing zoning rules and regulations, variance permits non-conforming use and may require appropriate safeguards) with Josephson v. Autrey, 96 So.2d 784 (Fla.1957) (actual change of use and not just “non-conforming” use without prescribed standards is invalid exercise of legislative power). Nor was the ordinance confiscatory since Vereen actively sought the variance for his own benefit. Cf. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, 108 So.2d 74, 85 (Fla. 1st DCA 1958) (ordinance arbitrarily imposed denied to property owners just compensation when property taken for public use). See also, R. Henderson, American Law of Zoning 2d § 18.04 (1976). We find no reason why the requested zoning variance should not constitute valuable consideration for purposes of Section 255.22. Accordingly, we disagree with the trial judge’s finding that Vereen’s conveyance by deed was without receipt of valuable consideration.

Second, even if we assume for purposes of this case that there is a conclusive presumption of abandonment under Section 255.23, Vereen still is not entitled to reconveyance because he fails to meet the third requirement of adjoining landowner. The owner of the adjoining land is not the United States Government. Vereen contends that because he was divested of ownership through involuntary condemnation during the pendency of the proceeding, he is still entitled to have the statute apply to him. As a basic rule of statutory construction words are to be given their plain meaning. Tatzel v. State, 356 So.2d 787 (Fla.1978); Gaulden v. Kirk, 47 So.2d 567 (Fla.1950); City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981); Southwest Florida Production Credit Assoc. v. Schirow, 388 So.2d 338 (Fla. 4th DCA 1980). Under the plain meaning of the statute, Vereen is not an owner of land adjoining such property to whom there could be a reconveyance.

We come now to the contention of Vereen that the trial court improperly enlarged the City’s interest in the land from that of grantee under a conditional deed of dedication with the possibility of reverter to a title in complete fee simple. Section 689.-18(4), Florida Statutes (1975) renders void any reverter provision contained in any deed conveying real estate executed on or after July 1, 1951 after twenty-one years from date of execution. Because the deed conveying Vereen’s interest to the City was executed in 1953, Vereen’s right to possibility of reverter expired in 1974.

For the reasons set forth above, we find Vereen is not entitled to reconveyance under Section 255.22 and 255.23, Florida Statutes (1975), affirm that part of the judgment finding no abandonment under common law and that the City of Miami is vested with complete fee simple title in the property, and remand for equitable reimbursement proceedings.

HENDRY, J., dissents.

      . On February 28, 1977 the trial court entered judgment on the pleadings in favor of Vereen. This court reversed and remanded the cause for trial on the merits. City of Miami v. J. C. Vereen & Sons, Inc., 359 So.2d 533 (Fla. 3d DCA 1978).

      . Vereen also presents three alternative arguments on consideration under common law abandonment presumably for the purposes of alleging the deed should be set aside. See McCoy v. Love, 382 So.2d 647 (Fla.1979); Anders v. Anders, 143 Fla. 721, 197 So. 451 (Fla.1940). There are several grounds for rejecting this argument and we deem the following conclusive: where a signed, sealed and properly recorded deed recites a consideration, the grantor is estopped from denying there was consideration for the purpose of destroying the effective operation of the instrument as a deed of conveyance absent an allegation of fraud. See, e. g., McCoy, supra, Hinzelin v. Bailly, 155 Fla. 837, 22 So.2d 43 (1945); Thompson on Property, 1962 Replacement, § 3125 (Grimes 1962).

      . A legislative intent requiring reconveyance to the actual owner of adjoining land is consistent with Florida law requiring that title to an abandoned street revert to adjacent owner and not to heirs and assigns of original platters. Loef-fler v. Roe, 69 So.2d 331 (Fla.1953); Sun Oil Company v. Gerstein, 206 So.2d 439 (Fla. 3d DCA I960), cert. denied, 211 So.2d 212 (Fla.1968).

      . Section 689.18 is unconstitutional only to the extent it cancels reverter provisions in deeds executed prior to July 1,1951. Biltmore Village, Inc. v. Royal, 71 So.2d 727 (Fla.1954); See, e. g., Trustees of Tafts College v. Triple R. Ranch, 275 So.2d 521, 527 (Fla.1973).


author: SCHWARTZ, Judge.

text:
    John MASCI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1435.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 27, 1981.
    Paul A. Lehrman, Tallahassee, Mitchell Denker, Key West, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The sole point on appeal challenges the determination below that the defendant, Masci, who was 17 years of age, was properly charged as an adult by the state attorney under Section 39.04(2)(e)4, Fla.Stat. (1979), which provides:

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

As a juvenile, Masci had been previously found guilty of burglary and larceny arising out of the same incident — breaking into a structure and stealing property from inside — but had not been adjudicated delinquent as a result of that conduct. We agree with the trial court that the terms of the statute apply to this situation and reject both of the appellant’s arguments to the contrary:

1. Sections 39.09(3) and 39.10(2), Fla.Stat. (1979) provide for a two-step process in the disposition of delinquency proceedings under which, after the juvenile has first been found to have committed a delinquent act, he may or may not then be actually adjudicated delinquent. The condition of Sec. 39.04(2)(e) that the child have been “found” guilty of acts of delinquency therefore plainly does not also require that actual adjudications have been entered, as Masci contends. Compare Section 39.-09(2)(a), Fla.Stat. (1979), which, in contrast, specifically refers to the consequences of the child’s having been “previously adjudicated delinquent.”

2. The previous burglary and larceny constituted two distinct crimes or delinquent acts — one of breaking in, the other of stealing — even though they arose out of the same series of events. Estevez v. State, 313 So.2d 692 (Fla.1975). There is nothing in Section 39.04(2)(e)4 which supports the appellant’s position that the two acts of delinquency must arise from separate criminal episodes!! Our insertion of such a requirement would amount to an impermissible judicial rewriting of the legislative mandate. 10 Fla.Jur.2d Constitutional Law § 170 (1979), and cases cited.

Since the defendant’s criminal prosecution as an adult was thus authorized by Sec. 39.04, see State v. Cain, 381 So.2d 1361 (Fla.1980), the judgment under review is

Affirmed.

      . The defendant’s reliance on Shead v. State, 367 So.2d 264, 266-67 (Fla. 3d DCA 1979), which dealt with the habitual offender statute, is misplaced. Both the determinative language and the legislative purpose of the two provisions are entirely different.


text:
    Mabel V. BALDWIN, individually and as Personal Representative of the Estate of Opal I. Bradshaw, Deceased, Appellants, v. Joan LEWIS, Appellee.
    No. 80-2522.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied May 27, 1981.

