text:
    James William ROCHE, Petitioner, v. STATE of Florida, Respondent.
    No. 65022.
    Supreme Court of Florida.
    Jan. 24, 1985.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen. and Wallace E. Albritton, Asst. Atty. Gen. and Frank A. Graham, Resident Counsel, Dept, of Agriculture, Tallahassee, for respondent.
   EHRLICH, Justice.

We examine the decision of the First District Court of Appeal, Roche v. State, 447 So.2d 890 (Fla. 1st DCA 1984), in light of a question certified as being of great public importance, pursuant to jurisdiction granted in article V, section 3(b)(4), Florida Constitution.

Roche, driving a van, failed to stop at an agricultural inspection station on Interstate 75. He was stopped by a Hamilton County deputy sheriff and ordered to return for inspection. At the station, an agricultural inspector discovered a locked compartment which Roche refused to open. The inspector neither saw nor smelled marijuana. Nonetheless, he procured a regulatory search warrant, pursuant to section 570.15, Florida Statutes (1980), and upon opening the compartment, discovered more than five hundred pounds of marijuana. After Roche and the van had been taken into custody, a flight bag belonging to Roche was found in the van. The police, without a warrant, opened the bag and discovered a calculator containing a list of weights corresponding to the bale numbers and weights.

Roche was tried and convicted on trafficking charges. He appealed on grounds (among others) that the trial court had erred in denying his motion to suppress the contraband as fruit of an illegal search, arguing that the basis for issuance of a regulatory search warrant did not fulfill the constitutional requirements of article I, section 12, Florida Constitution. The district court of appeal affirmed the trial court’s decision.

In his petition for rehearing, Roche directed the court’s attention to Lake Butler Apparel Co. v. Department of Agriculture and Consumer Services, 551 F.Supp. 901 (M.D.Fla.1982), in which the United States District Court had declared section 570.15, Florida Statutes, unconstitutional. The First District Court of Appeal adhered to its original affirmance, but certified the following question as being of great public importance:

DOES SECTION 570.15, FLORIDA STATUTES, VIOLATE THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION IN THAT IT ALLOWS ADMINISTRATIVE SEARCHES WITHOUT A SHOWING OF ‘PROBABLE CAUSE’ AND WITHOUT AN ‘ADMINISTRATIVE PLAN CONTAINING SPECIFIC NEUTRAL CRITERIA?’

447 So.2d at 891-92.

Section 570.15, Florida Statutes (1980) provides:

570.15 Access to places of business and vehicles.—
(l)(a) The commissioner, inspectors, road guard inspection special officers, and such other employees and officers of the department, as designated by the commissioner in writing, shall have full access at all reasonable hours to all:
1. Places of business;
2. Factories;
3. Farm buildings;
4. Carriages;
5. Railroad cars;
6. Trucks;
7. Motor vehicles, except private passenger automobiles with no trailer in tow, travel trailers, camping trailers, and motor homes as defined in s. 320.01(l)(b);
8. Truck and motor vehicle trailers;
9. Vessels; and
10. All records or documents pertaining thereto
which are used or are of a type which could be used,, in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access is refused by the owner, agent, or manager of any premises or by the driver or operator of any vehicle which an inspector or road guard inspection special officer has reason to believe is subject to inspection under this section, such inspector or officer may apply for, obtain, and execute a search warrant for regulatory inspection after stating under oath that:
1. He has reason to believe that the premises-or vehicle is subject to inspection pursuant to paragraph (a);
2. The vehicle sought to be inspected has had reasonable notice to stop for inspection; and
3. The owner, agent, manager, driver, or operator of the premises or vehicle has refused access for regulatory inspection.
Application for a search warrant shall be made in the county in which the premises are located or, in the case of a vehicle to which access is refused, in the county in which such refusal occurs. The provisions of chapter 933, relating to probable cause for the issuance of search warrants, shall not apply to this section.
(c) Such departmental officers, employees, and road guard inspection special officers may inspect any premises or vehicle referred to in paragraph (a) and may examine and open any package or container of any kind containing or believed to contain any article or product which may be transported, manufactured, sold, or exposed for sale in violation of the provisions of this chapter, the rules of the department, or the laws which the department enforces and may inspect the contents thereof and take therefrom samples for analysis.
(2) It shall be unlawful for the driver of any vehicle, other than one exempted in subparagraph 7. of paragraph (a) of subsection (1), to pass any official road guard inspection station without first stopping and submitting the vehicle for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) Every law enforcement officer is authorized to assist employees of the department listed in subsection (1) in the enforcement of subsection (2). Such officer is authorized to stop and detain any vehicle and its driver who has failed to comply with subsection (2) until an employee of the department arrives to conduct the inspection required by law. Such law enforcement officer or a road guard inspection special officer may require the driver to return with his vehicle to the road guard inspection station where the driver failed to stop the vehicle for inspection.
(4) No civil or criminal liability shall be imposed upon any person who is authorized to enforce or assist in enforcement of the provisions of this section and who is lawfully engaged in such activity.

In holding the statute unconstitutional, in Lake Butler Apparel Co., United States District Judge W. Terrell Hodges held that the state of Florida, through the Department of Agriculture’s Road Guard Bureau was “conducting random stops and searches of motor vehicles ... for the purpose of enforcing the regulatory laws within its jurisdiction.” 551 F.Supp. at 904. Analogizing the agricultural inspection stops to border searches for illegal aliens which are searches conducted within the criminal context, Hodges reasoned that once a legitimate stop occurs, the decision to inspect the vehicle further must be supported by probable cause based on “ ‘reasonable standards’ or ‘neutral criteria’ for selecting or searching those few vehicles which are actually searched.” 551 F.Supp. at 906.

We do not agree with Judge Hodges’ interpretation of the statute or of the applicable case law. We find the statute to authorize searches based on an administrative plan containing specific neutral criteria. The statute is, therefore, constitutional, and the search of Roche’s van pursuant to a valid administrative search warrant was also constitutional. The decision of the district court is approved.

The controversy over the statute arises from confusion about the meaning of “probable cause” in the context of administrative search warrants, a controversy well documented in federal case law.

In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court of the United States first acknowledged that the protections of the fourth amendment to the United States Constitution applied when a search of private property was conducted to enforce compliance with regulations designed to ameliorate social conditions and to protect the general welfare. Prior to Camara, fourth amendment protections had been invoked primarily in the context of criminal search and seizure, where society’s immediate interest was in apprehending and punishing individual violations of criminal laws. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

In Camara, the Court recognized that the 'warrant in an administrative or regulatory search provided the citizen with two primary reassurances: 1) It affirms that the search is authorized by proper authority; 2) It affirms that the search is being conducted for a proper purpose. 387 U.S. at 532-33, 87 S.Ct. at 1732-33. The Court also recognized that routine regulatory inspections were less hostile intrusions into privacy interests and that the probable cause required to justify such intrusion had to be tested for reasonableness. That test, the Court ruled, is “balancing the need to search against the invasion which the search entails.” 387 U.S. at 537, 87 S.Ct. at 1735. The Court then went on to define the factors which justify area-wide authorization of a regulatory search:

First, such programs have a long history of judicial and public acceptance. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results.... Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen’s privacy.

Id. (citations omitted).

Having recognized that “the facts that would justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken,” and that “[t]he test of ‘probable cause’ required by the Fourth Amendment can take into account the nature of the search that is being sought,” 387 U.S. at 538, 87 S.Ct. at 1735 (quoting Frank v. Maryland, 359 U.S. 360, 383, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959) (Douglas, J., dissenting)), the Court held, “it is obvious that ‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” Id. Camara, then, stands for the proposition that when a regulatory or administrative scheme requires searches of private premises in order to effectuate its goal, a citizen may demand a warrant as proof that the search of his property is being carried out by an authorized person for authorized purposes. Camara makes explicit that the probable cause measured is probable cause to believe that property in that general area or class may be susceptible to harboring or fostering the harm the administrative or regulatory scheme seeks to ameliorate. There is no requirement that the warrant be issued only upon a finding that a particular property poses a specific, individual threat of violating the administrative or regulatory scheme.

In Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Court held that an explicit statutory program, requiring inspection for enforcement, could not forgive the warrant requirement but went on to again emphasize the different nature of the probable cause required for warrants under that statutory program:

[Entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required.... A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer’s Fourth Amendment rights.

436 U.S. at 320-21, 98 S.Ct. at 1824-25 (citations and footnote omitted). The neutral criteria must spell out what class of properties is to be searched and what harm is sought to be prevented. The warrant issues upon a showing that the property to be searched is, in the judgment of a neutral magistrate, within that class. “A warrant ... would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” 436 U.S. at 323, 98 S.Ct. at 1826.

