author: ZEHMER, Judge. ZEHMER, Judge.

text:
    Robert IRBY, Appellant, v. STATE of Florida, Appellant.
    No. AT-31.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Rehearing Denied June 1, 1984.

      David A. Davis, Asst. Public Defender, Tallahassee, for appellant.
    Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Appellant, Robert Irby, an inmate at Union Correctional Institution, appeals his conviction of battery of a law enforcement officer and contends that his motion for discharge for the state’s failure to comply with the speedy trial rule was improperly denied. We affirm.

The essential facts of the battery are succinctly stated in appellant’s brief:

About 12:50 p.m. on August 30, 1982, Officer Ball was on duty at Union Correctional Institution. Another guard was distributing writing paper to inmates in their cells. Irby wanted more paper than the guard was willing to give him, and he began banging against the cell door. Ball went to investigate, and when he tried to stop Irby from banging on the door, Irby told him that he would hit him if Ball did that again. When Ball continued what he was doing, Irby hit Ball below the left eye.
Angry, Ball opened the cell door and tried to handcuff Irby. Irby refused and backed away from Ball. They began to tussle, but the confrontation ended with Irby and Ball outside of the cell [herein referred to as the ‘first battery’]. The verbal sparring, however, continued. Inmate Martin, who was showering, apparently heard the ruckus and rushed to the scene. When he heard Irby complaining he said, ‘Well, if we all is going to do something we better go on and do it now.’ He then hit Ball. Both inmates then began hitting Ball. A sergeant came to the scene and the fight ended [herein referred to as the ‘second battery’]. Irby was arrested three days later for battering Ball.

(References to transcript omitted).

On October 18, 1982, a joint information was filed charging Irby and Martin with battery of Officer Ball on August 30, 1982, in violation of section 784.07, Florida Statutes. Martin pled guilty as charged. Irby went to trial on January 25, 1983, and at the close of the evidence moved for a directed verdict of acquittal. Irby argued that the state’s joint information charged both Martin and Irby as principals involving only the “second battery” against Ball, which occurred outside Irby’s cell and that the information did not charge Irby as a principal in the “first battery,” which occurred inside Irby’s cell. Irby contended that the state could only prove the “second battery” against him at this trial and that if the state had intended to charge him with the “first battery” it should have filed separate informations rather than a joint single-count information. Irby’s counsel specifically stated:

They were separate incidents. Martin had nothing to do with that first battery. And Irby had virtually nothing to do with [the second battery] except being physically present.

Irby’s motion for acquittal was predicated on the state’s representations of fact made at the hearing on Martin’s guilty plea. The facts at that hearing did not implicate Irby as a principal or participant in the “second battery” by Martin, and Irby contended that the state was limited at his trial to proving the facts represented in support of that same information at Martin’s plea hearing. The trial judge, apparently convinced by Irby’s argument, granted Irby’s motion for acquittal, but stated that “the state has the option of refiling this information and bringing the case to trial on the second theory” that Irby was the principal actor in the “first battery.”

On that same day, the state, as suggested by the trial judge, filed a second information charging Irby with battery against Ball on August 30, 1982. The language of this new information was, for all practical purposes, identical to that contained in the original information jointly charging Irby and Martin. Irby was arrested two days later as a result of the second information.

On March 10, 1983, Irby served a motion for discharge and a motion to dismiss the second information upon the grounds that he had previously been arrested on September 3, 1982, “as the result of the same conduct or criminal episode (see Union County case no. 82-140-CF) which now gives rise to the crime charged,” and that he had been deprived of his right to a speedy trial under rule 3.191. Shortly thereafter, Irby filed another motion to dismiss on grounds of double jeopardy, alleging that further proceedings on the new information were barred by reason of his trial on the original joint information. The trial court, citing Stang v. State, 421 So.2d 147 (Fla.1982), denied all of these motions, specifically noting that during argument on the motion for acquittal in the first case Irby had successfully characterized the two batteries of Officer Ball as separate and distinct incidents; that the defendant had acknowledged during his argument that the state would be free to reinstitute prosecution as to the earlier of the two incidents; that the state had not been allowed to amend its pleadings or proceed to prove the first battery at the prior trial; and that “the court finds the instant charge is not one transaction with the prior charge.” On April 29, 1983, Irby was tried and found guilty.

Irby urges two points on this appeal, but we consider it necessary to discuss only his argument concerning his right to speedy trial.

Rule 3.191(a)(4) provides that a person is in custody when he is arrested “as a result of the conduct or criminal episode which gave rise to the crime charged.” Irby complains that his arrest on September 3,1982, and the resulting joint charge with Martin was the result of the same criminal episode which gave rise to the “first battery” by Irby, and since he was not tried for the “first battery” until April 19, 1983, well over 180 days after his arrest on September 3, he is entitled to discharge under the rule.

The state counters that Irby was not taken into custody on the second information until after that information had been filed on January 27, 1983, and thus Irby’s right to speedy trial had not been violated. The state further argues that Irby had been acquitted on the second battery based on his position that the first and second batteries were two separate and distinct episodes. For that reason, the state argues, Irby is now estopped to take the position on this appeal that both batteries are part of the same episode.

Although we might well have rejected Irby’s argument that two separate and distinct batteries occurred which were not covered by the single information involved in the first trial and denied Irby’s motion for acquittal, we are quick to recognize that the question, as then presented by Irby, was an arguable one that could go either way. The trial court accepted Irby’s contention that the “first battery” was so unrelated to the “second battery” that the first could not be treated as within the reasonable intent of the joint charge against him and Martin, and that proof of the first battery in that trial would constitute a material variance from the charge. Now, however, Irby specifically argues in support of this appeal that:

In this instance, the criminal episode or conduct started when Irby first punched Ball and ended when the sergeant broke up the fight. From this episode came two batteries with Irby involved in both_ Moreover, each battery involved the same victim, at the same location, and at approximately the same time.

Having succeeded in asserting that the batteries were separate episodes, appellant is estopped and will not be permitted to now take the inconsistent position that the “first battery” was indeed part of a single criminal episode or transaction. See, State v. Katz, 402 So.2d 1184 (Fla.1981); State v. Beamon, 298 So.2d 376 (Fla.1974); State v. Bentley, 81 So.2d 750 (Fla.1955); State v. Cootner, 60 So.2d 734 (Fla.1952); State v. Shaw, 415 So.2d 93 (Fla. 4th DCA 1982); State v. Gragg, 409 So.2d 1127 (Fla. 4th DCA 1982); State v. Jones, 404 So.2d 395 (Fla. 5th DCA 1981); Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980).

Obviously, the first and second batteries of Officer Ball were either a single continuous episode giving rise to a single offense or two unrelated episodes giving rise to two separate offenses. Appellant refers to nothing in the record before us that suggests Irby was arrested on September 3 for any criminal offense other than the offense jointly charged against him and Martin on October 18, 1982. Since appellant successfully contended that the first battery was not included within that charge, his argument that he must have been brought to trial within 180 days of his arrest on September 3 is without merit.

AFFIRMED.

ERVIN, C.J., and BOOTH, J., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Appellant, Robert Irby, moves for rehearing on two grounds.

First, Irby contends that we have misconceived or misunderstood the thrust of his argument, namely:

... while the two batteries may be factually separate episodes, they were, nevertheless, part of the same ‘criminal episode or conduct’ as contemplated by rule 3.191(a)(4), Florida Rules of Criminal Procedure. Carter v. State, 432 So.2d 797 (Fla. 2d DCA 1983); Deiches v. State [Kanly ], 375 So.2d 584 (Fla. 5th DCA 1979); State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981). The entire thrust of Irby’s brief on this point was that distinct crimes could nevertheless be so connected in terms of victim, location, and time as to be part of the same ‘criminal episode or conduct’ for speedy trial purposes. Irby’s positions at trial and on appeal, in short, are not inconsistent.

We do not agree with Irby’s characterization of the argument made on his motion for acquittal at the first trial. At that time, counsel for Irby argued not only that the two batteries were factually separate occurrences, but also that the two batteries were not legally part of the same continuing transaction. The trial court accepted Irby’s theory and acquitted him, but advised the state that it could file another information on the first battery by Irby. In effect, Irby is asking that the two batteries be treated as separate and distinct occurrences which were not part of a single continuing transaction for the purpose of making charges against Irby, but that the two batteries be treated as part of the same “criminal episode or conduct” for purposes of applying the speedy trial rule. We decline to fashion such a nebulous distinction for the reasons stated in our original opinion.

The cases cited by Irby in the quoted statement are not inconsistent with our original decision. Although each ease involved two or more separate offenses for purposes of the speedy trial rule, all elements of the several offenses in each case arose out of a single continuous transaction or course of conduct which occurred at the same place and at the same time. See, Carter v. State, supra (driving of car at alleged time and place gave rise to the separate offenses of causing a death by an intoxicated driver and driving with a suspended license); Deiches v. State, supra (attempting to pass a forged prescription held one criminal episode giving rise to the separate offenses of attempting to acquire possession of a controlled substance and loitering and prowling); State v. Kelley, supra (attempted sale of a .38-caliber pistol and a .45-caliber pistol held a single criminal episode giving rise to the separate offenses of trafficking in the .38-caliber pistol and trafficking in the .45-caliber pistol). Unlike those cases, Irby successfully insisted in the first trial that the two batteries were separate, distinct incidents, not part of. a single transaction or episode, which were not covered in the same charge or information. That being so, the trial court did not err at the second trial in treating the elements of each offense as arising out of separate transactions rather than a single continuous criminal episode.