      Byrd V. Duke, Jr. and Lucille V. Cough-lin, North Miami, for appellants.
    George E. McCarthy, Melbourne, for ap-pellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

This appeal presents the question of whether the failure of the clerk of the court to furnish a copy of a creditor’s claim to a personal representative afforded the personal representative “good cause” to extend the time for the filing of an otherwise untimely objection to the claim. We answer this question in the affirmative and reverse the order which denied such a petition to extend the time.

From the denial of its petition to extend the time for filing an objection, the personal representative has perfected an interlocutory appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3XC)(iv) on the theory that the order determined liability in favor of the creditor. Our threshold inquiry is to determine if we have jurisdiction to review it as an interlocutory order.

In the administration of the estate of a decedent or a ward, a series of proceedings and consequent orders may occur and, unlike an ordinary civil action, there is no terminal order analogous to a final judgment that affords complete relief and terminates the proceeding. Pursuant to Florida Rule of Probate and Guardianship Procedure 5.100, orders entered in probate are considered final for the purposes of appeal where they determine the rights of a party in a particular proceeding.

Under the Florida Probate Code of 1933 as amended, and the practice thereunder, an order sustaining an objection (thereby requiring the claimant to timely file an independent action) was considered final and appealable, Smoak v. Graham, 167 So.2d 559 (Fla.1964); as was an order granting an extension of time in which to file objections, Sutton v. Stear, 264 So.2d 838 (Fla.1972). It was likewise settled that where a personal representative failed to file objections to a timely presented claim (whether or not meritorious), and no extension of time was granted in which to file, the probate court was without authority to reject the claim or determine its validity. Goggin v. Shanley, 81 So.2d 728 (Fla.1955).

The effect the change in the Florida Probate Code of 1976 has made on this aspect of the non-claims statute and on other ancillary provisions has only been to reduce the time allowed for performing various acts. Therefore, the 1976 Code should receive a construction similar to that given the former code.

When a petition to extend the time for objecting to a claim is properly denied by the probate court, the only judicial labor left to be performed is to determine the relative priority of creditors’ claims pursuant to Section 733.707, Florida Statutes (1979). Hence, the order appealed from sufficiently determined the rights of the parties so as to support an appeal filed pursuant to Florida Rule of Appellate Procedure 9.110. We therefore elect to treat the interlocutory appeal as a plenary appeal pursuant to Florida Rule of Appellate Procedure 9.040(c). We now address the merits of the appeal.

Factually, it appears that the decedent died testate on April 7, 1980. Her last will and testament was admitted to probate and letters of administration were issued on April 10, 1980. Notice of administration was commenced by first publication on April 11, 1980. On July 3, 1980, the creditor, appellee herein, filed a statement of claim with the clerk of the court. The clerk’s notation on the original statement of claim filed in the estate proceeding as required by Florida Rule of Probate and Guardianship Procedure 5.490 provided:

Copy mailed to attorney for the personal representative on 7/8/80. CLERK OF THE CIRCUIT COURT. By A. Lewis, [emphasis supplied]

Florida Rule of Probate and Guardianship Procedure 5.490 is reinforced by Section 733.703, Florida Statutes (1979), which plainly requires the clerk of the court to furnish a copy of the statement of claim to the personal representative and note the fact on the original. The clerk’s notation demonstrates his non-compliance with the statute. The clerk has no duty to furnish a copy of the claim to the personal representative’s attorney. Sessoms v. Johnson, 378 So.2d 1260 (Fla. 5th DCA 1979). As one might expect, neither the personal representative nor any other interested party filed a written objection to the claim within four months from the first publication of notice of administration as required by Section 733.705(2), Florida Statutes (1979).

On September 2,1980, the personal representative filed with the clerk and served upon the creditor’s attorney a petition to extend the time in which to object to the claim based upon the foregoing facts. The petition was supported by affidavits from both the personal representative and the attorney of record that neither of them had received a copy of the creditor’s claim. Upon these facts, the probate court found that the personal representative had failed to demonstrate good cause as required by Section 733.705(3), Florida Statutes (1979) so as to warrant the extension of time to object to the claim.

It is well settled that a probate court may, upon a showing of good cause, extend the time for filing objections after expiration of the allotted time. Atlantic Nat. Bank of Jacksonville v. Kirkwood, 152 Fla. 59, 10 So.2d 743 (1942). It is within the discretion of the probate court to determine what constitutes “good cause.” In Re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). The probate court’s exercise of discretion will be sustained unless it is unreasonable in character or arbitrary. Smoak v. Graham, supra. It has also been held that the failure of a personal representative to object to a creditor’s claim “for some reason” does not constitute good cause. Ellard v. Godwin, 77 So.2d 617 (Fla.1955). A creditor must strictly comply with the various provisions of a non-claims statute or the claim will be barred. Davis v. Evans, 132 So.2d 476 (Fla.1st DCA), cert. denied, 136 So.2d 348 (Fla.1961). As in the instant case, the latter rule redounds to the benefit of the estate under the facts presented.

The statutory mode of providing the personal representative with notice of a creditor’s claim is plainly set forth in Section 733.703, supra, and in Florida Rule of Probate and Guardianship Procedure 5.490. When the statutory mode of affording notice is complied with, it creates presumptive notice to the recipient.

It has previously been recognized that the failure of the clerk to notify a creditor-caveator regarding issuance of letters of administration would excuse that creditor from the filing of a timely claim. Gomez v. Jackson Memorial Hospital, 309 So.2d 564 (Fla.3d DCA 1975); Lord v. Department of Health & Rehabilitative Services, 296 So.2d 561 (Fla.1st DCA 1974). Here, the failure of the clerk to furnish the personal representative with a copy of the creditor’s claim was tantamount to no notice, and consequently, the personal representative demonstrated good cause so as to allow an extension of the time for filing an objection to the creditor’s claim.