Turning, then, to the Florida statute, we hold that the statutory protective scheme contained in Chapters 573 through 581 sets forth with particularity the scope of inspection for particular diseased,, defective or unlicensed products. The searches authorized in section 570.15 are expressly limited to those necessary to implement the regulatory scheme and must be read in pari mate-ria with the entire statutory plan. The statute itself, in section 1(a) sets forth those classes of property subject to regulation and search. Neutral criteria delineating the classes are contained in the language

which are used or are of a type which could be used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.

In order to obtain a warrant, the inspecting officer is required to state under oath that the premises or vehicle to be searched is included in one of the classes of property delineated in subsection (l)(a), and the neutral magistrate must so find. The scope of the inspection is limited by subsection (l)(c) which incorporates by reference the regulatory plan enforced by the Department of Agriculture.

Judge Hodges was disturbed by the seeming randomness of searches of those vehicles which stopped. All vehicles falling into the statutory class are given notice that they are required to stop, subject to search, at agricultural inspection stations. There is nothing random in the definition of the class. The probable cause attaching to the class supports the individual searches. The lack of tax money and manpower to achieve total enforcement of a regulatory scheme must not be grounds for declaring the scheme itself facially unconstitutional.

In conclusion, we embrace the reasoning of the United States Circuit Court of Appeals for the Ninth Circuit, in United States v. Schafer, 461 F.2d 856 (9th Cir.), cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972), which upheld a conviction for possession of marijuana discovered in appellant’s baggage during a warrant-less search pursuant to an agricultural quarantine.

The effectiveness of an agricultural quarantine depends upon broad coverage of the inspections used to enforce it. Quarantine inspectors determine the need to inspect at a particular point on the likelihood that persons departing the quarantine area at that point will be carrying one or more of the plant substances on the quarantine list, not on any particular knowledge about particular individuals. Moreover, the decision to inspect is not “subject to the discretion of the official in the field.” In view of the fact that a quarantine inspection is not a search “which has as its design the securing of information ... which may be used to effect a further deprivation of life, liberty or property,” and the fact that “it is doubtful that any other canvassing technique would achieve acceptable results,” we think that the general administrative determination of the necessity for these baggage searches at the Honolulu airport satisfies the “probable cause” requirements of Camara.

461 F.2d at 859 (citations omitted).

In the case of section 570.15, we find that the legislature has isolated specific threats to the health, safety and general welfare of the citizens of this state, has recognized a class of private property which must be subject to regulatory searches in order to prevent the specified harm, and has set forth sufficient neutral criteria to guide the officers charged with the duty to inspect in identifying members of the delineated classes. The citizen is protected by the requirement of a warrant issued upon a showing that the regulatory scheme encompasses his property. We therefore find section 570.15, Florida Statutes (1980) to be constitutional and approve the decision of the district court of appeal.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.

      . We note that section 570.15(l)(b) was amended in 1983 to provide "Such inspection will be conducted in accordance with the administrative standards, including specific neutral criteria, for conducting such inspection set forth by appropriate rules of the department.” The absence of this language prior to 1983 cannot be taken as acknowledgement of the absence of specific neutral criteria in the search in question.

      . Of course, the decision in Lake Butler Apparel Co., is not binding on the courts of this state. State v. Dwyer, 332 So.2d 333 (Fla.1976); Bradshaw v. State, 286 So.2d 4 (Fla.1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974).

      . See e.g., Florida Statutes § 573.25 (celery, sweet corn); § 573.74 (foliage plants); § 573.-825 (watermelons); § 573.854 (soybeans); § 573.880 (tobacco); § 573.906 (peanuts); § 576.051 (agricultural fertilizer); § 578.11 (seed); § 580.091 (feed and feedstuff). These chapters are further implemented in rules published in Title 5B of the Florida Administrative Code.


source: Caselaw Access Project

author: BOYD, Chief Justice. ALDERMAN, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Clifford Talmadge SMITH, Respondent.
    No. 65157.
    Supreme Court of Florida.
    Jan. 24, 1985.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   BOYD, Chief Justice.

This cause is before the Court on petition of the State of Florida for review of the decision of the district court of appeal reported as Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984). The district court certified that its decision passed upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent was charged with second-degree murder and, upon being tried on the accusation of murder, was convicted of manslaughter. The trial court, pursuant to section 775.087(1), Florida Statutes (1981), reclassified the offense from its ordinary severity as a second-degree felony, § 782.-07, Fla.Stat. (1981), to a first-degree felony on the ground that the defendant used a firearm during the commission of the offense.

On appeal to the district court, respondent raised two issues: first, that reclassification was improper because section 775.-087 does not provide for it except with regard to the offense charged and here respondent was convicted not of the offense charged but of a lesser included offense; second, that reclassification was improper without a jury finding of the enhancement element of use of a firearm. The district court found that both arguments were correct and that both errors warranted reversal.

Recent decisions of this Court address both issues. With regard to the first point, we quash the decision of the district court of appeal on the authority of Miller v. State, 460 So.2d 373 (Fla.1984). There we held that the reclassification provisions of section 775.087(1) may apply where the defendant is convicted of a lesser included offense rather than the offense expressly charged.

Regarding the second point, we approve the decision of the district court on the authority of State v. Overfelt, 457 So.2d 1385 (Fla.1984). There we held that the factual element subjecting the defendant to reclassification under section 775.-087(1) must be found by the trier of fact, precluding judicial reclassification in a jury trial.

The decision of the district court is approved in part and quashed in part, and remanded for disposition consistent with this opinion.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Justice,

concurring in part and dissenting in part.

For the reasons stated in my dissent to State v. Overfelt, 457 So.2d 1385 (Fla.1984), I would quash the decision of the district court and remand with instructions that the trial court be affirmed.


author: EHRLICH, Justice.

text:
    Robert Arthur DELANA, Petitioner, v. STATE of Florida, Respondent.
    No. 65365.
    Supreme Court of Florida.
    Jan. 24, 1985.
    Michael E. Allen, Public Defender and Charlene V. Edwards, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Henri C. Caw-thon and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for respondent.
   EHRLICH, Justice.

Approved. State v. Jones, 461 So.2d 97 (1984).

ADKINS, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SHAW, J., concurs in result only.

BOYD, C.J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. William B. NETZER, Respondent.
    No. 65412.
    Supreme Court of Florida.
    Jan. 24, 1985.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    William B. Netzer, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against William B. Netzer, a member of The Florida Bar, is presently before us on complaint of The Florida Bar, conditional guilty plea, and report of referee. Pursuant to article XI, rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to article XI, rule 11.09(1) of the Integration Rule has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. The Respondent, William B. Netzer, is and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. On or about October 29, 1975, John Demmerle was served with a Summons and Complaint in Case No. 75-17355 in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, in which one Alice Ferris was seeking damages against Demmerle and others, based on a promissory note.
3. Mr. Demmerle took the Summons and Complaint to Respondent and employed Respondent to represent him in said action.
4. Respondent advised Mr. Demmerle that the matter would be handled by him and periodically advised him that the matter was being handled.
5. Respondent failed to handle the matter entrusted to him by Mr. Demmerle and failed to file any response or answer to the complaint, which resulted in a default being entered against Mr. Dem-merle, and a judgment entered thereon in or about February 1976.
6. In response to periodic inquiries, Respondent always assured Mr. Demmerle that things were being taken care of and that he should not worry.
7. Mr. Demmerle was not the primary obligor on the promissory note sued on and Demmerle requested that the Respondent advise the holder of the note and her attorney that the makers intended to sell the security for the note and depart the jurisdiction, so as to prevent Mr. Demmerle from having to pay for the note upon the default of the makers. Respondent failed to so advise.
8. Mr. Demmerle had advised Respondent of the various defenses he had to the note.
9. Mr. Demmerle did not learn of the entry of the default on the judgment until it turned up in a title search in or about April or May of 1978.
10. It was Respondent’s belief that he did not represent Mr. Demmerle in this matter, but Respondent can understand that Mr. Demmerle thought Respondent was representing him.
11. During the period of time of the facts in this Guilty Plea, Respondent was going through a very difficult dissolution of marriage proceeding.
12. Respondent is presently residing outside of the State of Florida and is not engaged in the practice of law.
13. In his Conditional Guilty Plea, the Respondent has pled guilty to having violated Disciplinary Rules 6-101(A)(2), 6-101(A)(3) and 7-101(A)(2) of the Code of Professional Responsibility.

The referee recommends that Netzer be found guilty of violating disciplinary rules 6-101(A)(2) and (3) and 7~101(A)(2) of the Code of Professional Responsibility and recommends that he be suspended from the practice of law for a period of one year and thereafter until he is reinstated pursuant to article XI, rule 11.11 of the Integration Rule.