Alternatively, appellant argues that we must have overlooked the fact that one of the cases cited in our original opinion, State v. Gragg, 409 So.2d 1129 (Fla. 4th DCA 1982), was quashed by the Supreme Court in Gragg v. State, 429 So.2d 1204 (Fla.1983), and that, under the Supreme Court’s decision, even if Irby’s positions at the first and second trials are inconsistent, nevertheless he cannot legally be estopped from arguing such inconsistent positions. Unfortunately, the subsequent history of the Supreme Court’s decision was inadvertently omitted from the citation to State v. Gragg in our original opinion; but the Supreme Court’s decision is not inconsistent with the proposition stated in our opinion, for which the district court’s opinion in Gragg, along with the seven others, were cited. The Supreme Court held in Gragg that a defendant is not estopped from asserting collateral estoppel as a defense after having voluntarily sought and been granted a severance of the charge of possession of a firearm by a convicted felon from other charges of aggravated assault and battery by use of a firearm, reasoning that the district court of appeal’s decision to the contrary required the accused to waive his constitutional right against double jeopardy in order to assert his constitutional right to a fair trial. Here, Irby is not put to the choice of waiving one constitutional right in order to assert the other because Irby does not dispute the state’s right to file a new information and timely try him on the separate battery determined not to be covered by the original charge. The Supreme Court decision in Gragg does not disturb the time-tested rule of estoppel for which we cited that case.

Accordingly, the petition for rehearing is DENIED.

ERVIN, C.J., and BOOTH, J., concur.

      . § 784.07, Fla.Stat.

      . Rule 3.191(a)(1), Fla.R.Crim.P.

      .Taken into custody within the meaning of rule 3.191(a)(4), Fla.R.Crim.P.

      . We note the inconsistency between this treatment of the facts and the evidence at the second trial which showed that Irby struck Officer Ball during the second battery as well as the first.

      . After the prosecutor argued that "there was no break in the chain” between the two batteries, counsel for Irby responded that "it was not one transaction ... Robert Irby committed a battery on the officer ... it stopped. Even as the state says, it was over ... Martin rushes up ... Wham ... That did not involve Robert Irby. He was not encouraging it. He was not acting in a way that brought on his battery. It was an independent action by Clinton Martin.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re FORFEITURE OF A CESSNA 421 AIRCRAFT, REG. NO. N42A.
    No. 83-1265.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    As Corrected on Rehearing June 27, 1984.
    Norman Funt of Stabinski & Funt, P.A., Miami, for appellant Ne-Ho, Inc.
    Richard A. Purdy of Shailer, Purdy & Jolly, Fort Lauderdale, for appellee Sheriff George A. Brescher.
   PER CURIAM.

Appellant challenges the sufficiency of the evidence to support the trial court’s order forfeiting appellant’s aircraft to George A. Brescher, Sheriff of Broward County.

The appellee demonstrated at the forfeiture hearing that the aircraft had a bladder tank (which increases fuel capacity and thus flying range), had no passenger seats, contained charts for air travel between Miami, the Bahamas and Columbia, and was registered in the name of a corporation which does not appear in the records of the Florida Secretary of State. A police witness testified that aircraft which smugglers use to import drugs typically have the same characteristics.

For purposes of the Florida Contraband Forfeiture Act, the term “contraband article” includes all controlled substances defined in Chapter 893, Florida Statutes. § 932.701(2)(a), Fla.Stat. (1981). It is unlawful to use an aircraft to transport, conceal or possess any contraband article, or to use an aircraft to facilitate the transportation, concealment or possession of a contraband article. § 932.702, Fla.Stat. (1981). An aircraft “which has been or is being used in violation of any provision of s 932.-702” shall be seized. § 932.703, Fla.Stat. (1981).

We have carefully reviewed the evidence presented below. Although the appellee proved that this aircraft looks like a smuggling plane, and could have been so used, we find no evidence that it ever had been so used. Mere ability to use property in violation of the act does not subject the property to forfeiture.

REVERSED.

ANSTEAD, C.J., and LETTS and DELL, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Charles E. WALTERS, Margaret P. Walters, B.F. Jackson, III, Carolyn Jackson, William D. Coleman, Jackie W. Smith and Donna P. Smith, Appellants, v. Helen D. McCALL and Joan Vienot, Appellees.
    No. AS-395.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Rehearing Denied May 17, 1984.

      George R. Miller, DeFuniak Springs, for appellants.
    William H. Green and Angus G. Andrews, DeFuniak Springs, for appellees.
   ERVIN, Chief Judge.

This cause involves a challenge, initiated by appellants as owners of certain lots within a servient parcel of land, to development by appellees of two dominant parcels into a campground, and to use by the patrons of the campground of a five-foot pedestrian easement across the servient parcel. Appellants contend that use of the easement by campground patrons, not owners of the dominant parcels, was not within the contemplation of the parties when the easement was created. We agree and reverse.

In April of 1979, Panhandle Realty Ventures, Inc. (Panhandle) and its president, William Hulsey, purchased without restrictions three parcels of property in Walton county, hereinafter referred to as Parcel A — a gulf-front parcel, Parcel B — a triangular parcel north of Parcel A and across a highway from it, and Parcel C — a parcel north of and across another highway from Parcel B. In May of 1979, Panhandle conveyed a portion of Parcel C, measured by metes and bounds, to G. Candler Holmes by warranty deed later recorded in the public records, containing the following restrictions:

1. This property shall only be used for residential purposes and no dwelling shall be constructed on said property with less than 1000 square feet of heated area.
3. No structure of a temporary character, trailer, mobile home, basement, tent, shack, garage, barn or other out building shall be used on this property at any time as a residence either temporary or permanent.

(e.s.)

Also in May, Hulsey began construction of a single family residence for his own use on the eastern half of Parcel B. Subsequently, in September of 1979, to satisfy a debt owed by Holmes and Hulsey, a portion of Parcel C owned by Holmes was conveyed to Bell with a continuation of the restrictions that were set forth in the deed to Holmes.

Through real estate agent Van Ness Butler, Panhandle sold Parcel A to appellant, attorney William Coleman, in December of 1979. Coleman prepared the warranty deed containing no restrictions other than the following provision for an easement:

Grantor reserves, unto itself, its successors and assigns, a 5 foot walk easement for pedestrian traffic, only, for ingress and egress from State Road 395 to the beach, along the eastern most 5 feet of ... [Parcel A], Said 5 foot walk easement is reserved solely for the benefit of the owner or owners of... [Parcels B and C].

(e.s.) The deed containing the above reservation was executed on December 12, 1979, and recorded on December 18, 1979.

Butler testified that during the negotiations leading to the sale of Parcel A to Coleman, he did not recall any discussions concerning the purpose or limitations of the easement, and that he did not represent to Coleman that restrictions were intended on the use of Parcels B and C. Hulsey did express to Butler his desire to reserve the easement appurtenant to Parcels B and C to increase their marketability and value by providing an access from those parcels to the gulf.

Meanwhile, Hulsey employed a land surveyor to perform a boundary survey and division of Parcel C into lots. In May of 1980, the survey with legal descriptions of nine lots was completed for the purpose of estimating the market value of the property, although lot numbered eight, which encompassed that part owned by Bell, was excluded from the value calculations. The subdivision was not recorded in the public records.

Coleman testified that when he purchased Parcel A from Hulsey, his understanding and intention was that the five-foot pedestrian easement would be used by the owner of Hulsey’s house, located in Parcel B, and his guests, as well as the persons owning lots in Parcel C. In February of 1980, Coleman recorded a plat dividing Parcel A into five lots for resale, subjecting the five lots to the five-foot pedestrian easement as set forth in his deed from Panhandle, imposing restrictive covenants limiting use of the lots for residential purposes only, requiring minimum square footage in the dwelling structure, and prohibiting mobile homes, house trailers or similar structures from being used for any length of time as a residence, or from being kept or maintained on the property. During late 1980 and early 1981, Coleman sold three of the lots in Parcel A to the various other appellants, subject to the easement and restrictive covenants.

Interested in purchasing Parcel C and the western half of Parcel B, appellees McCall and Vienot contacted Butler in early 1981, and expressed their desire to use the property as a campground. Butler informed them of the five-foot pedestrian easement to the beach, and advised them to consult an attorney regarding whether campground patrons would be permitted to use the easement. Satisfied, after seeking the advice of their attorney, that campers would be able to do so, appellees next arranged in the spring of 1981 for the purchase of Parcel C in its entirety, pursuant to Hulsey’s successful arrangement for repurchase of the portion owned by Bell, and the western-half of Parcel B, adjacent to Hulsey’s residence. Accordingly, Panhandle conveyed Parcels B and C to appel-lees in April, 1981, and Bell conveyed his portion of Parcel C to appellees by warranty deed, purporting to release his legal interests ■ in the restrictive covenants record, while Panhandle simultaneously executed a quitclaim deed to appellees conveying the same portion of Parcel C, seeking to release the restrictions which Panhandle had previously placed upon it.

After learning that appellees were setting up a campground on Parcel C, Coleman testified that he informed them that campground patrons who were not owners of property in Parcels B and C had no right to use the easement. He had contemplated, he testified, that when he purchased Parcel A, Parcels B and C would be restricted to residential use because he was then aware that Holmes’ lot was so restricted and that a single family residence had been constructed on a portion of Parcel B. His intent, he stated, in drafting the language of the easement was to limit travel over the easement to the predestrian traffic of owners of Parcels B and C. He admitted, however, that the scope of the easement was poorly drafted and that the language of the easement could encompass use by a multitude of unit owners if condominiums were constructed there on the dominant parcels.

Hulsey testified that he never intended, or represented to Butler or Coleman, that the use of Parcels B and C would be restricted to residential or any other particular use. He did sell the Parcels to appel-lees free of any use restrictions, with knowledge of their intent to operate a campground, and told them that pedestrian travel over the easement by patrons of the campground was permissible.