This case illustrates an existing archaic feature of the Florida Probate Code. The non-corporate personal representative who engages an attorney to represent him in the administration of a decedent’s estate actually relies upon the knowledge, skills, and management of the attorney in the administration of a decedent’s estate. An ordinary individual personal representative who receives a statement of claim, filed by a creditor, from the clerk automatically assumes that this is a courtesy notice and that his or her attorney has received a similar notice and will act accordingly. They often either deliberately or inadvertently do not forward the claim to their attorney’s attention. It is apparent that the current mode of affording notice is simply out of step with reality. The greater portion of creditors’ claims are filed by individuals and it is therefore proper for them to file an original and copy with the clerk. Since all personal representatives in Florida are required to be represented by a member of the Florida Bar unless the personal representative is the sole interested party within the meaning of State ex rel. Falkner v. Blanton, 297 So.2d 825 (Fla.1974), the Code should provide that the clerk mail a copy of the statement of claim to the attorney of record except in rare instances where an attorney is not required or where there is no current attorney of record. We consider it within the proper ambit of our responsibility to respectfully suggest that the Florida Legislature remedy the problem by appropriate legislative action. We suggest, without deciding, that this is a legislative prerogative out of recognition that non-claims statutes and ancillary provisions constitute an abridgment of substantive rights.

For the foregoing reasons, the order denying the personal representative’s petition to extend the time for the filing of an objection to the claim is reversed with directions to grant the petition and afford the personal representative a reasonable time in which to file and serve such objection.

Reversed and remanded.

      . Priority is determined after payment or settlement of all expenses and costs of administration. A petition to compel payment must be filed not later than one year after filing the claim or the claim will be barred. § 733.709, Fla.Stat. (1979). Following the payment of costs of administration and expenses, the court will then order either full or pro-rata payment of the creditor’s claims according to the circumstances of the case.


author: SHAW, Judge. BOOTH, Judge,

text:
    JESS PARRISH MEMORIAL HOSPITAL, Appellant, v. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL NO. 666, AFL-CIO, and Florida Public Employees Relations Commission, Appellees.
    No. TT-253.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Rehearing Denied May 26, 1981.
    W. Reynolds Allen of Hogg, Allen, Ryce, Norton & Blue, P. A., Coral Gables, and Joe D. Matheny of Henderson & Matheny, P. A., Titusville, for appellant.
    Mark F. Kelly of Frank, Chamblee & Kelly, P. A., Tampa, for Laborers’ Intern. Union of North America, Local No. 666, AFL-CIO.
    Phillip P. Quaschnick, Tallahassee, for Public Employees Relations Commission.
   SHAW, Judge.

In January of 1978 the appellee union was certified by PERC as the exclusive bargaining agent for a unit of hospital employees. The hospital filed a petition for review of the certification order and sought unsuccessfully to obtain a stay from PERC and from the court. While the appeal was pending, the union’s request that the hospital enter into collective bargaining negotiations was rebuffed by the hospital. PERC entered an order finding that the hospital had unlawfully refused to bargain. That order is the subject of this appeal.

The issue to be resolved is whether, in absence of a stay order, the public employer, Jess Parrish Memorial Hospital, committed an unfair labor practice by refusing to bargain with the certified union pending the outcome of the employer’s court challenge of PERC’s certification order. Florida courts that have come to grips with this issue appear to have answered the question in the affirmative. Brevard Community College Board of Trustees v. PERC, 376 So.2d 16 (Fla. 5th DCA 1979); School Board of Pinellas County v. PERC, 354 So.2d 909 (Fla. 2d DCA 1978); Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976).

Rule 9.310(b)(2), Fla.R.App.P., which became effective March 1,1978, now provides that the timely filing of a notice of appeal automatically operates as a stay when the state, any public officer in an official capacity, board, commission or other public body seeks review. The party seeking to have the stay vacated must do so by motion. In Amalgamated Transit Union v. PERC, 344 So.2d 319 (Fla. 1st DCA 1976), we expressed a fear that judicial intervention could be come a detrimental factor in the certification process by delaying an election until the constituency of the proposed unit or its concept of self-interest changed. It remains to be seen whether the automatic stay provided by the present rule will lend itself to such mischief, an issue we need not presently address.

The instant case is controlled by former Rule 5.12(2), F.A.R., (1962 rev.). In Duval School Board v. PERC, 346 So.2d 1087 (Fla. 1st DCA 1977), we held that under this rule the filing of a petition for review of an unfair labor practice order by PERC does not result in an automatic stay of the order. Like reasoning leads us to conclude that the filing of a petition seeking review of PERC’s order certifying the union as the exclusive bargaining agent for a unit of hospital employees did not, under the applicable rule, result in a stay of the order or obviate the hospital’s obligation to bargain with the certified union upon request.

In keeping with this determination, we agree with and affirm PERC’s finding that Jess Parrish Memorial Hospital committed an unfair labor practice by refusing to bargain during its court challenge of the certification order. Our affirmance becomes more academic than substantive, however, in light of this court’s opinion reversing PERC’s certification of the union in North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556 (Fla. 1st DCA 1980). Since the union is no longer the certified bargaining agent, the sanctions sought to be imposed by PERC are no longer appropriate. We suggest, therefore, that a more suitable sanction would be to require the hospital to acknowledge that they have been found guilty of an unfair labor practice in refusing to bargain collectively, and to pledge future compliance with the law.

The order appealed is affirmed insofar as it finds that Jess Parrish Memorial Hospital is guilty of an unfair labor practice, and the cause is remanded to PERC for the purpose of modifying its sanctions in keeping with this court’s suggestion.

ROBERT P. SMITH, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

The majority holds that the public employer can be subjected to sanctions imposed by PERC’s order of December 10, 1979, for failure to bargain with a union whose certification was obtained in direct violation of Florida Statutes, Chapter 447. The union’s certification was held invalid by this court in North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556 (Fla. 1st DCA 1980), a decision that became final with denial of rehearing on September 9,1980. In the interim, the public employer was unable to obtain a stay, and PERC entered the order herein sought to be reviewed, finding it guilty of failing to bargain with the union. PERC has ordered the employer to post a notice of its violation.

The question is the present enforceability against the public employer of the unfair labor practice order based on refusal to bargain with an organization that has been determined to have violated the fair election and registration provisions of Chapter 447. The majority cites three decisions in support of its decision: Brevard Community College Board of Trustees v. PERC, School Board of Pinellas County v. PERC, and Panama City v. PERC. None of these cases involved an organization whose certification had been revoked. I have found no case wherein an organization whose certification has been held invalid has obtained the aid of the courts in affirming the imposition of sanctions against the employer who refused to bargain.