Having carefully reviewed the record, we approve the findings and recommendations of the referee. Accordingly, William B. Netzer is hereby suspended from the practice of law for a period of one year effective nunc pro tunc June 19, 1984 and thereafter until he is reinstated pursuant to article XI, rule 11.11 of the Integration Rule. Judgment for costs in the amount of $588.22 is hereby entered against Netzer, for which let execution issue.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    Anthony DUMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 64621.
    Supreme Court of Florida.
    Jan. 31, 1985.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

We originally accepted jurisdiction in this cause, reported below as Dumas v. State, 439 So.2d 246 (Fla. 3d DCA 1983), on the basis of conflict with Cirio v. State, 440 So.2d 650 (Fla. 2d DCA 1983), and Johnson v. State, 411 So.2d 1023 (Fla. 2d DCA 1982). Upon further review, we find that there is no conflict because of the distinctive factual circumstances in the instant case, and, consequently, no basis for this Court to accept jurisdiction. The petition for review is denied.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.


author: DELL, Judge.

text:
    Marjorie D. SHRINER and Cynthia A. Enright, Appellants, v. Thomas E. DYER, as Co-Trustee of the MSD Trust, and Individually; and Shirley Dunaway, as Co-Trustee of the MSD Trust; and Eleanor J. Hartstone, as personal representative of the Estate of H. Nelson Hartstone, Deceased, Appellees. Shirley DUNAWAY, as Co-Trustee of the MSD Trust, Appellant, v. Marjorie D. SHRINER, Cynthia A. Enright, Thomas E. Dyer, as Co-Trustee of the MSD Trust, and Individually, and Eleanor J. Hartstone, as Personal Representative of the Estate of H. Nelson Hartstone, Deceased, Appellees.
    Nos. 83-75, 83-144.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    As Corrected on Rehearing Aug. 1, 1984.

      Melinda Penney Gamot of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for Shriner and Enright.
    C. Robert Burns of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Thomas E. Dyer, individually, and Shirley Duna-way, as successor co-trustee of the MSD Trust.
   DELL, Judge.

The beneficiaries of the “MSD Trust” appeal from the amended partial summary judgment and the amended final judgment denying them legal and equitable relief for alleged trust mismanagement. Shirley Dunaway, as successor co-trustee of the MSD Trust, appeals from the post-judgment order removing her as trustee. This court consolidated the appeals.

During her lifetime, Mildred S. Dyer established the MSD Trust. The trust named Mrs. Dyer’s two daughters, Marjorie Shriner and Cynthia Enright, as beneficiaries. The trust named Mrs. Dyer’s son, Thomas Dyer, and H. Nelson Hartstone, as co-trustees.

Several years after Mildred Dyer died, the beneficiaries brought suit to declare the trust void and to recover a surcharge against Thomas Dyer and H. Nelson Hart-stone for alleged trust mismanagement. The complaint failed, however, to name Dyer and Hartstone in their capacities as trustees. The court found the evidence insufficient to make a monetary award and denied the beneficiaries any surcharge against Dyer and Hartstone in their individual capacities. However, the final judgment stated that the judge found “in favor of the defendants and against the plaintiffs ... without prejudice to the plaintiffs to pursue such equitable remedies that are available to them as a cestui que trust against the defendants as trustees under the trust.”

The beneficiaries subsequently filed another action against Dyer and Hartstone as individuals, but also named.them in their capacities as trustees. Before the case came to trial, Hartstone died. Shirley Dun-away replaced Hartstone as co-trustee of the MSD Trust. The beneficiaries filed a second amended complaint adding Shirley Dunaway and the Estate of Hartstone as defendants. The amended complaint contained two counts. Count I sounded in equity against the trustees. Under Count II, the beneficiaries requested a surcharge against Dyer individually and against the Estate of Hartstone.

On the first day of trial the court granted a partial summary judgment against the beneficiaries. Since the initial action sought to recover a surcharge against Dyer and Hartstone in their individual capacities, the court held that the doctrine of res judicata barred the beneficiaries from trying again to prove they sustained money damages before September 12, 1980 (the last day of the initial trial). After trial on the merits, the court entered an amended final judgment which found that no credible evidence existed to merit a surcharge against Dyer individually or against the Estate of Hartstone for the period from September 12, 1980 forward. The court also found that the evidence did not warrant Shirley Dunaway’s removal.

About one month after the court entered its judgment, the beneficiaries again sought to remove and replace Shirley Dunaway. Based on their petition and the evidence submitted, the trial court then determined Shirley Dunaway should be removed and entered its order granting the beneficiaries’ petition. Shirley Dunaway appeals from this order. Based on the record before us, we find the trial court properly removed Shirley Dunaway and thus turn our discussion to the points raised by the beneficiaries.

The beneficiaries raise several points on appeal. Three points merit discussion, two require reversal.

Initially, the beneficiaries contend the trial court erred by granting a partial summary judgment on the basis of res judicata. We disagree. The four identities required before res judicata applies include:

(1) identity in the thing sued for;
(2) identity of the cause of action;
(3) identity of the persons and parties to the actions; and
(4) identity of the quality or capacity of the person for or against whom the claim is made.

Seaboard Coast Line Railroad v. Industrial Contracting Co., 260 So.2d 860, 862 (Fla. 4th DCA 1972).

Under Count II of the amended complaint, the beneficiaries requested a surcharge of money damages against Dyer and Hartstone in their individual capacities. First, the beneficiaries seek money damages, which they also sued for in the previous action. Second, Count II contains a cause of action at law for damages resulting from the mismanagement of a trust, also contained in the previous action. Third, since Dyer and Hartstone are sued under Count II in their individual capacities, as they were sued in the previous action, there is an identity of parties and an identity of the capacities of the parties. Thus, the four requisite elements are met. We therefore hold the trial court properly applied the doctrine of res judicata to bar any recovery of money damages for the period of time ending September 12, 1980.

Next, the beneficiaries contend the trial court erred by denying a surcharge against Dyer and Hartstone individually for money damages suffered after September 12, 1980. Specifically, the beneficiaries alleged that after September 12, 1980, Dyer and Hartstone improperly paid from the trust funds the sum of $58,000 for attorney’s fees incurred for their individual defenses of the previous action.

Since Dyer and Hartstone defended against individual liability for trust mismanagement in the previous action, their personal interests conflicted with their position as trustees. Section 737.403(2), Florida Statutes (1983) provides that when “the duty of the trustee and his individual interest ... conflict in the exercise of a trust power, the power may be exercised only by court authorization,_” Dyer and Hart-stone should have obtained court approval before exercising their trustee power to use trust funds to pay their attorney’s fees. Therefore, we hold that the unilateral payment of attorney’s fees without court approval constitutes an improper payment out of trust funds. Accordingly, we reverse that portion of the judgment which denied the surcharge against Dyer and Hartstone individually and remand to the trial court to enter an order consistent herewith.

Finally, the beneficiaries assert an entitlement to an award of attorney’s fees from the funds being brought back into the trust. Attorney’s fees may be recovered when provided by statute; when provided by contract; or under the common fund rule. Fidelity and Casualty Co. of New York v. O’Shea, 397 So.2d 1196 (Fla. 2d DCA 1981); Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976). The common fund rule serves to award attorney’s fees “from a fund or estate which has been benefitted by the rendering of legal services.” Estate of Hampton, 341 So.2d at 761. As a result of the beneficiaries’ efforts in this case, they will succeed in increasing the trust estate by approximately $58,000. We therefore find the common fund rule applicable and remand this cause to the trial court to make an award of attorney’s fees to the beneficiaries from the recovered assets.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

ANSTEAD, C.J., and HERSEY, J., concur.


text:
    BAREFOOT MAILMAN LIMITED, Barefoot Mailman Management Company, Barefoot Mailman Owner’s Association, Inc., and Caxton Limited, Appellants, v. Donald I. BARKHEIMER, II., Park Avenue Investment & Development, Inc., etc., et al., Appellees. PARK AVENUE INVESTMENT & DEVELOPMENT, INC., etc., et al., Appellants, v. Donald I. BARKHEIMER, II., et al., Appellees.
    Nos. 83-311, 83-1004.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied July 11, 1984.
    Preston Mighdoll of Kohl, Springer, Springer, Mighdoll & Salnick, Palm Springs, for appellants Barefoot Mailman and Caxton Limited.
    Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellees Donald I. Barkheimer, II, et al.
    Hal P. Dekle, Tampa, and O’Conner, Bay-ler & Elliott, Palm Beach, for Park Avenue Investments, Inc., et al.
   PER CURIAM.

Affirmed. See Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971) and Sherman v. Field Clinic, 74 Ill.App.3d 21, 29 Ill.Dec. 597, 392 N.E.2d 154 (1979).

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

WALDEN, J., dissents without opinion.


author: LETTS, Judge.

text:
    Robin David SNELGROVE, Appellant, v. Ernest Anthony DeNUCCIO, Individually, the City of Hollywood, Florida and Robert Feise, Appellees.
    No. 83-2461.
    District Court of Appeal of Florida, Fourth District
    May 30, 1984.
    Robert W. Kelley of Pomeroy, Betts & Pomeroy, and Cathy Jackson Burris of Hoffmann and Burris, P.A., Fort Lauder-dale, for appellant.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appel-lees.
   ON PETITION FOR REHEARING

LETTS, Judge.

