author: SCHOONOVER, Judge.

text:
    CITY OF SARASOTA, Appellant, v. Brenda K. EPPARD, Appellee.
    No. 83-1883.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Douglas P. Lawless of Hereford, Taylor & Lawless, Sarasota, for appellant.
    Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, P.A., Sarasota, for appellee.
   SCHOONOVER, Judge.

The City of Sarasota, Florida, has appealed from an adverse final judgment in a personal injury action. We find that appellant did not breach any duty owed to the appellee, Brenda K. Eppard, and therefore reverse.

This action arose out of an automobile accident occurring in Sarasota, Florida, at approximately 5:00 a.m. on September 20, 1979. Appellee and her two passengers were on their way home from an all-night bottle club when appellee drove her car into a bridge controlled and maintained by appellant.

At the location of the accident, a curb ran parallel to the road approaching the bridge, and a grass shoulder dropped off from the roadway down into a bayou. The City of Sarasota possessed, controlled, and maintained the bridge, road, curb, and shoulder for approximately twenty years prior to the accident. During that time the city did not make any changes within one hundred feet of the bridge.

All accidents within the city of Sarasota were reported to the city’s engineering department. For the more than seventeen years that the city engineer was employed by the city, the department received no reports of any other accidents occuring at the heavily traveled location.

During the course of the trial, appellee testified that she was familiar with the area but that at the time of the accident she did not notice the thirty-six inch guardrail on the bridge or the bridge itself. She also testified that she did not jump the curb with her automobile but apparently veered off to the right and hit the railing. Her two passengers did not testify.

Appellee’s expert testified that in his opinion the automobile, while approaching the bridge, went off the edge of the roadway over the curb, and its wheels dropped into a depressed area. This action prevented appellee from recovering control. The curb then guided the automobile into the bridge abutment.

Appellant’s motion for a directed verdict at the close of appellee’s case-in-chief, renewed at the close of all the evidence, was denied. Thereafter, the jury returned a verdict in favor of appellee. Appellant then filed a timely notice of appeal from the judgment entered pursuant to the jury’s verdict.

We find the trial court erred in denying appellant’s motion for directed verdict. Appellee claims that the city breached its duty to warn her of a dangerous condition that was created due to, among other things, the city’s failure to install proper warning devices and failure to keep the grass at a height that would prevent obstruction of a driver’s view. We agree that if a municipality has actual or constructive knowledge of a dangerous condition, it has a duty to warn the public of, or protect them from, such a condition. City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Department of Transportation v. Neilson, 419 So.2d 1071 (Fla. 1982); Town of Belleair v. Taylor, 425 So.2d 669 (Fla. 2d DCA 1983); State, Department of Transportation v. Manning, 288 So.2d 289 (Fla. 2d DCA 1974), cert. denied, 295 So.2d 307 (Fla.1974); City of Jacksonville v. DeRay, 418 So.2d 1035 (Fla. 1st DCA 1982), cert. denied, 429 So.2d 5 (Fla.1983); Hodges v. City of Winter Park, 433 So.2d 1257 (Fla. 5th DCA 1983), cert. denied, 444 So.2d 416 (Fla.1984). But even where there is a duty to exercise the highest degree of care, the possessor of the duty is required to guard against only those occurrences that can reasonably be anticipated through use of the utmost foresight. Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (1925).

Assuming arguendo that the city did have a duty as discussed above, the city can only be held liable if it failed to take reasonable precautions to prevent foreseeable injury. The city cannot be held liable for highly unusual, extraordinary, or bizarre consequences, Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983). We decline to impose a continuing duty upon the city to protect against unlikely activity. See Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla. 1979).

The question in the case sub judice is whether the appellee’s injury was a foreseeable consequence of a danger created by a negligent act or omission on the part of the city. In order for the appellee to prove negligence on the part of the city, she would have had to prove that the city could have foreseen that someone driving an automobile would be injured by leaving a roadway, driving over a curb that runs parallel to a bridge abutment, and being directed into a bridge by the curb’s assumption of control over the automobile. We hold that the city cannot be expected to have anticipated someone being injured in such a manner. See General Telephone Co. of Florida, Inc. v. Mahr, 153 So.2d 13 (Fla. 2d DCA 1963). Although an injury of this type arising out of the city’s negligence was perhaps possible, it was not probable.

Although foreseeability as related to the question of proximate cause must be distinguished from foreseeability as related to the determination of whether a duty exists, we find that from the standpoint of either duty or proximate cause, the actions of the city were insufficient to impose liability for appellee’s injuries. See Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981), cert. denied, 407 So.2d 1102 (Fla.1981).

Accordingly, the appellant breached no duty owed to the plaintiff. We therefore reverse and remand with instructions to enter a final judgment for the appellant.

GRIMES, A.C.J., and CAMPBELL, J„ concur.


source: Caselaw Access Project

author: DANAHY, Acting Chief Judge.

license: Public Domain

text:
    Gerald C. BURCHARD, Appellant, v. Patricia A. BURCHARD, Appellee.
    No. 83-2324.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Guy M. Burns and Richard M. Malchon, Jr., of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, St. Pe-tersburg, for appellant.
    Brian A. Bolves and Robert V. Williams of Taub & Williams, Tampa, for appellee.
   DANAHY, Acting Chief Judge.

In this dissolution of marriage proceeding, the husband challenges the trial judge’s failure to grant him permanent periodic alimony and an award of attorneys’ fees. By cross-appeal, the wife challenges the trial judge’s award to the husband of lump sum alimony in the sum of $250,000. We affirm in part and reverse in part.

The parties were married for over thirty years at the time of their separation. During most of that time they lived in the State of Wisconsin where the husband was employed in high-level executive positions with companies owned by the wife and her family. His annual salary in those positions was substantial.

In 1980 the parties sold their stock in the family businesses and moved to Florida, where they had bought a home. The husband says that he thought they were retiring, since he had reached the age of fifty-five years. However, the wife says that they were to look for a business to buy which would afford them some income. In any event, the husband apparently left the marital home to live with his girlfriend and these dissolution proceedings were instituted by the wife.

The wife is independently wealthy and enjoys a substantial income. The husband points out that during the parties’ thirty-year marriage, they were supported by the husband’s salary, with the result that the wife was able to accumulate and reinvest her income.

The wife having the ability to pay alimony, the issue in this case is whether the husband is in need of alimony. The wife points out that the husband is presently receiving $60,000 a year under a consultant contract which expires December 1, 1985. After that time, the husband’s income, according to his testimony, will be reduced to approximately $35,000 per year or approximately $28,000 per year after taxes.

We find no abuse of discretion on the part of the trial judge in awarding the husband $250,000 in lump sum alimony. Nor do we find an abuse of discretion on the part of the trial judge in failing to award the husband permanent periodic alimony at this time, and in refusing to require the wife to contribute toward the husband’s attorneys’ fees and costs.

.However, we feel that the trial judge abused his discretion in failing to reserve jurisdiction in the final judgment for a possible award of permanent periodic alimony to the husband in the future. Without such a reservation of jurisdiction, the trial judge will lose jurisdiction to modify the final judgment subsequently and award periodic alimony. Poe v. Poe, 263 So.2d 644 (Fla. 3d DCA 1972). Upon a review of the record in this case, taking into consideration the wife’s means and the husband’s age and possible future needs, we feel that the trial judge in this case should have reserved jurisdiction to award permanent periodic alimony to the husband in the future if the husband can establish need and the wife then has the ability to pay.

Accordingly, we reverse the final judgment with directions that the trial judge enter an amended final judgment reserving jurisdiction to subsequently award permanent periodic alimony. We affirm the final judgment in all other respects.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CAMPBELL and LEHAN, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Roosevelt EDGE, Appellant, v. STATE of Florida, Appellee.
    No. 82-481.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    John A. Baldwin, Fern Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED, EN BANC. We hereby reaffirm the holding of this court in Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA 1981). See also Jones v. State, 332 So.2d 615 (Fla.1976).