In the instant case, the union violated basic provisions of Chapter 447, and certification was void ab initio. The better rule under these circumstances holds that the employer who refuses to bargain during the pendency of a challenge to the certification election acts at his peril, but the unfair labor practice order, based on the employer’s refusal to bargain, will not be enforced if the employer’s challenge is successful. This is the “at-peril rule” followed by the Federal Courts in deciding cases under the N.L.R.B., as stated in N.L.R.B. v. W. R. Grace and Company, 571 F.2d 279, 282 (CCA 5th-1978):

[A]n employer who refuses to bargain on the ground that an election is invalid does so at his own risk; if the election challenge proves fruitless, an order by the Board based on the refusal to bargain will be enforced.

See also N. L. R. B. v. Allis-Chalmers Corp., 601 F.2d 870, 874 (CCA 5th 1979); and N. L. R. B. v. Bear Archery, 587 F.2d 812 (CCA 6th 1977).

I respectfully dissent.

      . PERC order of December 10, 1979, in pertinent part:
      It is well settled in Florida that the appropriate method to challenge the certification of an employee organization is by appeal of the Commission’s certification order... . The petition is presently pending before the First District Court of Appeal. Thus, the Commission does not have jurisdiction to now consider issues relating to Laborers’ certification. ... Consequently, the Hospital’s proposed facts which relate to the validity of the Laborers’ certification are immaterial to the issues raised in this case.
      ... It is equally well settled that even while an appeal of a certification order is pending, an employer’s duty to bargain continues unless the employer obtains a stay of the certification order.

      . The sanction imposed, as modified in the majority opinion, is that the employer post and maintain notice in its facility for 60 consecutive days acknowledging that it has been “found guilty of a unfair labor practice in refusing to bargain collectively, and to pledge future compliance with the law.” PERC has not required any corresponding notice of the union’s violations, thereby giving employees, for whose information the notice is posted, an unfair and inaccurate picture of their employer and the events referred to.

      . 376 So.2d 16 (Fla. 5th DCA 1979). Unfair labor practice order affirmed on appeal against employer that did not seek review of PERC’s order of certification, but refused to bargain. Union was validly registered and certified.

      . 354 So.2d 909 (Fla. 2d DCA 1978). Unfair labor practice order affirmed, again, on behalf of certified employee organization. The employer claimed that at the time it refused to bargain PERC had not “formally reaffirmed the certification” issued earlier by PERC Chairman.

      .333 So.2d 470 (Fla. 1st DCA 1976). Review declined of PERC order defining a bargaining unit and directing an election because order not final. On rehearing, court stated a PERC certification order after election would be considered final for the purposes of judicial review.


author: SMITH, Judge.

text:
    George Washington SYKES, Appellant, v. STATE of Florida, Appellee.
    No. UU-123.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Rehearing Denied May 26, 1981.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Appellant’s first point, the trial court’s failure to give jury instructions on penalties, requires reversal. Tascano v. State, 393 So.2d 540 (Fla.1980). Ordinarily, this point would require remand for a new trial; however, the second point raised by appellant requires his discharge. Appellant was tried for the offense of grand theft. The trial judge gave a jury instruction on “attempt” to commit the offense of grand theft, to which there was no objection. The jury returned a verdict of guilty of attempted grand theft, and he was sentenced for that offense.

Appellant maintains that there is no-such offense under Florida law as “attempted grand theft”; that a person cannot be convicted of a nonexistent crime; that the jury’s verdict must be regarded as an acquittal of the offense of grand theft, and that he must accordingly be discharged. We find, regrettably, that Florida case law supports each of appellant’s contentions, and he must be discharged unless, upon this court’s certification to it, the Florida Supreme Court decides otherwise.

In Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979), this court held that a person cannot be imprisoned for a crime (attempted possession of burglary tools) which does not exist. Furthermore, although the error in the court’s instruction and the jury verdict of attempted possession of burglary tools was not raided in the trial court, the matter was treated on appeal as “fundamental error.” The Florida cases consistently follow the fundamental error rule in cases in which the nonexistence of the crime of “attempt” is based upon a “merger,” or inclusion of acts amounting to an attempt to commit the crime in the statutory definition of the substantive offense itself. See Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); Pagano v. State, 387 So.2d 349 (Fla.1980); and McAbee v. State, 391 So.2d 37 (Fla. 2nd DCA 1980). Furthermore, one ease has specifically held that there is no such offense as “attempted second degree grand theft” under the current grand theft statute, Section 812.014(1). Miles v. State, 374 So.2d 1167 (Fla. 2nd DCA 1979); and another case holds that the law now makes no distinction between “actual stealing and the attempt to steal.” Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980).

McIntyre v. State, 380 So.2d 1064 (Fla. 2nd DCA 1980), represents an exception to the general rule that *a conviction of an attempt to commit an offense will be set aside, and the defendant discharged, where the offense itself includes an attempt to commit the crime. In McIntyre, the court held that the defendant’s conviction for attempted grand theft would be construed as a finding of guilt of the substantive offense of grand theft. In doing so, the court relied upon the “peculiar circumstances,” which it explained as, first, the fact that the defendant’s attorney specifically requested the instruction on attempted grand theft; secondly, the statute has simply merged the offense of “attempt” with the crime of grand theft by use of the phrase “endeavors to obtain or to use” in defining the offense; and thirdly, since there was ample evidence that the defendant attempted to commit grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft. See also Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980).

Here there was no defense request for the “attempt” charge. Otherwise, the circumstances presented here are no different than those in McIntyre, and if the Florida Supreme Court had not so recently, in Pagano v. State, supra, held unequivocally that there can be no conviction of an attempt when the attempt itself is included within the statutory definition of the crime itself, we would be tempted to affirm the conviction. As matters now stand we are bound by this court’s decision in King v. State, 317 So.2d 852 (Fla. 1st DCA 1975), affirmed 339 So.2d 172 (Fla.1976), as well as Pagano, to hold that a conviction of an attempt to commit an offense, when an attempt to commit the offense is a part of the substantive crime itself, is a conviction of a non-existent offense. Under Vogel, supra, this is not a valid conviction, and there must be a reversal and discharge of the defendant. We might be able to distinguish our decision in King by pointing out that the court there was dealing with an alleged error in the trial judge’s failure to give a jury instruction on attempts, quite a different matter from the one we face here, that of the effect of the trial judge’s erroneous giving of the attempt instruction, where the jury returned a conviction of the attempt offense. We might also distinguish Vogel, supra, in that the offense of “attempted possession of burglary tools” apparently is a crime that cannot exist in fact whereas we deal here with a crime (attempted grand theft) that may be committed in fact, but when it occurs it becomes (by legislative fiat) the offense of grand theft itself. In view of the Florida Supreme Court’s approval of King and its recent decision in Pagano, such efforts would be unavailing.

