author:
PER CURIAM.
      HUBBART, Judge, PER CURIAM.

text:
    J.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-762.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    On Rehearing Feb. 26, 1985.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Appellant, a juvenile, appeals from an adjudication of delinquency. He was arrested in possession of a recently stolen moped. The explanation appellant gave to the police officer who arrested him was that a friend named Tim had given it to him. He was unable to further identify Tim, except to say that they had become acquainted at a neighborhood park about three weeks prior to his arrest. He did not know Tim’s last name.

Appellant was charged with being in possession of a recently stolen moped in violation of Section 812.014, Florida Statutes (1983). The court, in a non-jury trial, found that he was guilty of petit theft and adjudicated him a delinquent.

Appellant seeks reversal on the sole ground that the circumstantial evidence relied upon by the state was insufficient to support the adjudication of delinquency. We agree and reverse.

The appellant’s unrefuted, exculpatory, and not unreasonable explanation of his possession of the stolen moped — that his friend Tim had allowed him to use it — rendered the state’s case, which was based solely on the inference provided by Section 812.014, Florida Statutes (1983), without any additional circumstances, insufficient as a matter of law to establish guilt. J.K. v. State, 448 So.2d 71 (Fla. 3d DCA 1984); R.D.S. v. State, 446 So.2d 1181 (Fla. 3d DCA 1984); R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981).

Reversed.

HUBBART, Judge,

dissenting.

I must respectfully dissent. I would affirm the adjudication of delinquency under review.

The juvenile herein was apprehended by the police while driving the stolen moped in question within a week after it had been stolen. This uncontradict-ed evidence of possession of recently stolen property was sufficient to sustain a delinquency adjudication for the theft of the moped unless the juvenile could give a satisfactory explanation for his being in possession of the moped. § 812.022(2), Fla. Stat. (1983). The law is well settled that the reasonableness of such an explanation is ordinarily a question of fact for the jury to determine, or the judge in a non-jury trial, together with all the other facts and circumstances in the case. Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981); Borghese v. State, 158 So.2d 785 (Fla. 3d DCA 1963); see Tavalaccio v. State, 59 So.2d 247, 248-49 (Fla.1952).

I think the trial court was more than justified in rejecting as unworthy of belief the juvenile’s explanation herein that a friend identified only as “Tim” gave him the moped in question earlier that day. The juvenile did not know the friend’s last name or where the friend lived. The arresting officer unsuccessfully attempted to locate this friend by proceeding with the juvenile to a nearby park which the juvenile stated the friend frequented; no such “Tim” could be found. The juvenile’s explanation was, therefore, refuted in part by the police investigation herein. Beyond that, the explanation itself was inherently suspect; surely, people do not ordinarily receive legitimate gifts of relatively expensive personal property, such as a moped, from such vaguely described, casual acquaintances as stated by the juvenile herein. At the very least, I think the trial court could reasonably reach this conclusion. Contrary to this court’s analysis, then, I think the juvenile’s explanation herein was both refuted and unreasonable.

I recognize that there is prior decisional law which requires the trial court in a theft case to accept as true an accused’s explanation for his being in possession of stolen property where, unlike this case, the explanation is both reasonable and unrefuted. See, e.g., R.D.S. v. State, 446 So.2d 1181 (Fla. 3d DCA 1984); R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). We stretch those cases to the breaking point, however, when we allow threadbare stories like the present one to defeat an otherwise valid prosecution for theft.

I would affirm.

ON REHEARING

PER CURIAM.

The state has filed a motion for rehearing which we grant. The original opinion of the court is receded from and Judge Hubbart’s dissent thereto is adopted as the opinion of the court. The adjudication of delinquency under review is in all respects

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    The TRIBUNE COMPANY and James Tunstall, Appellants, v. The Honorable L.R. HUFFSTETLER, Jr., and The State of Florida, Appellees.
    No. 83-1621.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Rehearing Denied Jan. 18, 1985.

      Gregg D. Thomas, Steven L. Brannock and Mike Piscitelli of Holland & Knight, Tampa, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellees.
    Richard J. Ovelmen, Miami, George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, Paul J. Levine and Sonia M. Pawluc of Morgan, Lewis & Bock-ius, Miami, for amici curiae, The Miami Herald Pub. Co. and The Times Pub. Co.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, The Tribune Company, publisher of the Tampa Tribune, and James Tunstall, one of its reporters, appeal from an order of civil contempt issued after Tun-stall refused to reveal the source for an article he wrote.

In July, 1983, Tunstall and another reporter authored an article entitled “Complaints Filed Against Two Commissioners.” The article quoted a confidential source as stating that “an influential resident of West Hernando County” had sent a complaint to the state’s Ethics Commission charging two Hernando County commissioners with misuse of their offices. The Ethics Commission did receive such a complaint, but ultimately voted to dismiss it for failure to assert a legally sufficient charge.

Thereafter, the two county commissioners filed a complaint with the state attorney’s office regarding a violation of section 112.317(6), Florida Statutes, which criminally proscribes disclosure of the intent to file an ethics complaint or of the existence of a complaint that has been filed with the Ethics Commission. Tunstall was subpoenaed for questioning concerning the source of his article and his motion to quash on First Amendment grounds was denied. Tunstall nevertheless refused to reveal his source and was held in civil contempt. Tunstall argues on appeal that the state, in seeking to require him to reveal his source, failed to show that its interest sufficiently outweighed his First Amendment privilege.

The case of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) is almost squarely on point, the principal difference being that Branzburg involved an inquiry by the grand jury as opposed to a state attorney’s investigation, which is involved here. Branzburg addressed the issue of whether a reporter has a First Amendment privilege to withhold from a grand jury the identity of a “confidential source” who committed a crime in the presence of the reporter and who was known only to the reporter. The Court upheld contempt citations issued against the reporters, rejecting the notion of a First Amendment privilege to refuse to testify, though the Court limited its ruling to a good faith investigation by a grand jury. The Court stated:

[Njeither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he receives in confidence.
[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.

92 S.Ct. at 2657-2658.

The Court further declared:
The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection. It would be frivolous to assert — and no one does in these cases — that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.
* * * * * *
Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. (emphasis added).

Id. at 2662.

As with Branzburg, the instant case involves an investigation into the commission of a crime. The crime, revelation of the ethics complaint, was witnessed by the reporter. A witness to a crime, simply because he happens also to be a news reporter and intends to write about what was told to him, has no greater right to refuse testimony than any other witness.

Appellants contend that section 112.317(6) is unconstitutional in that it does not simply purport to regulate time, place, or manner of expression but rather seeks to prohibit expression itself, when the expression deals with a particular subject, i.e., allegations of official misconduct. We conclude, however, that a reporter has no right to withhold testimony based on his perception or belief that the law which prohibits the conduct of which he is an active observer is unconstitutional. His rights are in no way impaired by the enforcement of the law and thus he lacks standing to challenge its constitutionality. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In addition, appellants cannot raise this constitutional question for the first time on appeal. See Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Rubin v. Glick, 419 So.2d 817 (Fla. 3d DCA 1982).

AFFIRMED.

DAUKSCH and COWART, JJ., concur.


author: LEHAN, Judge.

text:
    John L. RICO, Appellant, v. STATE of Florida, Appellee.
    No. 83-2414.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
    Rehearing Denied Feb. 13, 1985.
    Samuel R. Mandelbaum and Anthony F. Gonzalez, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his convictions and sentences for trafficking in cocaine and conspiracy to traffic in cocaine, violations of section 893.135, Florida Statutes (1983). We reverse. We agree with defendant that the trial court erred in setting defendant's case for trial outside the 180-day speedy trial time period and in thereafter denying defendant’s motion for discharge. Under the facts of this case, we conclude that the interest of defendant in a severance of his case from the cases against his co-defendants in order to protect his speedy trial rights pursuant to Florida Rule of Criminal Procedure 3.152(b)(l)(i), should have prevailed over the state’s interest in an extension of the speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191(f)(5).

Defendant and two co-defendants (Watkins and Brown) were charged in a consolidated two-count information in March, 1983. Defendant was represented by the same private counsel from the arraignment stage onward. At arraignment, the court set a trial date of June 6, 1983.

The 180-day speedy trial period was to expire on September 6, 1983. There is no disagreement among the parties that the speedy trial time expired on or within three days of that date; the disagreement as to the exact date is not material to this appeal.

In May, defendant filed a motion to sever. At a pre-trial motion hearing the court did not rule on that motion. At the hearing the public defender was appointed to represent co-defendant Watkins after Watkins’ privately-retained counsel had withdrawn. In June, defendant again brought to the court’s attention his pending motion to sever, but the prosecutor stated that she was not prepared to argue the motion.

In July, co-defendant Watkins’ public defender informed the court that he needed to depose a confidential informant whose identity had not been disclosed. Two days later, when the name of the informant had not been made available, the court ordered the state to “get the confidential informant to them today. I don’t know what the problem is.”

The trial date was changed to July 18. On July 18, all parties were present, but co-defendant Brown’s counsel had withdrawn. Brown’s counsel was later replaced by other private counsel. The name of the confidential informant had been disclosed by the state, and Watkins’ public defender apprised the court that there was a conflict of interest because the public defender’s office also represented the confidential informant on an unrelated pending charge. However, defendant announced that he was prepared to go to trial. The state also announced that it was “ready for trial other than the fact that if there is a problem with the other two defendants.” The court denied defendant’s motion for severance and reset the trial for August 22.