COBB, C.J., and DAUKSCH, ORFINGER, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Before voir dire began, the trial judge informed counsel that once the defense tendered six jurors to be the jury in this criminal case and the State accepted them, no further peremptory challenges could be exercised even though the jurors had not yet been sworn. After voir dire examination, defense counsel tendered a jury of six and the State accepted them. Thereafter defense counsel sought to exercise a peremptory challenge to excuse one of the jurors and the trial judge denied that request. This appeal presented the questions of whether under Florida Rule of Criminal Procedure 3.310 the trial court abused its discretion in regulating the manner in which peremptory challenges were to be used, and if so, whether it was reversible error. Associate Judge Robert Miller, of the original appellate panel, wrote a proposed opinion affirming and stating that there was no abuse of discretion because the trial court put the parties on prior notice as to the manner in which counsel were to use peremptory challenges and that manner permitted each party a reasonable method to exercise peremptory challenges after given an opportunity to view the prospective panel as a whole. Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So'.2d 630 (Fla. 5th DCA 1981), was distinguished on the basis that dos. jury selection procedure imposed by the trial judge in that civil case was disapproved because it required counsel to finally accept or to challenge each juror individually and one at a time and that procedure denied the right to peremptorily challenge any one of the jurors after counsel was first able to view the prospective jury as a whole. Florida Rock declined to apply the harmless error statutes because of the particular facts in that case. Judge Cowart concurred with the proposed panel opinion and affirmance but also took the position that even if there was error, under Jones v. State, 332 So.2d 615 (Fla.1976), the harmless error statute applied because the record in this case failed to reveal any error resulting in prejudice to the defendant. Judge Upchurch dissented on the grounds that reversible error occurred, that under Jones v. State such error was harmless only when the evidence of guilt was overwhelming and that the evidence of guilt in this case was not overwhelming. En banc proceedings were instituted on the basis that the proposed panel majority opinion was in conflict with Florida Rock and that Florida Rock required a reversal in this case. Five of the six active judges actually participating and voting en banc were of the opinion that the trial court erred but three of the six were of the opinion that the harmless error statutes applied. Thus the en banc majority opinion resulted.

Florida Rule of Criminal Procedure 3.310 should be construed so that after counsel for both parties are given ample opportunity to exercise peremptory challenges, and counsel have selected and agreed upon all of the individual jurors that are to compose the proposed jury, the trial judge has discretion to require counsel to make a decision to either exercise any remaining peremptory challenges at that time or to accept the proposed jury panel with such acceptance being final and binding as to peremptory challenges even though the selected and accepted jury is not sworn at that moment of time. This construction would give counsel a reasonable opportunity to exercise peremptory challenges after viewing the jury as a composite whole, thus avoiding the harm addressed in Florida Rock and in other cases, and yet permit trial courts the discretion and flexibility to act more efficiently and economically by selecting juries before their moment of need and excusing the voir dire panel and having the jurors comprising the accepted juries return at a later time when they would not be subject to further peremptory challenges but would be sworn and used exactly as if they had been sworn at the moment they were earlier accepted by counsel. Such a view is not in conflict with the holding in Florida Rock.

Because this view cannot prevail in this court at this time, I concur specially with the conclusion that the harmless error statutes apply and that the trial court decision should be affirmed.

      . This matter has been determined en banc because of a conflict by the assigned panel of
      Judges, Upchurch, Cowart and Associate Judge R. Miller, with the opinion of the court in Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA 1981).

      . §§ 59.041 and 924.33, Fla.Stat.

      . See Keurst v. Miami Elevator Company, et al, 453 So.2d 501 (Fla. 3d DCA 1984); Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983).


author: FRANK D. UPCHURCH, Jr., Judge. DAUKSCH, Judge,

text:
    Robert G. FIKE, Appellant, v. STATE of Florida, Appellee.
    No. 83-568.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Fike appeals from a judgment and sentence for the sale of marijuana. The information alleged that Fike “did unlawfully and feloniously sell or deliver to another person, Cannabis.”

The first question we address is whether the information was sufficient to invoke the jurisdiction of the circuit court. An information which charges delivery of cannabis without specifying the amount of the cannabis delivered or without alleging that the delivery was for consideration charges only a misdemeanor. Boley v. State, 273 So.2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So.2d 668 (Fla.1973); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla. 1973). On the other hand, the word “sale” by definition means a delivery with consideration and is therefore sufficient in itself to charge a felony. State v. Stewart, 374 So.2d 1381 (Fla.1979). Thus, the information in this case alleges that Fike either committed a felony or a misdemeanor.

In Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981) and Young v. State, 439 So.2d 306 (Fla. 5th DCA 1983), this court held that an information which alleged in the alternative a felony or a misdemeanor was insufficient to invoke the jurisdiction of the circuit court. We now recede from our decisions in Nelson and Young. Fike was charged with and convicted of a felony. The court had jurisdiction to try the felony charge. We treat the portion of the information which alleged only a misdemeanor as mere surplusage. On this point we conflict with Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976), cert, dism., 348 So.2d 952 (Fla.1977), and Pope.

Fike also contends that it was error for the court not to permit testimony regarding the reputation for truth and veracity of the state's principal witness, Lyndon Bodner. The testimony was to the effect that Bodner’s reputation in the “legal community” was questionable. However, the “legal community” apparently consisted of criminal defense attorneys, rather than the bar as a whole. As the court pointed out in Florida East Coast Railway Co. v. Hunt, 322 So.2d 68 (Fla. 3d DCA 1975), cert. den., 336 So.2d 600 (Fla.1976), the rule regarding use of reputation evidence from one’s working community should not be applied so as to confine the testimony to particular employees. Rather, the evidence must retain the quality of being “general.” See 29 Am.Jur.2d Evidence § 347 (1967). Here, the community was too narrow and thus the exclusion of the reputation testimony was proper.

AFFIRMED.

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

DAUKSCH, J., dissents with an opinion in which COWART, J., concurs.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

I would adhere to our previous cases, cited in the majority opinion, and reverse the conviction for sale of cannabis. The state should be required to directly, specifically and concisely charge a person with a crime and not be duplicitous about it. To charge both a felony and a misdemeanor in one single count is duplicitous. The majority would excuse this ineptness or negligence by treating the misdemeanor words as surplusage and confirm jurisdiction in the felony court. Why not treat the felony words as surplusage and send the ease to misdemeanor court? Better yet, why not make the state do it right by reversing the conviction for lack of jurisdiction; that is both logical and fair. Nothing prevents the state from prosecuting under a proper information, except perhaps the statute of limitation. If the statute has run then it is the state’s fault and it is they who need the lesson.

COWART, J., concurs.


author: ORFINGER, Judge.

text:
    Donald R. SULLIVAN, Appellant, v. ECONOMIC RESEARCH PROPERTIES, etc., and the Talisman Corporation, Appellees.
    No. 83-647.
    District Court of Appeal of Florida, Fifth District.

    Sept. 13, 1984.
    William H. Morrison, of Jones & Morrison, P.A., Altamonte Springs, for appellant.
    Michael J. Sheahan, of Maguire, Voorhis & Wells, P.A., Winter Park, for appellees.
   ORFINGER, Judge.

The plaintiff Donald R. Sullivan appeals an adverse judgment after a non-jury trial of his action for specific performance (Count I) and for tortious interference with a contractual relationship (Count II). We affirm.

Sullivan became interested in purchasing a tract of land owned by Economic Research Properties, a partnership, and through his own real estate agent, Sharon Howe, mailed a written offer to Dwayne R. Klein, the managing partner, who lived in the state of Washington. Sullivan’s offer provided that the time for acceptance was limited to February 4, 1980, after which date “the aforesaid deposit shall be returned to buyer and this agreement shall be null and void.” Klein made several changes to the offer, initialed them and returned the papers to Howe’s office. One of the changes made was in the time for acceptance, which he changed to read “February 14, 1980,” so as to allow sufficient time for the counter-offer to reach Sullivan via the mails, and for him to execute it.

Although disputed, the trial court apparently chose to believe Sharon Howe’s testimony that although the document was received prior to February 14,1980, and Sullivan had it in his possession for several days, it was not signed by Sullivan until February 18, 1980, on which date it was also mailed to Klein. On February 19, 1980, Klein, having neither received the contract nor been notified of its acceptance, telephoned Howe’s office and advised her secretary that he considered the negotiations terminated. He subsequently confirmed this advice by telegram on February 25, 1980, on which date he apparently received the document from Howe’s office. He later sold the property to the co-defendant, The Talisman Corporation.

The trial court specifically found that no contract for sale and purchase existed because the “Plaintiff failed to accept timely, within the time specified, the counteroffer for a contract submitted by defendant Economic Research Properties.” The final judgment further found that because no contract ever came into existence, plaintiff had no claim for tortious interference with a contractual relationship. We find no error in these findings or conclusions.

