author: HOBSON, Acting Chief Judge.

text:
    W.R. DANIEL, Jr., as Property Appraiser of Hillsborough County, Florida, and the Department of Revenue, State of Florida, Appellants, v. T.M. MURRELL CO., INC., d/b/a The Montessori House and Thomas M. Murrell and Kay Murrell, his wife, Appellees.
    No. 83-513.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1984.
    Rehearing Denied Feb. 24, 1984.
    Alton B. Parker and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants, Property Appraiser.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellants, Department of Revenue.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
   HOBSON, Acting Chief Judge.

Appellants, defendants below, seek reversal of a final summary judgment entered in favor of appellees, plaintiffs below. We affirm.

This case commenced on December 21, 1981, when appellees filed an action against appellants challenging the 1981 real property tax assessment upon certain property owned by appellees located in Hillsborough County. Count I of the complaint sought a determination that the subject property was exempt from real property ad valorem taxes for 1981 pursuant to the education exemption contained in chapter 196, Florida Statutes (1981). Count II of the complaint alleged that the taxing authority’s actions violated due process and equal protection. Answers were filed, after which appellees filed a motion for summary judgment. Thereafter, the lower court granted final summary judgment in favor of appellees, ruling that the'relevant property was exempt. The lower court, basing its ruling upon section 196.192, Florida Statutes (1981) and section 196.012(1), Florida Statutes (1981), held that property which is used exclusively for educational purposes need not be titled in the name of the educational institution in order to be exempt from ad valorem taxation pursuant to section 196.192, Florida Statutes.

The relevant facts of this case are as follows. In 1979, Mr. and Mrs. Murrell, appellees, purchased certain real property which was to be used as a private school. Prior to the purchase of the property, Mr. and Mrs. Murrell incorporated T.M. Murrell Co. The accredited private school, known as “The Montessori House” is operated by Mr. and Mrs. Murrell through T.M. Murrell Co. The subject property is leased by Mr. and Mrs. Murrell to the school and is used exclusively for educational purposes. T.M. Murrell Co., Inc., pursuant to the lease, pays Mr. and Mrs. Murrell, as owners and lessors of the property, the ad valorem taxes assessed against the property. The Hillsborough County property appraiser denied exempt status because the landowner (Mr. and Mrs. Murrell, individually) did not use the property for educational purposes, notwithstanding the fact that the lessee (T.M. Murrell Co.) did.

Appellants argue, inter alia, that section 196.198, Florida Statutes (1981), which exempts from taxation property used for educational purposes, controls and therefore a concurrence of educational use and ownership of the property by the institution is required for the exemption to apply. Appellants urge that, moreover, when section 196.198 is read together with sections 196.-192 and 196.012(4), the clear meaning of the total statutory enactment is that an educational institution must also be the holder of the legal title in order for the exemption to apply. In support of this basic proposition, appellants cite Coppock v. Blount, 145 So.2d 279 (Fla. 3d DCA 1962). We find appellants’ argument unconvincing for the following reasons.

In Coppock, plaintiffs owned real property upon which they established a private school. Thereafter, plaintiffs and their children formed a corporation to continue the operation of the school. The income from the corporation was used to pay teaching salaries to the individual plaintiffs, administrative expenses and rent. The complaint seeking exemption was dismissed by the trial court which held that in order for the exemption to apply, the ownership of the property and the operation of the educational institution must coincide. Id. at 281.

Although Coppock was factually similar to the instant case, in affirming, the district court of appeal was called upon to construe the provisions of section 192.06(3), Florida Statutes, not section 196.192(1), Florida Statutes, the statutory section upon, which the trial court based its holding in the instant case. Moreover, Coppock was decided prior to the enactment of section 196.192, Florida Statutes (1981). Thus, appellants’ reliance on Coppock is misplaced.

As appellees point out, section 196.-192(1), which emphasizes the “use” of property, is new language added by the legislature in 1971 by chapter 71-133, section 3, Laws of Florida. This legislative enactment is consistent with prior judicial rulings which emphasized the character of the use rather than the character of ownership. Overstreet v. Indian Creek Village, 248 So.2d 2 (Fla.1971); State v. Inter-American Center Authority, 84 So.2d 9 (Fla.1955); Tre-O-Ripe Groves, Inc. v. Mills, 266 So.2d 120 (Fla. 1st DCA 1972).

As pointed out by the trial court, article VII, section 3, Florida Constitution (1968 Revision), emphasizes use rather than ownership for purposes of exemption. Further, section 196.192 specifically exempts from ad valorem taxation all property used exclusively for exempt purposes rather than exempting property from taxation generally as provided by section 196.-198, Florida Statutes.

We agree with the trial court, whose ruling comes to this court clothed in the presumption of correctness, that section 196.192(1), Florida Statutes, controls the validity of the exemption in this case. We therefore hold that the exemption from ad valorem taxes provided in section 196.-192(1), Florida Statutes, applies to the subject property, which is used for exempt purposes, without regard to legal ownership.

Accordingly, we affirm the final summary judgment.

AFFIRMED.

SCHEB and RYDER, JJ., concur.

      . Section 196.192, Fla.Stat., provides in pertinent part:

        Exemptions from ad valorem taxation.—
      (1) All property used exclusively for exempt purposes shall be totally exempt from ad valo-rem taxation.

      . Section 196.012(1), Fla.Stat., provides:
      (1) "Exempt use of property” means predominant or exclusive use of property for educational, literary, scientific, religious, charitable, or governmental use as defined in this chapter.

      . Section 196.198, Fla.Stat., provides in pertinent part:

        Educational property; exemptions. — Educational institutions within this state and their property used exclusively for educational purposes shall be exempt from taxation. (Emphasis added.)

      .Section 196.012, Definitions. — •
      (4) "Educational institutions” means state, parochial, church, and private schools, colleges, and universities conducting regular classes and courses of study required for eligibility to certification by, accreditation to, or membership in the State Department of Education of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Independent Schools.

      . Section 192.06, Fla.Stat. (1961), provided in pertinent part:
      The following property shall be exempt from taxation:
      (3) Such property of educational institutions ... as shall actually be occupied and used by them for the purpose for which they have been ... organized.... (Emphasis added.)
      Legislative history indicates that § 192.06(3), Fla.Stat. (1961), was replaced by § 196.191, Fla. Stat. (1969). Section 196.191 was repealed in 1971. Appellants urge that § 196.191 was replaced contemporaneously with § 196.198, Fla. Stat. (1981), ch. 71-133, Laws of Florida, §§ 10, 15, and thus Coppock would be applicable to this case.

      . Article VII, § 3, Fla.Const. (1968 Revision), states:
      (a) ... Such portions of property as are used predominantly for educational, library, scientific, religious or charitable purposes may be exempted by general law from taxation.


source: Caselaw Access Project

author: OTT, Chief Judge.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Petitioner, v. Sammie Lee STEWART and Alton M. White, Respondents. FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Petitioner, v. DALE MABRY NORTH, INC., a Florida corporation, Patriot Petroleum Distributors, Inc., a Florida corporation; C.E. Brown, Gulf Regional Contractors, Inc., and L.T.P. & R. Investment Company, Inc., Respondents.
    Nos. 83-1599, 83-1705.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 23, 1984.
    Mark A. Brown and Robert W. Pass of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for petitioner.
    Michael R. Carey of Barnett, Bolt & Russo, Tampa, for respondents White, Patriot, and Brown.
    Stephen L. Siciliano, Reston, Va., Senior Counsel for Bd. of Governors of Federal Reserve System, Washington, as amicus curiae.
   OTT, Chief Judge.

In these consolidated petitions for writ of certiorari, the petitioner, Federal Deposit Insurance Corporation (FDIC), asks this court to quash orders of the lower court granting discovery. We grant in part the petition in No. 83-1705.

FDIC, as liquidator of The Metropolitan Bank and Trust Company, brought suit to collect certain debts owed to the bank by the respondents. In response to a motion to compel discovery filed by respondents in No. 83-1705, FDIC was ordered to produce, among other things, documents in its possession but subject to restrictions imposed by Federal Regulations of the Board of Governors of the Federal Reserve. See 12 C.F.R. §§ 261.6 and 261.7 (1982). These regulations specifically prohibit FDIC from complying with the court’s order.

A similar situation occurred in Hialeah-Miami Springs First State Bank v. B.S. Enterprises, Inc., 353 So.2d 1243 (Fla. 3d DCA 1978). There, the bank was required to produce for inspection reports issued by FDIC. The reports in question were the property of FDIC and not to be disclosed. The third district reversed, holding that the lower court should authorize B.S. Enterprises to seek to obtain the records from “the necessary Federal officials” but not from the bank. Id. at 1244.