The trial court entered an amended final judgment, holding that the parcels purchased by appellees were free of any use restrictions and covenants in issue, that the owners of Parcels B and C and their successors in title were entitled to use the easement for access to the gulf for pedestrian traffic, and that patrons of the campground were entitled to benefit from use of the easement, but that the language limiting the use of the easement to travel by pedestrians did not include travel by dogs or other pets, although they could be carried across the easement by persons lawfully entitled to use the easement. We cannot agree with the court’s conclusions permitting pedestrian travel over the easement by non-owners.

It is well established that an easement may be created by grant, a broad term which includes creation by reservation in a deed, and, as in deeds generally, the intent of the parties in a grant of easement is determined by a fair interpretation of the language. The language employed should be construed to effectuate the intention of the parties. See 20 Fla. Jur.2d Easements §§ 6, 13, 14, 18 (1980). In the instant case, the language employed to create the easement does not clearly specify those classes of persons entitled to use the easement. The broad construction placed upon the term by appellees is that the value of the campground is enhanced by providing to campers access to the gulf, thereby yielding a benefit to the owners. Appellants, on the other hand, urge that the reservation of the easement “solely for the benefit of the owner or owners” should be construed to mean that the easement was reserved solely for pedestrian travel by the residential owner or owners themselves of property in Parcels B and C.

When the language of a deed is clear and certain in meaning, and the grantor’s intention is reflected by the language employed, there is no room for judicial construction of the language nor interpretation of the words used — if there is no ambiguity in the wording then the intention of the grantor must be ascertained therefrom. Saltzman v. Ahern, 306 So.2d 537 (Fla. 1st DCA 1975). An unrestricted grant of an easement conveys all such rights as are incidental and necessary to the reasonable and proper enjoyment thereof. If, however, the instrument specifically states the uses or purposes for which the easement was created, the use of an easement must be confined strictly to the purposes for which it was granted or reserved and it cannot be enlarged by any change in the use or character of the dominant estate. 20 Fla.Jur.2d Easements § 33 (1980). In cases such as the one before us, however, where the wording is ambiguous such that the scope of the easement cannot be determined from the plain meaning of the language employed, the legal extent of the right must be ascertained from the intention of the parties, in light of the surrounding circumstances, at the time the easement right was created.

A general principle governing all easements is that “the burden of right of way upon the servient estate must not be increased to any greater extent than reasonably necessary and contemplated at the time of initial acquisition.” Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328, 330 (Fla.1954). In other words, the easement holder cannot expand the easement beyond what was contemplated at the time it was granted. See Star Island Associates v. City of St. Petersburg Beach, 433 So.2d 998 (Fla. 2d DCA 1983). Crutchfield recognized that an implied right to do what is necessary for the full enjoyment of the easement itself accompanies every easement, but that such right is limited and must be exercised in a reasonable manner so as not to injuriously increase the burden upon the servient estate. 69 So.2d at 330.

Coleman’s intent in drafting the questioned language restricting the use of the easement for the benefit of the owner or owners of the dominant estates is best evidenced by the use to which the three parcels were put at the time of the creation of the easement: the dominant two were used excusively for residential purposes. Hulsey had already begun constructing a residence on Parcel B. Indeed, one lot contained in Parcel C was restricted by warranty deed recorded in the public records for residential purposes only, and a specific bar was placed on structures of temporary character. It is significant that at the critical time at issue no commercial use was either made of any of the three parcels, nor was any such use allowed in any recorded public document.

We therefore conclude that travel over the easement by patrons of the campground was not a use contemplated by the parties at the time the easement was created, and such travel constitutes an impermissible expansion of the scope of the easement beyond that intended by the parties. The easement, rather, was created solely for the benefit of the owner or owners of Parcels B and C, and such use reasonably extends to their families, guests, and such persons’ pets which, as the lower court concluded, must be earned, across the easement, but it does not include temporary use as part of a commercial enterprise by campground patrons.

Appellants also assert that the Holmes/Bell portion of Parcel C may not properly be developed as a commercial campground because it remains subject to the residential use restrictions and, consequently, that the campground patrons temporarily residing on that portion of Parcel C are not entitled to use the easement. We have already held that campground patrons are not permitted to travel over the easement. In any event, although restrictive covenants made by a common grantor for the benefit of all grantees may be enforced by one remote grantee against another remote grantee when a common grantor intends to create a uniform building plan or scheme of restrictions, Nelle v. Loch Haven Homeowners’ Association, Inc., 413 So.2d 28 (Fla.1982), the right to enforce such restrictions pursuant to a general scheme must be reciprocal — the same restrictions must apply substantially to all lots of like character or similarly situated. See Mundy v. Carter, 311 So.2d 773 (Fla. 1st DCA 1975). Parcel A, as purchased by Coleman, was not subjected to any restrictions and only later did Coleman, of his own initiative, place residential use restrictions on his own property. Consequently, we conclude that appellants are not similarly situated grantees who are entitled to enforce the residential use restrictions placed on that portion of Parcel C which was conveyed to Holmes.

We do not address appellant’s remaining points in that they are mooted by our disposition of the above issues.

The judgment of the trial court is affirmed in part and reversed in part and the cause remanded for further consistent proceedings.

SMITH and NIMMONS, JJ., concur.

APPENDIX

      . The three parcels and the five-foot easement in question are depicted by the sketch in the attached appendix.


author: PER CURIAM. SHARP, Judge,

text:
    ALLAN ELECTRIC COMPANY, INC., Appellant, v. POWER FACILITIES, INC., a/k/a Volt Enterprises, Inc., and Reliance Insurance Company, Appellees.
    No. 83-30.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.
    Rehearing Denied June 11, 1984.
    Christopher J. Weiss of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Christopher C. Skambis of van den Berg, Gay, Burke, Wilson & Arkin, P.A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., and SCOTT, R.C., Associate Judge, concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The lower court granted summary judgment because it construed the performance-payment bond involved in this case as a statutory bond pursuant to section 255.-05, Florida Statutes (1979), rather than a common-law bond. The statute of limitations applicable to statutory bonds had not been met. § 255.05(2), Fla.Stat. (1979). I dissent because I think the bond should be construed as a common-law bond, subject to a five year statute of limitations. § 95.11, Fla.Stat. (1981).

In General Insurance Company of America v. Sentry Indemnity Company, 384 So.2d 1305 (Fla. 5th DCA 1980), this court held that a bond will be considered a common-law bond rather than a statutory bond if it is broader in scope than required under the statute. In the instant case, the payment portion of the bond parallels the statute. However, the performance portion of the bond is broader in scope than is the statute. The bond should be taken as a whole, and if it deviates from the statute, General Insurance Company should be followed. See Southwest Florida Water Management District v. Miller Construction Company, Inc. of Leesburg, 355 So.2d 1258 (Fla. 2d DCA 1978).

Further, as in General Insurance Company, the bond in this case does not make any reference to section 255.05 or section 713.23, Florida Statutes (1979), or to the fact that it was a statutory bond. Any ambiguity in this regard should be construed against the surety. United Bonding Insurance Company v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971).

      . Although not applicable to this case, section 255.05 now provides that "[a]ll bonds executed pursuant to this section shall make reference to this section by number and shall contain reference to the notice and time limitation provisions of this section.” § 255.05(6), Fla.Stat. (1981).


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

text:
    LAMAR ADVERTISING ASSOCIATES OF EAST FLORIDA, LIMITED, Petitioner, v. The CITY OF DAYTONA BEACH, Respondent.
    No. 83-734.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.

      Michael D. Martin of Martin & Martin, P.A., Lakeland, for petitioner.
    Reginald E. Moore, Frank B. Gummey, III, and Robert G. Brown, Daytona Beach, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

Lamar Advertising Associates of East Florida, Limited, petitions for a writ of certiorari seeking review of a decision of the Circuit Court for Volusia County rendered in its appellate review capacity.

According to a joint stipulation of facts filed below, in October, 1981, respondent City of Daytona Beach charged petitioner in county court with violation of city ordinance 81-178 dealing with the regulation of billboards. Petitioner is in the business of outdoor advertising and has a number of billboards in the city, including nine on Main Street which were the subject of this action.

In December, 1968, the city, by ordinance, designated these and other billboards on Main Street as being nonconforming and required their removal within ten years. In early 1981, ordinance 81-178 was enacted and it gave petitioner until January, 1981, to remove these billboards. When petitioner failed to do so, the city brought the present charge.

Petitioner defended, claiming that ordinance 81-178 is unconstitutional on equal protection grounds and also violates the First Amendment to the United States Constitution. Petitioner also argued that under chapter 479, Florida Statutes, it was entitled to just compensation for the removal of its billboards.

On April 23, 1982, following trial, the county court ruled that the ordinance is constitutional and that petitioner is not entitled to compensation for the billboards. The court found petitioner guilty of violating the ordinance and ordered its president to have the signs removed within forty-five days.

Petitioner appealed to the circuit court which affirmed the county court’s decision, except for the portion ordering removal of the signs within forty-five days, as to which the court found that the county court had no jurisdiction. This latter ruling is not questioned here.

The law is clear that where a conviction is obtained under an unconstitutional ordinance, an error of serious magnitude is presented and review by common law cer-tiorari is proper. See Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964); Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966). See also Combs v. State, 436 So.2d 93 (Fla.1983). Therefore, ordinance 81-178, under which petitioner was prosecuted, must be examined to determine whether it is constitutional.

We begin with the principle that an ordinance is to be construed, if possible, in such a manner as will be conducive to its constitutionality. See Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976).

The ordinance is designed to regulate signs and billboards in Daytona Beach. Section 40-2 of the ordinance defines “billboards” as:

Outdoor advertising signs erected and maintained upon which advertising matter may be displayed and which generally advertise firms or organizations that, along with their goods, products, or services are not located on the same premises as the sign; and whose surface is sold, rented, owned or leased for the display of advertising material.