It is a generally recognized principle that the acceptance of an offer, to result in a contract, must be absolute and unconditional, identical with the terms of the offer and in the mode, at the place and within the time expressly or impliedly required by the offer. Kendel v. Pontious, 261 So.2d 167 (Fla.1972), Koplin v. Bennett, 155 So.2d 568 (Fla. 1st DCA 1963). As has been stated by the United States Supreme Court in Waterman v. Banks, 144 U.S. 394, 12 S.Ct. 646, 36 L.Ed. 479 (1892) [quoting Potts v. Whitehead, 20 NJ.Eq. 55 (N.J.Ch.1869) ]:

There can be no question that when an offer is made for a time limited in the offer itself, no acceptance afterwards will make it binding. Any offer without consideration may be withdrawn at any time before acceptance; and an offer which in its terms limits the time of acceptance is withdrawn by the expiration of the time.

There is nothing in the record requiring a deviation from this principle.

Appellant contends that notwithstanding the unenforceability of his agreement with Economic Research, Talisman could still be liable for tortious interference, because an agreement does not have to be enforceable in order for the party interfered with to have a cause of action against one who willfully or maliciously interferes with it, relying on cases such as Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966), and Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964). These cases are clearly distinguishable because there, a contractual arrangement existed which the plaintiff contended the defendant interfered with. Here, on the basis of the court’s finding, no such contract existed.

In McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981) this court held that:

The tort of interference with a contract right, similar to interference with a business relationship, is recognized in this jurisdiction. Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1976); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976); J. Rolfe Davis, Inc. v. Symon, 232 So.2d 439 (Fla. 4th DCA 1970). The elements of this tort are:
(1) The existence of a contract;
(2) The defendant’s knowledge of the contract;
(3) The defendant’s intentional procurement of the contract’s breach;
(4) Absence of any justification or privilege;
(5) Damages resulting from the breach.

The trial court correctly made no finding on elements 3, 4 or 5 because the first two elements are clearly missing here.

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    Billy Joe MAYNARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-969.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Bundy v. State, 455 So.2d 330 (Fla.1984) and Wilson v. State, 436 So.2d 908 (Fla.1983). In regard to the autopsy photographs admitted in the instant case, we have reviewed them pursuant to Leach v. State, 132 So.2d 329 (Fla.1961), cert. denied, 368 U.S. 1005, 82 S.Ct. 636, 7 L.Ed.2d 543 (1962), and section 90.403, Florida Statutes (1983), and have determined that their admission into evidence, if error, was harmless in the instant case.

AFFIRMED.

COBB, C.J., and DAUKSCH, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Bite-mark evidence, when relevant to prove identification, state of mind, the act itself or any other material fact, is admissible in evidence. Questions as to the weight to be given to such evidence, including the degree of its probative force and effect and the inferences to be drawn from it, are for the trier of fact. See Bundy v. State, 455 So.2d 330 (Fla.1984); Annot., “Admissibility of Evidence Tending to Identify Accused By His Own Bite Marks,” 77 A.L.R.3d 1122 (1977).

Autopsy photographs, if relevant, are admissible in evidence, although gruesome. Wilson v. State, 436 So.2d 908 (Fla.1983).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    David Shane WIESENBERG, Appellant, v. STATE of Florida, Appellee.
    No. 83-1005.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Sara R. MacKenzie of Michael Sigman, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

David Wiesenberg appeals from his conviction for trafficking in cocaine in violation of section 893.135(l)(b), Florida Statutes (Supp.1982). The statute, in pertinent part, provides:

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine ... is guilty of ... trafficking in cocaine.

§ 893.135(l)(b)l, Fla.Stat.

The trial judge instructed the jury that under the statute, the state must prove:

(1) The defendant knowingly sold, delivered or possessed a certain substance.
(2) The substance was cocaine or a mixture containing cocaine.
(3) The quantity of the cocaine involved was 28 grams or more.

See Florida Standard Jury Instructions in Criminal Cases.

Wiesenberg argues on appeal that the state was obligated to prove that he had specific knowledge that he was selling an amount which would satisfy the trafficking statute. Wiesenberg relies on State v. Ryan, 413 So.2d 411 (Fla. 4th DCA 1982) in support of his contention that he must have known he was trafficking in cocaine in an amount exceeding twenty-eight grams before he could be convicted. Ryan, however, only stands for the proposition that before a defendant can be convicted pursuant to the trafficking statute, he must be cognizant of the fact he is selling a particular substance. In Ryan, the defendant thought she was trafficking in marijuana, not in cocaine as she was later convicted of.

We do not find any substance to Wiesen-berg’s position. It is sufficient if Wiesen-berg knew he was selling cocaine. If it exceeded twenty-eight grams, he may be convicted of trafficking even if the state does not prove he knew the quantity exceeded twenty-eight grams. In this regard, we analogize the situation to that involving grand theft wherein the state need only show that the defendant had the requisite intent to obtain the property, not that he knew it was valued at $100 or more.

AFFIRMED.

SHARP and COWART, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    ORANGE COUNTY CLASSROOM TEACHERS’ ASSOCIATION, INC., and Dorothy B. Woods, Appellants, v. SCHOOL BOARD OF ORANGE COUNTY, Florida, Appellee.
    No. 83-1122.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Mark F. Kelly, Richard H. Frank and Richard T. Donelan, Jr. of Law Offices of Frank & Kelly, P.A., Tampa, for appellants.
    Andrew B. Thomas of Rowland & Thomas, P.A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Watson v. Duval County School Board, 408 So.2d 1053 (Fla. 1st DCA 1981), rehearing denied, 408 So.2d 1056 (1982); The School Board of Seminole County v. Cornelison, 406 So.2d 484 (Fla. 5th DCA 1981), review denied, 421 So.2d 67 (Fla.1982).

COBB, C.J., and DAUKSCH, J., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The issue in this case is whether the trial court properly vacated an arbitration award which required appellee, Orange County School Board (School Board), to reappoint appellant Woods as a teacher for the 1981-82 school year. The arbitrator found that Woods was not reappointed because the School Board violated its duties to assess Woods’ performance as a teacher under its collective bargaining agreement. The arbitrator also found that the School Board violated a previous arbitrator’s award and directions to remove a letter of reprimand from her file and to prohibit the principal from relying on its contents in deciding whether to recommend Woods for reappointment.

The arbitrator determined that the principal relied on charges in the reprimand in deciding not to reappoint Woods. The decision not to reappoint Woods was based exclusively on third party complaints, which Woods was not given the opportunity to refute or explain. Thus, a significant denial of Woods’ rights occurred when the School Board denied her an assessment hearing. Significantly, the arbitrator found that the principal’s openly disparaging remarks towards Woods and black teachers in general, gave rise to “an atmosphere conducive to the solicitation of complaints and a predisposition toward belief that any and all complaints were valid.”

We must accept as established the unchallenged findings of the arbitrator. §§ 682.02 & 682.20, Fla.Stat. (1983); Ogden v. Baile, 73 Fla. 1103, 75 So. 794 (1917); City of West Palm Beach v. Palm Beach County Police Benevolent Association, 387 So.2d 533 (Fla. 4th DCA 1980).

Given the substantial violations of Woods’ rights, is it just to conclude, as the majority does in this case, that she is without a remedy? Can there be any legal right in a court of law, for which there is no remedy? To so hold abrogates the existence of the right in a philosophical as well as a legal sense.

I think the remedy of reappointment is proper in this ease, but even if it is not, then we should remand this proceeding to the arbitrator for the application of a different remedy. See W.R. Grace Co. v. Local Union 759, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983). In this case the award was vacated pursuant to section 682.13(l)(c), Florida Statutes (1983). Section 682.13(3) provides:
In vacating the award on grounds other than those stated in subsection (l)(e), the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or by the court in accordance with section 682.04, or, if the award is vacated on grounds set forth in subsection (l)(c) and (d), the court may order a rehearing before the arbitrators or umpire who made the award or their successors appointed in accordance with section 682.04. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and it commences from the date of the order thereof.

Some remedy is surely required on due process and equal protection grounds. See City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487 (Fla.1981).