Under what appears to be the established law of the state, the trial judge in a criminal case is in somewhat of a dilemma. If there can be an offense of “attempt” to commit the crime charged in the information or indictment, the trial judge is manda-torily required by Rule 3.510, F.R.Cr.P., to instruct on “attempt,” and the failure to instruct the jury upon proper request and to allow them to return a verdict on that charge if they are so inclined is generally reversible error. Brown v. State, 206 So.2d 377 (Fla.1968); Holloway v. State, 362 So.2d 333 (Fla. 3rd DCA 1978), cert. denied, 379 So.2d 952 (Fla.1980); Pagano v. State, supra. Thus, the trial judge, accustomed to complying with the rule, in many cases is likely to give the attempt instruction even without request, especially in the absence of any objection. However, if the trial judge gives an instruction on attempt to commit the crime, not requested by the defense, even in the absence of any objection by the defense, if the defendant is convicted of the attempt, and an appellate court determines that an attempt to commit the crime is not an offense because it is merged in the crime itself, the conviction must be reversed and the defendant must be discharged. Trial judges and trial counsel in the criminal courts are generally accustomed to dealing with curious ramifications and complexities in the law. However, the frequency with which the criminal statutes in recent years have been modified, new crimes created, and old ones amended makes it all the more difficult for those who must wrestle with the problem in the trial courts to know which attempted criminal offenses may be “crimes,” and which may not. Thus, to use the well-worn but nevertheless appropriate expression, we have a “Catch-22.”

We think the rule we are required to follow here leads to absurd results and does nothing to further the cause or the appearance of justice. Consider: The defendant can receive a “jury pardon” if the jury decides to convict of a “lesser included offense” (Rule 3.510, F.R.Cr.P.), even though the offense may or may not not have been in fact committed. Paradoxically, under the “merged attempt” rule, a defendant must be set free by the appellate courts if he is convicted of an attempt to commit the offense, even though the offense of “criminal attempt” (Section 777.-04(1), Florida Statutes) was in fact committed by the defendant, and the attempt is by law the offense.

While we cannot presume to speak for the courts that rendered the decisions we are compelled to follow, our analysis suggests to us a plausible explanation for the undesirable result we have alluded to. In cases dealing with the failure to give a jury instruction on “attempt,” where the attempt is merged with the crime itself, the appellate courts (with exception of the Third District, Edwards v. State, 223 So.2d 746 (Fla. 3rd DCA 1969), have avoided reversal by employing the “no crime” rationale. When faced with a jury conviction of a similar “attempt” offense, it appears that the courts (probably for the sake of consistency) felt obliged to follow the same “no crime” approach, which of course mandated discharge of the defendant. Perhaps some fault lies in the inconsistency inherent in the amended grand theft (formerly larceny) statute itself, which requires judges and jurors to find that one who “endeavors” to commit grand theft commits grand theft.

Nevertheless, our consideration of the problem suggests to us that the irrational result reached in the “merged attempt” cases might have been avoided without doing violence to any established principle of law, and without invoking any rule prejudicial to the rights of the defendant on trial. Instead of employing the “no crime” rationale, (in the failure to instruct cases) the same result could have been reached (and on a much more logical basis, we think) by holding that if an attempt to commit an offense is the same as the offense itself (the merger theory), an instruction on “attempt” to commit the offense would be a redundancy, and the failure to give it would be harmless error. On the other hand, if an instruction on attempt (although not required) is given, without objection, and the jury convicts, the defendant should have no ground for complaint, because he will have been convicted of that of which he is actually guilty.

Our views obviously coincide with those expressed by Judge Tillman Pearson, in Edwards v. State, 223 So.2d 746 (Fla. 3rd DCA 1969), in which he stated (Id. at 746):

We hold that the fact that an attempt to utter a forged instrument is also the uttering of a forged instrument does not mean that an attempt to utter a forged instrument is not an offense. It would seem illogical to hold that because an attempt is as large as the crime, it is not a crime. (Emphasis supplied)

Of course, the rationale we suggest was implicitly rejected by this court and the Florida Supreme Court in King v. State, supra, affirmed 339 So.2d 172 (Fla.1976), by its disapproval of Edwards v. State, supra. Interestingly enough, however, as support for the King ruling this court (with the Supreme Court’s approval) referred to Corpus Juris Secundum as authority for the statement (339 So.2d 172, at 172):

If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime. (22 C.J.S. ‘Criminal Law’ § 74)

We find the rule (if it is a rule) stated somewhat differently in the text of C.J.S. itself, as follows:

Although criticized as a generalization which tends merely to divert the attention of the court from the real issue in the case, there can be no attempt to commit a crime which is itself a mere attempt to do an act or to accomplish a result. (22 C.J.S., “Criminal Law,” § 74, page 226)

There is no way for us to know whether omission of the word “mere” (“a mere attempt”) in the King courts’ reading of C.J.S. had any bearing on its decision or not. To us, there seems to be a difference between the concept of “a crime which is a mere attempt to do an act” (emphasis supplied), and a crime which may be accomplished in several ways, one of which is by attempting to complete the prohibited generic offense itself. Since the crime of grand theft is not itself a “mere attempt” to do an act or accomplish a certain result, the rule stated in C.J.S. above quoted has no application.

With exception of the Third District, in Edwards v. State, supra, the appellate courts seemingly have failed to take into account the fact that the attempt statute, Section 777.04(1), Florida Statutes by its express language creates a separate substantive offense known as “criminal attempt.” The statute reads:

(777.04)
(1) Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall, when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection (4). (Emphasis supplied)

This statute should be construed, in our opinion, in line with the general rule as stated in 22 C.J.S. “Criminal Law”, § 74 (page 226):

Since the function of the law of criminal attempt is to permit the courts to adjust the penalty in cases where conduct falls short of a completed crime, an attempt to commit a crime is, as a general rule, an indictable offense, which is separate and distinct from the crime itself.

In cases where the jury is instructed and returns a verdict of guilty of an attempt to commit the offense, when such an attempt is merged in the crime itself by statute, the effect would simply be a “jury pardon” just as it could be if there were no merger, and just as a conviction of a lesser included offense may be a “jury pardon.”