The rehearing motion is granted and the opinion of April 18, 1984 is withdrawn. The Appellee, Ernest Anthony DeNuccio, having confessed error, this cause is reversed only with regard to him.

REVERSED.

HERSEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Mark TETLEY, Appellant, v. Richard A. LETT, et ux., Armour Industrial Security, Inc., et al., Appellees.
    No. 83-2613.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    David F. Cooney of Conrad, Scherer & James, Fort Lauderdale for appellant.
    Donald A. Wich, Jr., Sullivan, Bailey, Gleason & Wich, P.A., Pompano Beach for appellee — Lett.
    Susan Powell Sistare of Fitzgerald & Taylor, and Mark S. Schechter, Fort Laud-erdale for appellee — Armour.
   GLICKSTEIN, Judge.

This is an appeal from two orders of the trial court, denying a defendant’s motion to set aside a default entered by the'clerk and his subsequent motion for rehearing. We reverse and remand.

Appellees are husband and wife. They alleged in their amended complaint that appellant, while employed as a security guard at the entry gate of a residential development in Broward County, beat up the husband and did him in verbally as well. The wife’s claim was for loss of consortium.

Appellees sent a summons to the sheriff of Forsythe County, Georgia, for service upon appellant along with a subpoena for his deposition. There seems to be no question that appellant was served with both on January 13, 1983. Five weeks later, appel-lees filed with the clerk a motion for default which had attached thereto an “Affidavit of Services.” Appellees’ appendix reflects a document, signed by a deputy sheriff. The name of a notary public appears without other identity of jurisdiction or seal. The document recites that appellant was served on January 13, 1983, at Route # 1, Box 158 in Gainesville, Georgia. It does not recite the time of service. The summons was apparently lost.

Section 48.21, Florida Statutes (1981), provides:

48.21 Return of execution of process. —All officers to whom process is directed shall note on it the time when it comes to hand, the time when it is executed, the manner of execution, the name of the person on whom it was executed and if such person is serviced in a representative capacity, the position occupied by him. A failure to state the foregoing facts invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts. A failure to state all the facts in the return shall subject the officer so failing to a fine not exceeding $10, in the court’s discretion.

Section 48.194, Florida Statutes (1981), provides:

48.194 Personal service outside state. —Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.

It can be seen that appellees did not comply with the foregoing statutes; therefore the clerk should not have entered the default, it being incumbent upon that court officer and his deputies to examine what is filed with them as a predicate for default in light of statutory requirements. Of course, appellees’ counsel should not have requested the default any more than the clerk should have entered it in light of those requirements.

The effect of non-compliance with the statutes has been spelled out in Klosenski v. Flaherty, 116 So.2d 767 (Fla.1959). While we shall not quote lengthily from it, attorneys in the district would perhaps gain from reading it. It is sufficient here to restate the holding therein; namely, that while jurisdiction over appellant’s person was effected by the personal service, the failure to comply with the remaining statutory requirements placed the jurisdiction, like Rip Van Winkle, into a state of dormancy during which period the trial court was without authority to enter a default. It follows that the clerk’s hands were similarly tied in this case. Accordingly, the trial court should have granted appellant’s motion to set aside the clerk-originated default and to allow the filing of the tendered answer, affirmative defenses and counterclaim.

We note, in closing, that appellant’s deposition and brief suggest on one occasion the 210 pound plaintiff/appellee husband, a former Marine, was drunk and beat up the 140 pound defendant/appellant security guard. The contradictory allegations of the parties of course had no bearing on our disposition of this appeal, but should make for an interesting trial — certainly if any ex-Marines serve on the jury!

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


author: LETTS, Judge. HERSEY, Judge,

text:
    In re FORFEITURE OF 1974 FORD PICKUP TRUCK, VIN: F10GCT89110, FLORIDA TAG DA-3485.
    No. 82-2489.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Douglas N. Duncan of Foley, Colton & Duncan, P.A., West Palm Beach, for appellant, Charles Thomas.
    James H. Hicks of McKeown & Gamot, P.A., Palm Beach, for appellee, Richard P. Wille, as Sheriff of Palm Beach County, Florida.
   LETTS, Judge.

The defendant was convicted of the grand theft of various kitchen appliances stolen from a new housing site whence they were transported in his pickup truck. Prior to trial he moved to suppress all evidence concerning those appliances, claiming they were the fruits of an illegal stop. The trial court disagreed as did this court when we affirmed in Thomas v. State, 437 So.2d 689 (Fla. 4th DCA 1983).

Now we entertain a second appeal emanating from the forfeiture of the defendant’s pickup truck pursuant to Sections 932.701-704, Florida Statutes (1981). We reverse.

The Sheriff of Palm Beach County initiated this particular action seeking a final order forfeiting the pickup truck. The evidence presented at the forfeiture hearing was the same given at the previous hearing on the motion to suppress, relative to the circumstances leading up to the deputy’s stopping of the vehicle and the arrest of the defendant. No direct testimony or evidence was brought forth there or at the forfeiture hearing as to how much the appliances were worth or whether they were in fact stolen.

The defendant, therefore, argues that there was no evidence that the truck was used to “facilitate” the commission of a felony because the evidence neither established that the appliances in the vehicle were stolen, nor how much they were worth. We agree.

In In re: Forfeiture of Approximately Forty-Eight Thousand Nine Hundred Dollars in U.S. Currency, 432 So.2d 1382, 1385 (Fla. 4th DCA 1983), we unequivocally held that in a civil in rem proceeding such as this the agency seeking the forfeiture bears the initial burden of showing probable cause that the res subject to forfeiture was illicitly used within the meaning of the forfeiture statute. Thereafter, if it does that, the burden shifts to the defendant to rebut the showing of probable cause. No such rebuttal was adduced in the case at bar, so that the single issue is whether the agency established probable cause to believe that the pickup truck was used to facilitate the commission of a felony. Section 932.701(2)(e).

The court below and this appellate court found that the officer had a founded suspicion to stop the defendant driving his truck. It was our view in Thomas v. State, supra, that after the officer heard the unconvincing explanation as to why the defendant had possession of the appliances coupled with knowledge that the construction site had been the target of prior vandalisms of appliances, he then had probable cause to arrest. This officer’s testimony was the only testimony offered at the forfeiture hearing. The usual test of probable cause is whether the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in and of themselves to warrant a man of reasonable caution to believe that an offense has been committed, Benefield v. State, 160 So.2d 706, 708 (Fla.1964). The probable cause standard is particularized under the forfeiture statute: probable cause to believe the truck was used to facilitate the commission of a felony. The initial necessary probable cause showing is not onerous: it is less than establishing a prima facie showing of the felony. Forfeiture is a civil remedy and the law does not require proof beyond a reasonable doubt to' sustain the petitioner’s case, Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982), Tallahassee v. The Forfeiture of One Yellow 1979 Fiat, 414 So.2d 1100 (Fla. 1st DCA 1982). This initial showing of probable cause shifts the burden to the defendant. If the defendant by his proof successfully shifts the burden back to the petitioner, the petitioner then would have to establish by a preponderance of the evidence that the forfeiture statute was violated. Marks v. State, supra. Here the proof was inadequate even to meet the initial showing.

This substitute opinion is of course completely contra to its predecessor which we have withdrawn. However, the excellent petition for rehearing has made us see the error of our ways.

REVERSED.

DOWNEY, J., concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

I respectfully dissent. My assessment of the evidence presented in the trial court leads me to the same conclusion reached by the trial judge; that is, that the police officer had probable cause to believe the subject pick-up truck was used to facilitate the commission of a felony, to-wit, dealing in stolen property.

The majority intimates that the evidence did not establish “that the appliances in the vehicle were stolen.” I disagree.

Approximately one-half hour prior to the stop of petitioner’s vehicle, the officer observed the appliances at a construction site which had been the target of prior vandal-isms. Once the officer saw the appliances in petitioner’s truck (which appeared identical to the appliances previously observed just a mile or two away) and heard petitioner’s unconvincing explanation that he was delivering the appliances to some apartments for an unknown individual he met hitchhiking, after a promise of $25 to pick up said appliances at an address in Loxa-hatchee also unknown to the petitioner, the officer had the requisite probable cause needed in forfeiture proceedings.