Section 40-5(f)(1) provides that “Billboards shall not be permitted in any location east of the Halifax River [the beach-side] except on ocean piers.” Billboards are permitted in a wide variety of areas on mainland Daytona Beach. Sec. 40-5(f)(2).

Certain signs are allowed under the ordinance in the non-pier areas of the beach-side. Various signs, such as real estate signs, wall signs and roof signs (of a maximum size of 200 square feet) are permitted in commercially zoned areas and some signs such as real estate signs, development signs and subdivision identification signs are also permitted in residential areas.

Section 40-2 contains the following definitions for on-site and off-site signs:

On-site Sign. Any sign identifying or advertising a business, person, activity, goods, products or services located on the premises where the sign is installed and maintained, also known as a ‘pertinent’ or ‘accessory’ sign.
Offsite Sign. This is a third party sign. It is a sign that advertises goods, products, services or facilities or directs persons to a different location from where the sign is installed.

Petitioner’s nine signs on Main Street are located on the beachside. Petitioner argues that by the above definitions, the city has protected on-site commercial messages on the beachside but that except for the piers, all opportunities for the presentation of noncommercial messages are eliminated. Petitioner claims that therefore, under Me-tromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), ordinance 81-178 is unconstitutional as violating the First Amendment.

Recent cases have established that ordinances regulating or prohibiting off-site advertising by billboards do not exceed the legitimate scope of a city’s police power even though they are based primarily on aesthetic considerations. See City of Lake Wales v. Lamar Advertising Ass’n, 414 So.2d 1030 (Fla.1982); City of Sunrise v. DCA Homes, Inc., 421 So.2d 1084 (Fla. 4th DCA 1982); Lamar-Orlando, Etc. v. City of Ormond Beach, 415 So.2d 1312 (Fla. 5th DCA 1982). However, an ordinance may not afford more protection to commercial speech than to noncommercial speech. Metromedia, Inc. v. City of San Diego.

In Metromedia, San Diego enacted an ordinance prohibiting “outdoor advertising display signs” except for on-site commercial signs and those fitting within twelve specified categories, such as governmental signs and religious symbols. The prohibited advertising signs included any sign that “directs attention to a product, service or activity, event, person, institution or business” conducted or sold other than on the premises where the sign is located. 453 U.S. at 494, 101 S.Ct. at 2885.

The Supreme Court struck down the ordinance, with the Court’s plurality (White, Stewart, Marshall and Powell) finding that it violated the First Amendment by imper-missibly affording more protection to commercial speech than to noncommercial speech, since, while an exception existed under the ordinance for on-site commercial advertisements, no similar exception existed for non-commercial speech. The plurality stated that if the city chooses to tolerate billboards at all, it cannot choose to limit their content to commercial messages. 453 U.S. at 513, 101 S.Ct. at 2985.

One other interesting aspect of Metromedia is that a majority of the Court found that Metromedia, the advertiser, had standing to challenge the noncommercial advertising ban arising from the ordinance since “although the bulk of their business consists of off-site signs carrying commercial advertisements, their billboards also convey a substantial amount of noncommercial advertising.” 453 U.S. at 504, 101 S.Ct. at 2890. This finding derived from the record below which indicated that the billboards in question were occasionally used for relaying political and social as well as commercial information to the public. See Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 610 P.2d 407, 411, 164 Cal.Rptr. 510, 514 (1980). In the instant case, the record does not indicate that petitioner’s signs are used for anything but commercial advertising.

In any event, we find that ordinance 81-178 does not afford more protection to commercial than noncommercial speech. While the ordinance outlaws billboards on the beachside (except on the ocean piers), it allows for certain types of signs in commercially zoned areas such as wall and roof signs. The ordinance does not restrict these signs to commercial advertising use and indeed does not regulate the content of these signs, other than preventing them from advertising “firms or organizations that, along with their goods, products or services are not located on the same premises.” In effect, the ordinance only prohibits off-site advertising, which, as noted above, is permissible. See City of Lake Wales v. Lamar Advertising; City of Sunrise v. DCA Homes, Inc.; Lamar-Orlando, etc. v. City of Ormond Beach.

Petitioner argues that the definition of “on-site” means that these signs must advertise only on-site commercial activities. However, this definition merely declares what an “on-site” sign is, i.e., a sign which identifies or advertises a business, etc. located on the premises where the sign is installed. It does not provide that signs in commercially zoned areas which are located on a particular business are permissible only if they advertise that business. In summary, we conclude that the ordinance does not violate the First Amendment.

The next question is whether ordinance 81-178 is defective on Fourteenth Amendment equal protection grounds. Petitioner argues that it is because it allows billboards on ocean piers, but not along Main Street, just a few hundred yards away. A city need only have a reasonable basis for such a distinction, Lamar-Orlando at 1316-18, and here, the city may have reasonably concluded that such advertising on the piers is less of a visual irritant and safety distraction than billboard advertising along densely developed beachside roads.

Finally, petitioner claims that the ordinance is invalid because it fails to provide compensation for the billboards. Chapter 479, Florida Statutes (1981), regulates outdoor advertising. Section 479.24(1), Florida Statutes, provides that:

Compensation shall be paid upon the removal of all signs lawfully in existence on Dec. 8, 1971 or signs lawfully erected which later become nonconforming.

The signs in question were lawfully in existence on December 8, 1971. Section 479.15(2), Florida Statutes, provides:

No municipality, county, local zoning authority, or other political subdivision shall remove, or cause to be removed, any advertisement or advertising structure without paying compensation in accordance with s. 479.24(1).

However, section 479.16, Florida Statutes, provides that certain advertising signs “are excepted from all the provisions of this chapter” and this includes:

(12) Advertisements, advertising signs and advertising structures within the corporate limits of cities and towns, adjacent to highways other than interstate and federal-aid primary systems.

In the instant case, the parties have stipulated that the signs in question are within the corporate limits of the City of Daytona Beach and are not adjacent to any interstate or federal-aid primary roads. While the county court correctly concluded that under chapter 479, compensation was not required for the removal of the signs, a question remains as to whether our constitutions require that petitioner be compensated for the removal of its signs.

We conclude that the city is not constitutionally required to compensate petitioner for its billboards. In Lamar-Orlando, this court cited a long line of cases which hold that amortization of nonconforming signs, if the period is reasonably long enough to allow the sign owner to recoup his investment, is a valid alternative to compensation. See, e.g., Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255 (N.Y.Ct.App.1977); Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (N.Y.Ct.App.1977); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App.1978); Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (Md.Ct.App.1977); City of Doraville v. Turner Communications, 236 Ga. 385, 223 S.E.2d 798 (1976); Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968).

Here, a reasonable amortization period was provided since by the terms of the 1968 ordinance, petitioner was put on notice that the signs were nonconforming and was given ten years to continue their use.

We conclude that the portions of ordinance 81-178 challenged here are constitutional and DENY the writ.

COBB and SHARP, JJ., concur.

      . Florida Rule of Appellate Procedure 9.030(b)(2)(B).

      .Justices Brennan and Blackmun, concurring in the result, concluded that the ordinance amounted to a ban on billboards and that such ban violated the First Amendment because San Diego failed to provide adequate justification for its substantial restriction on protected activity. Chief Justice Burger and Justices Stevens and Rehnquist, while each authoring separate dissenting opinions, basically agreed that the ordinance was constitutional and that a city may completely ban billboards.

      . For instance, under the ordinance, a businessman may, on his roof or wall sign, urge that a particular candidate be elected or complain about a particular governmental policy.

      . Another significant factor distinguishing this case from Metromedia is that here billboards are only proscribed on the beachside (excluding the piers) and not throughout the city, thus leaving open ample alternative channels for communication of information by billboards.

      . U.S. Const. Amend. V, XIV; Art. I, §§ 2, 9, Fla.Const.

      . This court in Lamar-Orlando did not resolve this question because the signs there were located on a federal aid primary highway and hence under sections 479.15(2) and 479.24(1), Florida Statutes, compensation was required.

      . Any claim that petitioner is deprived of equal protection of the law because under chapter 479, and the Federal Highway Beautification Act (23 U.S.C. § 131(g)), compensation is mandated for other billboard owners, such as those located near federal highways or outside of cities, is without merit. Amortization, at least in this case, amounts to a reasonable substitute for lump sum compensation.


author: SCHEB, Judge.

text:
    James Ronald BOTHWELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-652.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Rehearing Denied June 7, 1984.

      John Duffy, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant challenges two trial court orders concerning taxable costs incurred in a criminal trial where the defendant was acquitted.

The state charged James Ronald Both-well with three counts of vehicular homicide and three counts of DUI manslaughter. After a jury trial he was found not guilty on all counts. On January 19, 1983, Bothwell filed a motion to tax costs pursuant to section 939.06, Florida Statutes (1981), which provides that an acquitted defendant shall not be liable for taxable costs he has paid. Under the statute, the clerk or judge shall give him a certificate of payment of such costs, which, when audited and approved, shall be refunded to him by the county.

At a hearing on defendant’s motion, the state informed the trial judge that it had “no objection” to the granting of the motion. On February 3 the trial court entered an order certifying taxable costs in the amount of $5,579.57, the full amount requested by defendant. This amount was paid in full by Pinellas County on February 14.

Subsequently, on February 24 the state filed a motion for reconsideration of taxable costs with the trial court. In addition, the state sought an order for the payment of an expert witness fee for the testimony of one of its expert witnesses rendered at a deposition conducted by Bothwell’s attorney. The trial court responded by entering two separate orders on March 9. One required defendant to repay the county $2,595.16 of the sums the county had paid him. The other order provided that $190 for special expert testimony be “paid as costs of suit incurred by the State.” Defendant filed a notice of appeal on March 24, seeking review of the two orders.