On July 22, co-defendant Watkins moved for a continuance and waived his speedy trial rights. The court noted that if defendant would not waive speedy trial, “we are going to have to try it August 22, unless it is severed.” Three days prior to August 22 both co-defendants moved for a continuance. Defendant objected .and again announced he was ready for trial. Thereafter, the court granted the co-defendants’ motions and said,

We will go ahead with the trial on Rico [defendant]. We may end up having to try it twice, but I don’t see any way out of it in this particular case.

The prosecutor objected and filed and argued a motion under rule 3.191, Florida Rules of Criminal Procedure, to extend the speedy trial period. The prosecutor did not assert any argument as to why defendant’s case should be tried with the co-defendants’. The prosecutor stated that he believed the case was not complicated. The court granted the prosecutor’s motion and reset the trial date to September 26. We do not conclude that defendant, in order to preserve the point for appeal, was obliged to again move for a severance after the prosecutor filed the motion to extend the speedy trial time. As noted above, the trial court had indicated that a severance would be ordered.

On September 14, defendant filed a motion for discharge on speedy trial grounds. The motion was denied. Four days prior to the September 26 trial, co-defendant Brown pleaded guilty to one charge and the state dismissed the other charge against him. On the day of trial, co-defendant Watkins pleaded nolo contendere to one charge, and the state dismissed the other charge against him. Defendant proceeded to trial alone and was convicted.

In its order granting the state’s motion for an extension of the speedy trial time, the trial court, in recognition of rule 3.191(f)(5), listed as grounds for the extension what were referred to as two exceptional circumstances: (1) a delay was necessary to accomodate the co-defendants, and (2) the defendant caused a major delay or disruption by preventing the attendance of witnesses because defendant’s witness list did not include the addresses of those witnesses.

The record does not support the ground that an extension of defendant’s speedy trial time was necessary to accomo-date the co-defendants. There is nothing in the record showing why defendant’s motion for severance was not granted, i.e., showing why there was reason to have a consolidated trial. Thus, the state did not fulfill the requirements, of 3.191(f)(5). Rule 3.191(f)(5) places the burden on the state to show that a delay in the trial of a defendant is necessary to accomodate a co-defendant which must, of logical necessity in this case, include a showing that there is reason not to sever the defendant’s case from that of a co-defendant. Also, rule 3.152(b)(l)(i) requires that a severance be granted if necessary to protect a defendant’s right to speedy trial. The trial judge had indicated his intention to sever the defendant’s case.

The record also does not support the ground that the defendant caused a major delay. At the hearing on the August motions of co-defendants for a continuance, the state argued that the witness list furnished by defendant in June, 1983, did not contain addresses and that this omission caused a major delay in the proceedings. Defense counsel responded that at the time of the depositions of the various witnesses, he informally gave a copy of the list of addresses to the prosecutor assigned to the case at that time. In any event, the record reflects that after defendant filed on June 28, 1983, his original list of witnesses without addresses, the prosecutor announced on July 18th that he was ready for trial. Also, it appears that if there had been any delay caused by the defendant in this regard, any such delay would have been small, and certainly not major, compared to delays which can be readily perceived from the record to have been incident to other events, such as, three changes of defense counsel for the co-defendants and the failure of the state to sooner disclose the identity of the confidential informant, not to mention summer vacations and two changes of assistant state attorneys. We arrive at the foregoing conclusion without addressing defense counsel’s argument that the state had copies of defendant’s witness subpoenas issued for the July trial date.

Accordingly, the order extending the speedy trial time was not properly granted, and defendant’s speedy trial time had expired on September 6, 1983.

An inconsistency may seem to exist between rules 3.191(f)(5) and 3.152(b)(l)(i). Rule 3.191(f)(5) provides for a speedy trial extension when there is reason (presumably from the state’s standpoint in prosecuting the case) not to sever. This would seem to place the state’s interest in trying a consolidated case against all co-defendants, i.e., the state’s interest in not severing, above an individual defendant’s right to a speedy trial. Rule 3.152(b)(l)(i) provides that the trial court “shall” order a severance if necessary to protect the defendant’s right to speedy trial. This would seem to place an individual defendant’s right to a speedy trial above the state’s interest in trying a consolidated case against all co-defendants, i.e., the state’s interest in not severing.

We need not directly address that inconsistency in this case in which we conclude that defendant’s right to a speedy trial was paramount. As we have said, the state made no showing of a reason not to sever. See Machado v. State, 431 So.2d 337 (Fla. 2d DCA 1983). See also State v. Littlefield, 457 So.2d 558 (Fla. 4th DCA 1984), where the Fourth District Court of Appeal pointed out that a defendant makes a prima facie showing of his entitlement to a severance by a showing that his speedy trial rights would be violated if co-defendants’ motions for a continuance are granted. Thereupon, “it was the obligation of the state to respond by demonstrating that despite the speedy trial consequences to defendant ‘there is reason not to sever the eases.’ See rule 3.191(f)(5).” Id.

For the foregoing reasons defendant’s convictions and sentences for trafficking in cocaine and conspiracy to traffic in cocaine are vacated. Defendant shall be discharged.

RYDER, C.J., and GRIMES, J., concur.

      . Consistent with our holding is Westlake v. Miner, 460 So.2d 430 (Fla. 1st DCA 1984) (question certified), decided after our opinion in this case was written. In Westlake the First District Court of Appeal said "the convenience [to the state] of a joint trial is not an exceptional circumstance justifying a state's motion for extension of the speedy trial time."


author: ZEHMER, Judge.

text:
    HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Florida Convalescent Centers, Inc., Appellees.
    Nos. AW-192, AY-91.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Rehearing Denied March 14, 1985.

      Jean Laramore and G. Steven Pfeiffer, of Laramore & Clark, Tallahassee, for appellant.
    James M. Barclay, Tallahassee, for Dept, of Health and Rehabilitative Services, and Donna H. Stinson, of Moyle, Jones & Flani-gan, Tallahassee, for Florida Convalescent Centers, Inc.
   ZEHMER, Judge.

These consolidated appeals question the validity of rule 10-5.08(l)(b), Florida Administrative Code, promulgated by the Department of Health and Rehabilitative Services (Department or HRS). That rule implements the requirements in section 381.-494(5), Florida Statutes (1982 Supp.), and reads:

At least 30 days prior to filing an application, a letter of intent respecting the development of a proposal must be actually received by the local health council and by the Department. Letters of intent filed with the Department before July 1, 1982, will be accepted for use in conjunction with the foregoing schedule. Letters of intent filed after July 1, 1982, must indicate the batching cycle for which the applicant intends to file an application. If an application is not filed during the time period indicated in the letter of intent, the letter of intent will be considered invalid and a new letter of intent must be timely filed before an application may be filed. Because letters of intent give applicants a right of entry into the Certificate of Need process, failure to file a timely letter of intent and to have it actually received by the Department and by the local health council at least 30 days prior to the filing of an application will prevent the Department from accepting an application. Failure to timely file a letter of intent or to timely file an application will cause a delay in the Certificate of Need project until the next available review cycle.

In late February and early March 1983, the appellant, Health Care and Retirement Corporation of America (Health Care), submitted letters of intent to HRS advising that it planned to apply during the April batching cycle for certificates of need for nursing home projects in twenty-five counties in Florida, but failed to serve copies of these letters on the respective local health councils as required by the statute and the rule. Thereafter, when Health Care filed the application referred to in those letters, HRS returned the applications for failure to comply with the rule because the letters of intent had not been timely delivered by the applicant to the local health councils. In July 1983, Health Care again submitted letters of intent to HRS without furnishing copies to the affected local health councils. Once again, HRS returned the applications because Health Care failed to comply with rule 10-508(l)(b). Consequently, Health Care sought and obtained a section 120.57 administrative hearing on the refusal of HRS to consider its applications and grant or deny the certificates of need and obtained a section 120.54 hearing on the validity of rule 10-508(l)(b). Both cases were heard by the same hearing officer, but at separate times. The hearing officer upheld the validity of the rule and recommended approval of HRS’s refusal to accept and consider Health Care's applications because Health Care had violated that rule. HRS adopted the recommended order. After hearing oral argument and giving lengthy consideration to appellant’s contentions, we find no error in either order, and affirm.

Health Care raises two points on appeal. The first attacks the validity of HRS’s final order approving its refusal to consider Health Care’s applications because (1) the order is inconsistent with prior agency actions and policies and not supported by any public policy argument, and (2) the order fails to properly apply the doctrine of es-toppel to prevent HRS from refusing to consider the applications. The second point contends that the hearing officer’s final order upholding the rule erroneously interprets the applicable statutes and should be set aside.

Appellant’s arguments are predicated primarily on the following facts. Rule 10-5.08(l)(b) became effective in July 1982. The local health councils had not been established throughout the state at that time and were not completely in operation until March 1, 1983. Accordingly, from July 1982 until March 1, 1983, HRS did not require letters of intent to be furnished to local health councils. In September 1982, Health Care, intending to file applications for certificates of need with HRS, inquired whether letters of intent must be sent to the local health councils. HRS advised Health Care that since the health councils were not fully operating at that time it was unnecessary to do so. Health Care did not inquire whether it should send copies of its March letters of intent to the local health councils.