Furthermore, punishment for conviction of a criminal attempt, whether merged in the generic offense or not, when based on a jury instruction under the attempt statute, should be in accordance with the statute. Again referring to 22 C.J.S. “Criminal Law”, § 74, we find the following with respect to applicability of attempt statutes (page 227):

Applicability of statutes. A statute making it a crime to attempt to commit an offense is intended to be of a general nature, punishing all attempts to commit any crime, and it has been held to apply only where there is no other specific provision of law punishing such attempt.

In the case of grand theft, there is no other specific provision punishing the attempt. The only penalty provision provided for grand theft is the penalty for grand theft itself.

We are at a loss to justify a ruling which requires the statute on attempts, which proscribes the separate offense of “criminal attempt,” to be disregarded so that one convicted of an attempt to commit grand theft must be discharged when the evidence clearly warrants conviction of that offense. Yet because we are bound by precedents both of this court and the highest court in the state, we are compelled to reverse the judgment and sentence appealed and order that the defendant be discharged.

In view of the frequency with which this and other courts of this state have been and are likely to be required to discharge convicted criminal offenders upon what we consider to be an erroneous and illogical application of the law, we certify to the Florida Supreme Court, pursuant to Rule 9.030(a)(2)(v), as a matter of great public importance, the following question:

When a trial court, following what it believes to be the requirements of the law, charges the jury on attempted grand theft under Sections 777.04(1) and 812.-014, Florida Statutes, without objection, and the jury returns a verdict of guilty of attempted grand theft based upon evidence supporting a conviction for that offense, notwithstanding that the evidence would also support a conviction of grand theft, is the defendant entitled to be discharged?

Being mindful of the observation by some perspicacious individual that it is easier to see that something is wrong than how to fix it, we appeal only for some solution to this problem, leaving it to the highest court of the state as the court having supervisory jurisdiction over the administration of justice in Florida, to resolve the matter in the best way possible.

THOMPSON, J., and WILLIAM C. OWEN, Associate Judge (Ret.), concur.

      . In our opinion the problem presented by the “merged attempt” statutes should be dealt with separately and should not be obscured by the arguments as to whether there can be a crime of an “attempt” to “attempt a crime.” See, however, the exhaustive discussion, both pro and con, in State v. Wilson, 218 Or. 575, 346 P.2d 115 (1959), in which the court criticized the generalization that there can be no such enme, and finally concluded that a conviction of “attempted assault with a dangerous weapon” was a valid conviction of a criminal offense. Further, at least one court has concluded, albeit in mere dicta, that no constitutional prohibition forbids the legislature from creating a crime of “an attempt to attempt a crime,” if it can otherwise be done. Huebner v. State, 33 Wis.2d 505, 147 N.W.2d 646 (1967), at 650.

      . No contention is made by appellant that the evidence would not support a verdict of guilty under the grand theft statute. We observe also that the evidence was such that a jury could easily have been led to conclude that a verdict of “attempted grand theft” logically fits the facts of the case. The victim’s house was burglarized, and drag marks from his home led police officers to some nearby bushes where they found some of his property, including a rifle bearing a fingerprint later matched with appellant’s print. Shortly after the police left the victim returned to the wooded area where he encountered appellant and two other persons. Appellant obviously failed or was intercepted or was prevented in the complete execution of the crime, in the commonly understood but not the legal sense of those terms as used in the attempt statute, because he was unable to make his get-away with the stolen goods.


text:
    William J. COLE and Teri Cole, his wife, Appellants/Cross Appellees, v. Michael James GLYNN and Eileen Glynn, his wife, and Paul D. Jagers, Jr., and Mary Ellen Jagers, his wife, Appellees/Cross Appellants.
    No. 80-316.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Denied May 29, 1981.
    Stephen G. Melcer of Hamilton, James, Merkle & Young, Delray Beach, for appellants/cross appellees.

      Thomas R. Tatum and James P. Murphy of Buck & Tatum, P.A., Fort Lauderdale, for appellees/cross appellants.
   PER CURIAM.

We affirm the action of the trial judge in permitting the intervention of the Jagers, appellees, and in vacating the default judgment. We believe the trial court was entitled to conclude that the Jagers had demonstrated sufficient equities or other special reasons to justify their participation in the proceedings. See Intermediary Finance Corp. v. McKay, 93 Fla. 101, 111 So. 531 (Fla.1927); Doyle v. Tutan, 110 So.2d 42 (Fla.3d DCA 1959).

We also find no abuse of discretion by the trial court in leaving the appellants in temporary possession of the property in question. This affirmance should not be construed as any indication by this court concerning the merits of the issues which now remain for the trial court to resolve.

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

MOORE, J., dissents without opinion.


author: HERSEY, Judge.

text:
    Annie Ruth HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 80-485.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Denied May 20, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee,-and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant was charged with the crimes of battery on a police officer and resisting arrest with violence. During the course of her trial a witness (Green) gave testimony tending to show that the police officers may have been the aggressors. On cross examination by the state the following exchange occurred:

MR. FENNELLY: (Prosecutor) Isn’t it true that you have been convicted of obstructing the police—
MR. MASLANIK: Your honor, I object. That’s improper impeachment. And move for mistrial at this time. The state attorney knows what the rules of evidence require and he’s blatantly violated those rules.
THE COURT: All right, I’ll reserve on your motion. Go ahead and ask him the question properly. Have you ever been convicted of a crime?
MR. FENNELLY: Have you ever been convicted of a crime?
A. (By Mr. Green) Well, as I was running for public office I was doing some campaigning and I was charged with trespassing. And one of the charge was dropped. The other told Mr. Hope about it and I think they seen fit — at that particular time I didn’t see where I was violating the law. Actually in my opinion by me running get into the race, go into the details of it, I was actually withdraw from the race and I thought it was politics motivation behind it, the reason why I was charged with trespassing. Some of the things. Actually that don’t have any bearing to me on this case.

A copy of Green’s conviction of obstructing justice was introduced into evidence.

On appeal appellant relies on Section 90.-610(1), Florida Statutes (1979) and Fulton v. State, 335 So.2d 280 (Fla.1976) for the proposition that even if the limitations of the statute are met, only the fact of conviction may be introduced to impeach the credibility of a witness. It is appellant’s position that the nature of the crime of which the witness was convicted is inadmissible so that prejudicial error was committed when the trial court refused to direct a mistrial and permitted introduction of the conviction into evidence.

Section 90.610(3), Florida Statutes (1979) provides that the admissibility of evidence under Section 90.608, Florida Statutes (1979) is not affected by the limitations contained in Section 90.610(1). The former statute relates, among other things, to the right to attack the credibility of a witness by showing bias.