      . The majority’s decision frustrates the legal maxim "For every right there is a remedy.” Fidelity and Casualty of New York v. Homan, 116 So.2d 444 (Fla. 2d DCA 1959). This maxim especially holds true where constitutional rights are implicated. In Re Roy, 90 Misc.2d 35, 393 N.Y.S.2d 515 (N.Y.Fam.Ct.1972).

        . See School Board of Seminole County v. Come-lison, 406 So.2d 484, 488 (Fla. 5th DCA 1981) (Sharp, J., dissenting), pet. rev. den., 421 So.2d 67 (Fla.1982).

      . (1) Upon application of a party, the court shall vacate an award when:


author: PER CURIAM.

text:
    Johnny L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1363.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

When the greater weight of the evidence supports a trial judge’s finding that a probationer has violated a condition of probation, the decision as to whether or not to revoke the probation is within the discretion of the trial judge. See Harris v. State, 453 So.2d 228 (Fla. 5th DCA 1984).

(c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.

AFFIRMED.

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

      . See Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974).


text:
    STATE of Florida, Appellant, v. E.N., a child, Appellee.
    No. 83-1570.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellant.
   PER CURIAM.

This appeal involves the question of whether section 228.091(1), Florida Statutes (Supp.1982), which prohibits trespass upon the grounds of a public school facility, applies when a student of one public school “unlawfully enter[s] or remain[s] upon the campus or other facility of [another] public school.”

Appellee, a juvenile, was charged with delinquency by virtue of entering or remaining upon the campus of Grand Avenue School in Orange County in violation of the statute in question. By motion appellee alleged, without contest, that he was a duly enrolled student in Memorial Junior High School, a public school. The trial court granted appellee’s motion to dismiss the delinquency charge on the basis that the statute in question was not applicable because appellee was a student at a public school, although not at the public school in question. The State appeals.

Section 228.091(1), Florida Statutes (Supp.1982), states:

Trespass upon grounds or facilities of public schools; penalties; arrest.—
(1) Any person who:
(a) 1. Is not a student, officer, or employee of a public school;
2. Does not have legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property; or
3. Is not a parent, guardian, or person who has legal custody of a student enrolled at such school; or
(b) 1. Is a student currently under suspension or expulsion; or
2. Is an employee who is not required by his employment by such school to be on the campus or any other facility owned, operated, or controlled by the governing board of such school and who has no lawful purpose to be on such premises;
and who enters or remains upon the campus or any other facility owned by any such school commits a trespass upon the grounds of a public school .facility and is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084. (Emphasis added).

The State argues that “The effect of [the lower court’s] holding is that a person who is a student at any public school, yet does not have legitimate business at the particular school he was trespassing on will not be prosecuted under the above statute. The State would strongly argue that the above interpretation of the statute does not comport with logic and reason and ignores or misapprehends the clear meaning of the statute.” There is logic in this position.

Clearly the legislature did not intend that any student of any public school any where could enter and remain on the premises of a school in which he or she was not enrolled and otherwise had no legitimate business or authorization. A person who is not a student, officer or employee of a public school; who does not have legitimate business on the campus; or who is not a parent, etc. of a student enrolled at such school, commits a trespass when entering or remaining on the campus or other facility of such school.

We find the statute to be clear in its meaning and to therefore proscribe the entering or remaining upon school grounds of a person who is not a student, officer or employer of that school or who otherwise has no legitimate business on that campus or any other authorization, license or invitation to enter or remain on that school property (section 228.091(l)(a)l). Therefore, a person who is a student at a public school other than the one he enters or remains in is not within the classes of persons exempted from the application of the statute.

The order of dismissal is reversed and the case is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH and ORFINGER, JJ. concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The trial judge read section 228.091(1), Florida Statutes, to mean that every student of a public school is within the class of persons described in subparagraph (l)(a)l. to be excluded from the application of that trespass statute. The majority opinion reads that exclusion to mean that only students enrolled at a particular public school are excluded from persons who can be guilty of trespassing at the school in which they are enrolled. Each of the subpara-graphed groups of exclusions in the statute are separate, independent and in the disjunctive. As “a student” of “a public. school,” appellee is within the class of persons excluded by subparagraph (l)(a)l. That subparagraph nowhere refers to an “enrolled” student. To find that word the majority opinion goes to subparagraph (l)(a)3. which relates to, and excludes, parents, guardians and legal custodians of “enrolled” students.

As written, this statute is reasonably capable of being read and understood in two possible senses — that taken by the trial judge and that taken by the majority opinion — and it is, therefore, ambiguous. However, the legal point is not which of the two meanings was intended by the legislature. This is not one of the more common situations where a court properly construes an ambiguous statute to determine the true intent of the legislature. This is a penal statute. The correct and applicable rule of law is that penal statutes must be strictly construed and any ambiguity resolved in favor of the accused. When a criminal statute is ambiguous, and under one meaning it applies to the defendant or his conduct and under the other meaning it does not, the proper resolution of the legal problem is not for the appellate court to construe or interpret the statute and explain the rationale for its adoption of the second, more harsh, meaning but to declare the statute to be ambiguous and hold that, for that reason alone, the statute must be applied in accordance with the meaning most favorable to the accused. This is what the trial judge correctly did in this case and he should be affirmed. If the legislature desires the more severe of the two possible meanings or applications of the statute, it should revise the statute to remove the ambiguity and to make its intent clear. Passed in 1968 and stuck away in a chapter of general provisions involving Public Education, this is doubtless one of the most poorly worded of any Florida criminal statute. It is ambiguous in many details and should be fully revised and its meaning made clear by the legislature, not by judicial construction and opinion.

      . This court has upheld the State's right to appeal in a juvenile case. State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA 1982), review denied, 419 So.2d 1201 (Fla.1982), but that question has not been finally decided, see State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983), review granted, No. 63,613 (Fla. May 2, 1983), and State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), review granted, J.P.W. v. State, No. 63,981 (Fla. July 18, 1983).

      . By this statute the legislature may have intended for it to be a crime for any school student to merely aimlessly step upon the grounds of a public school at which the student is not enrolled. But then again the legislature may not have intended this result. Traditionally, school children have been free to play on public school grounds after school hours, on weekends and during the summer school vacation, the same as if they were public parks. Furthermore, usually trespasses to land are not made criminal unless committed for some specific wrongful purpose or after at least one warning. See e.g., §§ 228.09 l(2)(b)2., 810.08(1) and 810.09(1) and (2)(b), Fla.Stat. By the vague, confusing, ambiguous, overbroad language in this statute, has the legislature clearly indicated an intent to make such conduct criminal?

      . Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). See also Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927); Atlantic Coast Line R. Co. v. State, 73 Fla. 609, 74 So. 595 (1917).


text:
    Mallory WEBB, Appellant, v. STATE of Florida, Appellee.
    No. AW-259.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Richard B. Davis, Jr., Jasper, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. State, 452 So.2d 533 (Fla.1984).

ERVIN, C.J., and SMITH and JOANOS, JJ., concur.


text:
    Frank DeANGELIS, Petitioner, v. Louie WAINWRIGHT, Respondent.
    No. BA-208.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 8, 1984.
    Frank DeAngelis, pro se.
    Jim Smith, Atty. Gen., and Douglas B. Maclnnes, Asst. Atty. Gen., for respondent.
   PER CURIAM.

DeAngelis petitions for writ of habeas corpus alleging he is being unlawfully detained as a result of respondent’s failure to credit him with incentive gain time during his final days of incarceration. Petitioner contends that the failure of the Department of Corrections (DOC) to credit him with incentive gain time during the last month of incarceration will extend his period of incarceration by some 15-20 days. In support of his contention that DOC is required to award petitioner incentive gain time, petitioner cites Pettway v. Wainwright, 450 So.2d 1279 (Fla. 1st DCA 1984). In Pettway, this court invalidated DOC’s denial of incentive gain time during Pett-way’s final 45 days of incarceration on the grounds that DOC’s policy of freezing incentive gain time during the final days of prisoners’ incarceration was not promulgated in accordance with the procedures required by Florida’s Administrative Procedure Act. We stated:

While it is true that the [incentive gain-time] statute is not mandatory and the DOC may deny incentive gain-time, the DOC must uniformly grant or deny incentive gain-time unless there is some justification and authority for classifying and treating some prisoners different from other prisoners.