Health Care argues that it was entitled to rely on the advice received from HRS in September that letters of intent need not be furnished to local health councils in compliance with the rule, that such practice constituted an HRS policy, and that HRS was required, therefore, to give adequate notice of a change in that policy before enforcing compliance with the rule. In any event, Health Care argues, HRS was estopped to refuse Health Care’s applications in view of its prior conduct, advice, and practice of excusing compliance with the rule. These arguments are not sufficient to require reversal.

Although the rule became effective in July 1982 and imposed a legal obligation on all applicants to send copies of letters of intent to local health councils, it seems abundantly clear that HRS excused compliance with the rule in September because the health councils were not completely established and it would not require the performance of a useless act. This fact does not establish any policy of HRS to excuse compliance with the rule until further notice. Nor does this fact otherwise render the rule inoperative or invalid. An applicant seeking a certificate of need is presumed to know the applicable law. At least, such applicant is obligated to determine what is required by law to obtain such certificate. In this instance, Health Care had the duty to ascertain if letters of intent should be sent to local health councils pursuant to the rule when it initiated this procedure in March 1983. The record reflects that a number of other applicants for the April batching cycle, including ap-pellee Florida Convalescent Centers, Inc., made appropriate inquiry of HRS and delivered copies of their respective letters of intent to the local health councils as required by the rule.

Appellant’s estoppel argument is likewise lacking in merit. The finding of fact that the statements by the HRS representative to Health Care in September did not amount to an expression that compliance with the rule was excused in respect to applications for other batching cycles is amply supported by the record. Consequently, Health Care was not entitled to rely on those representations to excuse its compliance with the rule in respect to letters of intent and applications being filed for the April batching period.

Appellant attacks the order upholding validity of the rule primarily on grounds that the rule exceeds the authority delegated to HRS by section 381.494(5) and that the economic impact statement was materially deficient. We note, however, that section 381.494(5) unequivocally requires that “at least 30 days prior to filing an application, a letter of intent shall be submitted by the applicant to the local health council and the department” (emphasis added). This language is mandatory. That statute also specifies that HRS may promulgate rules to carry out the purposes and intentions of the statute. Rule 10-5.08(l)(b) simply enforces the statutory requirements by placing all persons on notice that failure to timely furnish the required letters of intent to the local health councils will cause HRS not to consider the application in respect to that particular batching cycle. As the hearing officer’s order correctly points out, this rule sets forth a reasonable means of enforcing the statutory requirement which, among other available alternatives, results in the least drastic consequences to the errant applicant.

Appellant contends that the economic impact statement is insufficient because it fails to address the economic consequences to a particular applicant resulting from its failure to comply with the rule’s requirement to serve letters of intent on local health councils. Section 120.54, Florida Statutes (1981), sets forth the requirements for an economic impact statement in connection with an agency’s promulgation of a rule. Nothing in that statute specifically requires a determination of the economic impact of the failure to follow the rule, and we specifically decline to construe the statute as imposing such a requirement in the preparation of economic impact statements. A rule will not be declared invalid merely because the economic impact statement may not be as complete as possible; any deficiency in the statement must be so grave as to have impaired the fairness of the proceedings. Plantation Residents’ Assn., Inc. v. School Board of Broward County, 424 So.2d 879 (Fla. 1st DCA 1982). The statement accompanying this rule addressed all of the statutory criteria. Appellant has failed to show any deficiency in the economic impact statement that impaired the fairness of the rulemaking proceedings in this instance.

AFFIRMED.

SMITH and BARFIELD, JJ., concur.

      . Section 381.494(5) provides:
      NOTICE TO THE LOCAL HEALTH COUNCIL AND THE DEPARTMENT. — The department, by rule, shall provide for applications to be submitted on a timetable or cycle basis; provide for review on a timely basis; and provide for all completed applications pertaining to similar types of services, facilities, or equipment affecting the same health service area to be considered in relation to each other no less often than four times a year. At least 30 days prior to filing an application, a letter of intent shall be submitted by the applicant to the local health council and the department respecting the development of a proposal subject to review. At the time of filing an application with the department, the applicant shall send a copy of the application to the local health council. Within 15 days after receipt of a project application, the department shall determine whether the application is complete. If the application is deemed complete by the department, the department shall request from the applicant specific information necessary for the application to be deemed complete. Subsequent to the receipt of an application, the department may make only one request for specific additional information. Upon request of the specific additional information requested, the application shall be deemed complete; and the review period shall commence on the date the requested additional information is received by the department. If an applicant does not provide the specific additional information requested by the department within 45 days of the request, the application shall be deemed withdrawn from consideration. Not later than 45 days after an application is deemed complete and the review period is initiated, if such period is not extended as hereinafter provided, the department shall issue or deny a certificate of need.


author: DELL, Judge.

text:
    Keith HENRIQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-2365.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied March 13, 1985.

      Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Keith Henriquez appeals from convictions of battery on a law enforcement officer, resisting arrest with violence, failure to exhibit a driver’s license, and reckless driving.

Two police officers responded to a call at appellant’s home. Just after they arrived, appellant drove up with his lights off and with questionable control of his car. When one of the officers asked appellant for his driver’s license, appellant pushed him out of the way and moved towards his house. The officer attempted to stop him and they struggled. The fight went from outside to inside the house. The officer eventually subdued appellant. The State charged appellant by information with battery on a law enforcement officer, resisting arrest with violence, failure to exhibit a driver’s license, and reckless driving. Count I of the information alleged that appellant “did actually and intentionally touch or strike the said law enforcement officer against his will” and Count II alleged that appellant resisted by, “offering or doing violence to the person of the said officer, to wit: pushing, and striking said officer .... ” Appellant unsuccessfully sought a dismissal on the ground that Counts I and II violated his double jeopardy rights. The jury returned a verdict of guilty on all counts. The court withheld adjudication and placed appellant on probation for three years. As a condition of probation, the court ordered appellant to “pay up to $100 restitution as determined by probation officer.”

Appellant contends that his convictions of both battery and resisting arrest with violence violate his double jeopardy rights and that the trial court improperly delegated authority to a probation supervisor to determine the amount of restitution.

In Portee v. State, 447 So.2d 219 (Fla. 1984), our supreme court explained that:

If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events. If it is established that an offense is a lesser included offense of a greater offense also charged, the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses. Bell v. State, 437 So.2d 1057 (Fla.1983) (holding that sale and possession of controlled substances were lesser included offenses of trafficking in illegal drugs).

Id. at 220.

Our supreme court uses the Blockburger test to identify lesser included offenses:

A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. If each offense requires proof of an element that the other does not, the offenses are separate and discrete and one is not included in the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Borges v. State, 415 So.2d 1265, 1267 (Fla. 1982).

We have compared the statutory elements of assault or battery of a law enforcement officer, Sections 784.011, 784.03 and 784.07, Florida Statutes (1983), with those of resisting an officer with violence to his person, Section 843.01, Florida Statutes (1983). All of the elements contained in Section 843.01 must be proved, along with more, in order to sustain a conviction under Section 784.07. The information alleges that appellant resisted the law enforcement officer by pushing or striking him, and battered him by touching or striking him. The State relied upon evidence of a single, continuous incident to prove the allegations of both counts. Therefore we hold that the resisting arrest with violence charged herein constituted a lesser included offense of battery of a law enforcement officer.

We also find merit in appellant’s argument that the trial court erred when it delegated authority to a probation supervisor to determine the amount of restitution. In Cada v. State, 382 So.2d 405 (Fla. 4th DCA 1980), we held:

It is improper for the trial judge to delegate to the probation supervisor the authority to determine the amount of restitution appellant must pay. Fresneda v. State, 347 So.2d 1021 (Fla.1977);

Id. at 406.

Accordingly, we affirm appellant's convictions under Counts I, III and IV of the information and reverse and remand this cause to the trial court with directions to vacate appellant’s conviction of resisting arrest with violence. The provision for restitution is stricken without prejudice for the trial court to reconsider such condition.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

ANSTEAD, C.J., and HURLEY, J., concur.

      . 843.01 Resisting officer with violence to his person. — Whoever knowingly and willfully resists, obstructs, or opposes any sheriff, deputy sheriff, officer of the Florida Highway Patrol, municipal police officer, county or municipal correctional officer, beverage enforcement agent, officer of the Game and Fresh Water Fish Commission, officer of the Department of Natural Resources,' member of the Florida Parole and Probation Commission or any administrative aide or supervisor employed by said commission, parole and probation supervisor or parole and probation officer employed by the Department of Corrections, county probation officer, personnel or representative of the Department of Law Enforcement, or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      784.07 Assault or battery of law enforcement officers or firefighters; reclassification of offenses.—

      (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
      (a) In the case of assault, from a misdemean- or of the second degree to a misdemeanor of the first degree.
      (b) In the case of battery, from a misdemean- or of the first degree to a felony of the third degree.
      784.011 Assault.—
      (1) An "assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
      (2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      784.03 Battery.—
      (1) A person commits battery if he:
      (a) Actually and intentionally touches or strikes another person against the will of the other; or

      (b) Intentionally causes bodily harm to an individual.
      (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      [Emphasis added.]