Originally, neither party addressed the issue of whether the trial court had jurisdiction to consider the state’s motion for reconsideration, which was filed more than ten days after the entry of the original judgment for costs. See Fla.R.Civ.P. 1.530; Fla.R.Crim.P. 3.590. After oral argument, we directed counsel to file written memo-randa addressing whether the trial court had jurisdiction to enter its order of March 9.

After further review, we conclude that the trial court lacked jurisdiction to enter its order reducing the taxable costs.

The parties agree that the taxation of costs under section 939.06 is a civil proceeding, and that, accordingly, the civil rules of procedure apply instead of the criminal rules. See Fla.R.Civ.P. 1.010. Further, both parties agree that Florida Rule of Civil Procedure 1.530 allows ten days after entry of a judgment in which to move for rehearing or to alter or amend the judgment. The state’s motion for reconsideration, however, was filed more than ten days after entry of the judgment. Since the motion was untimely, we do not reach the additional question of the propriety of the motion under either rule 1.530(b) as a motion for rehearing, or in a motion to alter or amend a judgment under rule 1.530(g).

The state attempts to avoid the ten-day limit by arguing that its consent to the costs requested by defendant was an inadvertent mistake. Thus, it suggests that its motion for reconsideration was proper- under Rule 1.540(b), which gives a party one year in which to seek relief from a final order based on mistake, inadvertence, or excusable neglect. We find no merit in the state’s argument. The state did not present its motion below on the grounds of inadvertence or neglect. Further, its decision to raise no. objection is not the kind of mistake or excusable neglect contemplated by the rule. See generally Viking General Corp. v. Diversified Mortgage Investors, 387 So.2d 983 (Fla. 2d DCA 1980), petition for review denied, 394 So.2d 1154 (Fla.1981); John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 75 (Fla.1979); Smiles v. Young, 271 So.2d 798 (Fla. 3d DCA), cert. denied, 279 So.2d 305 (Fla.1973); Miami National Bank v. Sobel, 198 So.2d 841 (Fla. 3d DCA), cert. dismissed, 207 So.2d 687 (Fla.1967).

We hold that the trial court lacked jurisdiction to consider the state’s motion for reconsideration. Hence, we have no jurisdiction • to review that issue on appeal.

Despite our lack of jurisdiction to consider the first order, the defendant timely attacks the trial court’s order of March 9 awarding an expert witness a fee of $190. He challenges this order solely on the ground that the state’s witness was not an expert. The trial court agreed that the witness was not an expert in the field of occupant dynamics but did find him qualified as an expert in traffic reconstruction. Laying aside the question of whether the defendant has any standing to challenge that order, we find that the court acted within its discretion in setting a reasonable fee for the witness’ testimony. See § 914.06. Therefore, the order awarding that fee is affirmed; nevertheless, we remand for a clarification of the court’s order which is ambiguous as to who is responsible for payment of the fee. Since defendant cannot be responsible by law under section 939.06, we direct the court to amend its order to provide for payment of the fee by the county. § 939.07; Powell v. State, 314 So.2d 788 (Fla. 2d DCA 1975).

Accordingly, since the original order awarding defendant costs has become final and nonappealable, the March 9 order requiring repayment was void. Hence, the appeal from that order is rendered nugatory. However, we affirm the order directing payment of the expert witness fee and remand for clarification providing for payment of that fee by Pinellas County.

HOBSON, A.C.J., áhd GRIMES, J., concur.


author: UPCHURCH, F., Associate Judge. SHARP, W., Associate Judge,

text:
    James R. CRITCHLOW, Personal Representative of the Estate of Kathleen Williamson, Deceased, Appellant/Cross Appellee, v. Robert T. WILLIAMSON, Appellee/Cross Appellant. Robert T. WILLIAMSON, Appellant/Cross Appellee, v. James R. CRITCHLOW, Personal Representative of the Estate of Kathleen Williamson, Deceased, Appellee/Cross Appellant.
    Nos. 81-2252, 82-1637.
    District Court of Appeal of Florida, Fourth District.
    April 26, 1984.
    Rehearing Denied June 7, 1984.

      S. Robert Zimmerman, Pompano Beach, Richard R. Kirsch, Fort Lauderdale, and Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for Critchlow.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, and Coleman, Leonard & Morrison, Fort Lauderdale for Williamson.
   UPCHURCH, F., Associate Judge.

Robert Williamson appeals from a final judgment dissolving his marriage to Kathleen Williamson (Case No. 82-1637). James Critchlow, personal representative of the estate of Kathleen Williamson, cross-appeals from the same final judgment of dissolution and also appeals from a previously entered order declaring the wife’s rights under a prenuptial agreement (Case No. 81-2252). The two cages have been consolidated for review on appeal.

The relevant proceedings in the case began when the wife filed a petition for support in January, 1981. The husband counterclaimed for dissolution of the marriage and submitted a prenuptial agreement dated May 27, 1977. The husband claimed that the wife had waived all right to alimony and support in the agreement.

In July, 1981, the court held a hearing solely to determine the meaning and effect of the prenuptial agreement. The husband testified that the agreement provided that the wife would receive nothing in the event of a divorce. The wife’s position was that under the agreement, divorce was the same as death and that in the event of a dissolution the wife was entitled to the same benefits she would have received had the husband died. She then asked the court to determine the husband’s assets and to award her a portion of them. The court found the agreement to be vague and ambiguous and accordingly set it aside.

Dissatisfied with this result, the wife appealed the order invalidating the agreement. The husband moved to dismiss the appeal. This court denied the husband’s motion and simultaneously granted the wife’s motion to stay the appeal. The remaining issues in the dissolution action were then tried.

Following the trial, the court entered a final judgment of dissolution of marriage. The court ordered the husband to pay the wife $350,000 as lump sum alimony. The final judgment further directed that in the event of the death of the wife prior to the full payment of the sum awarded, the husband would continue to make payments to the estate of the wife. The judgment specified that the jointly held marital home should be sold at a private sale and that the parties would equally divide the net proceeds of the sale. The final judgment also provided that the husband and wife should bear their own costs and attorney’s fees.

The husband moved for rehearing, or in the alternative, for reconsideration and amendment of the final judgment. In that motion, the husband contested the amount of the award of lump sum alimony because of the short term of the marriage, age discrepancy and prenuptial agreement. The husband also argued that the final judgment, which was recorded by the clerk on May 17, 1982, should be set aside because the wife was involved in an accident on May 14, 1982, and was “clinically dead as of Saturday, May 15, 1982, even though she was maintained on support systems until Wednesday, May 19, 1982, when she was declared legally dead.” The court denied the husband’s motion for rehearing and ' amendment of the final judgment.

On appeal, the husband presents four issues for our review. First, the husband contends that the trial court lacked jurisdiction to enter the final dissolution of marriage because the appeal of the order determining the validity of the prenuptial agreement was pending at that time. Second, the husband contends that the court erred in setting aside the prenuptial agreement. Third, the husband contends that the court should not have summarily denied his motion to set aside the final judgment but instead should have received evidence to determine whether the wife was “clinically” dead prior to rendition of the final judgment. Finally, the husband contends that the court erred in awarding the wife lump sum alimony. On cross-appeal, the personal representative of the wife’s estate contends that the court erred in failing to award the wife attorney’s fees and costs.

The husband’s first point lacks merit. It is clear that our stay order allowed the trial court to proceed to a final hearing and render a final judgment in this case so that all questions could be presented in one appeal. However, we agree with the husband that the court erred in setting aside the prenuptial agreement. Because of our resolution of this issue, we need not address the husband’s remaining issues. As to the cross-appeal, we conclude that the court did not err in denying the wife attorney’s fees and costs. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The relevant paragraphs of the prenuptial agreement provide as follows:

2. First party [husband] agrees, in consideration of the covenants and conditions of this Agreement, that should he die and at the time of his death the parties to this Agreement are still married to each other, that said FIRST PARTY will leave the SECOND PARTY, [wife] by way of Will, not less than twenty-five (25%) percent interest in a Trust which will consist of all the assets of his estate. A copy of said Trust Agreement and Amendment thereto being attached hereto and made a part hereof. It is further understood that this does not prohibit FIRST PARTY from making gifts and/or additional bequests by Will or otherwise to the SECOND PARTY. No such gifts and/or additional bequests shall be deemed a charge against the said 25% left to the SECOND PARTY.
4. It is mutually declared, covenanted and agreed between the parties hereto, that it is their intention, that by virtue of said marriage, neither one shall have or acquire any right, title or interest in and to the real property, personal property, both tangible and intangible, of the other, but the estate of each upon his or her demise shall descend to and vest in his or her heirs at law, legatees or devisees, as may be provided for by his or her last Will and Testament, or by the applicable law of the state, then in force, having jurisdiction of the estate of the deceased party hereto, as though no marriage has taken place between them.
5. The parties further' covenant and agree, that any and all property, real, personal, or mixed, tangible or intangible, or every kind or character, coming to either of the parties of this Agreement during their marriage, shall be enjoyed by him or her and shall be subject to the disposition by him or by her, as his and as her own separate property absolutely; and upon the demise of either party, such property acquired after the date of said marriage shall descend to or vest in his and/or her heirs at law, legatees and devisees, as may be provided for by his and/or her Last Will and Testament, or, by the applicable law of the State, then in force, having jurisdiction of the administration of the estate of the deceased party hereto, as though no marriage had taken place between them. It is the specific intention of the parties hereto, now declared prior to said marriage, that after-acquired property shall descend to his said heirs, legatees and devisees and to her said heirs, legatees and devisees, in the same manner and as fully and completely as the respective property or properties, real, personal and mixed, tangible and intangible, which the parties may now own of this date, or as provided in the paragraphs next preceding.
9. Each of the parties hereto agree that, in the event the within contemplated marriage is consummated and thereafter is dissolved in any manner other than by death of one of the parties hereto, then the terms and provisions of this Agreement shall apply with like force and effect and be binding upon the parties hereto as in the case of the demise of one of the parties hereto. It is specifically understood that in the event of divorce or separation, that the SECOND PARTY' has no right to claim alimony or support from the FIRST PARTY.