Likewise, in our case respondents should merely have been authorized to seek to obtain the documents from the proper Federal Reserve officials. We therefore quash that portion of the order in No. 83-1705 requiring FDIC to produce the previously described Federal Reserve documents.

FDIC also challenges orders in both cases requiring production of confidential reports of the Comptroller of the State of Florida. See § 655.057(1), Fla.Stat. (1981). The lower court’s orders restrict access to the reports and otherwise protect the confidentiality of the reports. We therefore deny the petitions for certiorari as regards the Comptroller reports.

Certiorari GRANTED IN PART and DENIED IN PART.

DANAHY and CAMPBELL, JJ., concur.

      . Specifically, 12 C.F.R. § 261.7(b) provides:
      (b) Appearance by person served
      Unless the Board has authorized disclosure of the relevant information, or except as provided in 18 U.S.C. 1906, any person having information of the Board that may not be disclosed under this part who is required to respond to a subpoena or other legal process shall attend at the time and place therein mentioned and decline to disclose such information or gives any testimony with respect thereof, basing his refusal upon the part. If the court or other body orders the disclosure of such information or the giving of such testimony, the person having such information of the Board shall continue to decline to disclose such information and shall promptly report the facts to the Board for such action as the Board may deem appropriate.

      . Section 655.057(l)(b) provides:
      The following records and information of the Department are confidential:
      ... 3. reports of examination or operations, working notes or papers and memoran-da and records or portions thereof, containing or relating to an examination, operation, or condition report prepared by, or on behalf of or for use by the Department or any other agency, state or federal, responsible for the regulation or supervision of financial institutions in this state or affiliates thereof ... any person receiving confidential information pursuant to the provisions of this subpara-graph shall maintain the confidentiality of the information.


author: NIMMONS, Judge. ERVIN, Chief Judge,

text:
    PIPER AIRCRAFT CORPORATION, Appellant, v. Sandra PRESCOTT, as personal representative of the estate of Royce W. Prescott, deceased, Appellee.
    No. AR-152.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Rehearing Denied March 2, 1984.

      McClure & Gay, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for appellant.
    Stephen A. Smith of Smith & Smith, Lake City, for appellee.
   NIMMONS, Judge.

This is an appeal from a non-final order pursuant to Fla.R.App.P. 9.130(a)(5) granting plaintiff’s motion for relief from voluntary dismissal.

The plaintiff, who had filed a notice of voluntary dismissal pursuant to Fla.R. Civ.P. 1.420(a)(1), filed a motion in the lower court seeking an order relieving her from the effect of her voluntary dismissal and reinstating the suit. The court granted her motion. We reverse.

This wrongful death action, which arose out of an airplane accident, was filed in the Circuit Court in Dixie County in March 1981. Venue of a companion case, which involved a claim for wrongful death of another occupant of the airplane, was transferred in November, 1981, to Indian River County. Thereafter, in March, 1982, plaintiff filed a second suit on the same wrongful death cause of action in Indian River County. On June 3, 1982, appellant Piper Aircraft Corporation (Piper), which had not yet been served with initial process in the first suit (the Dixie County suit), filed a motion to dismiss in the first suit for failure to prosecute. Prior to hearing on that motion, plaintiff filed the above referred notice of voluntary dismissal of the Dixie County suit.

In September, 1982, Piper filed a motion for summary judgment in the Indian River County suit claiming that the second suit was time-barred by the applicable limitations period. On December 3, 1982, the court in that case entered an order granting Piper’s motion for summary judgment and entered final judgment thereon. However, after hearing on plaintiff’s motion for rehearing, the court entered an order “staying” the Indian River summary judgment pending disposition of the Dixie County case.

Meanwhile, plaintiff had filed in the Dixie County case on November 11, 1982, her motion for relief from the voluntary dismissal. Her sworn motion, which was filed pursuant to Fla.R.Civ.P. 1.540(b), claimed that her attorney decided to file the second suit in Indian River County after Piper successfully asserted its venue privilege in the companion case and caused its transfer to Indian River County. Her attorney claimed the following: that plaintiff left the Dixie County case pending “so as to protect plaintiff’s position relative to any possible statute of limitations”; that Piper’s attorney called plaintiff’s counsel and advised him of Piper’s concern about the pendency of the two cases in different counties; that counsel for plaintiff and Piper agreed that in order to convenience counsel for Piper and to avoid the necessity of conducting further proceedings to abate or transfer the Dixie County case, plaintiff would dismiss that case; that before plaintiff’s counsel got around to dismissing the Dixie County case, Piper’s attorney filed the motion to dismiss for failure to prosecute; that when plaintiff’s counsel called Piper’s attorney to remind him of their previously discussed plan, Piper’s attorney confirmed that the “agreement” was still in effect; and that plaintiff’s counsel then filed on June 22, 1982, the notice of voluntary dismissal.

At the hearing on the plaintiff’s motion for relief from voluntary dismissal, counsel for Piper was present but did not participate in the hearing for fear of inadvertently subjecting his client to the jurisdiction of the court since Piper supposedly had never been served with initial process in the case. Therefore, Piper did not controvert the facts asserted by plaintiff. Such facts will be taken as true for purposes of this appeal.

In its January 17, 1983, order setting aside the voluntary dismissal and reinstating the action, the trial court found as follows: that Piper’s attorney had induced plaintiff’s counsel to dismiss the Dixie County case so that only one action would be pending; that the purpose in dismissing the case was to accomplish the same thing as a venue transfer and to convenience counsel for Piper; that, if not expressly agreed, it was implied in the agreement between counsel that “no harm would befall plaintiff as a result of any statute of limitations” if plaintiff voluntarily dismissed the Dixie County case; and that the case was dismissed by plaintiff “as a result of the artifice or misrepresentations of defendant, and not because of any tactical reasons or miscalculations by plaintiff’s attorney.”

We are of the view that plaintiff was not entitled to an order relieving her from the voluntary dismissal notice. Fla.R.Civ.P. 1.540(b)(3), upon which the court relied in granting plaintiff’s motion for relief, provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons:
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party ....

Even assuming the existence of fraud or misrepresentation within the meaning of Rule 1.540(b)(3), there was no “judgment, decree, order or proceeding” from which the court could relieve the plaintiff under that rule.

In Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), the Supreme Court dealt with a similar question. There, plaintiff’s counsel took a voluntary dismissal but later filed a motion for relief from the dismissal upon learning that he had made a mistake concerning the running of the applicable statute of limitations. The Third District agreed with the trial court’s granting of the motion on the theory that a voluntary dismissal was a “proceeding” which may be reached by a claim of mistake under Fla.R.Civ.P. 1.540(b), Randle-Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084, 1085 (Fla. 3rd DCA 1977). The Supreme court disagreed holding that no “proceeding” existed upon which Rule 1.540(b) could operate and that the trial court lost jurisdiction upon the filing of the Rule 1.420(a) voluntary dismissal. Stated the court:

The right to dismiss one’s own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of “jurisdiction.” If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding.. The policy reasons for this consequence support its apparent rigidity.
We approve the view of the First and Fourth District Courts of Appeal that a voluntary dismissal under Rule 1.420(a)(l)(i) divests the trial court of jurisdiction to relieve the plaintiff of the dismissal.

360 So.2d at 69.

In Randle-Eastern, the Supreme Court cited with approval our decision in Anderson v. Lovejoy, 354 So.2d 951 (Fla. 1st DCA 1978), pet. for review denied 366 So.2d 396. In that case, plaintiffs prior counsel filed a notice of voluntary dismissal. Subsequently, she filed a motion under Rule 1.540(b) for relief from the dismissal claiming that her attorney had advised her that she could refile although, in fact, the period of limitations had already run. We reversed the trial court’s order granting the plaintiff’s motion and stated:

The trial court acted in excess of its jurisdiction by entertaining plaintiff’s motion to reactivate the dismissed action. The lawyer’s erroneous advice, inducing the plaintiff to consent to the dismissal, was not remediable under Rule 1.540(b), Fla.R.Civ.P.

354 So.2d at 952.

Plaintiff asserts that her situation is controlled by the post-Randle-Eastern case of Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364 (Fla. 4th DCA 1982). There, the plaintiff sought relief from a Rule 1.420(a) notice of voluntary dismissal in which plaintiff asserted that its attorney’s secretary had inadvertently included the words “with prejudice” in the notice of dismissal. The Fourth District affirmed the trial court’s granting of the plaintiff’s motion. The court held that the error in the notice of dismissal was a clerical mistake correction of which a trial court is empowered to make at any time pursuant to Rule 1.540(a). The Fourth District distinguished that situation from that which was before the Supreme Court in Randle-Eastern:

The [Randle-Eastern\ court’s careful use of the qualifying phrases “volitional dismissal” and “tactical mistakes” strongly suggests to us an intention to withhold Rule 1.540(b) relief only in those situations in which, as was the case in Randle, a voluntary dismissal is entered deliberately and as a result of attorney miscalculation.
In our view a dismissal with prejudice found to have been entered as the result of secretarial error is simply not a “volitional dismissal” as we understand the term....