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    In re FORFEITURE OF ONE 1973 MERCEDES 2 DOOR CONVERTIBLE; VIN # 10704412011837; TITLE # 6007770, and $72,321 in U.S. Currency.
    No. 84-440.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Rehearing and Rehearing En Banc Denied Feb. 25, 1985.
    llene J. Swickle of Thomas F. Luken, P.A., Fort Lauderdale, for appellant Import Autos, Inc.
    William P. Doney, West Palm Beach, for appellee City of Boynton Beach.
   PER CURIAM.

Affirmed.

DELL and WALDEN, JJ., concur.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD, Chief Judge,

specially concurring:

Since the appellant failed to perfect its lien on the vehicle in question, I agree with the majority that the trial court did not err in denying appellant’s objection to forfeiture. Smith v. City of Miami Beach, 440 So.2d 611 (Fla. 3d DCA 1983); § 932.703(3), Fla.Stat. (1983).


author: BARKETT, Judge.

text:
    Jerry P. GAINES, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. 84-1791.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Rehearing and Certification of Question Denied March 13, 1985.

      Jerry P. Gaines, Belle Glade, petitioner, pro se.
    Doris E. Jenkins, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for respondent.
   BARKETT, Judge.

This is a petition for habeas corpus or, alternatively, mandamus through which petitioner challenges the modification of his presumptive parole release date (PPRD) by the Florida Parole and Probation Commission (the Commission). We treat the petition as one for a writ of mandamus, and grant it for the reasons set forth below. See Roberson v. Florida Parole and Probation Commission, 444 So.2d 917, 918 (Fla. 1983); Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974).

On April 18, 1977, petitioner was adjudicated guilty of second degree murder and unlawful possession of a firearm by a convicted felon. He was sentenced to a life term for murder, and to a 15-year concurrent term for possession of a firearm. On November 26, 1979, he was interviewed initially by the Commission for the purpose of establishing a PPRD, and his PPRD was established to be November 17, 1983. In establishing that PPRD, the Commission declined to take into account petitioner’s conviction for possession of a firearm.

Petitioner later escaped from custody. He was convicted for this escape on July 25, 1983, and was sentenced to a one-year term to run consecutively with the life imprisonment sentence. As a result of the new conviction for escape, petitioner’s original PPRD was vacated and he received a new “initial interview” on February 16, 1984. At this second “initial interview” the Commission set a new PPRD of March 7, 1989. The extended date resulted in part from petitioner’s escape. The extension of petitioner’s PPRD based upon his escape was proper, and is not questioned here. The Commission, however, also extended petitioner’s PPRD an additional 20 months by using petitioner’s conviction for possession of a firearm as an aggravating factor. Petitioner contends it was improper for the Commission to consider his prior conviction for possession of a firearm in setting his second PPRD because this information was before the Commission when the first PPRD was established. We agree.

Section 947.16(4), Florida Statutes (1983), provides, in relevant part:

[T]he presumptive parole release date may not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.

Section 947.173(3), Florida Statutes (1983), provides, in relevant part:

It is the intent of this legislation that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.

Thus, three factors justify modifying a prisoner’s PPRD after it has been determined originally: (1) new information; (2) institutional conduct; and (3) extraordinary circumstances. Paige v. Florida Parole and Probation Commission, 434 So.2d 7 (Fla. 1st DCA 1983); Jackson v. Florida Parole and Probation Commission, 424 So.2d 930, 931 (Fla. 1st DCA 1983). See also Fuller v. Wainwright, 458 So.2d 1131 (Fla. 4th DCA 1984); Shannon v. Mitchell, 460 So.2d 910 (Fla. 4th DCA 1984). The Commission cannot adversely modify a prisoner's PPRD asserting “new information” if that information has already been considered and acted upon by the Commission in establishing the PPRD. State ex rel. Boyles v. Florida Parole and Probation Commission, 436 So.2d 207, 211 (Fla. 1st DCA 1983); McKahn v. Florida Parole and Probation Commission, 399 So.2d 476, 478 (Fla. 1st DCA 1981).

In this case, the Commission concedes that the firearm conviction was not “new information.” It argues, however, that because petitioner’s original PPRD was “vacated” as a result of his escape, his first release date was void and the Commission was free to use petitioner’s firearm conviction as an aggravating factor because the second PPRD must now be construed as the initial PPRD. The Commission calls our attention to section 23-21.18(1) of the Florida Administrative Code as authority for this proposition:

23-21.18 Disposition of Special Types of Cases Under the Guidelines.
(1) Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarceration shall require an initial interview to establish a presumptive parole release date, [emphasis added]

We cannot agree with the Commission’s contention. Section 947.16(4) and section 947.173(3), Florida Statutes (1983), clearly prohibit modifying a prisoner’s PPRD absent new information, evidence of institutional conduct, or extraordinary circumstances. We cannot allow a regulation of the Commission, even when it is one that has been lawfully promulgated, to be accorded the legal effect of repealing or modifying a valid statute enacted by the legislature. Powell v. Kelly, 214 So.2d 347 (Fla. 1st DCA 1968), cert. discharged, 223 So.2d 305 (Fla.1969). Because the conviction for possession of a firearm is not “new information” in relation to the setting of petitioner’s pre-escape PPRD, and because the Commission initially chose not to extend petitioner’s PPRD because of that conviction, the Commission cannot now use that conviction to extend petitioner’s PPRD.

Accordingly, the Commission is hereby directed to subtract from petitioner’s present PPRD the 20 months that were added to it as a result of the aggravating factor of petitioner’s conviction for possession of a firearm.

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

      . §§ 120.53, 947.071, 947.13, Florida Statutes (1981).


text:
    AUTO-OWNERS INSURANCE CO., Appellant, v. Margaret PROUGH, formerly Margaret Pipkin, Appellee.
    No. 83-2286.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 25, 1985.
    Donald G. Jacobsen, Lane, Trohn, Bertrand & Williams, P.A., Lakeland, for appellant.
    Harvey B. Hardy, Jr., Wallace & Hardy, P.A., Lakeland, for appellee.
   LEHAN, Judge.

The trial court’s final partial summary judgment required “stacking” of uninsured motorist coverage. We affirm.

Appellee was the named insured in an insurance policy issued by appellant which covered two motor vehicles. Appellee was driving one of the vehicles at the time of an automobile accident with a tortfeasor motorist whose liability insurance was limited to $10,000. Appellee was severely injured. Her medical bills exceeded $180,000. The policy provided that uninsured motorist coverage applied to underinsured motorist situations.

Appellee and appellant disagreed as to the amount of uninsured motorist coverage available to appellee under the policy. Appellant took the position that only $25,000 uninsured motorist coverage, the amount of coverage on one vehicle under the policy terms, was available. Appellee’s position was that she was entitled to $25,000 uninsured motorist coverage on each of the vehicles insured by the policy, a total of $50,000 coverage. There was no dispute that whatever uninsured motorist coverage was afforded under the policy would be subject to a $10,000 set-off for the tort-feasor’s liability insurance limits.

The parties filed opposing motions for summary judgment. The trial court granted appellee’s motion, holding that appellee was entitled to “stack” her uninsured motorist coverage notwithstanding the policy’s anti-stacking provision. The issue on appeal is whether an insurance policy which insures more than one vehicle may validly prohibit stacking uninsured motorist coverage and limit that coverage to the amount stated for one vehicle. We answer that question in the negative and affirm.

The insurance policy in this case provided:

We will pay up to the limits stated in the Declarations for this coverage. The limit stated for “each person” is the most we will pay for all damages, including damages for expenses and care and loss of services, for bodily injury to one person in any one occurrence. We will pay no more than the limit stated for “each occurrence” when two or more persons are injured in the same occurrence. Charging premiums under this policy for more than one automobile does not in crease the limit of our liability as stated for “each 'person and “each occurrence. ” The amount payable under this policy shall be reduced by any amount paid or payable for the same injury under the Liability Coverage of this policy or under any workers’ compensation law and by the amount paid by or on behalf of any person who may be legally responsible.

(Emphasis added.) The portion emphasized reinforces the general language of the preceding provisions and prohibits “stacking” by stating that even though premiums are charged for more than one automobile, coverage is no more than the $25,000 limit.

Appellee’s argument is that the foregoing anti-stacking provision is against public policy. In support appellee principally cites Sellers v. GEICO, 214 So.2d 879 (Fla. 1st DCA 1968), cert. dismissed, 229 So.2d 873 (Fla.1969) and Tucker v. GEICO 288 So.2d 238 (Fla.1973). Sellers and Tucker held that when an uninsured motorist endorsement stated per person accident policy limits and was attached to a combination policy covering two vehicles with a separate premium charged for each, the insured was entitled to aggregate, or “stack,” the amount of coverage provided for each vehicle when the insured was injured by an uninsured motorist. (Appellee states that a separate premium was paid on each of the insured vehicles in the ease at hand.) Included in the reasoning of Sellers and Tucker was the position that since the law was settled that there can be recovery for one accident by an insured under each of multiple uninsured motorist policies covering various vehicles, there was “no reason why a different rule should be applied merely because the insurance coverage afforded on different vehicles is combined in one instead of two or more policies.” Sellers, 214 So.2d at 882. See Tucker, 288 So.2d at 242. Tucker proscribes an anti-stacking policy provision as to uninsured motorist coverage which was on a “presumed basis of single car auto liability coverage had the uninsured motorist purchased the same.” 288 So.2d at 242. Tucker and Sellers, as the parties to this appeal argue, were grounded upon public policy which, as explained below, we believe is still in effect.