Forfeiture is a civil remedy and the law does not require proof beyond a reasonable doubt to sustain the petitioner’s case. Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982); Tallahassee v. The Forfeiture of One Yellow 1979 Fiat, 414 So.2d 1100 (Fla. 1st DCA 1982).


text:
    BARILE EXCAVATING & PIPELINE CO., INC., Appellant, v. KENDALL PROPERTIES, INC., and Reliance Insurance Company, Appellees.
    No. 82-631.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Thomas Shahady and Earl Faircloth of Houston, Faircloth, Easthope & Traver, Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh, Larry Klein, and Douglas C. Fulton, West Palm Beach, for appellees.
   PER CURIAM.

The contractor/appellant, Barile Excavating & Pipeline Co., Inc., filed a complaint against the owner/appellee, Kendall Properties, Inc., and Reliance Insurance Company to foreclose a mechanic’s lien on the owner’s property. The owner answered and counterclaimed, alleging that the contractor breached the contract and did not complete the work. The counterclaim sought damages for added costs incurred in the completion of the project. The trial court found the contractor had not substantially completed the job, dismissed the mechanic’s lien action, and found for the owner on its counterclaim for damages.

The court awarded the owner the sum of $22,050.80 “as actual or estimated damages plus the sum of $7,450.00 as liquidated damages for delay under the contract.”

The first issue raised by the appellant was whether the owner proved its damages by competent and legally sufficient evidence. The trial court concluded that the contractor had failed to properly perform its contractual responsibilities in regard to grading, shoulder stabilization, installation of sidewalks and driveways, utility hookups, and furnishing of “as built” drawings. In all, some 14 specific items had to be completed by the owner. The evidence in support of the owner’s claims on the 14 items was based primarily on estimates as to the cost of completion rather than the actual cost of completion. The damages allowable for a breached construction contract are discussed in the Supreme Court’s Grossman Holdings Limited v. Hourihan, 414 So.2d 1037 (Fla.1982), decision. There, the court adopted Subsection 346(l)(a) of The Restatement of Contracts and concluded that the measure of damages for an unfinished construction contract is the reasonable cost of construction and completion in accordance with the contract, if this is possible and not productive of unreasonable economic waste. Here, it is obvious that the owner had already completed a substantial portion of the work which the contractor had failed to perform. Since these actual cost figures were available, we conclude that error occurred when the trial court based its judgment on the estimated cost of completion. The court’s judgment is phrased in terms of “actual or estimated” damages, but the evidence received was primarily based on estimates.

In addition to the above, we find that clear error occurred as to the $15,-242.00 item for the installation of 16 driveway approaches. The trial court concluded that these driveway approaches were the responsibility of the contractor and the damage evidence offered related to construction of concrete driveways. The court also found that the contract did not require concrete driveways. It was thus error to award damages based on concrete installations rather than asphalt installations, which were substantially cheaper. In view of the error as to estimates rather than actual expenditures and the inconsistent findings as to the concrete driveways, we conclude that a new trial on damages is warranted. We affirm the trial court’s finding as to substantial completion and as to liquidated damages and remand the matter for a new trial as to actual damages.

ANSTEAD, C.J., BERANEK, J., and C0-CALIS, PATRICIA W., Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2193.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied July 26, 1984.
    Larry Williams, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Fayerweather v. State, 332 So.2d 21 (Fla.1976).

DOWNEY and WALDEN, JJ„ concur.

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

ANSTEAD, Chief Judge,

specially concurring:

Although it appears that the result in this case is controlled by Fayerweather v. State, 332 So.2d 21 (Fla.1976), I do not believe the legislature intended for such a harsh result to occur in enacting the statutes in question here. The appellant wrongfully used another person’s credit card to make four purchases of $25.99, 23.87, 37.96 and 32.23. Section 817.61, Florida Statutes (1981) outlaws the fraudulent use of credit cards. A single violation of this section is punishable as a misdemeanor. If the purchases exceed $100.00 in total under the use of a single credit card over a six month period the crime becomes a felony punishable by a maximum of five years in prison. Appellant’s four purchases all occurred in one day and in total exceeded $100.00. So appellant is faced with a maximum sentence of five years, right? Wrong.

Appellant was prosecuted in four counts under section 831.01, the general forgery statute which was originally enacted in 1868 before credit cards and their misuse was even imagined. Under 836.01 each count, or each purchase (and attendant forgery of the credit card receipt), is punishable by a maximum of five years imprisonment. Appellant was, indeed, sentenced to four consecutive five year sentences for his four unlawful uses of the credit card. The bottom line is that he received a 20 year sentence for what amounts to four counts of petit larceny that, if prosecuted under the credit card statute, would have been punishable by a maximum of five years. Realizing that appellant may well be a genuine bad guy and justly deserving of having the book thrown at him, it simply seems grossly unfair to sanction a 20 year sentence for stealing $120.05 when it appears fairly certain that the legislature intended such conduct to be punished by a maximum five year sentence. This is espe-dally true in light of the provisions of section 775.02, Florida Statutes, which provide that the provisions of the criminal statutes shall be construed most favorably to the accused.


text:
    Clarence L. CLEM, Appellant, v. STATE of Florida, Appellee. Edward DORCH, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-2243, 82-1233.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.

      Richard L. Jorandby, Public Defender, Anthony Calvello and Marcy K. Allen, Asst. Public Defenders, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, Robert L. Bogen and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appel-lee.
    Enoch J. Whitney, Gen. Counsel, Florida Parole & Probation Commission, Tallahassee, as amicus curiae for appellee.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

Pursuant to the State’s motion for rehearing, we have reconsidered at length these consolidated appeals from orders revoking probation, have heard oral argument a second time, and have concluded that our decision filed August 31, 1983, was erroneous. We hereby withdraw it and substitute the following in its stead.

Clarence L. Clem

On August 29, 1979, a jury found Clem guilty of robbery with a weapon. On December 28, 1979, the circuit court adjudicated him guilty and, without objection by the State, exercising its discretion under Section 958.04(1), Florida Statutes (1979), directed that Clem be sentenced as a youthful offender. Later that day the court entered a judgment which ordered that Clem “be committed to the Department of Corrections for a term of FOUR.. .YEARS, with credit for.. .jail time; that after [he had] served TWO...YEARS of said term, [he should] be placed on probation for a period of BALANCE OF SENTENCE PLUS * * * Additional 2 years.” The Department of Corrections received custody of Clem on January 11, 1980. On April 1,1981, the Department released him because the two year period of confinement prescribed by the judgment, etc., had expired by virtue of gain time.

On July 9, 1981, a probation officer of the Department of Corrections filed an affidavit setting forth that Clem had started serving a period of probation on April 1, 1981, and that he had violated the conditions of that probation by committing a robbery. After an evidentiary hearing on October 6, 1981, at which Clem stipulated he was on probation, the circuit court found Clem guilty of violating his probation. On October 26, 1981, the court sentenced Clem to serve sixty years in prison on the 1979 robbery. Clem’s appeal, Case No. 81-2243, is from the order of revocation and from the sixty year sentence.

Edward Dorch

On April 1, 1980, Dorch entered a negotiated plea of guilty to manslaughter. The court entered a judgment of guilty and committed Dorch to the Department of Corrections for four years. After serving a “MINIMUM OF ONE (1) YEAR of said term, [he was to] be placed on probation for a period of TWO (2) YEARS.” A commitment order showed that the two year probation period was to be in a community control program. The Department of Corrections obtained custody of Dorch on April 11, 1980. On May 5, 1981, he was paroled by order of the Florida Parole and Probation Commission.

On February 12,1982, a probation officer filed an affidavit that Dorch violated the conditions of his probation by, among other things, committing a burglary on February 1, 1982. After an evidentiary hearing, the court found Dorch had violated the conditions of his probation and on May 4, 1982, sentenced him to serve six years on the manslaughter conviction.

On July 7, 1982, the Florida Parole and Probation Commission revoked his parole, effective February 1, 1982, on the manslaughter sentence.

The Dorch appeal, Case No. 82-1233, is from the circuit court order revoking probation and from the six year sentence.

The primary question before us is whether the circuit court had jurisdiction to revoke the appellants’ probation.

Appellants contend that the circuit court did not have jurisdiction to enter an order revoking probation because (a) the court did not have power to place them on probation; it had power only to place them in a community control program; and (b) as a result of section 958.10(2), Florida Statutes (1979), only the Parole and Probation Commission has jurisdiction to enter a sanction for violation of a community control program that a youthful offender begins to serve after a period of incarceration imposed by a court under section 958.05(2), Florida Statutes (1979). Appellants did not raise this argument during their revocation hearings; however, since it concerns the circuit court’s subject matter jurisdiction they may raise it now because lack of subject matter jurisdiction is fundamental error that an appellant may raise at any time. Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977); Page v. State, 376 So.2d 901 (Fla. 2d DCA 1979).