411 So.2d at 367. Unlike Shampaine, however, plaintiff’s voluntary dismissal in the instant case was volitional. Plaintiff intended for the case to be dismissed just as the notice of voluntary dismissal indicated. The fact that the decision to dismiss, as the trial court found, was induced by “artifice or misrepresentations of defendant” does not, in our view, qualify the plaintiff for relief by reinstatement of the dismissed action.

Our holding should, in no way, be construed as authority precluding plaintiff from raising such “artifice or misrepresentations” in a subsequently filed action (such as the Indian River County case) as an estoppel to Piper’s raising a statute of limitations defense. Compare A & G Aircraft Service, Inc. v. Johnson, 192 So.2d 74 (Fla. 4th DCA 1966). Moreover, our disposition of the issues before us is in no way affected by plaintiff’s success or failure in asserting such estoppel argument in the Indian River County case.

The order appealed is REVERSED and the cause is REMANDED to the trial court for the entry of an order denying plaintiff’s motion for relief from voluntary dismissal.

THOMPSON, J., concurs.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

As the majority’s opinion reflects, Ran-dle is the controlling case on whether a trial court loses jurisdiction to proceed once a plaintiff announces a voluntary dismissal of his action. As a plaintiffs voluntary dismissal has the effect of barring any later action which could be favorable to a defendant, it follows that public policy requires the plaintiff to bear the concomitant risk that the dismissal “may prove prejudicial to the ultimate success of the litigation.” Randle, 360 So.2d at 69.

The majority of decisions addressing this issue post-Randle have taken the opinion to mean precisely what it says: “[W]hen a claimant voluntarily dismisses an action pursuant to Florida Rule of Civil Procedure 1.420(a)(l)(i), the trial court loses jurisdiction to set aside that voluntary dismissal under Rule 1.540(b).” Carolina Casualty Company v. General Truck Equipment & Trailer Sales, Inc., 407 So.2d 1095, 1096 (Fla. 1st DCA 1982) (e.s.). See generally Heston v. Vitale, 432 So.2d 744 (Fla. 4th DCA 1983); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983); Knight v. County of Alachua, 396 So.2d 846 (Fla. 1st DCA 1981); American Home Assurance Co. v. Fredrikson, 391 So.2d 358 (Fla. 2d DCA 1980); Tinsley v. McDonald, 378 So.2d 816 (Fla. 3d DCA 1979); Hayden v. Hayden, 373 So.2d 436 (Fla. 3d DCA 1979); Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla. 4th DCA 1979).

A growing number of intermediate appellate courts, however, in an attempt to circumvent Randle’s holding that a trial court lacks jurisdiction to afford relief from a voluntary dismissal on any of the grounds provided in Rule 1.540(b), have fashioned “exceptions” to Randle’s broad rule of preclusion. Some state that Randle does not apply to situations in which a plaintiff voluntarily “dismisses” parties to an action rather than the entire action itself. See Siler v. Lumbermens Mutual Casualty Company, 420 So.2d 357 (Fla. 5th DCA 1982); Gonzalez v. Turner, 427 So.2d 1123 (Fla. 3d DCA 1983). A “narrow exception” has also been carved out where “a fraud on the court is attempted by the filing of the voluntary dismissal, in which case the court may strike the voluntary dismissal and reinstate the matter.” Romar International, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346, 347 (Fla. 5th DCA 1982) (e.s.); Bevan v. D ’Alessandro, 395 So.2d 1285 (Fla. 2d DCA 1981); Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979). Finally, as the majority observes, it has been held that a voluntary dismissal does not divest a trial court of its inherent power and jurisdiction to correct clerical, as opposed to substantive, errors pursuant to Rule 1.540(a). See Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364 (Fla. 4th DCA 1982); McKibbin v. Fujarek, 385 So.2d 724 (Fla. 4th DCA 1980). See also Atlantic Associates, Inc. v. Laduzinski, 428 So.2d 767, 768 (Fla. 3d DCA 1983) (where litigant can demonstrate existence of any grounds set out in Rule 1.540, trial court may correct alleged mistakes and errors at any time).

The present case presents yet another wrinkle in the debate over whether Randle precludes relief from voluntary dismissals regardless of the grounds asserted. Here appellee relied on neither Rule 1.540(a) (clerical mistake) nor 1.540(b)(7) (mistake, inadvertence, surprise or excusable neglect). Instead, she sought relief from the voluntary dismissal pursuant to Rule 1.540(b)(«?), which provides for relief from judgment in those instances where the judgment results from “fraud ..., misrepresentation or other misconduct of an adverse party; _” (e.s.) If, as this court and others, have interpreted Randle, a trial court is divested of jurisdiction to grant relief under any of the five grounds set out in Rule 1.540(b), then relief was improperly granted below, even in light of the very compelling facts of this case.

Although the facts before us inspire a strong temptation to apply still another exception to Randle, I feel obligated to concur with my colleagues’ decision that Randle is controlling and requires reversal. Randle clearly holds that Rule 1.540(b) may not be used to enable “the trial courts of this state to relieve attorneys of their tactical mistakes. 360 So.2d at 69. If that principle is to be “revisited, reconsidered, or revised, that prerogative rests exclusively with the Supreme Court and not with us.” Dozier v. Wood, 431 So.2d 184, 187 (Fla. 1st DCA 1983). Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), however, I would certify to the Supreme Court the following question which, in my view, is of great public importance:

WHETHER A VOLUNTARY DISMISSAL DIVESTS A TRIAL COURT OF JURISDICTION TO RELIEVE A PLAINTIFF OF SUCH DISMISSAL WHEN IT IS ALLEGED, PURSUANT TO RULE 1.540(b)(^), THAT THE DISMISSAL WAS CAUSED BY THE FRAUD, MISREPRESENTATION OR OTHER MISCONDUCT OF AN ADVERSE PARTY?


author: PER CURIAM.

text:
    Bobby D. RICH, Appellant, v. The BABCOCK COMPANY, a corporation, Metal Products, Inc., a corporation, Broward Roofing Distributors, Inc., a corporation, and Edward Saunders, Appellees.
    No. 83-1065.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied March 12, 1984.
    Donald C. Dowling of Gringle, Spinner, Dittman, Federspiel, Dowling & Manning, Delray Beach, for appellant.
    Robert D. Moses of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appel-lee Edward Saunders.
   PER CURIAM.

Because factual issues exist as to the nature and extent of the responsibility of appellee, Edward Saunders, for the alleged inadequate clothing worn by the appellant at the time he was injured by hot tar, we believe the trial court erred in entering summary judgment for Saunders. Accordingly, this cause is reversed and remanded for further proceedings in accord herewith.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


text:
    Brian Scott BRIDGES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1665.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Robert C. Stone and Craig K. Satchell, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPON PETITION FOR REHEARING

PER CURIAM.

We initially affirmed Per Curiam, 444 So.2d 425, the convictions of appellant, Brian Scott Bridges, without opinion. One of the appellate grounds asserted was the alleged ineffective assistance of counsel. We abide by our earlier affirmance. However, said affirmance shall be without prejudice to the right of appellant to present his allegations of ineffective assistance of counsel to the trial court via Fla.R.Crim.P. 3.850.

Except for the foregoing, the Petition for Rehearing is

DENIED.

GLICKSTEIN and WALDEN, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.


author: BOOTH, Judge.

text:
    Barry BONIFAY, Appellant, v. Robert Edward GARNER, Appellee.
    No. AM-226.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Rehearing Denied Feb. 24, 1984.

      John B. Carr, Pensacola, for appellant.
    John P. Welch of Jones & Welch, Pensacola, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from final judgment quieting title to land located in Escambia County, which judgment is in pertinent part as follows:

1. That the deed from the developer who originally platted the property herein involved in this action, did convey Block 70, East Pensacola, according to map of J.E. Kauser drawn in 1893, together with any rights that they may have to the riparian rights belonging to any of the foregoing lots or blocks.
2. That Lots 7, 8, 9, 10, 11 and 12 of Block 70 of said subdivision are adjacent to the shoreline of Bayou Texar and the grantees were the recipient of the riparian rights contained in the deed to the property described in Paragraph 1.
4. The description of the property set out in the complaint is a sufficient identification of the property. ‘A’ survey of the property sought to be quieted is attached to and made a part of the complaint. A description is sufficient by which the identity of the land can be established or which furnishes means of identification. A roadway is considered a monument on the ground which is sufficient to identify a boundary.
5. The property owners and their predecessors in title have fenced the property, filled in a portion thereof, cultivated same and exercised dominion thereon for a period of in excess of thirty (30) years, which is indicative of the facts that they were asserting their riparian rights to the property.