Id. at 1280. We held that until DOC adopted a rule in conformance with the APA, it was without authority to deny incentive gain time to prisoners during their last month of incarceration.

In its response to our order to show cause why DeAngelis’ petition should not be granted, DOC relies upon Emergency Rule 33ER84-5 which was promulgated subsequent to Pettway. That rule provides:

If an inmate’s sentence is expiring, his release date will be frozen on the twelfth day of the month prior to the month of actual release. No incentive gain time will be applied once an inmate enters this frozen period. The inmate will enter the frozen release date period if, as a result of the incentive gain time entered by the twelfth of the month, his release date falls within the following month. Inmates will not benefit during the frozen period from any further incentive gain time adjustments to their release date.

Section 120.54(9), Florida Statutes (1983), permits the promulgation of emergency rules which may not be effective for a period longer than 90 days and are not renewable. It appears that the statutory requirements were met in the promulgation of the subject emergency rule. A prerequisite for such a rule is a finding that an immediate danger to the public health, safety or welfare requires emergency action. The requisite findings were published in 10 Fla.Admin.Weekly 2194 (July 13, 1984) and include the following:

The freezing of incentive gain time prior to release is necessary to arrange for inmates who have detainers lodged against them to be taken into custody by law enforcement officials upon release from the Department of Corrections. The Department must have a definite release date and sufficient time to notify law enforcement agencies nationwide of the impending release of inmates so that these agencies have sufficient time to arrange for the inmate to be taken into custody and transported to the proper location. If law enforcement agencies of other jurisdictions do not have sufficient time to make arrangements for assuming custody, the inmate wanted on pending charges or under sentence of another authority may be released into society, thus creating a danger to the public. By not freezing the award of incentive gain time, the release date is constantly changing and thus definite plans cannot be made in a timely manner to arrange for employment, housing, and transportation upon release in society. The Basic Release Assistance Program (as provided for in F.S. 944.601) requires advance notification of a definite date of release in order for the releasee to qualify for assistance. Without this advance notice, various private and public organizations providing support services do not have sufficient time to assist releasees in locating employment and housing, thereby increasing the possibility of the releasees reverting to criminal activities and jeopardizing the health and welfare of the public.

We find unpersuasive petitioner’s argument that Emergency Rule 33ER84-5 does not satisfy the requirements of § 120.54(9), Florida Statutes. His petition is therefore denied.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    Frank M. WILLIAMS, M.D., Appellant/Cross-Appellee, v. DOLPHIN REEF, LTD., etc., Appellee/Cross-Appellant.
    No. 83-1361.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1984.

      James A. Martin, Jr. of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clear-water, for appellant/cross-appellee.
    William Fletcher Belcher, St. Petersburg, for appellee/cross-appellant.
   SCHOONOVER, Judge.

Appellant, Frank M. Williams, M.D., has appealed from a final judgment entered against him. The appellee, Dolphin Reef, Ltd., has cross-appealed. We find the trial court erred in failing to award attorney’s fees and court costs to the appellee, but affirm the judgment in all other respects.

This action arose out of certain contracts to purchase two condominium units in Pi-nellas County, Florida. After Dolphin Reef refused to cancel the contracts and return to Dr. Williams his deposits totaling $52,-500, Williams filed an action seeking declaratory relief and rescission of the contracts. Dolphin Reef counterclaimed, seeking to obtain the deposits as liquidated damages under the purchase agreements and to recover costs and attorney’s fees.

At the conclusion of a nonjury trial, a final judgment was entered which awarded the sum of $35,400 to Dolphin Reef and the balance of the funds on deposit to Dr. Williams. The court ordered each party to bear its own costs and attorney’s fees.

Dr. Williams filed a timely notice of appeal, claiming that the trial court erred in awarding $35,400 to Dolphin Reef. Dolphin Reef cross-appealed, claiming that the trial court erred in denying it the total amount deposited by Dr. Williams in addition to attorney’s fees and court costs.

Having reviewed the record, we find substantial competent evidence to support the judgment. This court may not re-evaluate the evidence and substitute its judgment for that of the trial. court. Guerrera v. Eldred Construction Corporation, 378 So.2d 327 (Fla. 4th DCA 1980).

Both contracts provided, however, that if the seller was the prevailing party in any litigation arising under the contracts, the purchaser would be liable for the seller’s reasonable attorney’s fees and costs. Therefore, the court erred in failing to enforce the contracts.

We reject appellant’s contention that the appellee was not the prevailing party because neither party fully prevailed on its claim. The fact that Dolphin Reef was allowed to retain even a portion of the total deposits is evidence that the trial court found appellant had not fulfilled his contractual obligation. Dolphin Reef, therefore, was the prevailing party, even though the amount recovered was less than the amount initially sought in the counterclaim. Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978). Accordingly, the trial court should have , awarded attorney’s fees and costs pursuant to the contract upon which Dolphin Reef counterclaimed and recovered. See Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla. 3d DCA 1979).

We, accordingly, reverse and remand for the award of costs and for the assessment of a reasonable attorney’s fee. We affirm the judgment in all other respects.

GRIMES, A.C.J., and OTT, J., concur.


author: LEHAN, Judge.

text:
    TOWN OF REDINGTON SHORES, Appellant, v. Elisa INNOCENTI, Appellee.
    No. 83-2422.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1984.
    James W. Denhardt of Denhardt and Andringa, St. Petersburg, for appellant.
    David A. Bacon of Bacon, Bacon & Miller, P.A., St. Petersburg, for appellee.
   LEHAN, Judge.

Appellant city appeals from the trial court’s final judgment granting the relief requested by appellee property owner against the appellant by requiring the issuance of a building permit. We reverse.

Appellee owns a single story residence within the municipal corporate limits of appellant. Appellee applied for a building permit to add a second story with three additional bedrooms. When appellant refused to issue the permit, appellee brought this suit. The trial court, without explanation, determined that the proposed addition of the second story would be lawful.

The residence is located in an area zoned CTF, or commercial tourist facility. The zoning code of appellant provides for exclusive or non-cumulative zoning; that is, only designated uses are allowed in each zoning district. This differs from a cumulative zoning code under which designated uses and all “higher” uses are allowed in each zone. See 2 Rohan, Zoning and Land Use Controls § 1401 (1984). Under a cumulative zoning code, appellee’s residence would probably be allowed in a CTF zone. However, under appellant’s non-cumulative code, residences are not permitted in the CTF district.

Therefore, appellee’s residence, which existed at the time the current zoning code was enacted, is a nonconforming use. Ap-pellee has not challenged, either in the trial court or on appeal, the validity of appellant’s non-cumulative code. The issue which was before the trial court and is before us is simply whether the proposed addition to appellee’s residence would be lawful under the zoning code.

In addition to being a nonconforming use by virtue of being a residence in a CTF district, the residence is, and would be with a second story, a nonconforming use as to coastal construction set-back line and as to parking spaces. With the second story, it would also be nonconforming as to side and rear set-back lines.

An extension of a nonconforming use, which the record shows would occur here if the second story were permitted, is not lawful. See Bixler v. Pierson, 188 So.2d 681 (Fla. 4th DCA 1966). As in Bix-ler, appellant’s zoning code prohibits an extension of an existing nonconforming use.

Johnston v. Orange County, 342 So.2d 1031 (Fla. 4th DCA 1977), cited by appellee, is distinguishable. There the Fourth District Court of Appeal refused to disapprove a certain use of property where the record failed to establish that the use would be an extension of a nonconforming use which had existed when the zoning was changed.

We reverse and remand for entry of judgment in favor of appellant.

DANAHY, A.C.J., and CAMPBELL, J., concur.


author: ZEHMER, Judge.

text:
    Harvey A. SIDENER, Appellant, v. John R. JONES, Jr., Property Appraiser of Escambia County, Florida; The City of Pensacola; and Allen C. Williams, Appellees.
    No. AT-409.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.
    Paul Shimek, Jr., Pensacola, for appellant.
    John W. Fleming, Asst. City Atty., J.B. Hopkins, of Hopkins & Hopkins, and Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   ZEHMER, Judge.

Harvey Sidener appeals the circuit court’s order dismissing with prejudice his action of ejectment against the property appraiser of Escambia County, the City of Pensacola, and Allen C. Williams, and contends the trial court erred in denying leave to amend his complaint. We agree and reverse.