In interpreting prenuptial agreements, the courts are guided by the same principles which control the construction of other contracts. Hall v. Hall, 135 So.2d 432 (Fla. 3d DCA 1961). Where a contract is clear and unambiguous, it is the best evidence of the intent of the parties and its meaning and legal effect are questions of law for determination by the court alone. Innkeepers Inter., Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1976). However, if a provision is ambiguous, the matter must be submitted to the finder of fact. See Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981).

In Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982), the court explained that a phrase in a contract is “ambiguous” when it is uncertain of meaning and disputed and must be determined as an issue of fact. Here, the husband contends that the agreement clearly provides that the wife was entitled to nothing in the event of divorce. The wife claimed that she was entitled to twenty-five percent of the husband’s assets upon divorce.

On appeal, the personal representative argues that a full disclosure of the extent of the husband’s estate had not been made prior to the wife signing the agreement. In addition to the fact that this was not the basis for the court’s decision, we note that section 732.702(2), Florida Statutes (1983), legislatively changed the disclosure rule announced in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). See Estate of Roberts, 388 So.2d 216 (Fla.1980). Therefore, the only question is whether the evidence below supports the trial court’s determination that the agreement was vague and ambiguous and not fairly susceptible of one interpretation.

At first glance, the two sentences of paragraph nine would appear to conflict. The first sentence provides that if the marriage is dissolved in any manner other than by death of one of the parties, then the terms of the agreement shall apply and be binding as in the case of the demise of one of the parties. A final judgment of dissolution “dissolves” the marriage in a manner other than by death. However, the last sentence of paragraph nine provides that it is understood that, in the event of divorce or separation, that the wife has no right to claim alimony or support from the husband.

It is the duty of the trial court to attempt to reconcile inconsistencies in a contract in a manner that renders the contract meaningful. Royal Continental Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782 (Fla. 4th DCA 1981); Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974). It is also an elementary principle of contract construction that a reasonable interpretation of a contract is preferred to an unreasonable one. Excelsior Ins. Co. v. Pomona Park Bar & Package, 369 So.2d 938 (Fla.1979). In this instance, the provision that the wife would have no right to claim alimony or support in the event of divorce or separation is clear and unambiguous. A more reasonable interpretation of the agreement and one which would obviate the apparent inconsistency would be that in the event of a divorce, some provisions of the agreement, such as those relating to the retention of personal property, would be binding. However, the provisions of the agreement which clearly apply only upon the death of a party would not be affected.

The order setting aside the prenuptial agreement is REVERSED. Accordingly, the alimony or support provisions of the final judgment are REVERSED. In all other respects, the final judgment is AFFIRMED.

DAUKSCH, J., Associate Judge, concurs.

SHARP, W., Associate Judge, dissents in part with opinion.

SHARP, W., Associate Judge,

dissenting in part.

The probable reason the trial court denied the wife any attorney’s fees in this case was its substantial lump sum alimony award which we have just reversed. Accordingly, I think the trial court should be given the opportunity to reconsider its denial of fees to the wife under the present circumstances. I would reverse the denial of fees and remand this proceeding to the trial court for further consideration of that issue.

      . Judges James C. Dauksch, Jr., Frank D. Up-church, Jr. and Winifred J. Sharp were appointed as associate judges of the Fourth District Court of Appeal to hear this case.

      . The parties were married on June 19, 1977.


text:
    SKYLIGHT CORPORATION d/b/a The Blue Room Lounge, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-2370.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.
    Rehearing Denied June 7, 1984.
    Charles R. Wilson, Tampa, for appellant.
    James N. Watson, Jr., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).

CAMPBELL, A.C.J., and SCHOON-OVER and LEHAN, JJ.-, concur.


author: DANIEL S. PEARSON, Judge.

text:
    Norman SENFELD, Appellant, v. The BANK OF NOVA SCOTIA TRUST COMPANY (CAYMAN) LIMITED, Appellee.
    No. 83-854.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.

      Robert A. Shupack and William T. Coleman, Hollywood, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Bradford Swing, Miami, for appellee.
    Before NESBITT, DANIEL. S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

A jury returned a verdict finding by a preponderance of the evidence that Norman Senfeld wrongfully deprived the appel-lee, The Bank of Nova Scotia Trust Company (Cayman) Limited, of $10,000 that belonged in the Trust Company’s possession and, additionally, that Senfeld knowingly obtained or used this money with an intent to deprive the Trust Company of a right to or benefit from it, or with an intent to appropriate it to his own use. Based upon the latter finding, which in effect determined that Senfeld had violated Florida’s Anti-Fencing Act, more commonly called the theft statute, see §§ 812.012, et seq., Fla.Stat. (1983), the trial court, pursuant to Section 812.035(7), tripled the damages found by the jury and entered judgment against Senfeld for $30,000. Senfeld appeals contending, as he did below, that (1) the Trust Company’s counts for conversion, replevin and theft, having been filed more than five years after Senfeld’s receipt of the $10,000 in question in 1975, were barred by the applicable statutes of limitations; (2) the theft statute, authorizing the tripling of actual damages, was enacted in 1977 and cannot be retroactively applied to a taking which occurred in 1975; (3) the Trust Company’s claim under the theft statute was required to be proved beyond a reasonable doubt; and (4) it was the jury’s, not the trial court’s, function to triple the damages. We reject Senfeld’s contentions and affirm.

I.

Norman Senfeld was the President of Maccabee, a corporation whose, account was managed by the appellee. In September 1975, Senfeld requested the appellee to send $10,000 to him in Miami and to debit his Maccabee account. On September 4, 1975, the appellee cabled Pan American Bank in Miami to pay the money to Senfeld and indicated that Bank of Nova Scotia, New York would cover this payment. On September 5, 1975, Pan American gave Senfeld a cashier’s check and, without authority or instruction, debited the account of Bank of Nova Scotia, Toronto to cover the payment. Unaware of Pan American’s anomalous act, the appellee, as originally intended, cabled its New York affiliate to cover the $10,000. When New York sent the money to Pan American, the latter bank (already whole by virtue of having debited Toronto) thought it was to pay $10,000 more to Senfeld, and on September 22, 1975, turned over another $10,000 in cash to Senfeld. At this point, Senfeld was up $10,000 and Bank of Nova Scotia, Toronto was out $10,000. In November 1978, Toronto finally solved the mystery of its $10,000 shortage, and on December 1,1978, notified the appellee. The appellee immediately paid Toronto the money and began an investigation. In May of 1979, now assured that Senfeld owed it the money, the appellee wrote to Senfeld demanding that he return the money. When Senfeld failed to respond to the demand that he return the $10,000, the appellee, in January 1981, instituted a suit for conversion, replevin and damages pursuant to the theft statute.

II.

A.

It is well settled that a conversion is an unauthorized act which deprives another of his property permanently or for an indefinite time. See Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948). See also West Yellow Pine Co. v. Stephens, 80 Fla. 298, 304, 86 So. 241, 243 (1920) (“[T]he essential elements of a conversion is [sic], a wrongful deprivation of property to the owner, and neither manucaption nor asportation is an essential element thereof.”); Quitman Naval Stores Co. v. Conway, 63 Fla. 253, 58 So. 840 (1912); King v. Saucier, 356 So.2d 930 (Fla. 2d DCA 1978); Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla. 2d DCA), cert. denied, 354 So.2d 983 (Fla.1977); International Mail Order, Inc. v. Capital National Bank of Miami, 192 So.2d 287 (Fla. 3d DCA 1966); Goodrich v. Malowney, 157 So.2d 829 (Fla. 2d DCA 1963); General Finance Corp. of Jacksonville v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963); Armored Car Service, Inc. v. First National Bank of Miami, 114 So.2d 431 (Fla. 3d DCA 1959). Where a person having a right to possession of property makes demand for its return and the property is not relinquished, a conversion has occurred. But while a demand and refusal constitute evidence that a conversion has occurred, it is unnecessary to prove a demand and refusal where the conversion can be otherwise shown. Anderson v. Agnew, 38 Fla. 30, 20 So. 766 (1896). See also Watts v. Hendry, 13 Fla. 523 (1869-71); Robinson v. Hartridge, 13 Fla. 501 (1869-71); Mabie v. Tutan, 245 So.2d 872 (Fla. 3d DCA 1971); Goodrich v. Malowney, 157 So.2d at 832 (“The purpose of proving a demand for property by a plaintiff and a refusal by a defendant to return it in an action for conversion is to show the conversion. The generally accepted rule is that demand and refusal are unnecessary where the act complained of amounts to a conversion regardless of whether a demand is made.”). Thus, the essence of conversion is not the possession of property by the wrongdoer, but rather such possession in conjunction with a present intent on the part of the wrongdoer to deprive the person entitled to possession of the property, which intent may be, but is not always, shown by demand and refusal.

In the present case, the jury would have been justified in finding from the evidence that although Senfeld came into possession of the money in 1975, his intent to deprive the Trust Company of the property was not formed until 1979, when the Trust Company’s demand for the return of the property went unanswered. Since the special verdict form submitted to the jury with Sen-feld’s acquiescence did not require the jury to state when the conversion occurred, the verdict may be upheld against the attack that the action for conversion or theft was limitations barred by simply presuming that the jury found the conversion occurred in 1979. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

But even if, arguendo, the evidence indisputably showed that the conversion occurred in 1975, there is yet another theory to justify the jury’s implicit finding that the Trust Company’s action for conversion was not limitations barred. Over Senfeld’s objection, the jury was charged that the statute of limitations would begin running from the time the wrongful act was discovered or should have been discovered. By finding for the Trust Company, the jury could have found that discovery occurred or should have occurred within four years of the filing of suit. Senfeld contended below and contends here that the Trust Company’s ignorance of the existence of the conversion did not postpone the running of the statute of limitations and that, as a matter of law, the Trust Company’s time for filing suit for conversion expired in September 1979, four years after Sen-feld received the money. We reject this argument as well.