This case is the latest in a series of disputes over the ownership of sections of a strip of waterfront property located between Bayou Boulevard and the shoreline of Bayou Texar, a navigable body of water. The lots now owned by appellant Bonifay and appellee Garner were acquired pursuant to the recorded plat of the subdivision of East Pensacola. That plat shows the land in dispute, an unnamed and undes-ignated strip, as running north and south along the western boundary of the subdivision, between the platted lots and blocks on the east and the meandering shoreline of Bayou Texar on the west. There is no indication on the plat of a road or street on the western boundary of the subdivision, but evidence establishes that in 1908, a wagon trail existed along the undesignated property adjacent to the western boundary of what is now appellee’s property. With the passage of time, the wagon trail became more extensively used, until it was finally graded and paved by the county and officially designated as Bayou Boulevard. Neither the earlier wagon road nor the present Bayou Boulevard has ever, apparently, extended all the way to the shoreline, and there remains a strip of land between the water and the road which is referred to herein as the “disputed strip.” The disputed strip lies across Bayou Boulevard from the residential lot owned by appellee, is of apparently undefined width, and follows the meandering shoreline.

Appellee Garner brought suit as owner or trustee of residential Lots 7 through 12 in Block 70 of East Pensacola Subdivision, seeking to quiet title in these lots and in the strip of waterfront property located across Bayou Boulevard from the residential lots. Appellee claimed title from a valid chain of title going back to a 1908 deed from East Pensacola City Company to C.H. Turner Construction Company. Alternatively, appellee claimed title to the waterfront property by adverse possession.

Appellant Barry Bonifay, the owner of residential lots in East Pensacola Subdivision, was allowed to intervene, both individually and as a representative of a class consisting of lot owners in the subdivision. Bonifay claims an easement of access to Bayou Texar over the disputed land. This claim of implied easement of access is based upon the conveyance of appellant’s subdivision lots with reference to an 1893 map which shows the property in dispute as an undesignated beach or road right-of-way area.

East Pensacola City Company, Inc., a dissolved Florida corporation, C.H. Turner Construction Company, Escambia Realty, and any parties claiming under these entities, were made party to the suit herein, and a brief on their behalf was filed in this court adopting the position of the appellant, Barry Bonifay, herein. The City of Pensacola, also an appellee, filed a supplemental brief.

After a hearing on the matter, the trial court entered a final judgment set out, supra, in pertinent part, holding appellee entitled to quiet title in the residential lots and in the waterfront property. In quieting fee simple title in appellee, the court implicitly rejected appellant’s claim of an implied easement over the waterfront property. It is unclear whether the final judgment is based on a finding of conveyance of fee simple title to the disputed waterfront property by the “riparian rights” language of the 1908 deed or on a theory of adverse possession, or on some other basis. Since our duty as an appellate court requires that the judgment below be affirmed if it can be supported on the evidence presented, we have reviewed the 'briefs and record, propounded supplemental written interrogatories to the parties, had supplemental briefing, oral argument, and reviewed all authorities cited, in an effort to fulfill that obligation.

Two matters are not in dispute here: (1) the ownership of appellee’s subdivision lots, and (2) the trial court’s holding that there was no public dedication of the un-designated strip, a holding which is not challenged on appeal.

The following issues will be addressed: (1) whether appellee’s fee simple title to the waterfront property can be sustained, based on deeds to appellee and his successors referring to “riparian rights;” (2) whether appellee has obtained title to the waterfront property by adverse possession; and (3) whether appellants are entitled to implied easements of access over the disputed property.

Deed Referring to “Riparian Rights”

In 1908, the East Pensacola City Company conveyed blocks and lots in East Pensacola Subdivision to C.H. Turner Construction Company, appellee’s predecessor in title, by the following deed:

KNOW ALL MEN BY THESE PRESENTS, that the East Pensacola City Company, Incorporated, for and in consideration of ONE HUNDRED DOLLARS ($100.00) and other valuable consideration ... do bargain, sell,-and convey and grant unto the C.H. Turner Company, the following described property, to-wit:
All of Blocks 8, 24, 38, 51, 67, 70, and 74. Also Lots 1 to 5 inclusive, and 17 to 32 inclusive, in Block 16. All of the foregoing lots and blocks being in East Pensacola according to map of J.E. Kauser drawn in 1893.
Grantors hereby convey any right that they may have to the riparian rights belonging to any of the foregoing lots or blocks, (emphasis added)

The judgment below finds that Lots 7 through 12 of Block 7, conveyed by the above-quoted deed, are “adjacent to the shoreline of Bayou Texar,” a finding which appears unsupported by any evidence in the record or inference arising therefrom. On the contrary, the subdivision map, by reference to which the property was conveyed, shows that there is a strip of land between the boundaries of Lots 7 through 12 and the shoreline. On this state of the facts, the lots deeded appellant are not adjacent to Bayou Texar and have no riparian rights.

Riparian rights consist of rights of ingress, egress, boating, bathing, and fishing, and are incident to land bordering on navigable waters. A conveyance of property bordering on navigable waters im-plieitly conveys riparian rights, but the reverse is not true. Thus, a purported conveyance of “riparian rights,” independently of the underlying waterfront property, does not by implication or otherwise convey the waterfront property itself. Here, a conveyance of whatever riparian rights the grantors might have in the specified lots, which lots because of their location have no riparian rights, conveys no more than what the grantor has, to-wit: land without riparian rights. Further, the only land described in the 1908 deed is that specifically designated by lots or blocks. There is no description of the waterfront property in dispute.

Adverse Possession

In Florida, title to land may be acquired by adverse possession, either “under color of title,” Section 95.16, Florida Statutes, or “without color of title,” Section 95.17, Florida Statutes. Meyer v. Law, 287 So.2d 37 (Fla.1973). There was evidence adduced below which could form the basis of a finding by the trial court that appellee, and his mother, predecessor in title, exercised sufficient dominion and control over the waterfront property by fencing, improving, and maintaining it for the requisite time period, but the question remains as to whether this possession was “under color of title” in conformance with Section 95.16.

One who claims under color of title must base the claim on a written instrument which purports to convey the property. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314 (Fla.1943). The written instrument constituting color of title need not be valid or operative, but it must contain a legally sufficient description of the property. If the description is insufficient to identify the land, possession cannot be “under color of title.” Further, in Florida, the doctrine of color of title is available-only in eases where the instrument purporting to be a conveyance is accepted in good faith and in the honest belief that it vests title in the claimant. Simpson v. Lindgren, 133 So.2d 439 (Fla. 3d DCA 1961). Accordingly, adverse possession under color of title may not be established where the purported title is accepted with knowledge of its invalidity.

As previously stated, the 1908 deed does not purport to describe the waterfront property and is insufficient to convey fee simple title to appellee Garner. Without a description of the disputed land in the deed, the claim of adverse possession under color of title must also fail. Although the 1908 deed purports to convey “riparian rights,” it is not contended that such rights can be acquired through adverse possession independently of the waterfront land itself.

Appellee asserts that City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), involves similar facts and supports his claim of adverse possession. However, the facts in Walker indicate that the trial court could have found adverse possession without color of title by a possession perfected before 1939 and prior to the amendment of Section 95.17, Florida Statutes, which requires that taxes be paid on the property where adverse possession without color of title is claimed. In the instant case, appellee’s predecessors in title did not enter into possession of the disputed property until a decade after the 1939 amendment, and, admittedly, did not pay taxes on the subject waterfront property. As a result, any claim of fee simple title based on adverse possession must depend upon satisfaction of the requirements of Section 95.16 governing adverse possession under color of title.

Appellee asserts that the deeds from Ruby Garner to her son in 1961 and to her brother in 1962 clearly identify the lands possessed by appellee and his predecessors in title for the last 30 years and that this fact was recognized by the circuit court in the Lee and Melton cases, cited supra at Footnote 1, wherein title to the waterfront property across Bayou Boulevard from Lots 1 through 6 of Block 70 was quieted.

The 1961 deed to appellee from his mother, Ruby Garner, conveys Lots 10, 11, and 12 in Block 70, referencing the subdivision map and “the riparian rights belonging to the foregoing property.” This description is insufficient as a description of waterfront property and, for the reasons previously indicated, will not support a claim of adverse possession under color of title to waterfront property which is not described in the deed.