It is true that Sellers and Tucker were decided before the legislature addressed the subject of stacking uninsured motorist coverage. In 1976, after those cases were decided, the legislature enacted section 627.4132, Florida Statutes (1976), which specifically prohibited stacking of automobile insurance coverage. That statute provided:

If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

§ 627.4132, Fla.Stat. (1976). However, in 1980, the legislature amended section 627.-4132. Under that amendment, which was in effect at the relevant times here, the general prohibition against stacking continued, but the legislature added a proviso that “[t]his section shall not apply ... to [ujninsured motorist coverage.”

There appear to be two possible reasons for the 1980 legislative exclusion of uninsured motorist coverage from the general anti-stacking statute. Appellee argues that the reason must have been to revert back to the pre-1976, judicially-declared public policy favoring stacking of uninsured motorist coverage. Appellant contends that the reason must have been only to remove any legislative prohibition against stacking of uninsured motorist coverage and to leave the matter of whether or not to stack to the contracting parties. Both argue persuasively. Our review of the legislative history of the 1980 amendment requires us to conclude that appel-lee’s argument is correct.

It is apparent that the Florida Legislature intended for the amendment to once again put into effect the prior public policy regarding stacking of uninsured motorist benefits.

This bill simply eliminates the prohibition against stacking and would thus revive prior case law which permitted and determined the extent of the stacking of uninsured motorist insurance policies.

Staff of House Comm, on Insurance, 1980 Fla. Legislature, Reg.Sess., Report on Stacking of Uninsured Motor Vehicles, at 2 (April 28, 1980). See also Senate Staff Analysis and Economic Impact Statement, 1980 Fla.Leg., Reg.Sess., Report on Stacking of Uninsured Motor Vehicle Insurance, at 1 (May 30, 1980). See Rhodes, White, and Goldman, The Search for Intent: Aids to Statutory Construction in Florida, 6 Fla.St.U.L.Rev. 383, 391-392 (1978). Accordingly, the rationale of Sellers and Tucker was intended to be revived.

In Sellers the insurance policy contained an anti-stacking provision which was “the standard provision incorporated in most automobile liability insurance policies whether coverage is limited to one vehicle, or to several vehicles.” Sellers, 214 So.2d at 880. The Sellers court concluded that it could not reasonably be assumed from such a standard provision that the limit of uninsured motorist coverage should be that provided for only one vehicle, regardless of the number of vehicles insured. Id. The somewhat different anti-stacking language in the policy in the instant case may well have become standard following enactment of the 1976 statutory anti-stacking requirement. In Tucker, the relevant policy language was more specific than that in Sellers. The Tucker policy referred to liability of the insurance company for uninsured motorist coverage being limited “regardless of the number of automobiles ... to which this policy applies.” 288 So.2d at 240. The policy in the instant case provides that charging premiums for insurance on more than one automobile does not result in stacking. This policy is, therefore, more specific in prohibiting stacking than the policies in Sellers and Tucker. Nonetheless, in view of the foregoing legislative intent behind the 1980 amendment, we feel we must conclude that the anti-stacking provision in the policy in this case is against public policy and is not enforceable. See State Farm Mutual Automobile Insurance Co. v. Gant, 460 So.2d 912 (Fla. 2d DCA 1984) question certified on rehearing, No. 83-1142 (Fla. 2d DCA Dec. 19, 1984).

At the same time, we recognize that there are arguments for appellant’s position. For example, although appellee states that a separate premium was paid for insurance on each of the insured vehicles, the evidence does not establish that appellee paid for the right to stack. In fact, the policy provided notice to appellee that stacking was not contracted for. Accordingly, the rationale of May v. State Farm Mutual Automobile Insurance Co., 430 So.2d 999 (Fla. 4th DCA 1983), provides support for appellant’s position. However, that case was decided under the 1976 anti-stacking provision. See Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978). Also, the rationale of France v. Liberty Mutual Insurance Co., 380 So.2d 1155 (Fla.3d DCA 1980) can be argued to be against our holding. In France the Fourth District Court of Appeal recognized the right of insurers to limit their liability for uninsured motorist coverage. However, the France result was conditioned upon there being no countervailing public policy. Id. at 1156. In addition, from the standpoint of abstract fairness, it would not seem unreasonable that one, like appel-lee here, who has coverage on one automobile which is involved in an accident with an uninsured motorist should be restricted to uninsured motorist coverage for one accident occurrence with that automobile as provided in the policy. However, this case is controlled by statutory construction.

As we have stated above, the language of the 1980 amendment is susceptible of two opposing interpretations. The interpretation we follow is, we believe, mandated by the foregoing unambiguous legislative history.

Affirmed.

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


author: CAMPBELL, Judge. SCHEB, Acting Chief Judge,

text:
    WEN-DIC CONSTRUCTION CO., INC., a Florida corporation, Appellant, v. MAINLANDS CONSTRUCTION CO., INC., a Florida corporation, Appellee.
    No. 84-535.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 15, 1985.

      Daniel B. Schuh, St. Petersburg, for appellant.
    Grover C. Freeman of Freeman & Lopez, P.A., Tampa, for appellee.
    Alice R. Huneycutt, Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., Tampa, as amicus curiae in support of Barnett Bank of Tampa.
   CAMPBELL, Judge.

Appellant, Wen-Dic Construction Company, Inc., seeks review of the trial court’s order cancelling appellant’s mechanic’s lien and setting aside a lis pendens against the property of Mainlands Construction Company, Inc., appellee. We reverse.

Although numerous points were raised on appeal, we discuss only one issue. The question addressed is whether the trial court erred in dismissing amended count I of appellant’s counterclaim on the ground that it was untimely under section 713.-21(4), Florida Statutes (1983).

The following facts are relevant to this appeal.

Following a dispute over a site development contract, appellee, the owner of the improved property, refused to pay the final draw. Appellant filed a claim of lien on February 11, 1983, less than ninety days after the completion of the last work on the project. See § 713.04, Fla.Stat. Appellant also fulfilled the other procedural requirements of the mechanic’s lien statute. See § 713.06, Fla.Stat.

On March 24, 1983, appellee filed suit against appellant seeking discharge of the mechanic’s lien pursuant to section 713.21. Appellant answered and filed affirmative defenses. Appellant also filed a counterclaim requesting foreclosure of the mechanic’s lien in count I.

Appellee filed a motion to dismiss the counterclaim, claiming appellant had no standing to foreclose on the mechanic’s lien following an assignment of appellant’s interest to the Great American Bank. The trial court dismissed the counterclaim with leave to amend. Appellant filed an amended counterclaim, referred to the reassignment of its interest from the Great American Bank, and again sought foreclosure of the mechanic’s lien in amended count I. We note, at this juncture, that contrary to the trial court’s finding, the assignment of appellant’s interest in receivables from ap-pellee for security purposes, did not transfer the mechanic’s lien to the assignee. See Hunt Truck Sales and Service, Inc. v. Holopak Village, 363 So.2d 27 (Fla. 4th DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979).

Appellee next filed a motion to dismiss the amended count I of appellant’s counterclaim on the ground that appellant was barred from foreclosing on the lien under section 713.21(4). Under section 713.21(4), after a complaint for discharge of a mechanic’s lien has been filed, the lienor must show cause, within twenty days, why the lien should not be cancelled or vacated. The amended count I of the counterclaim was filed more than twenty days after the complaint for discharge of the lien.

The trial court, in a corrected order, dismissed amended count I of appellant’s counterclaim, discharged the lien, and set aside the lis pendens.

Appellant argues that the trial court erred in determining that appellant did not respond to the complaint to discharge the lien within the twenty-day requirement of section 713.21(4). We agree.

Appellee’s complaint to discharge the lien was filed March 24, 1983. Appellant’s counterclaim seeking foreclosure of the mechanic’s lien was filed April 5, 1983, well within the twenty-day limitation period of section 713.21(4). We note the counterclaim seeking to foreclose the mechanic’s lien is a proper means to avoid cancellation of the lien under section 713.21(4). Goldberger v. United Plumbing & Heating, 358 So.2d 860 (Fla. 4th DCA 1978). The subsequent dismissal of the original counterclaim with leave to amend did not cause the amended count I, filed more than twenty days after the complaint, to be untimely under section 713.21(4). The general rule is that amendments relate back to the date of the original pleading where the amended pleading arises from the same transaction or conduct. Fla.R.Civ.P. 1.190(c). Even where there is a change in the legal theory upon which the action is brought, or in the legal description of the rights to be enforced, the amendment relates back if it is based on the same factual situation. Keel v. Brown, 162 So.2d 321 (Fla. 2d DCA 1964).