In our opinion the circuit court’s improvident placement of appellants on probation rather than in a community control program has no effect on the result in this case; had they sought review before committing any violation, we would merely have directed modification of the order of probation to reflect that they were to be placed in a community control program as in Cruce v. State, 432 So.2d 734 (Fla. 4th DCA 1983). The circuit court’s improvident action in the present cases had no prejudicial effect on appellants, since the crucial effect of the orders in these cases was to provide for appellants’ spending only a portion of their original sentences in prison. No prejudice could have accrued to the appellants because probation entails less rigorous supervision than community control. Any error here is mere error, not jurisdictional error, and harmless error at worst. Appellants may not complain of any error in being placed on probation rather than in a community control program because they accepted the benefits of such improvident placement. Cf. King v. State, 373 So.2d 78 (Fla.3d DCA 1979); Preston v. State, 411 So.2d 297 (Fla. 3d DCA 1982).

The jurisdictional issue arises from section 958.10, Florida Statutes (1979), and its apparent conflict with sections 958.05(2) and 958.14. Pursuant to section 958.05(2) the circuit court has jurisdiction to impose a maximum sentence upon a youthful offender of not more than six years, not more than four of which are to be served in prison and not more than two years in community control. If the youthful offender violates the terms of his community control, the circuit court has jurisdiction to proceed pursuant to section 958.14, which incorporates section 948.06(1), to revoke the community control and pronounce sentence upon him. By authority of section 958.-05(2) the circuit court initially ordered each appellant to incarceration and then a period of probation (which we held was meant to be community control). When they violated the terms of the probation/community control, the court had jurisdiction to sentence them pursuant to section 958.14. While we recognize that section 958.10 appears to create a conflict regarding who is in charge of the youthful offender while he is in community control and who may proceed against him in the event he violates the terms of the community control, we believe the jurisdiction of the sentencing circuit court is established by sections 958.-05(2) and 958.14.

The last issue for determination is the propriety of the sentences imposed on the appellants. As indicated above, the circuit court sentenced Clem to sixty years for the offense of robbery with a weapon and Dorch to six years for manslaughter.

The State concedes that Clem’s sixty year sentence is invalid, since robbery with a weapon is a first degree felony (See section 812.13(2)(b), Florida Statutes (1979)), and as such is punishable by imprisonment for not more than thirty years (See ■section 775.082(3)(b), Florida Statutes (1979)). However, the State takes the position that, upon a revocation of community control, the court may, under authority of section 958.14, Florida Statutes (1979), which incorporates section 948.06(1), impose whatever sentence it might originally have imposed without regard to the youthful offender act.

Because the weight of authority is directly contrary to the State’s position, we hereby adhere to that authority and hold that the court may impose no more than four years’ imprisonment on each appellant. See Ellis v. State, 436 So.2d 342 (Fla. 1st DCA 1983), and cases cited therein.

For the reasons set forth above we affirm the orders revoking probation, which is tantamount to revocation of community control, but reverse the sentences imposed and remand the causes for resentencing in accordance with the holding in Ellis v. State, supra.

This decision passes upon the following questions, which we certify to the Supreme Court of Florida to be of great public importance:

1. When a person is sentenced as a Youthful Offender pursuant to Chapter 958.05(2), Florida Statutes (1979), does the circuit court have jurisdiction to revoke the Community Control program status of that person?
2. If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender’s Community Control Program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes?

DOWNEY, LETTS and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    CITY OF LAKE WORTH, a Florida Municipal Corporation, Appellant/Cross Appellee, v. Robert WALTON, Appellee/Cross Appellant.
    No. 82-2199.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearing Denied Nov. 1, 1984.

      Charles W. Musgrove, Asst. City Atty., Lake Worth, for appellant/cross appellee.
    Barbara J. Compiani of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Den-ney & Searcy, P.A., West Palm Beach, for appellee/cross appellant.
   DOWNEY, Judge.

Robert Walton, a police officer, sued his employer, the City of Lake Worth, for wrongfully refusing to promote him. Ap-pellee recovered damages in the amount of $75,000, together with $30,000 in attorney’s fees, and the City appeals. Walton cross appeals from the court’s denial of his motion for new trial to obtain additional damages for humiliation and mental anguish.

The background facts leading up to the instant litigation are necessary. In 1973 appellee joined the Lake Worth Police Department as a patrolman. Immediately pri- or to this employment Walton had been in the United States Army for three years. At the time he joined the police force, promotions were governed by the Lake Worth Police and Fire Civil Service Rules. These rules established a five-member Civil Service Board and a system of open, competitive examinations. A “rule of one” was used to determine promotions, i.e., the single person with the highest score on an examination was entitled to be promoted when a vacancy occurred. Also affecting civil service promotions was the system of veterans’ preference points established under Chapter 295, Florida Statutes (1979). The preference point system requires that veterans, under certain circumstances, be given additional points to be added to their test scores so that they be given preference in promotions.

After Walton took the sergeant’s examination in November 1979 and requested an award of veterans’ preference points under Chapter 295 (1979), two vacancies for the position of sergeant occurred on the force. Walton’s request for veterans’ points was denied, and it is uncontested that Walton would have been entitled to the sergeant’s promotion in February 1980 if his test score had been augmented by the veterans’ points. Without the veterans’ points he was not entitled to the promotion.

In February 1980 the Civil Service Board of the City filed suit for declaratory relief naming approximately twelve police officers as defendants, asking the court to determine whether veterans’ preference points were to be added to an officer’s test scores and, if so, the procedure therefor. That proceeding resulted in a final judgment on July 21, 1980, holding that veterans’ preference points were to be added. Thereafter, in the same proceeding, Walton filed what he styled a petition for writ of mandamus in which he asked the court to issue its writ to the Civil Service Board requiring it to show cause why it should not comply with the final declaratory judgment of July 21, 1980, by awarding appel-lee veterans’ points. Subsequently, the Civil Service Board changed the “rule of one” to a “rule of three” and another officer was promoted to sergeant, prompting Walton to seek an order of contempt in the declaratory action. While the motion for contempt was pending, Walton decided he had had enough and commenced this suit against the City for damages.

The amended complaint was cast in two counts, 1) for damages for refusing to grant appellee a promotion to which he was entitled by civil service rules, and 2) for damages for violation of his civil rights pursuant to 42 U.S.C. § 1983, together with attorney’s fees as provided in 42 U.S.C. § 1988.

A jury returned a verdict in which it found that a) the City violated Walton’s rights secured by Chapter 295, Florida Statutes (1979), in failing to promote Walton; b) the City violated Walton’s right to due process as secured by 42 U.S.C. § 1983 in failing to promote Walton; c) Walton was due $75,000 as compensatory damages for all harm except humiliation and mental anguish; and d) Walton was due nothing for humiliation and mental anguish. The circuit court entered a final judgment on the verdict and denied Walton’s motion for a new trial to obtain additional damages for humiliation and mental anguish. It subsequently awarded Walton a $30,000 attorney’s fee on authority of 42 U.S.C. § 1988. On appeal, the City attacks the judgment and attorney’s fee award, and on cross appeal Walton attacks the order denying his motion for new trial.

The City presents six points on appeal, only two of which warrant extended discussion since we hold that 1) under civil service rules appellee was entitled to a promotion and the City’s failure to promote him was contrary to law; 2) the record supports the damages awarded. The two points that need discussion present the questions: (a) was the City entitled to a directed verdict on Count II claiming damages under 42 U.S.C. § 1983, and (b) was the City entitled to a directed verdict because the suit was barred by a prior judgment? The first point is most important here because, if no cause of action lies under Section 1983, the $30,000 attorney’s fee awarded appellee must be reversed.

Section 1983 provides that “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects ... any citizen of the United States ... to the deprivation of rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....” Walton claimed the benefits of that section by alleging that, under color of law, the City deprived him of his right to promotion to which he was entitled under the civil service rules, thereby denying him due process of law in violation of his constitutional rights.

A key decision outlining the scope of Section 1983 is Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). That decision involved the question whether an unte-nured assistant professor at a state university who was not rehired after his first academic year had been deprived of liberty or property within the meaning of the Fourteenth Amendment by not being afforded a hearing prior to nonrenewal of his employment contract. Although it held that the relevant state statutes created no liberty or property interest in the position insofar as Roth was concerned, the Court inferentially held that a property interest in statutory benefits results when a person seeking those benefits meets statutory criteria for obtaining them; a person becomes entitled to benefits if he proves he is within the statutory terms of eligibility for those benefits. 408 U.S. at 577-578, 92 S.Ct. at 2709.

However, in order to recover under the federal act, one must show that the deprivation of his right to promotion according to law violated his constitutional right to due process. Due process is not denied him where, under state law, he can obtain full redress for the wrongs complained of. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court said that Section 1983 could apply to the deprivation of property rights of Taylor, a prisoner, resulting from the negligence of prison officials if his constitutional right to due process was violated. Nevertheless, since state law provided adequate remedies to redress Taylor’s claim, the Court held that he was not denied due process and could not sue under Section 1983. The Court found a contrary holding would be unacceptable:

To accept respondent’s argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.”