As to Lots 7, 8, and 9, there is a 1962 deed from appellee’s mother, Ruby Garner, predecessor in title, conveying those lots to Jewell E. Lee and Laura Layne Lee, husband and wife, and containing a description of the disputed waterfront property. The grantee of the 1962 deed is the brother of the grantor, and appellant points out that the deed was executed for minimum consideration and that the following day a nearly identical deed containing the same sufficient legal description of the waterfront property was executed from the brother back to appellee’s mother. A question is thus presented as to whether there was good faith and an honest belief in the title under Simpson v. Lindgren, supra. This issue, not addressed by the trial court in the judgment below, if resolved favorably to appellee, would allow an award of title based on adverse possession under color of title of that portion of the waterfront property described in the deed.

Implied Easements of Access

Appellant asserts that the trial court erred in failing to find that he, as an owner of a lot in the platted subdivision, had an easement of access over the waterfront property in dispute. In McCorquodale v. Keyton, 63 So.2d 906, 910 (Fla. 1953), the Florida Supreme Court stated the rule that when lots are sold with reference to a recorded subdivision plat, the purchasers acquire by implied covenant a private easement in lands of the grantor other than those specifically deeded, the purpose of the rule being “not to create public rights, but to secure to persons purchasing lots under such circumstances those benefits, the promise of which, it is reasonable to infer, has induced them to buy portions of a tract laid out in the plan indicated.”

The evidence presented, including the 1908 deed and referenced subdivision map, would support a finding that appellant, and others similarly situated, have an implied easement of access to the waterfront property west of Bayou Boulevard, unless these private easements have been extinguished by adverse possession, abandonment, non-user, estoppel, or some other basis. See, 20 Fla.Jur.2d Easements, Sections 23, 27 through 43, and cases cited therein; 28 C.J.S. Easements, §§ 53, 60, 63. There is a factual question presented in this case as to whether the actions of appel-lee and his predecessors in title, by fencing of the disputed strip and preventing access, have cut off the implied private easements of other lot owners. The rules governing the extinction of easements, as well as those which govern the acquisition of easements, incorporeal hereditaments, by prescription, differ from those rules which apply, by statute in Florida, to acquisition of title to land by adverse possession.

Thus, the trial court’s implicit denial of the claim of private easements for owners of other lots, if not sustainable on the title by deed or adverse possession theories, may be sustainable on other grounds. Ownership of the fee of the disputed strip is not required in order for one to establish, under the doctrine of prescription, the right to maintain a fence and dock such as were apparently maintained here for more than the prescriptive period. The record below and the trial court’s determination of these questions is not clear.

In summary, we hold that appellee has failed to establish title to the disputed strip by deed or by adverse possession, but preserve for the trial court’s express finding possible adverse possession with color of title as to Lots 7, 8, and 9 under the 1962 deed which describes a portion of the disputed strip. The trial court’s implicit ruling that lot owners in the subdivision had no easement of access over the disputed strip may be sustainable but requires findings by the court which recognize the implied private easements and determine that they have been extinguished.

Accordingly, the judgment below is reversed and the- cause remanded for further proceedings consistent herewith, including the taking of such further evidence, if any, as the court may require in order to expressly determine the issues remaining.

WIGGINTON and NIMMONS, JJ., concur.

      . The parties have brought to our attention several earlier cases, reported and unreported, dealing with land situated between Bayou Boulevard and Bayou Texar, and involving some of the issues presented in this appeal:
      (1) Whether the 1908 deed, referencing the 1893 .map, supports an implied easement of access to the waterfront property on behalf of the subdivision lot owners.

        Morain v. Herwig (unreported), Case No. 42,189 (Circuit Court for Escambia County, March 2, 1962), in which a mandatory injunction was granted directing the defendants to remove all fences and other obstructions erected on waterfront property lying across Bayou Boulevard from the lots owned by them and enjoining the defendants from exercising any acts of ownership on the property. (This case was not appealed.)

        Muller v. Bainter, Case No. 81-170 (Circuit Court for Escambia County, November 24, 1981), affirmed per curiam by this court in Bainter v. Muller, 419 So.2d 1202 (Fla. 1st DCA 1982), in which plaintiff lot owners were found to have an easement for ingress and egress to Bayou Texar over the waterfront property across Bayou Boulevard from Block 81.
      (2) Whether the strip of land in question was offered for dedication to the public through the recording of the plat and accepted by the public through use over a long period of time, thereby precluding a subsequent claim of adverse possession.

        City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), wherein this court approved the trial court’s finding that the evidence affirmatively established a lack of acceptance of dedication by the public, except as to the right-of-way of Bayou Boulevard, so that adverse possession by the Walkers was not precluded.

        (3)Whether title to the disputed waterfront property had been perfected under a claim of adverse possession.

        City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), wherein this court held evidence in the record supported the trial court’s finding that the Walkers had perfected title by adverse possession of the property by open, notorious, and continuous possession under a claim of right since 1908.

        Lee v. East Pensacola City Company and Melton v. East Pensacola City Company, Cases No. 79-1076 and 79-1077 (Circuit Court for Escambia County, October 23, 1980) (unreported), in which title was quieted from the waterfront property located across Bayou Boulevard from Lots 1 through 6 of Block 70 in the owners of those lots. (The final judgment did not discuss the basis for plaintiffs’ claims of title. This case was not appealed.)

      . City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), involving the same undesig-nated strip, affirmed finding of no public dedication except as to the right-of-way of Bayou Boulevard.

      . Section 197.228, Florida Statutes, defines riparian rights, in part, as follows:
      (1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing and fishing and such others as may be or have been defined by law.... The land to which the owner holds title must extend to the ordinary high water mark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.

      . City of Pensacola v. Walker, 167 So.2d 634, 635 (Fla. 1st DCA 1964):
      The plat [of East Pensacola Heights] reflects an unnamed and undesignated strip of land running north and south along the western boundary of the subdivision between the platted lots and blocks on the east, and the meandering shoreline of Bayou Texar on the west. Appellees’ predecessors pioneered the settlement of this subdivision, having purchased their property and built their home there in the early months of 1908....

      The chancellor found from the evidence that shortly after they built their home and moved upon the lots purchased by them, appel-lees’ predecessors in title went into possession of that part of the disputed strip of land lying between their property and the bayou, filled in swampy areas of it and constructed thereon valuable improvements. It was further found that possession of the disputed land by appel-lees and their predecessors had been open, notorious and continuous for a period of more than fifty years under a claim of right, thereby ripening into a valid fee simple title. We find competent substantial evidence in the record to support these findings, (emphasis added)

      . Deed from Ruby Garner to Jewel E. Lee and Lorraine Lee (1962) (only Lots 7, 8, and 9 are involved in this suit):
      Lots 1, 2, 3, 4, 5, 6, 7, 8, and 9 in Block 70, East Pensacola, as per plat of same as drawn by J.E. Kauser in 1893. The grantor hereby conveys the riparian rights belonging to the above numbered lots which is shown by that certain deed from the East Pensacola City Co., Inc., dated October 1, 1908 and recorded in Deed Book 55 at page 79, of the Public Records of Escambia County, Florida.
      This conveyance is intended to include the improvements on the waterfront of this property such as a pier and the fence and the concrete walks thereon, and also the following described property to wit: Commencing at the Northeast corner of Block 70, East Pensacola Heights, thence West along the North line of said Block an extension thereof 380.65 feet to Bayou Texar for point of beginning, thence East over line last traversed 59 feet to Bayou Boulevard, thence South 6 [degrees] 40 [minutes] West 164.09 feet, thence South 16 [degrees] 37 [minutes] West 143 feet to the South line of said Block extended, thence West 82.15 feet to said Bayou Texar thence Northerly with said Bayou to point of beginning, less that portion of the above described property lying across Bayou Boulevard and due West of lots 10, 11, & 12, heretofore deeded by the grantor herein, including' the riparian rights to the latter described property being conveyed.

      . See, e.g., Florida Power Corp. v. McNeely, 125 So.2d 311, 320 (Fla. 2d DCA 1960):
      The third point here argued advances the query whether the proviso of section 95.18 is applicable to an easement. This proviso specifics a condition relating to the return for . taxation and payment of taxes on the land possessed by the adverse claimant. It is one of the requirements which must be met in order to acquire title without color of title so that it is applicable to the acquisition of title through adverse possession. It does not concern the acquisition of an easement, but neither does the time period apply as prescribed by that statute for adverse possession.


text:
    CITY OF TALLAHASSEE, Appellant, v. LEON COUNTY POLICE BENEVOLENT ASSOCIATION, INC., and Public Employees Relations Commission, Appellees.
    Nos. AP-386, AQ-378.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    James M. Blue and Sara L. Bernsley of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for appellant.
    Gene “Hal” Johnson, Gainesville, for ap-pellee PBA and Stephen A. Meek, Tallahassee, for appellee PERC
   PER CURIAM.