These general principles of procedure apply in mechanic’s lien cases despite the rigid requirements of the mechanic’s lien statute. See, e.g., Scarfone v. Marin, 442 So.2d 282 (Fla. 2d DCA 1983) and B & H Sales, Inc. v. Fusco, Corp., 342 So.2d 105 (Fla. 2d DCA 1977).

Here, appellant’s amended count I of the counterclaim merely realleged the basis for standing and again requested foreclosure of the mechanic’s lien based on exactly the same factual situation as the original counterclaim. Accordingly, the amendment related back to the timely original counterclaim so that 713.21(4) does not bar appellant’s action.

Accordingly, we find that the trial court erred in dismissing the amended count I of appellant’s counterclaim and, based on that dismissal, discharging appellant’s mechanic’s lien and setting aside the lis pendens.

Both parties have filed motions for attorney’s fees in this appeal, pursuant to section 713.29, Florida Statutes (1983). Since appellant is the prevailing party in this appeal, we construe section 713.29 to provide that it should be awarded attorney’s fees for this appeal, regardless of the final outcome of the mechanic’s lien foreclosure below. Accordingly, we award such fees and direct the trial court to set the amount of the fee upon remand.

Reversed and remanded.

DANAHY, J., concurs.

SCHEB, A.C.J., concurs in part and dissents in part with opinion.

SCHEB, Acting Chief Judge,

concurring in part and dissenting in part.

I concur completely with the majority opinion with the exception of the award of attorney’s fees to appellant.

Appellant claims an entitlement to fees under section 713.29, Florida Statutes (1983), which provides:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

The purpose of the statute is to make the prevailing party whole while at the same time discouraging specious claims and defenses. Sanfilippo v. Larry Giacin Tile Co., 390 So.2d 413 (Fla. 4th DCA 1980). In litigation involving lien foreclosure, we have previously defined the “prevailing party” as the “one in whose favor an affirmative judgment is rendered.” Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754, 756 (Fla. 2d DCA 1978). See also American Diversified Dredging, Inc. v. Nautilus Construction Corp., 457 So.2d 597 (Fla. 2d DCA 1984); C.U. Associates, Inc. v. R.B. Grove, Inc., 455 So.2d 1109 (Fla. 3d DCA 1984).

While appellant has prevailed on appeal, I would not award attorney’s fees at this time. I think that before attorney’s fees may be awarded under section 713.29, that a party must establish a meritorious claim and actually obtain a judgment rendered in his favor. See Magee v. Bishop Signs, Inc., 458 So.2d 1174 (Fla. 4th DCA 1984). If the majority’s decision on this point were followed to its logical conclusion, it could have the effect of awarding fees to a party who prevails on appeal on a technicality, but who does not have a meritorious claim in the court below. I do not think that is within the statutory purpose.

Accordingly, I would grant appellant’s motion for attorney’s fees on appeal, conditioned on its ultimately prevailing in the trial court. See, e.g., McDonald v. Southeastern Fidelity Insurance Co., 373 So.2d 94 (Fla. 2d DCA 1979); Segelstrom v. Blue Shield of Florida, Inc., 233 So.2d 645 (Fla. 2d DCA 1970). I concur in the majority’s decision in all other respects.


author: OTT, Judge.

text:
    Frank H. HARRISON, individually and as Personal Representative of the Estate of James Ronald Leathers, Deceased, Appellant, v. Bernard HUBER and Helen Huber, his wife, and Margaret Bradley, Appellees.
    No. 84-981.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1985.
    Rehearing Denied Feb. 25, 1985.
    N. David Korones, Clearwater, for appellant.
    Wm. Fletcher Belcher, St. Petersburg, for appellees.
   OTT, Judge.

In this appeal from a nonfinal order, Frank H. Harrison, individually and as Personal Representative of the Estate of James Ronald Leathers, deceased, seeks review of the trial court’s grant of partial summary judgment in favor of appellees. We affirm and remand.

In November, 1979, a certificate of deposit was opened at the Palm Harbor office of Sun Bank (a commercial bank) in the names of “James R. Leathers or Frank H. Harrison.” No language concerning sur-vivorship was contained in the certificate of deposit. Leathers died in March of 1980. Shortly thereafter, Harrison redeemed the $35,000 certificate of deposit and placed the funds in his personal account.

Appellees, residual beneficiaries of the estate of James R. Leathers, filed suit against Harrison, individually and as the personal representative of the estate, seeking inter alia recovery of the funds from the certificate of deposit.

Appellees moved for partial summary judgment seeking a determination that Harrison had no right or entitlement to the proceeds of the certificate of deposit. In its order granting appellees’ motion for partial summary judgment, the trial court phrased the issue before it as follows:

Whether or not the opening of a certificate of deposit in the names of “James R. Leathers or Frank H. Harrison,” with no reference of any kind of survivorship, is sufficient to create a joint account with right of survivorship.

Without discussion, the trial court determined that the above-mentioned account style did not create a joint account with right of survivorship.

The narrow legal issue addressed by the trial court in the order granting appellees’ motion for partial summary judgment is controlled by section 659.291(1), Florida Statutes (1979), which provides:

Unless otherwise expressly provided in the signature contract card or other similar instrument delivered to and accepted by a bank in connection with the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons, whether minor or adult, payable to or on the order of oné or more of them or the surviving account holder or holders, all such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest and claim in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper set-offs and charges in favor of the bank, shall vest in the surviving account holder or holders.

We are not persuaded by appellant’s position that the opening of an account in two names, even without survivor-ship language, automatically creates an account with right of survivorship. As we read the governing statute, some language indicating survivorship is required to invoke the rebuttable presumption of survivorship. See Fortman v. Freedom Federal Savings and Loan Ass’n of Tampa, 403 So.2d 985 (Fla. 2d DCA), pet. for review denied, 402 So.2d 609 (Fla.1981) (interpreting savings and loan association rules). Accordingly, we hold that the lower court correctly found the opening of a certificate of deposit in a commercial bank in the names of “James R. Leathers or Frank H. Harrison,” without more, did not create a survivorship account under section 659. 291(1).

We have addressed only the narrow legal issue contained in the lower court’s order. The order was partial and was limited to the same narrow legal issue addressed by this court. The order did not address or dispose of other issues, such as what ownership interest appellant may have in the certificate of deposit, if any.

AFFIRMED and REMANDED.

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

      . Section 659.291 was renumbered section 658.-56 and amended by chapter 80-260, § 46, Laws of Florida effective July 1, 1980.


author: PER CURIAM.

text:
    Sandra DAVIS, as personal representative of the Estate of Neil Allen Davis, deceased, Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Appellee.
    No. 83-2520.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    Rehearing Denied Feb. 20, 1985.

      Edward C. Rood, Jr. of Rood & Webster, and Mary Ann Stiles of Stiles & Allen, Tampa, for appellant.
    Bruce A. Walkley of Walkley, Stuart & Macy, Tampa, for appellee.
   PER CURIAM.

Davis is the personal representative of the estate of Neil Allen Davis, a tow truck operator who was struck and killed by an uninsured motorist while changing a tire on a disabled vehicle on Interstate 275 in Tampa, Florida. Gillette Auto Center had expressly consented to have the deceased use their wrecker. At the time of the accident, the deceased was outside the wrecker changing the rear tire on the passenger side of the vehicle. On these facts the trial court entered a declaratory judgment in favor of Fireman’s Fund, Gillette’s insurer, finding that the deceased was not entitled to uninsured motorist benefits as he was not “occupying” the wrecker owned by Gillette Auto Center when he was killed. We affirm.

The uninsured motorist section of Gillette’s policy defines an insured as “anyone ... occupying a covered auto.” The term “occupying” is defined as “in, upon, getting in, on, out or off.” When the language of an insurance contract is unambiguous, as we believe it is here, the language must be given its plain, ordinary, and popular meaning, the same as any other contract. Carter v. Peninsular Fire Insurance Co., 411 So.2d 960 (Fla. 3d DCA 1982). Even applying, as we must, the most liberal interpretation of the language possible to achieve coverage, M.E. Charlesworth, Ltd. v. Perez, 426 So.2d 1107 (Fla. 3d DCA 1983), we simply cannot say that the deceased was “occupying” the wrecker when he was struck and killed. See Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A.2d 686 (1973) (wrecker operator, who was injured when a disabled car was struck by an uninsured motorist after wrecker had lifted the car and who, at the time of the accident, was preparing to enter the car, was not “in or upon, or entering into or alighting from” the wrecker and, therefore, not “occupying” the wrecker so as to fall within his employer’s uninsured motorist coverage).

Affirmed.

DANAHY, A.C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: GRIMES, Judge.

text:
    Roger Ian SCHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 84-133.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    Rehearing Denied Feb. 18, 1985.

      Jack T. Edmund of Edmund, McDaniel & Mars, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Francis Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from his conviction of trafficking in cannabis, appellant contends that the court erred in denying his motion to suppress marijuana which was seized pursuant to a warrantless search of his truck.

Nancy Miller acted as the representative of the landlord of a duplex apartment located south of Lake Wales in which appellant lived. Pursuant to his contract, Donald Fernandez, a pest control man, came to spray appellant’s apartment, but appellant was not home. Appellant had previously told Fernandez that he did not want him to go into his apartment when he was not there. For that reason Fernandez asked Ms. Miller to accompany him the day he sprayed. While inside they saw some large scales and several bales stacked in a bedroom. One of the bales had a tear in it, and Ms. Miller observed what she believed to be marijuana coming out of the tear. Ms. Miller telephoned a deputy whom she knew in the Polk County sheriff’s office and reported what she had seen. She stated that she knew what marijuana was because she had worked at a radio station in Miami where the disc jockeys had used marijuana.