Sidener’s complaint alleged that he owned the involved property based on adverse possession by color of title under a certain tax deed from Escambia County and that he, Sidener, had paid taxes on the property continuously from 1948 through 1981. In 1981, however, the county property appraiser voided the 1981 assessment in Sidener’s name and, instead, listed the City of Pensacola as an exempt owner. The city and Williams each moved to dismiss Sidener’s complaint based on the failure to allege exclusive continuous possession of the property for the seven years preceding the commencement of the action. Williams also asked the court to take judicial notice of a 1955 judicial determination that the tax deed upon which Sidener claimed title was held invalid. The trial court granted the motions upon a finding that the tax deed by which Sidener had claimed color of title is invalid and dismissed the action with prejudice.

The record contains no motion by Sidener for leave to amend his complaint. At oral argument, however, counsel for all parties agreed that Sidener’s counsel did make an ore tenus motion at the hearing on appel-lees’ motions to dismiss and that the motion was denied. As we view the record, the trial court did not err in granting appel-lees’ motions to dismiss for failure to state a cause of action because Sidener’s complaint was vague, ambiguous, and susceptible to the interpretation that it relied solely upon the validity of the tax deed. We hold, however, that it was error to dismiss with prejudice because Sidener had not previously amended the complaint and it does not clearly appear that a cause of action cannot be alleged. Affordable Homes, Inc. v. Devils Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982); Anthony v. Jacksonville Transportation Authority, 383 So.2d 650 (Fla. 1st DCA 1980); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980). We especially note the provision of rule 1.190(a), Florida Rules of Civil Procedure, that “leave of court shall be freely given when justice so requires.”

REVERSED and REMANDED.

WIGGINTON, J., concurs,

THOMPSON, J., dissents with opinion.

THOMPSON, Judge,

dissents.

I would affirm the order of the trial court granting the motions to dismiss filed on behalf of the appellees. As found by the trial judge, an objection to the legal sufficiency of appellant’s tax deed was sustained by order of the Circuit Court in and for Escambia County in Case No. 39-358-CA-01 entered December 16, 1954, and thereafter the validity of the tax deed was reconsidered and the deed was found to be invalid by order dated January 27, 1955. Appellant’s claim of title is based on this tax deed which was adjudicated invalid by a court of competent jurisdiction more than 25 years ago. Both res judicata and estop-pel are bars to any action by the appellant to establish ownership of the property based on the invalid deed. As the complaint could not be amended to state a cause of action under these circumstances, the dismissal and the denial of appellant’s oral motion to amend was not an abuse of discretion or error.

The record shows that appellee Williams and his predecessors in title had been in possession of the property in question for more than 25 years. Even if the appellant does amend his complaint to attempt to state a cause of action he would not only have to overcome the defenses of res judi-cata and estoppel but also the limitation in § 95.091, Fla.Stat., which provides that if real property is adversely possessed by any person no action shall be brought by a tax deed holder unless the action is begun within four years from the date of the deed. The appellant’s deed was dated October 5, 1948, more than 35 years ago.

      . For example, appellant contends he could allege and prove adverse possession without reliance on the tax deed found invalid by the court; that the tax deed, even though invalid to the extent of the submerged lands in controversy in the cited 1955 judgment, was not otherwise invalid as to accreted lands now in controversy; and that he can rely on a chain of title without color of title. We do not reach, nor do we intimate any opinion on, the sufficiency of these and other grounds which appellant might assert by amendment.


text:
    Leon Lamar GARRETT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AW-155.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.
    Ted A. Stokes, Milton, for appellant.
    Jim Smith, Atty. Gen. and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    George John KOSMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-773.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See United States v. Biondich, 652 F.2d 743 (8th Cir.), cert. denied, 454 U.S. 975, 102 S.Ct. 527, 70 L.Ed.2d 395 (1981); United States v. Vahalik, 606 F.2d 99 (5th Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. Crowell, 586 F.2d 1020 (4th Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979); United States v. Shelby, 573 F.2d 971 (7th Cir.), cert. denied, 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 139 (1978); State v. Slatko, 432 So.2d 635 (Fla. 3d DCA 1983); Stone v. State, 402 So.2d 1330 (Fla. 1st DCA 1981). See generally Annot., Searches and Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle, 28 A.L.R.4th 1219 (1984).


text:
    Dana RANDLE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1223.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Lionel Barnet, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bartram Billbrough, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. DeConingh v. State, 433 So.2d 501 (Fla.1983); Ross v. State, 386 So.2d 1191 (Fla.1980). See Cannady v. State, 427 So.2d 723 (Fla.1983); Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977).


text:
    Michael KELLY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2340.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard Do-ran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Jacobs v. State, 396 So.2d 1113 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Castor v. State, 365 So.2d 701 (Fla.1978); State v. Mathis, 278 So.2d 280 (Fla.1973).


text:
    Rufus GELSEY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2416.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett Brummer, Public Defender, and George Volsky, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Prieto, 439 So.2d 288 (Fla. 3d DCA 1983); Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977).


text:
    John NEALY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2593.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Charles C. Mays, Miami, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Castor v. State, 365 So.2d 701 (Fla.1978); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975).


text:
    Carlos INSIGNARES, Appellant, v. The STATE of Florida, Appellee.
    No. 84-222.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant & Grande, Miami, and N. Joseph Durant, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. United States v. Ramos, 666 F.2d 469 (11th Cir.1982); Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, — U.S. —, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).


text:
    INSTITUTIONAL SECURITIES MANAGEMENT, INC., Appellant, v. The BANK OF MIAMI, Appellee.
    No. 84-702.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and Ursula Mancusi-Ungaro, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Ronald M. Rosengarten, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Itel-Pas, Inc. v. Jones, 389 So.2d 1085 (Fla. 3d DCA 1980).


text:
    Richard W. McINTYRE, an individual, and Tennessee Partners, Ltd., a Florida limited partnership, Appellants, v. Stephen B. NORMAN, Appellee.
    No. 84-1599.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Kelly, Black, Black, Byrne & Beasley, Miami, for appellants.
    Lapidus & Stettin, Miami, for appellee.
    Before HUBBART and NESBITT, JJ. and NORRIS, WILLIAM A., Associate Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for parties in open court and consideration of the record in case no. 84-1599, the judgment appealed from is affirmed.


text:
    GALE DISTRIBUTORS, INC., Marvin Nestel and Jeanette Schultz, Appellants, v. RCA CORPORATION, 1st Nationwide Savings, etc., et al., Appellees.
    No. 83-1876.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Leo Greenfield of Greenfield & Duval, North Miami, for appellants.
    Gerald Silverman, Miami, for appellee— RCA Corp.
   PER CURIAM.

We have considered all of appellants’ arguments and find no error demonstrated by the final judgment to the extent it does not include funds belonging to Nestel and his wife, as an estate by the entireties.

Accordingly, we remand this cause to the trial court with directions to determine that the final judgment does not include entire-ties property. If any portion of the judgment does include funds held by the entire-ties between Nestel and his wife, the judgment shall be reduced pro tanto.

REMANDED FOR FURTHER CONSIDERATION.

DOWNEY, HURLEY and WALDEN, JJ., concur.


text:
    Henry Dewayne HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 83-2270.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand with directions that a further hearing be held on appellant’s 3.850 motion, at which appellant is afforded counsel. See Graham v. State, 372 So.2d 1363 (Fla.1979), and Halpin v. State, 448 So.2d 1153 (Fla. 2d DCA 1984).

REVERSED AND REMANDED.

GLICKSTEIN, WALDEN and BARRETT, JJ., concur.


text:
    Vincent HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2486.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA 1983).

LETTS, HERSEY and HURLEY, JJ., concur.


text:
    GENERAL CRANE, INC., a Florida corporation, Appellant, v. LANDALL AT RIVER REACH, INC., a Florida corporation, and United Systems Enterprises, Inc., a Florida corporation, Appellees.
    No. 84-60.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellant.
    Ronald E. Dobelstein of Krause & Rein-hard, P.A., Miami, for appellee, Landall At River Reach, Inc.
   PER CURIAM.

We affirm the trial court’s grant of summary judgment. From our review of the record we believe the appellee, Landall At River Reach, Inc., conclusively established the legality of its actions and that the appellant, General Crane, Inc., failed to establish either the existence or breach of any legal duty by Landall.