These consolidated cases involve appeals by the City of Tallahassee from two orders of the Public Employees Relations Commission, one finding that the City had committed an unfair labor practice and awarding attorneys’ fees to appellee, Leon County Police Benevolent Association (P.B. A.), and the other finding that the P.B.A. had not committed an unfair labor practice. These orders are supported by competent substantial evidence and do not depart from the essential requirements of law. Further, the award of attorneys’ fees under Section 447.503(6)(c), Florida Statutes (1981), has not been shown by appellant to have been an abuse of discretion. City of Lake Worth v. Palm Beach County Police Benevolent Association, 413 So.2d 465 (Fla. 4th DCA 1982).

AFFIRMED.

SMITH, JOANOS and NIMMONS, JJ, concur.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Richard DEL GAUDIO, a/k/a “Richie,” and Howard Turnoff, Appellees.
    Nos. 82-770, 82-774.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 12, 1984.

      Jim Smith, Atty. Gen., Janet Reno, State Atty. and Gertrude M. Novicki and Anthony C. Musto, Asst. State Attys., for appellant.
    Louis Vernell, Sunny Isles, James G. Roth, Miami Beach, Kurt Marmar, Coral Gables, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The question presented by the State’s appeal is whether dismissal of criminal charges is a permissible sanction under Florida Rule of Criminal Procedure 3.220 where the State has been grossly negligent and dilatory in furnishing the defendants with essential discovery material, which delay has not affected the defendants’ ultimate ability to defend against the charges and has not, as yet, been found to have violated their right to a speedy trial guaranteed by Florida Rule of Criminal Procedure 3.191. We conclude that under the circumstances described, dismissal of the charges was not warranted. Accordingly, we reverse the order under review and remand the case to the trial- court for further proceedings.

I.

In July 1981, the defendant DelGaudio was charged in two informations with conspiracy, gambling, extortion, criminal mischief and other activities; the defendant Turnoff was charged with extortion, criminal mischief and conspiracy to commit such offenses. The investigation leading up to the filing of these charges generated an extensive amount of documents, surveillance reports, tapes of intercepted conversations, pen register printouts, and the like. The defendants promptly requested this discovery material, and by October 1981 found it necessary to seek the aid of the court to obtain the production. After two court orders requiring, inter alia, the production of the pen register printouts did not succeed in bringing about the required production, the defendants moved to dismiss the charges against them. On December 30, 1981, satisfied by the State’s representation that all discovery material had now been produced, the trial court denied the defendants’ motions to dismiss.

Trial was to begin on January 4, 1982, the last day possible within the speedy trial rule. However, on December 30, 1981, after being advised that the ease would have to be assigned to another trial judge in order for the trial to begin as scheduled, the defendants, to avoid this reassignment, agreed to extend the speedy trial time to May 1, 1982.

On February 3, 1982, the State’s earlier representation that all discovery material had been furnished was belied when it turned over to the defense additional and arguably crucial surveillance reports. This turn-over precipitated the filing by the defendants of a motion to dismiss under Rule 3.220 based on the discovery violation, and a motion for discharge for violation of the speedy trial requirements under Rule 3.191. The trial court granted the motion to dismiss and specifically declined to rule on the motion for discharge.

II.

The authority to impose sanctions for a party’s failure to comply with an applicable discovery rule or court order concerning discovery in a criminal case is found in Florida Rule of Criminal Procedure 3.220(j):

“(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed, or enter such other order as it deems just under the circumstances. “(2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.”

Although the choice of sanction is within the discretion of the trial court, see Richardson v. State, 246 So.2d 771 (Fla.1971); McDonnough v. State, 402 So.2d 1233 (Fla. 5th DCA 1981); State v. Lowe, 398 So.2d 962 (Fla. 4th DCA 1981); accord, United States v. Bockius, 564 F.2d 1193 (5th Cir. 1977), the appellate court may determine whether this discretion has been abused, see Filgueiras v. State, 291 So.2d 21 (Fla. 3d DCA), cert. denied, 295 So.2d 113 (Fla.1974); accord, United States v. Bullock, 551 F.2d 1377 (5th Cir.1977).

Dismissal of an information or indictment is “an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists.” State v. Lowe, 398 So.2d at 963. See State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980). Accord, United States v. Campagnuolo, 592 F.2d 852, 865 (5th Cir.1979) (“The supervisory powers of a district judge ... allow him to impose the extreme sanction of dismissal of an indictment with prejudice only in extraordinary situations.”); United States v. Miranda, 526 F.2d 1319, 1324 n. 4 (2d Cir.1975). The obvious rationale for limiting the sanction of dismissal of criminal charges to only those cases where no other sanction can remedy the prejudice to the defendant is to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct. And, of course, where the prosecutor’s failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public, not the prosecutor, and results in a windfall to the defendant. Because the rule authorizing the imposition of sanctions for discovery violation was “never intended to furnish a defendant with a procedural device to escape justice,” Richardson v. State, 246 So.2d at 774, even when a defendant has been tried and convicted without having been furnished discovery material to which he was entitled, and the material is thereafter disclosed and made available to him, the relief granted is not dismissal of the charges, but a new trial, Goldberg v. State, 351 So.2d 332 (Fla.1977); Waters v. State, 369 So.2d 979 (Fla. 3d DCA 1979), dismissed, 386 So.2d 642 (Fla.1980). Accord, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

III.

When a discovery violation is called to the trial court’s attention by a defendant’s timely objection or motion, Lucas v. State, 376 So.2d 1149 (Fla.1979), the court is required to conduct the hearing prescribed by Richardson v. State, 246 So.2d 771, in which hearing it must determine “what effect, if any, did [the violation] have upon the ability of the defendant to properly prepare for trial.” Richardson v. State, 246 So.2d at 775 (quoting Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970)). While it is the State’s burden to prove the defendant has not been prejudiced, and “the circumstances establishing non-prejudice ... [must] affirmatively appear on the record,” id.; but see Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1977) (placing the burden of proof on the defendant); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980), cert. denied, 398 So.2d 1352 (Fla.1981), approved for other reasons in Webb v. State, 398 So.2d 820 (Fla.1981) (same), if the defendant is shown not to have been prejudiced by the violation, no sanction may be imposed against the State. Richardson v. State, 246 So.2d at 774. Cf. Lucas v. State, 376 So.2d at 1151. Thus,

“[t]he key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the State’s failure to produce the requested evidence.... If the defense were prejudiced, Florida law would require reversal whether or not the State had acted in good faith.... But where prejudice is not shown by the noncompliance, reversal is not warranted.”
Jones v. State, 360 So.2d 1293, 1296-97 (Fla. 3d DCA 1978) (citation omitted).

See also Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983); Collier v. State, 353 So.2d 1219. Accord, United States v. Ariza-Ibarra, 651 F.2d 2 (1st Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); United States v. Bullock, 551 F.2d 1377; United States v. Acosta, 526 F.2d 670 (5th Cir.), cert. denied, 426 U.S. 920, 96 S.Ct. 2625, 49 L.Ed.2d 373 (1976); United States v. Johnson, 390 F.Supp. 1049 (E.D.N.Y.), aff'd, 525 F.2d 999 (2d Cir.1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 327 (1976).

The existence of prejudice, then, is the sine qua non for relief from a discovery violation. Assuming, arguendo, that a defendant who has triggered the State’s obligation to furnish information and material within the State’s possession and control suffers some prejudice to his ability to prepare for trial for as long as that disclosure is not forthcoming, such prejudice is completely removed when the defendant is provided with the discovery information and material and is afforded an adequate opportunity to make use of the information and material in the preparation of his defense. When the State furnishes the discovery sufficiently in advance of the scheduled trial date to enable the defendant to utilize the discovery in the prepara- ' tion of his defense, there is no longer any prejudice from the previous delay. If the discovery material and information comes too late to permit the trial to proceed as scheduled, the prejudice is extinguished when the trial is continued.See State v. Banks, 418 So.2d 1059 (Fla. 2d DCA), rev. denied, 424 So.2d 760 (Fla.1982) (reversing dismissal; continuance appropriate sanction where despite State’s failure to notify defendant of certain eyewitnesses to alleged crime, defendant learned of such information some twelve days before the expiration of the speedy trial period); State v. Lowe, 398 So.2d 962 (reversing dismissal; continuance appropriate sanction where State furnished discovery on eve of trial, and three weeks remained before expiration of speedy trial period); State v. Perez, 383 So.2d 923 (Fla. 2d DCA 1980) (reversing dismissal; continuance appropriate sanction as to those defendants who had waived speedy trial rights); State v. King, 372 So.2d 1126 (vacating dismissal; continuance appropriate sanction where, although State inexcusably late in making discovery material available to defendant, defendant had earlier waived right to speedy trial). See also Byrd v. State, 380 So.2d 457 (affirming denial of motion to exclude chemist’s report which was not timely furnished to defendant, since case continued and not tried until approximately ninety days after report furnished). Thus, it is manifest that whatever prejudice to a defendant’s ability to defend against the charges may be said to arise from a delay in providing him with discovery is cured when he is provided with such discovery, and there is no other impediment to his utilizing it in the preparation of his defense.