Shortly thereafter, one of the deputies went to Ms. Miller’s home to interview her. Others were dispatched to the apartment to watch it and provide a description for a search warrant. As the investigating officers were moving into surveillance positions, appellant returned home and backed up his camper truck next to the apartment. The deputies were unable to observe whether or not appellant was making trips in and out of the apartment because their view was blocked. After approximately ten minutes, appellant drove off at a rapid rate of speed. A supervising deputy gave an order over the radio that appellant’s truck was to be stopped and appellant was to be detained until a search warrant could be obtained. Deputy Anderson stopped appellant’s truck and ordered him outside. The deputy then walked over to the truck where he could see bales of marijuana both in the cab and in the camper shell. He also smelled an odor of marijuana surrounding the truck. At this point appellant was arrested and the marijuana was seized.

Appellant does not strongly contend that the deputies did not have probable cause to obtain a search warrant for the apartment. He does argue, however, that the deputies should not have stopped his truck because they did not have probable cause to believe that it contained marijuana. We find appellant’s position to be untenable.

The sheriffs deputies had every reason to believe that there were bales of marijuana in appellant’s apartment. They testified that they were aware that, upon returning home, appellant would know that someone had been in his apartment because of the smell of the bug spray. Although they were unable to see whether appellant had loaded the marijuana into his truck, they were justified in so concluding when he left hurriedly just ten minutes later. Thus, the deputies had probable cause to believe the truck contained marijuana, and they were entitled to stop it for a search without a warrant. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

AFFIRMED.

LEHAN and FRANK, JJ., concur.

      . The credibility of Ms. Miller's report was enhanced by her comment that appellant had owned a bar in Lake Wales because the sheriffs office had previously been told that a Lake Wales bar owner named Roger was dealing in marijuana.

      . Even if we were to conclude that there was no probable cause to stop the truck, appellant's conviction could still be sustained. At the very least, the deputies had reasonable suspicion to believe that the truck contained marijuana. Therefore, they had a right to make an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Once the truck was stopped, Deputy Anderson could see the marijuana in open view and had a right to seize it under the automobile exception to the warrant requirement. Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellant, v. The FLORIDA RESTAURANT ASSOCIATION, et al., Appellees.
    No. 84-205.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    Rehearing Denied Feb. 25, 1985.
    Harold F. X. Purnell, General Counsel, Dept, of Business Regulation, Tallahassee, for appellant.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellees.
   PER CURIAM.

Appellant, the Division of Alcoholic Beverages and Tobacco, appeals a final judgment which determined that vendors of wine were excluded from a floor tax imposed by chapter 83-349, § 17, Laws of Florida. We reverse.

Sections 12, 14, and 15 of chapter 83-349 raised the tax rate on various alcoholic beverages, such as beer, wine, and distilled spirits. The higher tax rates are paid by licensed Florida distributors of alcoholic beverages upon the sale of those products to licensed Florida retailers. The new tax rates took effect on September 1, 1983.

The portion of chapter 83-349 at issue in this lawsuit is section 17, which provides:

On the effective date of this section, before opening for business, each vendor in this state shall take an inventory of those alcoholic beverages in inventory upon which the increase in tax imposed by this act has not been paid and shall certify the amount of such inventory to the Division of Alcoholic Beverages and Tobacco on or before September 10, 1983, accompanied by a check or money order for the amount of increased tax. The provisions of chapters 563, 564 and 565, Florida Statutes, relating to penalties and interest for delinquent payment, shall apply to the additional tax levied by this section.

The appellees contend that section 17 of chapter 83-349 does not apply to vendors of wine. Their argument is that the “increase in tax” referred to in section 17 as it applies to wine was an increase in a tax imposed only on manufacturers and distributors, not vendors of wine. They argue that section 14 of chapter 83-349 increased the tax rate already imposed by section 564.06, Florida Statutes (1981), which statute did not impose a tax on vendors of wine. Since there never was an excise tax on the privilege of possessing wine for retail sale, the argument is that section 14 of chapter 83-349 did not raise any tax rate applicable to vendors of wine and section 17 of chapter 83-349 did not apply to vendors of wine because wine in their possession was not an alcoholic beverage to which the increase in tax imposed by section 17 applied.

We disagree with appellees’ well made argument. Section 17 of chapter 83-349 clearly provides for a separate and distinct floor tax on all alcoholic beverages which were subject to an increase in tax rate by other sections of chapter 83-349, i.e., beer and malt beverages, distilled spirits, and wine. Alcoholic beverages in the inventories of vendors on the effective date of the tax rate increase imposed by sections 12, 14, and 15 of chapter 83-349 would, except for the provisions of section 17, not have been subject to the rate increase because the tax is normally paid by distributors. See sections 563.05, 564.06 and 565.12, Florida Statutes (1981). The legislature, therefore, enacted section 17 of chapter 83-349 to tax the alcoholic beverages not yet sold to consumers on which the increased tax otherwise would hot have been payable.

In discussing chapter 83-349, the Florida Supreme Court in Rutledge v. Chandler, 445 So.2d 1007, 1009 (Fla.1984), stated:

Section 17 of chapter 83-349 levied a “floor tax” on Florida retailers, taxing all alcoholic beverages in retail inventory on the September 1 effective date to ensure that all alcoholic beverages sold by retailers after the effective date bore the same tax rate. The section 17 tax mirrored the rest of the chapter regarding tax rate, gallonage, and type of beverage and was designed to prevent avoidance of the tax by stockpiling before September 1, and also to prevent a potential windfall for any retailer who might sell pre-September inventory at post-September prices.

The supreme court in Rutledge was concerned with whether the section 17 tax was an excise tax or ad valorem tax. The supreme court was not presented with the issue now before this court of whether the section 17 tax applied to wine. However, the court’s language is helpful in explaining the intent of the section 17 tax, as when the court says that the “section 17 tax merely reaches the alcoholic beverages which otherwise would have escaped the increased tax.” Id. at 1009.

The legislature did not show any intention in chapter 83-349 to exempt vendors of wine from the section 17 tax. To the contrary, every indication is that the legislature intended to include wine in the section 17 floor tax. The fact that, as appellees argue, vendors of wine are otherwise not required by statute to pay an excise tax on their products to the state (although they presumably pay the tax indirectly as part of the price they pay to distributors for the wine) is not relevant to the issue of whether vendors of wine are subject to the tax imposed by section 17 of chapter 83-349. We find that vendors of wine are subject to that tax.

We find no merit in appellant’s remaining arguments.

Reversed and remanded for proceedings consistent with this opinion.

DANAHY, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


author: FERGUSON, Judge.

text:
    MORTGAGE CORPORATION OF AMERICA, Appellant, v. INLAND CONSTRUCTION COMPANY, Appellee.
    No. 84-1229.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Rehearing Denied March 13, 1985.
    Adams, Ward, Hunter, Angones & Ward, Daniels & Hicks and Patrice A. Talisman, Miami, for appellant.
    Greene & Cooper and Robyn Greene, Stephens, Lynn, Chernay & Klein, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

The central issue in this appeal is whether a trial court may refuse to grant a defendant’s motion to vacate a final judgment, which vacation was agreed to by the parties pursuant to a settlement agreement, on the grounds that a severed third party defendant who received a summary judgment based on the original judgment might be adversely affected. We hold that it may not and reverse.

The facts leading up to this appeal are set forth in an earlier opinion of this court, Mortgage Corporation of America v. Inland Construction Co., 447 So.2d 990 (Fla. 3d DCA 1984), which affirmed the trial court’s entry of a final summary judgment in favor of appellee/third party defendant, Inland Construction Company (Inland), in a third party indemnification action by defendant Mortgage Corporation of America (MCA) against Inland. MCA settled a personal injury claim with the plaintiff after a final judgment had been entered in its favor in accordance with the trial court’s directed verdict. The settlement was effected while the appeal from the judgment on a directed verdict was pending. Pursuant to that settlement MCA paid plaintiff $900,000 and the appeal was dismissed. The settlement agreement further provided:

3. That the final judgment heretofore entered in the Circuit Court in cause No. 73-22617(19) which bears date of June 27,1980, should be set aside and vacated, and an order entered voluntarily dismissing [plaintiff’s] claim against Mortgage Corporation of America and Travelers.

Following this court’s affirmance of the summary judgment for Inland in the third party action, MCA filed in this court a motion to relinquish jurisdiction so that the trial court could vacate the final judgment in accordance with the settlement agreement. The motion was denied. After this court issued its mandate, MCA filed a motion in the trial court seeking to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The court’s order denying that motion is the subject of this appeal.