451 U.S. at 544, 101 S.Ct. at 1917.

Thus, the Court, citing Bonner v. Coughlin, 517 F.2d 1311 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), announced the rule that:

“ ‘the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.’ ”

451 U.S. at 542, 101 S.Ct. at 1916.

Later cases have extended the Parratt rule to situations involving the intentional deprivation (as opposed to negligent deprivation) of property rights. For example, in Vicory v. Walton, 721 F.2d 1062 (6th Cir.1984), the owner of a trailer sought damages under Section 1983 for deprivation of his personal property by the police during the investigation of several murders that occurred in the trailer. The Vicory court stated that the rationale of Parratt clearly covered intentional as well as negligent torts:

As we read Parratt, the principle being applied does not turn on the question of whether the claimed constitutional tort affecting property is caused by intentional conduct or negligent conduct or is based on strict liability. Nor does it matter whether the writ at common law would be in detinue (action for wrongful detention of a chattel by a bailor), trespass de bonis asportatis (action for carrying away plaintiffs chattels), trespass on the case (roughly speaking, an action for negligence) or a motion in a criminal case for return of property held as evidence. The reasoning of Parratt appears to extend at least to all section 1983 cases claiming a procedural due process injury to a property interest without regard to whether at common law a plaintiff would have sued in tort or contract and would have based his action on intent, negligence or strict liability.
Policy considerations do not require a federal hearing in procedural due process cases that can be corrected in state court. So long as a state’s damage remedies are not shown to be inadequate in theory or practice — that is, so long as there is no systemic problem with the state’s corrective process — we see no purpose to be served by further complicating section 1983 liability for damages in property cases by distinctions grounded in different types of intent, negligence and strict liability. After all, we are interpreting a general constitutional provision which forbids state deprivations of “property without due process of law,” not the Internal Revenue or some other statutory code requiring fine properly law distinctions.

721 F.2d at 1065 (footnote omitted).

The single Florida case we have found tends to support the application of Section 1983 to intentional acts. See Perdomo v. Jackson Memorial Hosp., 443 So.2d 298 (Fla. 3d DCA 1983).

Florida provides the means for adequate redress for a city’s wrongful failure to promote a policeman entitled by law to promotion. See Devin v. City of Hollywood, 351 So.2d 1022 (Fla. 4th DCA 1976), which holds that a policeman who attains the highest score on a promotion test may maintain an action for damages for failure to promote under an ordinance that establishes a rule of one. Accordingly, because Walton had a state remedy for the City’s failure to promote him, we hold that he was not entitled to pursue a civil rights action under Section 1983, since his constitutional right to due process was not violated. Since he did not prove a cause of action under Section 1983, the allowance of attorney’s fees pursuant to Section 1988 was error.

The second point for discussion suggests Walton’s claim for damages was res judicata. The background facts alleged to support that defense are that, when Walton filed his petition for mandamus in the declaratory judgment suit to enforce the final judgment therein, he was required to assert the claim for damages which he now asserts in this suit. We reject that contention. The petition was effectively nothing more than a motion to enforce the provisions of the final declaratory judgment and resulted simply in an order directing the Civil Service Board to comply with the declaratory judgment. It must be remembered the suit in which these matters were being litigated was a suit for declaratory relief instituted by the Civil Service Board against twelve police officers all seeking promotion. The key issue on everyone’s mind was the question, whether veterans’ preference points were to be awarded and, if so, how. When the court held the preference points should be awarded, the Board did nothing, so Walton sought to enforce the declaratory judgment and filed the petition asking for relief. At that point Walton was not interested in damages, but in getting his promotion. The present suit was not filed until the Civil Service Board had changed the rules of the game and it became apparent that the city was not going to promote Walton. Walton did not maintain an action against the Board or the City until he filed the present action for damages. Furthermore, the parties involved in the two cases are different and the thing sued for in each case is different. The pleading that bore the style of writ of mandamus was directed to the Civil Service Board, and this suit for damages was against the City. We therefore hold that Walton's suit against the City was not barred by res judicata.

Accordingly, the judgment for Walton for damages in the amount of $75,000 and the denial of Walton’s motion for new trial are affirmed. The order awarding Walton attorney’s fees of $30,000 is reversed.

AFFIRMED IN PART; REVERSED IN PART; and remanded.

HERSEY and GLICKSTEIN, JJ., concur.

GLICKSTEIN, J., did not participate in oral argument.


author: FERGUSON, Judge. NESBITT, Judge BARKDULL, Judge, PER CURIAM. PER CURIAM. SCHWARTZ, Chief Judge

text:
    Deborah Jean DRAKE, a minor By and Through her mother and natural guardian, Barbara J. FLETCHER, and Barbara J. Fletcher, individually, Appellants, v. ISLAND COMMUNITY CHURCH, INC., d/b/a Island Christian School, a Florida Private School, Appellee.
    No. 83-1557.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 12, 1985.

      Proenza & White and H. Clay Roberts, Miami, for appellants.
    S. Harold Skolnick, Miami, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiffs, a mother and her minor daughter, instituted a lawsuit on July 24, 1981, against a private church school and a teacher. Their complaint alleged that the defendants breached a written contract in that the teacher assigned to educate and train the minor child during the 1976-77 school year and some time thereafter induced the child to engage in sexual activity. Alternatively, they alleged that the sexual abuse of the minor occurred through (1) negligence of the defendant school, (2) negligent hiring and retention of the assailant teacher, and (3) battery by the teacher in the course and scope of his employment. Plaintiffs further claimed that the defendants fraudulently concealed those wrongful acts until July 1981.

This appeal is brought from an order dismissing plaintiffs’ third amended complaint for failure to state a claim upon which relief can be granted. The trial court held that (1) the student application form attached to plaintiffs’ third amended complaint does not constitute an enforceable written contract, therefore the five-year statute of limitations in Section 95.-ll(2)(b), Florida Statutes (1983) is inapplicable, and (2) the claims in both oral contract and tort are subject to, and barred by the four-year statute of limitations in Section 95.11(3), since the cause of action accrued prior to the end of the school year in June 1977.

Plaintiffs contend that because defendants fraudulently concealed their wrongful acts until July 1981, the statute of limitations was tolled and did not commence to run on either the tort or contract action until that date. Defendant-church maintains that the statute began to run on the date of the alleged wrongful act, as the minor child at that time had knowledge of the injury, and therefore, the cause of action. The questions we must decide are whether the statute of limitations begins to run against a minor child when the child knew or should have known that a cause of action exists based on injury to the child, and whether such knowledge may be imputed to the parent so as to begin the running of the statute on an action for the parent’s own cause of action. We answer no to these questions and hold that, for the purpose of a motion to dismiss, the period of limitation did not begin to run until July 1981, so that both plaintiffs’ claims were timely commenced.

Generally, the statute of limitations begins to run when a plaintiff has been put on notice of his right of action. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Smith v. Continental Insurance Co., 326 So.2d 189 (Fla. 2d DCA 1976). Here, the complaint alleges that plaintiff-mother did not have knowledge of her cause of action until July 1981, due to the defendants’ fraudulent concealment of the wrongful act. Even without the application of the doctrine of fraudulent concealment, and taking the well-pleaded allegations of the complaint as true (which we are bound to do on a motion to dismiss, Williams v. Howard, 329 So.2d 277 (Fla.1976)), the limitation period did not bégin to run as to the mother’s claims until she was first put on notice of her right of action in July 1981. There is no support for defendant-church’s contention that the knowledge of the minor child may be somehow imputed to the parent as a matter of law so as to time-bar a claim for damages by the parent.

The more provocative part of the question is whether the minor child’s knowledge of the wrongful acts will start the running of the limitations period against her claims. It is elementary that:

A cause of action cannot be said to have accrued, within the meaning of [the statute of limitations], until an action can be instituted thereon. There must be some person capable of suing or being sued upon the claim in order for the statute to begin to run.

Berger v. Jackson, 156 Fla. 251, 259-60, 23 So.2d 265, 269 (1945) (holding that where a cause of action accrues after the death of the person against whom it lies, the limitation period does not begin to run until there is a grant of administration to the estate). Accord Coe v. Finlayson, 41 Fla. 169, 26 So. 704 (1899). In Florida, a minor child is incapable of bringing an action in his own behalf. See Fla.R.Civ.P. 1.210(b). It follows, then, that the statute of limitations could not begin to run against the minor child in the present case until the parent knew or reasonably should have known those facts which supported a cause of action. Since the complaint in this action alleges that the parent did not have this knowledge, the statute did not commence to run as a matter of law against the minor child.