We emphasize that the case before us is one in which the discovery information and material have been made available to the defendants, albeit late, and they have not been prejudiced in the preparation of their defense. In such a case, the reasons for the delay in furnishing the discovery, that is, was the State’s violation inadvertent or willful, are relevant only for the purpose of subjecting counsel for the State to an appropriate sanction pursuant to Florida Rule of Criminal Procedure 3.220(j)(2). But in the absence of prejudice, the reasons for the delay are not relevant for the purpose of imposing the sanctions provided for in Rule 3.220(j)(l).

IV.

We fully recognize that the belated furnishing of discovery, although, as we have said, not itself a basis for dismissal, may create such a delay in the defendant’s readiness for trial as to infringe upon his separate, but related, right to a speedy trial. Where material discovery is furnished at a time which will not enable the defendant to make use of it in the preparation of his defense before the expiration of the speedy trial time limits, the court may properly continue the case to a date beyond those limits, charge the continuance to the State, and thereafter grant the defendant’s motion for discharge based on the speedy trial rule violation. See State v. Burris, 424 So.2d 128 (Fla. 1st DCA 1982) (a continuance not qualifying as being caused by exceptional circumstances and not caused by the defendant is charged to the State and does not toll or extend the speedy trial time); State v. Lowe, 398 So.2d at 963 (although dismissal inappropriate where discovery material furnished three weeks before speedy trial period was to expire, if the court’s trial docket could not accommodate the required continuance, “at worst the prosecution would be terminated by expiration of the time allowed for speedy trial”). Therefore, a defendant will not be forced to choose between his right to have discovery and an adequate time to utilize it in preparing for trial and his right to a speedy trial.

Here, however, the defendants waived their right to be tried within the speedy trial period and their concomitant right to discharge if they were not so tried. But had the defendants been informed prior to their waivers that there was discovery material and information that had not been furnished to them, they may not have waived their rights to a speedy trial, but insisted instead on a continuance of the trial to be charged to the State. And if the information or materials which were subsequently furnished to the defendants would have necessitated a continuance of the trial beyond the expiration of the speedy trial time, then the defendants, but for their waivers, might have been entitled to a discharge under the speedy trial rule. The question which must be addressed by the trial court upon remand is whether, considering all the circumstances, these waivers should be set aside and the defendants’ right to discharge restored.

We are not unsympathetic with the trial court’s frustration with the Assistant State Attorney’s disregard of his obligations to make discovery. We have simply said that the sanction of dismissal is inappropriate absent irreparable prejudice to the defendant, no matter how recalcitrant or negligent the State may be. Where the prejudice can be cured by the imposition of some lesser sanction, the lesser sanction is to be employed. Sanctions directed against the offending attorney rather than the State’s case are always available to punish willful violations of discovery rules or orders, without regard to whether the violation prejudiced the defendant.

Reversed and remanded.

      . DelGaudio was charged in Circuit Court Case No. 81-15007 in eighteen counts, four of which (Counts 10 through 13) charged Turnoff. In August 1981, the State filed a separate information, Case No. 81-18575, charging DelGaudio and Turnoff with the same offenses found in Counts 10 through 13 of the earlier information, and thereafter nolle prosequied Counts 10 through 13 of Case No. 81-15007. The orders under review dismiss the remaining charges against DelGaudio in Case No. 81-15007, and dismiss the charges against DelGaudio and Turnoff in Case No. 81-18575.

      . Federal cases interpreting Rule 16(d)(2) (formerly 16(g)) of the Federal Rules of Criminal Procedure, upon which Florida Rule of Criminal Procedure 3.220 is based, are persuasive authority. See comment to Rule 3.220.

      . Thus, it is clear that the harm to the defendant from the discovery violation must be such that it cannot be repaired by any sanction short of dismissal. Obviously, that was not the case in State v. McCloud, 431 So.2d 694 (Fla. 3d DCA 1983), in which this court, we think erroneously, affirmed a dismissal grounded on the fact that "[a]fter the two victims of the armed robbery with which McCloud was charged had testified at the trial and been excused, the defense learned for the first time [despite an earlier discovery demand] that they had given conflicting descriptions of the perpetrators to an investigating detective.” 431 So.2d at 695. Surely the lesser sanction of mistrial would have cured any prejudice to the defendant, and if, indeed, the prosecutor’s conduct was willful, other sanctions could have been visited on the prosecutor. While it is conceivable that the result reached in McCloud could be justified had it been found that to retry the defendant after the initial bad faith prosecution was aborted would violate his right not to be twice placed in jeopardy, there is not the slightest indication in the court's decision that double jeopardy was the basis for the dismissal. Indeed, the cases cited in McCloud, State v. Gomez, 419 So.2d 422 (Fla. 3d DCA 1982), State v. Hilliard, 409 So.2d 211 (Fla. 4th DCA 1982), and State v. Oliver, 322 So.2d 638 (Fla. 3d DCA 1975), all of which involved dismissals before trial, indicate that the dismissal in McCloud was simply grounded on the discovery violation. In both Gomez and Hilliard, there are findings that the discovery violations adversely affected or irreparably prejudiced the defendant’s ability to prepare for trial. Since the facts set forth in these decisions are sparse, it is difficult to determine whether the violation was curable by a lesser sanction, infringed on the defendant’s right to speedy trial, or involved an outright refusal to produce needed discovery. Oliver, on the other hand, affirmed a dismissal based on the State’s failure to comply with a request to produce a copy of a search warrant and the affidavit for the warrant. There is nothing in Oliver to indicate that the State declined to furnish these documents, that the documents were lost or destroyed, or that the defendant’s right to a speedy trial had been violated by the delay. Assuming, therefore, that Oliver was a dismissal based on a discovery violation where there was no prejudice to the defendant, it, too, is in derogation of the rule laid down in Richardson v. State.

      . Of course, prejudice to the defendant is irrelevant where the State is not obliged to furnish the discovery in the first instance, and thus, the State’s inaction or refusal does not constitute a discovery violation. In such a case, the imposition of any sanction against the State — and, a fortiori, dismissal of the charges — is impermissible. See State v. Valdes, 443 So.2d 302 (Fla. 3d DCA 1983) (dismissal improper where State fails to produce State’s witnesses for deposition); State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981) (dismissal improper where, assuming, arguen-do, that defendants who asserted an entrapment defense made a sufficient showing to warrant deposing confidential informants, the informants’ refusal to testify on self-incrimination grounds was not a discovery violation); State v. Ashley, 393 So.2d 1168 (Fla. 3d DCA 1981) (dismissal improper where State fails to produce out-of-state witness for deposition, since State under no obligation to do so); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974) (exclusion of testimony of certain witnesses and dismissal of information improper where witnesses listed by State fail to appear for defense deposition where no indication that non-appearance procured by State); Mason v. State, 375 So.2d 1125 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980) (affirming trial court’s refusal to dismiss case where State failed to produce key witness for defense deposition). Similarly, where the State has disclosed the information to the extent possible, no sanction is warranted. State v. Alfonso, 433 So.2d 1357 (Fla. 4th DCA 1983).

      . In State v. Alfonso, 433 So.2d 1357, the court indicated that the defendant’s entitlement to relief turned on the willfulness vel non of the State’s violation:
      "Dismissal of charges and discharge of the defendant is an appropriate sanction for wilful refusal by the state to comply with an order compelling disclosure. See State v. Weinfurt, 409 So.2d 1187 (Fla. 4th DCA 1982); State v. Hilliard, 409 So.2d 211 (Fla. 4th DCA 1982). Where the violation is not wilful, however, dismissal is inappropriate. See, e.g., State v. Banks, 418 So.2d 1059 (Fla. 2d DCA 1982). This is particularly apt where no prejudice has been demonstrated.” 433 So.2d at 1358.
      But, as will be seen, n 7, infra, willfulness is a consideration only where it is first found that the defendant has been prejudiced by the discovery violation as, for example, in cases where evidence has been destroyed. In our view, Alfonso ’s suggestion that all willful discovery violations call for dismissal without regard to how the violation prejudiced the defendant and that negligent violations do not call for dismissal in the face of otherwise irreparable prejudice is clearly wrong and in derogation of the rule of Richardson.