While it is true that “mere ignorance of the facts which constitute the cause of action will not postpone the operation of the statute of limitations,” Franklin Insurance Co. v. Tharpe, 131 Fla. 213, 214, 179 So. 406, 407 (1938), it is equally true that where the plaintiff’s ignorance is blameless, the cause of action will not arise until the plaintiff knows or is chargeable with knowledge of an invasion of his legal right, Miami Beach First National Bank v. Edgerly, 121 So.2d 417 (Fla.1960) (action against bank for payment on a forged endorsement does not arise until maker receives, or by exercise of reasonable business care would have received, notice that endorsement forged); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954) (medical malpractice action does not arise until notice of consequences or negligent act); see Franklin Insurance Co. v. Tharpe, 179 So. 406.

Senfeld suggests, however, that this discovery rule (that is, that the plaintiff knew or should have known of his cause of action) is limited to those actions, such as products liability or fraud, where the statute of limitations expressly provides that the period within which the action must be brought runs from the time of discovery or constructive discovery, § 95.031(2), Fla.Stat. (1983), and that all other actions, including conversion, run from the time the cause of action accrues, that is, “when the last element constituting the cause of action occurs,” § 95.031(1), Fla.Stat. (1983).

Concededly, the court in Houston v. Florida-Georgia Television Co., 192 So.2d 540 (Fla. 1st DCA 1966), applied the rule of expressio unius, exclusio alterius (the application of which is here urged by Senfeld) in deciding that a cause of action for invasion of privacy ran from the time the invasion occurred, not when the plaintiff first discovered the invasion. Finding discovery language in the statute of limitations relating to fraud (§ 95.11(5)(d), Fla.Stat. (1965)), but finding no such language in the statute of limitations pertaining to an invasion of privacy action (§ 95.11(4), Fla.Stat. (1965)), the court in Houston concluded that absent a specific postponement provision, one would not be read into the statute of limitations as a whole. While Houston certainly supports Senfeld’s position, reliance upon it as authority is unjustified in light of City of Miami v. Brooks, 70 So.2d 306, and Miami Beach First National Bank v. Edgerly, 121 So.2d 417, and, a fortiori, in light of the later decisions of Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969), and Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978). In both Brooks and Edgerly, the Florida Supreme Court applied the discovery rule to actions (negligence and contract, respectively) other than one where the statute of limitations expressly provided for the application of the rule. In Creviston, the court, relying on Brooks and Edgerly, did the same and concluded that

“From the standpoint of legal principles, the holdings in the cases above discussed appear to crystalize in favor of application of the blameless ignorance doctrine in those instances where the injured plaintiff was unaware or had no reason to know that an invasion of his legal rights has occurred. In reality, such a doctrine is merely a recognition of the fundamental principle that regardless of the underlying nature of a cause of action, the accrual of the same must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights.”
225 So.2d at 334 (emphasis supplied).

Were there any doubt about the continued vitality of Houston after Creviston, such doubt was set to rest in Lund v. Cook, 354 So.2d 940, by the very saipe court which decided Houston. There the court held that the express inclusion of discovery language in the statute of limitations relating to certain specified causes of' action (by then, products liability, fraud and professional malpractice) did not abrogate the rule of Creviston that regardless of the underlying nature of the cause of action, the cause of action accrues with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights.

We conclude, therefore, that the discovery rule applied to the Trust Company’s action for conversion and that there was substantial evidence to support a jury’s determination, únder proper instructions, that the Trust Company neither discovered nor should have discovered the conversion, even assuming such conversion occurred in 1975, until, at the earliest, 1978.

B.

Senfeld’s separate argument that the Trust Company’s cause of action under the theft statute is limitations barred proceeds from the premise that because the statute provides a civil remedy for a crime, rules pertaining to criminal cases apply. He concludes, therefore, that since the statute of limitations for crimes begins to run when the crime is committed or when it is complete, see State v. King, 282 So.2d 162 (Fla.1973), without regard to when the crime is discovered, the statute of limitations began to run in 1975 when he appropriated the $10,000 to his own use.

Senfeld is mistaken in his premise. Although Section 812.035, Florida Statutes, the civil remedies section of the theft statute, is quite clearly incorporated in a statute which defines and prohibits crimes, it does not follow that rules pertaining to criminal-cases apply to the civil action brought thereunder. Thus, in James v. Brink & Erb, Inc., 452 N.E.2d 414 (Ind.Ct.App.1983), the defendant argued that in order to recover in a civil action brought under Indiana’s nearly-identical theft statute, the plaintiff was required to show a violation of the statute by proof beyond a reasonable doubt, the standard of proof in criminal eases. The court rejected this argument, stating:

“[The statute] provides that a person suffering a pecuniary loss ‘may bring a civil action ’ .... If the language used in a statute is clear and unambiguous, the plain meaning of the statute will be given effect .... In enacting [the statute], the legislature conferred a right to bring a civil action; therefore, the plaintiff bears the burden generally imposed in a civil case, that of proving his claim by a preponderance of the evidence.”
452 N.E.2d at 416 (emphasis in original; citation omitted).

Accord, Ludwig v. Kowal, 419 A.2d 297 (R.I.1980) (case involving statúte similar to Florida’s theft statute; court referred only to rules of civil procedure to determine that summary judgment for plaintiff was properly granted); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982) (same; RICO). Cf. United States v. Cappetto, 502 F.2d 1351, 1357 (7th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975) (“A civil proceeding to enjoin [criminal] acts is not rendered criminal in character by the fact that the acts also are punishable as crimes.”).

Perhaps even more compelling is the language of Section 812.035(10), which states in part:

“Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced at any time within 5 years after the cause of action accrues .... ” (emphasis supplied).

The Legislature’s choice of “after the cause of action accrues” as the starting point for the commencement of the running of the statute of limitations is, in light of existing judicial construction of such language in civil cases, see, e.g., Creviston v. General Motors Corp., 225 So.2d 331, strong indication that it intended that the limitations period for civil and criminal actions under Sections 812.012-812.037 will commence to run in accordance with the separate rules applicable to such cases.

We conclude, therefore, that the court properly instructed the jury that the discovery rule applied to the Trust Company’s civil action for theft and that even assuming the theft occurred in 1975, there was substantial evidence to support a jury’s determination that the Trust Company neither discovered nor should have discovered the theft until, at the earliest, 1978.

III.

Assuming, once again, that the theft, even though not discovered until 1978, indisputably occurred in 1975, two years prior to the effective date of the theft statute, Senfeld argues that the Trust Company’s cause of action for theft cannot be sustained because the statute cannot be retroactively applied. While it is true that in the absence of an express legislative declaration that a statute have retroactive effect, the statute will be deemed to operate prospectively only, Fleeman v. Case, 342 So.2d 815 (Fla.1976); Thayer v. State, 335 So.2d 815 (Fla.1976); Larson v. Independent Life & Accident Insurance Co., 158 Fla. 623, 29 So.2d 448 (1947), and that even a clear expression of retroactivity will be ignored if the statute impairs vested rights, creates new obligations, or imposes new penalties, Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); Fleeman v. Case, 342 So.2d 815; accord, State v. Lavazzoli, 434 So.2d 321 (Fla.1983), neither of these rules of statutory construction applies where the statute is solely remedial or procedural, Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); McCord v. Smith, 43 So.2d 704 (Fla.1949); Department of Transportation v. Cone Brothers Contracting Co., 364 So.2d 482, 486 (Fla.2d DCA 1978), reversed, 384 So.2d 154 (Fla.1980) (“A curative or remedial statute is necessarily retrospective in character.”); Grammer v. Roman, 174 So.2d 443, 446 (Fla. 2d DCA 1965) (“Remedial statutes are exceptions to the rule that statutes do not come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes.”). Cf. Village of El Portal v. City of Miami Shores, 362 So.2d 275 (remedial statute with specific retroactivity provision).

We have little difficulty in concluding that Section 812.035 is remedial in nature and thus applies retroactively. The statute itself, in Section 812.037, states that “notwithstanding s. 775.021 [strict construction for crimes], ss. 812.012-812.-037 shall not be construed strictly or liberally, but shall be construed in light of their purposes to achieve their remedial goals.” (emphasis supplied). Moreover, like statutes have been consistently construed as remedial in nature. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (triple damages under the antitrust statute); Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969) (new penalties under usury law could be applied retrospectively to a contract entered into before the effective date of the statute).

IV.

Senfeld’s final contention that only the jury is permitted to triple the actual damages awarded is also without merit. The analogous treble-damage provision of the Sherman Antitrust Act requires as a matter of law that the actual damages found by the jury be tripled. See Locklin v. Day-Glo Color Corp., 429 F.2d 873 (7th Cir.1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971). See also Hydrolevel Corp. v. American Society of Mechanical Engineers, 635 F.2d 118 (2d Cir.1980), affirmed, 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (appellate court accepted without discussion that trial court tripled damages awarded by jury); Yentsch v. Texaco, Inc., 630 F.2d 46 (2d Cir.1980) (same). It follows, of course, that the awarding of triple damages is nothing more than a ministerial act which has nothing whatever to do with the fact-finding function of the jury. We think the same holds true for the award of triple damages under Section 812.035(7), Florida Statutes.

Affirmed.

      . The trial court reserved jurisdiction to award attorneys' fees and costs. See § 812.035(7), Fla.Stat. (1983).