The testimony and record of conviction objected to by appellant were introduced to show that the witness, Green, had a bias or prejudice against law enforcement personnel. To show bias it is obviously necessary to show the nature of acts by the witness which evidence such bias. To do this it is necessary to show and explain the nature of the crime of which the witness was convicted. Thus we agree with the trial court’s conclusion that conviction of a specified crime may be introduced to show bias of a witness.

The trial court also determined, on the facts presented, that, in this particular case, the conviction of obstructing justice tended to demonstrate bias. This finding of fact comes to us clothed with a presumption of correctness and is substantiated by evidence in the record.

We limit our holding to the facts of the present case and do not consider whether a similar rule prevails in the case of prior convictions of a criminal defendant. As to a witness in a criminal proceeding we determine that evidence of the nature of the crime for which the witness has previously been convicted may, under appropriate circumstances, as here, be admissible to demonstrate bias on the part of the witness.

Appellant’s second point on appeal is without merit.

No error having been committed by the trial court, we affirm.

DOWNEY and MOORE, JJ., concur.


text:
    C & S PLUMBING, INC., Appellant, v. LIVE SUPPLY, INC., and Flagler National Bank of the Palm Beaches, Appellees.
    No. 80-642.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Denied May 20, 1981.

      Conrad Damon of Law Offices of Michael Puder-Harris, P.A., North Palm Beach, for appellant.
    John L. Avery, Jr., West Palm Beach, for appellee, Live Supply, Inc.
   PER CURIAM.

Appellant argues that the trial court erroneously denied its motion to dissolve a writ of garnishment. We agree with appellant.

Final judgment awarding appellee Live Supply, Inc. a total recovery of $34,929.35 against appellant was filed on December 20, 1979. On December 26th, Live Supply filed a motion for writ of garnishment; the trial court issued the writ on that date, naming Flagler National Bank of the Palm Beaches as garnishee. After being served on December 28th the garnishee in its answer filed on January 8, 1980, stated that it had accounts of appellant on deposit totalling $3,330.01. On January 11th, Live Supply filed its acceptance of garnishee’s answer and moved for judgment. Appellant, on February 6, then filed a motion to dissolve the writ of garnishment. On February 26th the court denied appellant’s motion to dissolve and entered final judgment against garnishee ordering that Live Supply recover $3,329.92 from the garnishee.

A writ of garnishment is one form of final process to enforce a judgment solely for the payment of money. See Fla.R.Civ.P. 1.570(a). Florida Rule of Civil Procedure 1.550, entitled Executions and Final Process, provides, inter alia: “(a) ... No execution or other final process shall issue ... within the time for serving a motion for new trial or rehearing....” (Emphasis added). And Florida Rule of Civil Procedure 1.530(b) states: “Time for motion. A motion for new trial or for rehearing shall be served not later than 10 days after the rendition in a jury action or the entry of judgment in a nonjury action.”

Sub judice the trial court issued the writ of garnishment on December 26th, only six days after the entry of the final judgment on which it was based. The time for serving a motion for new trial or rehearing had not expired; therefore, the writ was issued prematurely. Accordingly, the order is reversed and the cause remanded for action consistent herewith.

REVERSED and REMANDED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.

      . The record is silent regarding why the trial court did not order recovery of the entire amount on deposit of $3,330.01, as stated in garnishee’s answer. For obvious reasons the parties have not raised on appeal the nine cents discrepancy.


author: SHAW, Judge.

text:
    Roy EASTERLING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SS-485.
    District Court of Appeal of Florida, First District.
    April 28, 1981.
    Rehearing Denied May 26, 1981.

      Michael J. Minerva, Public Defender and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SHAW, Judge.

The appellant was charged with possession of marijuana recovered from the west bedroom of a female co-defendant’s house. The appellant denied living in the bedroom and testified that “Jimmy”, the co-defendant’s boy friend, kept some of his personal belongings in the room. Investigator Turk testified, over appellant’s objection, that appellant admitted in his presence that he lived in the bedroom in which the marijuana was found.

The defendant objected to the investigator’s testimony on the grounds that the State in its response to appellant’s demand for discovery indicated that there were no written, recorded or oral statements made by the appellant that were known to the prosecutor. The statement was not disclosed to the defense until the morning of the trial. The appellant’s objection to the investigator’s testimony was overruled and it was allowed to be presented to the jury under the following circumstances:

A After Investigator Hood advised him of his rights in the presence of all officers and read the search warrant to him—
Q Okay, go ahead.
A We asked him who lived there. At which time—
Q Rather than give us—
A Okay. We asked him if there was anyone else in the residence, we had already checked, he said no. After reading the search warrant to him he knew we were going to search the residence, we asked him what room, bedroom, did he live in.
MR. KOMAREK (Defense counsel): Your Honor, I’m going to object at this point. May I approach the bench, please.
THE COURT: Sure.
(BENCH CONFERENCE)
MR. KOMAREK: Just for the record, I make an objection pursuant to 3.220 Criminal Rule of Procedure.
THE COURT: 3.220. And the State responded by saying that they advised the defense counsel as soon as they learned of the statement made by the Defendant. And I ruled that if the State was candid in their discovery, disclosing to the Defendant, that State will be allowed to have it testified.
MR. PAULK (Assistant State Attorney): You overrule the objection.
THE COURT: I overruled the objection.
Q (Mr. Paulk continuing) If you will, you asked him which room he was staying in.
A Yes sir. He indicated the room to his right, which was on the west side.

In Richardson v. State, 246 So.2d 771 (Fla.1971), the supreme court pointed out that if during the course of the proceedings it is brought to the attention of. the trial court that the State has failed to comply with a rule of procedure, the court has discretion in determining whether the noncompliance will result in harm or prejudice to the defendant. However, the court’s discretion can be exercised only after it has made an adequate inquiry into all of the surrounding circumstances. In addressing the extent of such inquiry, the court quoted, with approval, the following language from Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970):

Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

It does not affirmatively appear from the record that the court’s inquiry in this instance was the full inquiry required under Richardson.

The trial court erred in admitting into evidence the testimony concerning the alleged statement of the appellant without conducting an inquiry into the question of prejudice. The error is reversible as a matter of law. Cumbie v. State, 345 So.2d 1061 (Fla.1977).

The judgment of conviction is reversed and the cause is remanded for a new trial.