MCA contends that (1) the trial court erred in refusing to vacate the final judgment in its favor because both it and Inland consented to the vacation in a written settlement agreement, and (2) Inland has no right to object to vacation of the judgment because it is neither a party to the judgment nor a third party whose rights would be materially affected by it. Inland counters that (1) it has standing to oppose the vacation of the judgment because the judgment which was entered on plaintiff’s claim against MCA has a res judicata effect on MCA’s indemnity claim against Inland, and (2) the motion to vacate was not filed within a reasonable time as required by Florida Rule of Civil Procedure 1.540(b), and as a result of that delay Inland would be prejudiced in preparing its defense if MCA were permitted to revive its barred indemnity claim. MCA replies that Inland’s interest in the judgment is contingent upon MCA’s success in both setting it aside and then reviving its now-barred third party claim which, at this time, are only possibilities. We agree.

§ 64. Standing to Seek Relief from a Judgment.
Relief from a judgment may be sought by or on behalf of a person only if the judgment is or purports to be binding on him under the rules of res judicata, or if he has an interest affected by the judgment as stated in § 76. Reliance on the above section is misplaced. Section 64 clearly applies to situations where a person is seeking to set aside a judgment which is binding on him or in which he has an interest. It has no application to the standing question presented in this case where a third person is not seeking relief from a judgment, but is instead opposing a party’s action for relief on grounds that he has an interest in preserving that judgment.

We start with the established rule that where parties agree to dismiss a lawsuit between them, it is the duty of the court to give effect to that agreement. Miller v. Miller, 332 Ill. 177, 163 N.E. 343 (1928); Turnbull v. Porter, 55 Ill.App.2d 374, 206 N.E.2d 97 (1964). See also Lotspeich Co. v. Neogard Corp., 416 So.2d 1163 (Fla.3d DCA 1982) (settlement agreements are highly favored in the law and will be upheld by courts wherever possible).

In Miller the trial court entered a decree for partition of certain property and held that the parties, husband and wife, each owned an undivided half interest. Since the property was not divisible it was advertised for sale by the court. The property was offered to the highest bidders and the parties filed objections to any future confirmation of the sale by the court. While the objections were pending before the court, the parties entered into a stipulation to dismiss the action. The two bidders filed intervening petitions that the motion to dismiss be denied. One of the bidders alleged that he had a lien on the wife’s share of the sale proceeds for his attorney’s fees. The trial court dismissed the intervening petitions and also entered an order dismissing the action on the stipulation of the parties. The Supreme Court of Illinois affirmed, holding that the bidders could not prevent the parties to the suit from entering into a binding stipulation to dismiss the suit, and that it was the duty of the court to enforce the dismissal provision of the agreement.

In another Illinois case, Forys v. Bartnicki, 107 Ill.App.3d 396, 63 Ill.Dec. 57, 437 N.E.2d 706 (1982), the appellate court reversed the trial court and directed it to grant a motion to dismiss the action pursuant to a stipulation by the plaintiffs and the defendant-executor, despite objection to that dismissal by non-contesting heirs who were, by statute, necessary parties-defendants, even though they had only a possible future interest in the decedent’s estate. Two of the decedent’s heirs had brought the action to contest the will and the executor, who was also the sole beneficiary, was the primary defendant. The jury returned a verdict for the plaintiffs and the court accordingly entered a judgment setting aside the will. While a post-trial motion was pending, the plaintiffs filed a motion to dismiss the action pursuant to a stipulation of settlement entered into by the plaintiffs and the defendant-executor. The trial court denied the plaintiffs’ motion finding that the non-contesting heirs had acquired an interest in the decedent’s estate by virtue of the judgment setting aside the will, and that a dismissal not agreed to by those heirs would prejudice their interest. In reversing, the appellate court held that:

This interest [of the non-contesting heirs], however, is purely fortuitous and is contingent upon plaintiffs prosecuting the case to final judgment and prevailing upon appeal. Since the non-contesting heirs have no right or interest in the judgment at this point, they would not be prejudiced by dismissal as requested by the plaintiffs.
... Dismissal of the action will thus deprive them only of a possible future interest in decedent’s estate — an interest which is not entitled to protection by the court.
... [The non-contesting heirs] chose not to litigate and, at the end of the statutory period for filing a contest, they lost their right to contest the will. The proposed settlement agreement leaves them in no worse position than they were in as a result of their choice not to contest the will.

63 Ill.Dec. at 62, 437 N.E.2d at 711.

Inland’s claimed interest in judgment for MCA on plaintiff’s claim is based on preserving the judgment, vacation of which will allow MCA to seek relief from the third party judgment which is predicated on the original judgment. Vacation of the original judgment will not per se affect any rights of Inland. Inland’s rights would be affected by an attempt to set aside the third party judgment which, if successful, would permit institution of a new third party claim. Both of these events are only possibilities. For these reasons, Inland has no present right deserving of court protection, and thus no standing to contest the present action to set aside the judgment as between plaintiff and MCA.

The motion to vacate the original judgment should have been granted.

Reversed and remanded for further proceedings.

      . Inland relies upon the Restatement (Second) of Judgments § 64 (1982) which provides:

      . In a case with a significantly different posture we recently recognized the right of a third party defendant to appeal a judgment against the defendant/third party plaintiff on the plaintiff's claim. Sheradsky v. Basadre, 452 So.2d 599 (Fla. 3d DCA 1984). A policy reason behind the decision was to give a third party defendant some protection against collusive judgments where liability would ultimately fall on the third party defendant. In Sheradsky, the third party defendant was at all times a party to the action. Second, the judgment against the defendant/third party plaintiff was not appealed by the latter and would have become binding if the third party defendant were not permitted to challenge it by appellate review.
      In this case the third party defendant was severed from the original action. Liability of the third party defendant could not be based solely on the settlement agreement between MCA and the plaintiff. Instead a separate trial on the third party claim is required, at which time the third party defendant could assert any defenses it could have asserted had the third party claim not been severed. The third party defendant could also defend on the grounds of prejudicial delay in reinstituting the third party claim, or fraud in entering into the settlement agreement.


author: RYDER, Chief Judge.

text:
    Virgil L.D. COTTONGIM and Betty J.W. Cottongim, husband and wife, Appellants, v. BOARD OF COLLIER COUNTY COMMISSIONERS, Avatar Properties, Inc., f/k/a Gulf American Corporation, and Collier Water Management District Number 1, Appellees.
    No. 83-2566.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.
    Rehearing Denied Feb. 26, 1985.
    Virgil L.D. Cottongim, pro se.
    George H. Knott and Kenneth A. Jones of Humphrey, Jones & Myers, P.A., Fort Myers, for appellee Avatar Properties, Inc.
   RYDER, Chief Judge.

Virgil and Betty Cottongim, plaintiffs below, appeal from a final summary judgment declaring that a certain spoil bank located on the Cottongims’ real property is the personal property of Avatar Properties, Inc. (Avatar). We reverse.

The facts are not in dispute. Beginning in 1962, Avatar developed a residential subdivision in Collier County known as Golden Gate Estates. As part of the development, Avatar dug canals and cast the dirt or “spoil” up onto their adjoining property, creating spoil banks. Subsequently, Avatar subdivided the property, selling lots to various buyers. Avatar conveyed the lot presently owned by appellants to the original grantee in 1970. The lot in question changed hands several times before being deeded to appellants in 1977. Appellants built a house on the lot and used a portion of the spoil bank as a foundation for the house pad and driveway. At all times, the spoil bank has remained where it was originally placed.

In 1981, appellants attempted to sell the spoil bank, dirt and have it hauled away. Avatar blocked the attempt and this litigation ensued. The trial court entered a final summary judgment in favor of Avatar, finding that when the spoil bank was severed from its original bed, it became personalty and, because there was no express agreement as to the disposition of the spoil bank or express language in appellants’ deed, it was not conveyed to appellants but remained the property of Avatar.

Appellee relies on Pettigrew v. W & H Development Co., 122 So.2d 813 (Fla. 2d DCA 1960) and Collins v. Intervest, Inc., 418 So.2d 1030 (Fla. 2d DCA 1982), for the proposition that when dirt is severed from its original bed and secured for use elsewhere, it becomes personalty. Although we have no argument with that general statement of the law, neither Pettigrew nor Collins applies in this situation. In both of those cases, we ruled that when a defendant wrongfully severed dirt from a plaintiffs land and placed the dirt on his own or another’s land, the dirt became personalty and the defendant was liable for conversion. As we stated in Pettigrew:

Although there is some authority to the contrary, the weight of authority seems to be that earth, sand, or gravel while remaining in its original bed, is a part of the realty and as such cannot be a subject of conversion; but where it has been severed from the soil, gathered up and secured for use elsewhere, or where it has been wrongfully severed and removed, it becomes personalty for the conversion of which an action of trover will lie. (citations omitted).

122 So.2d at 815.

In this case, however, Avatar severed the dirt, not wrongfully, from its natural bed and placed the dirt on its own land. The record contains no evidence that the dirt was ever intended to be used elsewhere. To the contrary, it remained where it was originally placed for approximately twenty years. There is no substantial, competent evidence in the record to support the trial court’s finding that the spoil bank was only temporarily situated on appellants’ property-

Accordingly, we hold that the spoil bank remained part of the realty and was conveyed to appellants in the deed to their lot. The lower court’s order is reversed and set aside and the trial judge is instructed to enter a final summary judgment in favor of appellants in accordance with this opinion.

DANAHY and CAMPBELL, JJ., concur.