ANSTEAD, C.J., DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    PIPER AIRCRAFT COMPANY, a foreign corporation, Appellant, v. Christopher Russell WHYHAM, as Administrator and/or Personal Representative of the Estate of Jane Leslie Whyham, and Does 1 through 20, Inclusive, jointly and severally, Appellees.
    No. 84-273.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    M. Lee Gay and Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, Orlando, for appellant.
    Sammy Cacciatore of Nance, Cacciatore & Sisserson, Melbourne, and Daniel C. Cathcart of Magana, Cathcart, McCarthy & Pierry, Los Angeles, Cal., for appellees.
   PER CURIAM.

We dismiss this non-final appeal brought under the auspices of Florida Rule of Appellate Procedure 9.130 because we do not have appellate jurisdiction.

It is argued that the order in question which reinstated a prior action concerned venue. We disagree upon authority of Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982).

Finally, it is argued that the appeal qualifies because it is an appeal from an order entered pursuant to Florida Rule of Civil Procedure 1.540(b). Although the order refers to Florida Rule of Civil Procedure 1.540, it could not be such an appeal because that rule, by its language, operates to relieve a party from a final judgment, decree, order, or proceeding. Here the earlier order of dismissal upon the ground of forum non conveniens was not a “final order.” Atria v. Anton, 379 So.2d 462 (Fla. 4th DCA 1980); Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978); Armstrong Contracting and Supply Corporation v. Aerospace Industries, Inc., 254 So.2d 242 (Fla. 4th DCA 1971); Shotkin v. Deehl, 148 So.2d 538 (Fla. 3d DCA 1963); Baker v. Colley, 104 So.2d 473 (Fla. 2d DCA 1958).

We respectfully decline to treat this appeal as a petition for common law certiorari because we are of the opinion that appellant will have a full and adequate remedy via a plenary appeal.

Appeal dismissed.

LETTS, HERSEY and WALDEN, JJ., concur.


text:
    Patricia C. PRIEST, wife, Appellant, v. Nick C. PRIEST, husband, Appellee.
    No. 84-479.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Errol S. Willes, Fort Pierce, for appellant.
    Michael Jeffries of Neill Griffin Jeffries & Lloyd, Chartered, Fort Pierce, for appel-lee.
   PER CURIAM.

In accordance with the wishes of both parties, this matter is remanded to the trial court for a determination as to whether the child has become emancipated or otherwise self-supporting. If not, he is entitled to support until he attains the age of 21 years. See Section 743.07(3), Florida Statutes (1973).

REVERSED AND REMANDED.

GLICKSTEIN, WALDEN and BARRETT, JJ., concur.


author: HURLEY, Judge.

text:
    CAPITAL ASSOCIATES, INC., a Florida corporation, Appellant, v. Jo B. HUDGENS, a/k/a Mary Jo Hudgens, d/b/a North Branch Grocery, Appellee.
    No. 83-1159.
    District Court of Appeal of Florida Fourth District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 21, 1984.

      Dean J. Trantalis of Warren & Trantalis, Pompano Beach, for appellant.
    No brief filed on behalf of appellee.
   HURLEY, Judge.

Capital Associates, Inc. (Capital) sued Jo B. Hudgens for breach of a lease agreement. The trial court entered final judgment in favor of Hudgens on ground that Capital failed to offer sufficient proof on the material allegations of its complaint. Capital appeals, contending that the lower court’s decision is in error because it introduced uncontradicted evidence on every element of its claim. We agree that the record contains substantial competent evidence to support Capital’s claim, but the record also suggests that the trial court denied recovery because it found that the lease agreement was unconscionable. Even so, we must remand for further proceedings because the trial court failed to afford Capital “a reasonable opportunity to present evidence as to [the lease’s] commercial setting, purpose and effect .... ” § 672.302(2), Fla.Stat. (1983).

The contract between Capital and Hud-gens is an equipment lease dated June 30, 1981, pursuant to which Hudgens rented a space invader video game, a pool table and a juke box from Capital. Under the terms of the lease, Hudgens was to make monthly payments of $459.85 for 36 months. The lease expressly provides that it is “non-can-cellable” for the 3 year term; that the lessee is to acquire no right to purchase or otherwise acquire title to the equipment unless otherwise agreed in writing, and that upon default (defined in part as failure to pay any rental when due for a period of five days), the lessor may declare the entire amount of unpaid rent for the balance of the term immediately due and payable. The latter acceleration clause is embedded in fine print on the reverse side of the contract.

Hudgens made payments under the lease through April, 1982. On April 23, 1982, she called Capital and requested that the equipment be removed, and All American Vending Corp. was sent to pick up the equipment on that same day. A “Notice of Intent to Sell” dated April 23, 1982, was sent to Hudgens, advising her that Capital intended to sell the equipment at a private sale because of the breach, but that Hud-gens could acquire title to the property by tendering the sum of $14,045.51 at any time before the sale.

Capital subsequently solicited bids for the equipment. After receiving three bids, it accepted the highest bid of $1,000 from the vendor, All American Vending Corp. Next, Capital instituted this action against Hudgens to recover the deficiency — $12,-093.52, representing the balance of rental payments, state sales tax, late charges and personal property tax, as well as attorney’s fees incurred in the collection proceeding. At trial, Hudgens admitted entering the lease and receiving the equipment. However, she testified that at the time of execution of the lease agreement, agents of All American Vending Corp. told her that she was signing a month-to-month lease which she could cancel at her option. She also stated that she was intoxicated at that time.

As an initial matter, we find that the equipment lease at issue here is subject to the provisions of Article II of the Uniform Commercial Code, even though that Article does not expressly apply to leases. Section 672.102, Florida Statutes (1983), provides that “[ujnless the context otherwise requires, this chapter applies to transactions in goods_” Section 672.105(1), in turn, defines goods as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale ....” We hold that the term “transaction” in section 672.102 is broad enough to encompass leasing agreements and that the pieces of equipment at issue here are movable “things” and thus meet the definition of “goods” set forth in section 672.105. In short, this lease transaction is subject to Article II of the U.C.C. and, therefore, the Code section governing unconscionable contracts or clauses, section 672.302, is applicable. See All States Leasing Co. v. Top Hat Lounge, Inc., 649 P.2d 1250 (Mont.1982); Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance, 49 Ill.App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285 (1977).

Section 672.302, Florida Statutes (1983), provides:

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

Under the foregoing statute, a trial court has authority to declare any provision of a contract void on its own initiative if it finds the clause unconscionable after holding the requisite hearing. As indicated, however, the trial court in this case failed to hold the required hearing and, thus, it could not make a definitive finding on unconsciona-bility. This is not to say, however, that the trial court was unjustified in its initial concern. Indeed, the record below contains prima facie evidence of unconscionability. Enforcement of the acceleration clause would allow Capital to recover unaccrued and unearned rent in an amount exceeding $12,000.00 for equipment which it resold for $1,000.00. Since the clause was embedded in a page of fine print and Hudgens was an uncounseled layman, the trial court could easily conclude that the clause is so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. This would permit invocation of section 672.302 to avoid oppression and unfair surprise. See Uniform Commercial Code Comment, § 672.302, Fla. Stat.Ann. (1978); Fairfield Lease Corp. v. Umberto, 7 U.C.C. Rep.Serv. (Callaghan) 1181 (N.Y.Civ.Ct.1970); cf. Johnson v. Mobil Oil Corp., 415 F.Supp. 264 (E.D. Mich.1976). See generally, Davenport, Unconscionability and the Uniform Commercial Code, 22 U.Miami L.Rev. 121 (1967).

Since section 672.302(2), Florida Statutes (1983), mandates that whenever unconscionability appears to be a defense to enforcement of a contract or clause, “the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making its determination,” and because Capital never had an opportunity to defend the commercial reasonableness of its contract, we must remand this cause to the circuit court with instructions to hold the evidentiary hearing contemplated by section 672.302(2).

REVERSED AND REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.

      . We also note that unconscionability is a good defense to a contract action under Florida case law. See, e.g., Peacock Hotel v. Shipman, 103 Fla. 633, 138 So. 44, 46 (1931), where the Supreme Court stated that when "one party has overreached the other and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce, ... a court of equity will not hesitate to interfere, even though the victimized parties owe their predicament largely to their own stupidity and carelessness.” See also Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32 (Fla.3d DCA 1977).