ERVIN and WENTWORTH, JJ., concur.


text:
    Manuel Burt HUTCHINSON a/k/a Skipper Hutchinson, Appellant, v. STATE of Florida, Appellee.
    No. VV-209.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    J. Robert Hughes, of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellant.

      Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Hutchinson appeals from convictions of aggravated battery with a firearm and possession of a firearm by a convicted felon, urging the trial court erred during the trial by making an inadequate Richardson inquiry and by admitting impeachment testimony without a proper predicate. We agree and reverse for a new trial.

The charges against Hutchinson arose out of an argument between Hutchinson and the victim occurring at approximately 5 a. m. in a lounge parking lot. Although there were many witnesses to the resulting altercation, there was conflicting evidence as to whether Hutchinson shot a gun at the victim. On the second day of trial, the state introduced the testimony of an arresting officer who testified over objection to a statement that Hutchinson made which essentially showed that Hutchinson had indeed used a gun. The trial court undertook a Richardson inquiry, finding that' Hutchinson’s statement was discovered simultaneously by the prosecutor and defense counsel during an informal interview of the officer the day before. For this reason, he ruled the statement admissible.

Initially, we find that an inquiry was necessary to determine prejudice when it became apparent that a discovery violation existed. See Cooper v. State, 377 So.2d 1153 (Fla.1979). As to the existence of a violation, it is clear that a defendant may be entitled to discovery of materials within the constructive possession of the state. See State v. Coney, 272 So.2d 550 (Fla. 1st DCA 1973), affirmed, 294 So.2d 82 (Fla.1973). Therefore, in Taylor v. State, 292 So.2d 375 (Fla. 1st DCA 1974), we determined that a defendant’s statement was in the state’s constructive possession when officers knew of the statement but the state attorney was not personally aware of it at the time he responded to the defendant’s discovery request. In Taylor, when , the state attorney learned of the statement 30 minutes before trial, he promptly advised defense counsel that the officers would testify to the statement. Here, there was apparently no attempt made by the state to discover the information known to the arresting officer. These facts trigger the need for a full Richardson inquiry. There was no determined inquiry into the question of procedural prejudice to the defendant. See Wilcox v. State, 367 So.2d 1020, 1022-1023 (Fla.1979) (also stating the minimal three-prong inquiry to be made). The clear failure of the trial court to make the inquiry concerning prejudice requires reversal. Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977) and cases cited therein. Finally, the case here is virtually indistinguishable from the circumstances in Easterling v. State, 397 So.2d 999 (Fla. 1st DCA 1981), wherein this Court also reversed and remanded for a new trial because of the trial court’s failure to conduct a full inquiry.

The trial court also committed error by permitting a state’s rebuttal witness to testify to a prior inconsistent statement of a defense witness over the objection that the defense witness had not been given an opportunity to admit or deny the prior statements. Section 90.614(2), Florida Statutes (1979) states in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.

The state urges that on cross examination the defense witness was given such an opportunity when she was asked generally to whom had she first reported what she had seen, regarding the altercation and she failed to mention the rebuttal witness. We think the plain terms of Section 90.614(2) certainly contemplate a more direct reference to the prior inconsistent statement; without this, there is no genuine opportunity to explain or deny the prior statement. Finally, although in other contexts we would be tempted to find the impeached testimony to have concerned matters only cumulative in nature, we find that in this particular case the error was harmful because of the number of witnesses on both sides, the attacks on credibility of all witnesses, and the materiality of the impeached testimony itself.

Accordingly, the cause is reversed and remanded for a new trial.

BOOTH and LARRY G. SMITH, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    WALT DISNEY WORLD COMPANY, Appellant, v. Mary Catherine Lathrop MAY, Appellee.
    No. VV-351.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    Lee G. Schmudde, Orlando, for appellant.
    Bruce McEwan, and L. Edward McClellan, Jr., of Pattillo, MacKay & McKeever, Ocala, for appellee.
   PER CURIAM.

This is an appeal from a workers’ compensation order awarding claimant temporary total disability benefits for the period January 4, 1980 to March 18, 1980 and an attorney’s fee pursuant to Section 440.-34(2)(c), Florida Statutes (1979). Walt Disney World contends the attorney’s fee award was unjustified since it did not deny that an injury occurred for which compensation benefits are payable but merely disputed claimant’s entitlement to benefits for the period January 4, 1980 to March 18, 1980. We agree.

The record is clear that Walt Disney World admitted this accident, provided all necessary remedial treatment, and paid temporary total disability benefits beginning March 18,1980 when claimant was put in the hospital for her back condition. Based on the report of its in-house physician, Dr. Bourguignon, Walt Disney World withheld benefits for the disputed period believing that claimant was capable of returning to work. However, the Deputy Commissioner relying on claimant’s testimony and that of her current treating physician disagreed with Walt Disney World’s assessment of claimant’s condition during this period. Nevertheless, this does not mandate an attorney’s fee award under the language of the new 1979 statute. When an employer /carrier admits an accident and pays some disability benefits but denies others are due, an attorney’s fee is not awarda-ble under Section 440.34(2)(c) Florida Statutes (1979). Ardmore Farms, Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981).

Accordingly, that portion of the deputy’s order awarding an attorney’s fee is REVERSED.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    WALT DISNEY WORLD COMPANY, Appellant, v. Sandra SCHIEDEL, Appellee.
    No. XX-326.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    Lee G. Schmudde, Orlando, for appellant.
    Thomas R. Mooney, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal from a worker’s compensation order requiring the employer to pay certain unauthorized medical bills. The Deputy Commissioner’s order made no specific finding on whether good cause excused the failure of the claimant and her chiropractor to comply with the timely reporting requirements of Florida Statutes, Section 440.13(1) (1979). Though the order stated generally that the employer controverted the claim, a notice of controversy does not in itself excuse the failure to file timely medical reports. St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966); Hood’s Dairy v. Severino, 178 So.2d 588 (Fla.1965); Miami Dade Water & Sewer Authority v. Plescow, IRC 2-3690 (February 8, 1979).

Accordingly, that portion of the order below which requires payment of unauthorized and unreported medical bills is reversed and remanded for a specific finding on whether good cause existed for the failure to comply with Section 440.13(1). See, e. g., Corporate Group Service, Inc. v. Lymberis, 146 So.2d 745 (Fla.1962); Ranch House, Inc. v. Jackson, IRC 2-3824 (May 25, 1979). Failing a finding of sufficient good cause, payment of these medical bills must be disallowed.

BOOTH, SMITH and THOMPSON, JJ., concur.