        Of the same genre as Alfonso are cases which gratuitously discuss willfulness or the lack thereof where there is no prejudice to the defendant which arises from the discovery violation, and there is no issue concerning a sanction to be imposed against counsel. See, e.g., State v. Brown, 393 So.2d 1195 (Fla. 3d DCA 1981); Miller v. State, 435 So.2d 258; State v. King, 372 So.2d 1126. Since it is enough to say that where there is no prejudice to the defendant, there can be no dismissal, exclusion of evidence, mistrial, etc., further discussion of lack of willfulness misleadingly implies that had the violation been willful, dismissal would be appropriate despite the absence of prejudice.

      . Where, unlike the present case, the discovery information or material is adverse to the defendant, the prejudice may be removed by prohibiting the State from introducing the material or calling the witness.

      . In contrast to the present case are cases in which the disclosure of information or material is never forthcoming, either because of the State’s outright refusal to comply with a discovery order, see, e.g., State v. Weinfurt, 409 So.2d 1187 (Fla. 4th DCA 1982); or because the discovery material has been lost or destroyed, see, e.g., State v. Sobel, 363 So.2d 324 (Fla.1978). It is in these cases where the reasons underlying the State’s failure to furnish the discovery is relevant and is to be balanced against the importance of the missing evidence to defendant in determining the sanction to be imposed. Thus, for example, if the State demonstrates that the destroyed material would be of no value to the defendant in the preparation of his defense, and the evidence was not destroyed in a bad faith effort to deprive the defendant of its use, dismissal of the charges is unwarranted. See State v. Sobel, 363 So.2d 324 (affirming denial of motion to dismiss upon finding of good faith destruction of unintelligible tapes of part of drug transaction); Budman v. State, 362 So.2d 1022 (Fla. 3d DCA 1978) (affirming denial of motion to dismiss upon finding of good faith destruction of inaudible tapes of drug transaction); State v. James, 404 So.2d 1181 (Fla. 2d DCA 1981) (reversing grant of motion to dismiss upon finding of good faith destruction of contraband, where defendant who had deposed chemist had ample opportunity to test contraband, and contraband routinely destroyed only after inordinate delay in prosecution unlawfully caused by defendant’s escape); State v. Bissett, 410 So.2d 196 (Fla. 5th DCA 1982) (same). But where it is shown that the destroyed material unquestionably contained evidence favorable to the defendant, dismissal is required even though the State’s unnecessary destruction of the evidence was done in good faith. See Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975) (reversing denial of motion to dismiss, where destroyed tape, contained entire conversation concerning drug transaction between defendant and police, conversation stipulated to contain evidence favorable to defendant’s entrapment claim, and tape destroyed after defendant's request for production). Cf. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979); cert. denied, 383 So.2d 1203 (Fla.1980) (reversing conviction and ordering suppression of contraband, where destruction by State’s chemist of entire amount of seized contraband, although not done in bad faith, was unnecessary to testing process and deprived defendant of right to test substance). See also State v. James, 404 So.2d at 1181 ("Where the destruction of evidence is unnecessary and is not an unavoidable result of the testing process, introduction of testimony concerning the evidence may violate defendant’s due process rights.’’). However, where the material in question is unavoidably and necessarily consumed during a testing process conducted by the State, then no sanction whatsoever is warranted. State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979).
      Therefore, as the foregoing cases illustrate, where discovery cannot be made, dismissal may or may not be an appropriate sanction, depending on the extent of the prejudice to the defendant and the reason why the evidence is gone. In the present case, however, the evidence exists and has been furnished to the defendants, and the question is merely whether delay in furnishing discovery materials — putting aside any consideration of speedy trial rights and considering only the defendants’ ability to defend — can be a basis for dismissal of the criminal charges. The answer, we think, is clear. Where a defendant is in fact furnished the material and is provided an adequate time to prepare his defense after the material is furnished, delay in furnishing the material is not, ipso ¡acto, a ground for dismissal of the charges.

      . The State Attorney is responsible for evidence which is being withheld by other state agents, such as law enforcement officers, and is charged with constructive knowledge and possession thereof. State v. Coney, 294 So.2d 82 (FIa.1974).


author: SCHWARTZ, Chief Judge. BARKDULL, Judge,

text:
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Philip R. ANDERSON and Barbara A. Anderson d/b/a Gables Secretarial Service, Appellees.
    No. 83-143.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    As Amended on Denial of Rehearing March 12, 1984.

      McCune, Hiaasen, Crum, Ferris & Gardner and Ace J. Blackburn, Jr. and G. Ware Cornell, Jr., Fort Lauderdale, for appellant.
    Sullivan, Admire & Sullivan and John Admire, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

Pennsylvania National insured the An-dersons’ 1980 Cadillac Seville against property damage during the period in which it sustained an engine fire. After it was taken to the dealer’s lot, the adjuster went to the premises and, induced in large measure by the uncanny coincidence that the two cars shared three of the last four digits of their vehicle identification numbers, inspected another, that is, the wrong 1980 fire-damaged Cadillac. Upon the determination that that vehicle was a total loss, the carrier forwarded drafts to the Ander-sons and their lien holder for the full insured value of their car. The claim was settled accordingly. When the error was discovered soon after, however, the insurer stopped payment on the checks. The An-dersons then brought this suit to recover on the settlement for the amounts agreed to. After a non-jury trial, the lower court found for the plaintiffs and Pennsylvania National appeals.

Because we both consider the carrier’s conduct almost amusingly inept and agree what we take to be the trial judge's reaction that the company should be made to lie in its self-made bed, it is with some regret that we conclude that the judgment below must be reversed. In our view, the case is, perhaps unfortunately, governed by Maryland Casualty Co. v. Krasnek, 174 So.2d 541 (Fla.1965), which squarely holds that a party — even an insurance company such as the present appellant — should be relieved of the consequences of a unilateral mistake like the one involved here.

And there are no grounds for departing from Krasnek in this case. Neither of the two exceptions stated in the decision itself apply. First, the plaintiffs did not detrimentally rely upon the mistake since, as they concede, their only action which even arguably so qualifies, a commitment to purchase an expensive replacement vehicle, occurred before they knew of the extent of the carrier’s erroneous largesse. Second, while “some degree of negligence” was undoubtedly involved — in common, as the supreme court pointed out at 174 So.2d 543, with all such cases — it surely does not approach the “inexcusable lack of due care” the court indicated was necessary to entitle the plaintiffs to retain their consequent windfall. 174 So.2d at 543. Compare especially Crosby v. Andrews, 61 Fla. 554, 55 So. 57 (1911), discussed and cited with approval at 174 So.2d 543.

Moreover, we do not share the dissenter’s belief that, because it involved a policy which had expired, Krasnek may be confined to mistakes concerning the very existence of a contractual relationship between the parties. The earlier decisions of Voss v. Forgue, 84 So.2d 563 (Fla.1956), Wicker v. Board of Public Instruction of Dade County, 106 So.2d 550 (Fla.1958), and Crosby v. Andrews, supra, all of which were specifically followed in Krasnek, and none of which involved such a situation, show that it may not.

For these reasons, the judgment under review is reversed and the cause remanded with directions to dismiss the complaint.

Reversed.

BARKDULL, Judge,

dissenting.

I respectfully dissent. The appellant insured an automobile owned by the appel-lees that was damaged by fire. The appel-lees duly notified the company of the loss. The company had a contractual obligation to examine the automobile to determine the extent of the damage and in doing this they examined the wrong automobile and came to the conclusion that it was a total loss. They then tendered to the insured a check in full settlement of their equity interest in the automobile, which was financed with a third party bank and tendered to the bank a check in full payment of its lien.

Prior to the delivery of the checks the company was put on notice that the automobile which they determined to be a total loss was not owned by the appellees, notwithstanding this, they tendered the checks as issued, one to the insured and one to the financial institution that had the title. The title was then to be transferred to the insurance company. The appellees then made arrangements to purchase a new vehicle. Some 7 days later the company stopped payment on the drafts.

• Any mistake as to the correct damaged automobile was that of the company in fulfilling its legal duty to investigate the extent of damage to the insureds vehicle. The company tendered full payment to the insureds. They changed their position and the company should not now be relieved of its own unilateral mistake in discharging a duty under the insurance contract for which it was paid a premium to perform. Maryland Casualty Company v. Krasnek, 174 So.2d 541 (Fla.1965) relied on by the majority is not applicable, as there was no valid policy in existence in this cited case and therefore no compensated duty on the part of the insurance company to perform. Therefore, I would affirm the final judgment under review.

      . Neither that Krasnek acknowlcdgcdly represents a minority view, nor that it is one with which we may disagree, affects our juridical, if not jurisdictional, obligation to follow it as imposed by Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . Through no fault of the insureds.