      . Senfeld raises several additional points concerning the quality of the evidence against him or the quality of the trial, which we find either to merit no discussion or which we will discuss in passing.

      .In all, three letters were sent to Senfeld. Despite the pleasant tone of the letters, it is clear to us that a demand for return of the money was made upon Senfeld.

      . The property herein is sufficiently identifiable to be capable of being converted. See Aero International Corp. v. Florida National Bank of Miami, 437 So.2d 156 (Fla. 3d DCA 1983); (obligation to pay accrued interest on an escrow account); Allen v. Gordon, 429 So.2d 369 (Fla. 1st DCA 1983) (money wrongfully withdrawn from bank account); All Cargo Transport, Inc. v. Florida East Coast Railway., 355 So.2d 178 (Fla. 3d DCA), cert. denied, 359 So.2d 1214 (Fla.1978) (creditor’s application of money sent by debtor to satisfy debt other than one for which money earmarked). Neither Belford Trucking Co. v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1970) (failure to pay an indebtedness on an open account is not conversion), nor Armored Car Service, Inc. v. First National Bank of Miami, 114 So.2d 431 (Fla. 3d DCA 1959) (money in deposit bag capable of being converted), supports Senfeld’s contention that the $10,000 in the present case was not capable of being converted.

      . Unlike conversion, the essence of an action for replevin is the "unlawful detention of personal property from plaintiff at the commencement of the action, regardless of whether defendant acquired possession rightfully or wrongfully....” Pavlis v. Atlas-Imperial Diesel Engine Co., 121 Fla. 185, 189, 163 So. 515, 516 (1935). See Delco Light Co. v. John Le Roy Hutchinson Properties, 99 Fla. 410, 128 So. 831 (1930); see also Security Underwriting Consultants v. Collins, Tuttle Investment Corp., 173 So.2d 752 (Fla. 3d DCA 1965). Thus, the cause of action for replevin first arises with the refusal to return the property upon demand. Since the demand and refusal occurred in the present case in 1979 and the action was commenced two years later, it is obvious that Senfeld’s claim that the action was barred by the applicable four-year statute of limitations, see § 95.11(3)(h) and (i), Fla.Stat. (1977), is totally without merit.

      . An action for an intentional tort must be commenced within four years. § 95.11(3)(o), Fla.Stat. (1979).

      . The court found in Lund that the express inclusion of the discovery rule in these certain causes of action was merely to point out that regardless of the date of discovery, there would be a maximum outside limit for the bringing of the action.

      . Senfeld’s contention that the Trust Company’s action under the theft statute was required to be ■ proved by proof beyond a reasonable doubt is rejected by us for these reasons and upon this authority.

      . It follows that a criminal conviction is not a necessary predicate to recovery under the civil remedies provisions of the theft statute. See Roush v. State, 413 So.2d 15 (Fla.1982); Jayre Inc. v. Wachovia Bank & Trust Co., 420 So.2d 937 (Fla. 3d DCA 1982). Accord, United States v. Cappetto, 502 F.2d 1351; Heinold Commodities, Inc. v. McCarty, 513 F.Supp. 311 (N.D.Ill.1979); Farmers Bank v. Bell Mortgage Corp., 452 F.Supp. 1278 (D.Del.1978); James v. Brink & Erb, Inc., 452 N.E.2d 414.

      . Having decided that the statute of limitations for an action for conversion or theft begins to run from the time one is on notice or reasonably should be on notice of the conversion or theft, it is irrelevant whether the Trust Company showed that Senfeld fraudulently concealed his actions from the Trust Company. To the extent that the dictum in Bove v. PBW Stock Exchange, Inc., 382 So.2d 450, 452-53 (Fla. 2d DCA 1980), that the statute of limitations "begins to run at the time of the conversion, except where the latter is fraudulently concealed" suggests that the victim of the conversion must demonstrate not merely a lack of discovery or constructive discovery on his part in order to avoid the running of the statute of limitations, but rather a fraudulent concealment on the part of the converter, we disagree with such a suggestion.

      .If in fact the jury had found that the theft took place in 1975 (that is, Senfeld took the money with the then-formed intent to wrongfully deprive the Trust Company of it) and that the Trust Company knew or should have known of it at that time, then even assuming, arguendo, that the five-year statute of limitations provided in Section 812.035(10) applied, but see Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); McGlynn v. Rosen, 387 So.2d 468 (Fla. 2d DCA 1980), rev. denied, 392 So.2d 1376 (Fla.1981), the Trust Company’s action would have been limitations barred and the question of whether the statute is to be applied retroactively rendered moot.

      . The theft statute did not newly create the crime of conversion. Instead, it incorporated under theft "[c]onduct previously known as stealing; larceny; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud or deception; ...” § 812.012(2)(d)1 (emphasis supplied). See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982). Thus, Senfeld was on notice that conversion was unlawful in 1975, and no due process right of his would be implicated by applying the statute retroactively.

      . This statement is limited to Section 812.035 providing for civil remedies. In Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), the court held that the State hád to prove the elements of a crime under the old larceny statute rather than the new theft statute, where the crime was committed before the effective date of the statute.

      . Since the existing case law is clear that remedial legislation is given retroactive effect, and the Legislature is presumed to know such existing law, Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984), the Legislature’s declaration that the statute is remedial in purpose is tantamount to a declaration that it is to be given retroactive effect.

      . The jury did not refuse to award triple damages; the issue simply was not submitted to the jury for its consideration. Thus, Senfeld’s argument is not that the trial court’s award of triple damages overrode the jury’s verdict, but even if it were, it would fare no better than his argument that the tripling of damages is solely within the province of the jury.

      . Title 15 U.S.C. § 15 (1982) provides in pertinent part:
      “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controvérsy, and shall recover threefold the damages by him sustained, ...”
      Section 812.035(7), Florida Statutes (1983), provides in pertinent part:
      “Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 shall have a cause of action for threefold the actual damages sustained


author: FERGUSON, Judge.

text:
    A & E INTERNATIONAL ENTERPRISES, INC., Appellant, v. GOLD CREDIT COMPANY, Appellee.
    No. 83-2610.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    As Amended on Denial of Rehearing June 19, 1984.
    Taylor, Brion, Buker & Green and Amol-do Velez, Miami, for appellant.
    Stroock & Stroock & Lavan and Gary A. Dumas, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

As to an award of attorney’s fees to a prevailing party pursuant to the provisions of an instrument sued upon (wherein it is agreed that “a reasonable attorney’s fee shall be ten (10%) percent of the original principle amount”), Section 687.06, Florida Statutes (1983) creates a conclusive presumption that the award is reasonable so long as the amount of the fee does not exceed ten percent of the principal amount of the instrument. We are not persuaded that the statute, so construed, is unconstitutional.

Affirmed.

      . Section 687.06, Florida Statutes (1983) provides in pertinent part:
      [I]t shall not be necessary for the court to adjudge an attorney's fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed 10 percent of the principal sum named in said note, or other instrument in writing.


author: WENTWORTH, Judge.

text:
    BURNUP & SIMS, INC., and Crawford & Company, Appellants, v. Max E. SKINNER, Appellee.
    No. AV-225.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   WENTWORTH, Judge.

This is an appeal from an order determining claimant’s average weekly wage. The issues presented are: (1) whether the deputy commissioner erred in finding the average weekly wage was $430.74 and rejecting evidence that it was less; (2) whether the deputy commissioner erred in finding that the amount of claimant’s average weekly wage was res judicata when the order giving rise to the application of the doctrine of res judicata was entered during the pend-ency of an appeal in the same case.

During pendency of an appeal of an earlier order herein, the deputy found that since the parties had stipulated to a minimum average weekly wage he had jurisdiction to hear the claim for wage loss benefits for periods subsequent to the order being appealed. On September 29, 1982, he entered an order finding that the parties had stipulated to a minimum average weekly wage of $430.74, and awarded wage loss benefits. On December 6, 1982, this court dismissed the appeal which had been pending when the deputy awarded the wage loss on the ground that the appealed order was nonfinal and nonappealable. Burnup & Sims, Inc. v. Skinner, 422 So.2d 1076 (Fla. 1st DCA 1982). On June 29, 1983, the deputy entered an order reinstating the order which had resulted in the dismissal, amending the average weekly wage to reflect the amount of $430.74:

The claimant argued that the stipulated minimum figure of $430.74 [incorporated in the order awarding wage loss] was now res judicata and also, that this represents the third time the employer/servicing agent has proposed a different average weekly wage, which under the circumstances of this case they should not be allowed to do.
The undersigned does accept the position of the claimant and does rule that the claimant’s average weekly wage is $430.74.

On the first issue, although appellants make the assertion that the only evidence before the deputy commissioner shows that claimant’s average weekly wage was $401.00, we find in this record no evidence of claimant’s average weekly wage. Thus, even if all of the procedural problems are resolved in appellant’s favor, the record does not support reversal. Second, although the parties assume that the question of claimant’s average weekly wage was the subject of his earlier appeal, that is not the case. The subject of the appeal was the propriety of the deputy’s vacating his order because one party came in with new evidence which could have been provided in a timely manner. Even if this court had reached the merits of the appeal, it would not have decided the question of claimant’s average weekly wage but would have decided whether the deputy properly agreed to reconsider the average weekly wage himself. Thus, while the question of claimant’s wage was unsettled while the appeal was pending, it was not an issue before this court for decision. Workers’ Compensation Rule 20(b)(3) provides “[pjending appeal the deputy shall retain jurisdiction to enter orders on all matters of the claim which have not been appealed.” Because the determination of average weekly wage was not pending on appeal, the deputy was free to make a determination based on stipulation in connection with the wage loss claim. The fact that an appeal may be mooted by the parties’ subsequent actions does not usurp the appellate function or authority.

Affirmed.

ZEHMER and BARFIELD, JJ., concur.