      . There is some indication in the record that the trial court attached significance to this factor. In addressing plaintiff's attorney, he stated “Does that strike you as curious, counsel, that here's some equipment that isn’t a year old and they get $1,000 for it high bid, and curiously enough from the vendor?”


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Ivory WILLIAMS, Appellee.
    No. 83-944.
    District Court of Appeal of FLorida, Fifth District.
    Sept. 6, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellant.
    Mark L. Horwitz of Mark L. Horwitz, P.A., Orlando, for appellee.
   DAUKSCH, Judge.

The state appeals from an order dismissing an Information which charged that ap-pellee

... did, in violation of Florida Statute 812.014, knowingly obtain or use, or endeavor to obtain or use clothing, of a value of ONE HUNDRED DOLLARS ($100.00) or more, the property of another, to wit: JAMES LUSINK, as owner or custodian thereof, with the intent to temporarily or permanently deprive said owner or custodian of a right to the property or a benefit therefrom, and to appropriate the property to their own use or to the use of a person not entitled thereto.

The basis of the trial court’s order dismissing the information is that “The information fails to allege an ‘unlawful’ taking or intent to deprive.” We disagree.

In State v. McNeill, 407 So.2d 1021 (Fla. 4th DCA 1981), the court examined the sufficiency of an Information charging a violation of the same statute as the one allegedly violated here. In McNeill, the trial court dismissed the Information based on the state’s failure to include an allegation that there was specific intent to permanently deprive the victim of his property. The court of appeal reversed the dismissal and instructed the trial court to reinstate the Information. The court concluded that an allegation of “... an intent to appropriate property to the use of one other than the owner is equated with the unlawful intent to deprive the owner of his property.” 407 So.2d at 1022.

The instant case is similar to McNeill. Appellee contends that without an allegation of an unlawful taking, the Information fails to allege the requisite specific criminal intent. However, as in McNeill, the Information against appellee alleges an intent “... to appropriate the property to their own use or the use of a person not entitled thereto.” We agree with the Fourth District Court of Appeal and conclude that this language is equated with the unlawful intent to deprive the owner of his property.

Even if we did not conclude as above stated, we would reverse the order dismissing the Information in this case. The Information charged that appellee acted “... in violation of Florida Statute 812.014...” This is the same as an allegation that ap-pellee acted unlawfully. See McCaskill v. State, 55 Fla. 117, 45 So. 843 (1908); Schley v. State, 48 Fla. 53, 37 So. 518 (1904).

The order dismissing the Information is reversed. The case is remanded to the trial court with instructions to reinstate the Information and for further appropriate proceedings.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Gregory P. FORRER, Respondent.
    No. 84-888.
    District Court of Appeal of Florida Fifth District.
    Sept. 6, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for petitioner.
    Judith A. Benson, Mount Dora, for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

FRANK D. UPCHURCH, Jr., Judge.

The State of Florida seeks a writ of certiorari to review and quash an order of the circuit court rendered in its appellate capacity.

Respondent had been charged with driving under the influence of alcohol in violation of section 316.193, Florida Statutes (1981), and filed a motion to suppress evidence regarding his refusal to take a blood alcohol test. The county court rendered its order stating that it would allow into evidence the fact that Respondent refused to take the test, but would not allow any particular statements made by Respondent at such time or a videotape documenting his refusal. Petitioner filed an appeal to the circuit court and Respondent cross appealed.

The circuit court ruled that it was bound to follow State v. Ducksworth, 408 So.2d 589 (Fla. 2d DCA 1982) and Brown v. State, 412 So.2d 22 (Fla. 2d DCA 1982) and exclude any evidence of such refusal. The circuit court therefore reversed the county court’s order which had allowed in some of the evidence.

Based upon South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), this court held in State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983) (which was rendered one day after issuance of the circuit court’s order in this case) that a suspected drunk driver’s refusal to take a blood alcohol test can be used at trial.

We therefore GRANT the petition for writ of certiorari and QUASH the order of the circuit court.

DAUKSCH and COWART, JJ., concur.


text:
    Harvey NMN PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1247.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty.Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Phillips appeals from a judgment and sentence for aggravated battery, aggravated assault and disorderly conduct. Immediately after imposing the sentences, the trial court suspended their execution and released Phillips under certain conditions. Later, the court found that Phillips violated these conditions, revoked the suspension and committed him to the Department of Corrections. On this appeal, Phillips seeks vacation of the sentences on the basis that the trial court did not have the authority to revoke suspension of the sentences it previously imposed.

The record reflects that in May, 1983, the trial court accepted Phillips’ plea of nolo contendere to all the charges and adjudicated him guilty. The court later sentenced him to concurrent five-year sentences on the two felony charges and sixty days concurrent time for disorderly conduct. The court then instructed Phillips that it would conditionally suspend the sentences provided Phillips did not violate the law, use no alcohol, undergo alcohol treatment and counseling and initiate no further contact with his wife. Although Phillips was fingerprinted, the trial court did not enter a written order of judgment and sentence at that time, nor did the court relinquish jurisdiction over Phillips to the Department of Corrections or the Department of Probation.

In August, 1983, the trial court found that Phillips violated the conditions of the suspended sentence. The court later revoked the suspension of the sentence it had previously imposed on Phillips. The court then entered a written order of judgment and sentence from which Phillips appeals.

We agree with Phillips that the trial court’s initial disposition of this case was error. A trial court may not, as it did here, impose a sentence on a defendant, suspend execution of that sentence, and release the defendant on conditions, without formally placing him on probation under the supervision of the Department of Corrections, the Salvation Army or some other public or private entity. § 948.01(5), Fla.Stat. (1981). This sentencing vagary is parallel to that where a trial court adjudicates a defendant guilty, but rather than imposing a sentence it reserves jurisdiction over the discharged defendant for purposes of imposing a sentence at a later date when the trial court deems it advisable. A trial judge does not have the authority to either withhold or suspend a sentence indefinitely without placing the defendant on probation. State v. Bateh, 110 So.2d 7 (Fla.1959), cert. denied, Bateh v. Florida, 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959); Helton v. State, 106 So.2d 79 (Fla.1958). See also Shieder v. State, 430 So.2d 537 (Fla. 5th DCA 1983), n. 1. After a court adjudicates a defendant guilty of a criminal offense, it must either sentence the convict or place him on probation. Bateh.

However, we disagree that the court was constrained to vacate the sentences as Phillips contends. Florida Rule of Criminal Procedure 3.800(a) provides: “A court may at any time correct an illegal sentence imposed by it.” It is true that when the trial court revoked suspension of Phillips’ sentence in August, it did so because Phillips had violated the conditions of release which the trial court had imposed on him. Nonetheless, the trial court’s revocation of the suspension of sentence had the effect of correcting an illegal sentence it had previously imposed.

The decisional law in Florida supports the proposition that a trial court does not lose jurisdiction to impose a lawful sentence after it imposes an unlawful one. In State v. Bateh, the trial court adjudicated the defendant guilty but neither sentenced the defendant nor placed him on probation. Instead the court reserved jurisdiction over him for the purpose of imposing a sentence at a later date if the court deemed it advisable. The Florida Supreme Court expressly disapproved of such a practice but did not authorize, or even consider, imposing no sentence at all. After a trial court has delayed sentencing, as it did in Bateh, the court is limited in imposing a sentence only in that

[T]he power to sentence must be exercised before the lapse of the extreme period for which sentence could have been imposed, and when it is inflicted the term cannot be projected beyond the extreme period.

110 So.2d at 10. While the court disapproved of the lower tribunal’s failure to sentence a defendant after adjudicating him guilty, the court did not hold, or even intimate, that a trial court has no power to bring a defendant back into court to impose a sentence.

In Helton v. State, the trial court’s order withholding imposition of sentence was illegal for the same reason as the order suspending Phillips’ sentence in the present case; they both violated section 948.01(4), Florida Statutes. One of the questions the supreme court resolved in Helton was “whether the trial judge had jurisdiction to revoke the order illegally suspending the imposition of sentence and to pronounce sentence upon the petitioner.” 106 So.2d at 80. Noting a conflict of opinion in other jurisdictions, the court adopted the position “that the court does not lose jurisdiction to impose a lawful sentence even though the term during which the defendant was convicted and the illegal order was entered has passed.” 106 So.2d at 80. See also Shieder v. State.

AFFIRMED.

SHARP and COWART, JJ., concur.