Several cases decided by courts of this state support our holding. Cf. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976) (statute of limitations in medical malpractice case began to run as to the parents and legal guardians of the incompetent minor in their own right, as to parents and legal guardians of minor as next friends in behalf of minor, and as to incompetent minor in his own behalf when parents were on notice of possible invasion of their legal rights); Roberts v. Casey, 413 So.2d 1226 (Fla. 5th DCA), rev. denied, 424 So.2d 763 (Fla.1982) (statute of limitations in medical malpractice action began to run against both hospital and physician when parents discovered that child’s condition might have been caused by negligent act); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978) (statute of limitations in medical malpractice action began to run when plaintiff — mother was aware or should have been aware that baby was born mentally retarded and thereafter showed signs of mental retardation and abnormal development).

The defendant-church relies on a series of cases which, it contends, dictate a contrary result. We find those cases distinguishable. In Slaughter v. Tyler, 126 Fla. 515, 171 So. 320 (1936), overruled on other grounds, Manning v. Serrano, 97 So.2d 688 (Fla.1957), the Florida Supreme Court faced the issue whether the statute of limitations is tolled by the disability of infancy. There, a minor had been negligently operated upon by a physician. The minor brought suit after the limitation period had expired. The court held that in the absence of a legislative expression of will to the contrary, the statute of limitations was not tolled because of infancy. In Slaughter there was no contention by the parents of the minor child that they were without knowledge of the fact and cause of the child’s injuries. Slaughter is therefore inapplicable. For the same reasons, the defendant-church’s reliance on Velazquez v. Metropolitan Dade County, 442 So.2d 1036 (Fla. 3d DCA 1983) is misplaced.

The complaint must be reinstated because, even applying the four-year period of limitation in Section 95.11(3), Florida Statutes (1983), from the face of the complaint (which alleges that the parent had no knowledge of the cause of action until July 1981) the suit is not time-barred. See Wimpey v. Sanchez, 386 So.2d 1241 (Fla. 3d DCA 1980), quashed on other grounds 409 So.2d 20 (Fla.1982) (dismissal of plaintiffs’ action proper only if defendants show conclusively from the face of complaint that the cause of action is barred by the statute of limitations).

Reversed and remanded for further proceedings.

NESBITT, Judge

(specially concurring):

I must concur in that portion of Judge Ferguson’s opinion dealing with the child’s cause of action because I disagree with the statement in footnote two of the majority opinion that Gasparro v. Horner, 245 So.2d 901 (Fla. 4th DCA 1971) was wrongly decided.

Both the dissenter in Gasparro and Judge Ferguson in the instant case misper-ceive the holding in Gasparro. The misconception arises from a faulty factual assumption that the infant in Gasparro had no “next friend” capable of bringing suit. See supra note 2; Gasparro, 245 So.2d at 902-03 (dissenting opinion).

As pointed out by the majority in Gasparro, however, “an infant, through a next friend, is at all times authorized to sue,” and “Florida law does not require that a next friend be ‘appointed’ before he can act.” 245 So.2d at 905. Although not made clear by the facts set out in the opinion, the infant undoubtedly did in fact have a next friend who could have sued on her behalf prior to the date of adoption. The infant was four years old at the time of the accident, and was not adopted until twenty-one months later. Obviously, the infant was not fending for herself during those twenty-one months; someone was taking care of her. That person was on notice of the accident and the infant’s injuries and could have brought suit prior to the infant’s adoption.

Furthermore, it is unlikely that the infant’s adoption occurred overnight. Adoption proceedings take time, and the adoptive parents undoubtedly were aware of the infant’s injuries caused in the accident pri- or to the date of adoption. They, therefore, could have brought suit as next friend on behalf of the infant; they were not required to wait for the adoption to become final.

Although I believe Gasparro was correctly decided, I nevertheless find it distinguishable from the present case. In Gas-parro, the infant was involved in an automobile accident and obviously sustained injuries which manifested themselves. It follows, therefore, that the infant’s next friend knew or should have known those facts which supported the cause of action from the time of the accident or soon thereafter. No so in the present case where, as alleged in the complaint, the parents were not on notice of the cause of action until July 1981, four years after the alleged wrongful act.

Upon this reasoning, I do not agree that Gasparro was wrongly decided or inconsistent with today’s decision. I do, however, concur in the result reached and the holding that the statute of limitations does not begin to run against a minor child’s cause of action until a parent, guardian or next friend knows or reasonably should know those facts which support the cause of action. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). When a child is sexually molested, that child’s knowledge of the offensive conduct is not, as a matter of law imputed to the child’s parent, guardian or next friend. The question of when the statute begins to run on the child’s cause of action is controlled by the factual determination of when the child’s parent, guardian or next friend became aware or reasonably should have become aware of the facts which support the cause of action.

In the present case, the parents of the child have alleged in the complaint that they did not become aware of the sexual molestation of their daughter until July 1981. Accepting this allegation as true, as we must where the trial court grants a motion to dismiss for failure to state a claim upon which relief can be granted, the statute of limitations on the child’s cause of action did not begin to run until July 1981. The lawsuit, therefore, was timely filed, and the lower court erred in granting the defendant’s motion.

For the above reasons, I concur in Judge Ferguson’s opinion and the reversal in this case.

BARKDULL, Judge,

dissenting.

The majority opinion filed herein has, in my opinion, misconceived the issue presented in this case and therefore I must respectfully dissent. This appeal is taken from a final judgment dismissing the plaintiffs’ third amended complaint with prejudice. In reviewing the propriety of the order appealed we must look to the third amended complaint and exhibits. Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976); Harry Pepper & Associates, Inc., v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971). A review of the count claiming the action to be on a written contract and the exhibits allegedly supporting that allegation totally fail to set forth the essential elements to be met in determining whether a contract is founded on a written instrument within the meaning of Mercy Hospital, Inc. v. Carr, 297 So.2d 598 (Fla. 3d DCA 1974). Therefore, I would find that the trial court correctly dismissed this count and that the five year statute of limitations found in Section 95.11(2)(b) Florida Statutes (1981) is not applicable.

The remaining tort counts are governed by the four year statute of limitations found in Section 95.11(3)(a) Florida Statutes (1981). The complaint shows on its face that the action was commenced more than four years from the occurrence of the events giving rise to the instant case and are thus barred by Section 95.11(3)(a), Florida Statutes (1981) unless some action on the part of the defendant has tolled the running of the statute. Here is where I disagree with the position of the majority. While it is true that the plaintiffs have alleged a fraudulent concealment of the facts giving rise to this action, seeking to toll the running the statute, nowhere in their complaint do they allege any facts to support a fraudulent concealment on the part of the defendant church. All their allegations pertain to the actions of the active tortfeasor, the employee or agent of the defendant church. A concealment by the agent where the principal has no knowledge thereof does not operate to prevent the statute of limitations from running in favor of the defendant principal. Wood v. Williams, 142 Ill. 269, 31 N.E. 681 (1892); 51 Am.Jur.2d, Limitations of Actions, § 150.

Therefore, I would find that the plaintiffs failed to allege any facts in their third amended complaint necessary to toll the running of the statute of limitation as to the defendant church and would affirm the trial court’s holding dismissing the cause with prejudice on the basis that it was barred by Section 95.11(3)(a) Florida Statutes (1981).

On Motion for Rehearing

PER CURIAM.

Appellee’s motion for rehearing is denied.

On Motion for Rehearing En Banc

Before SCHWARTZ, C.J., and BARK-DULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

PER CURIAM.

After oral argument, appellee’s motion for rehearing en banc is denied.

SCHWARTZ, Chief Judge

(dissenting).

In my judgment, the panel decision— which essentially holds that, uniquely in the case of a tort committed against a minor, the statute of limitations runs only when someone else, namely her parents, becomes or should have become aware of its commission — is directly contrary to Velazquez v. Metropolitan Dade County, 442 So.2d 1036 (Fla. 3d DCA 1983). In that case we held, in accordance with Slaughter v. Tyler, 126 Fla. 515, 171 So. 320 (1936), and Sec. 95.051(2), Fla.Stat. (1981) that the statute is not subject to a special tolling doctrine merely because a child is involved.

Since a three-judge panel is not authorized to depart from a prior panel opinion, In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982), I think that determination of this case by the court en banc is required. And since, in turn, district courts of appeal are bound by controlling expressions of the supreme court and the legislature, I would affirm the judgment below.

BARKDULL and DANIEL S. PEARSON, JJ., concur.

      . The defendant-teacher is not a party to this appeal. He was never served with process.

        . The one case which seems to support the argument of defendant-church is Gasparro v. Horner, 245 So.2d 901 (Fla. 4th DCA 1971), cited in the Velazquez decision. In Gasparro, a four-year-old was orphaned in an automobile accident in March of 1964, and she suffered serious injuries from the collision. The minor was adopted in November 1965. In April of 1968, her adoptive parents filed a negligence action, which the trial court found was barred by the four-year statute of limitations. The fourth district initially affirmed without opinion. The dissent found Slaughter distinguishable because in Slaughter, the minor, at all times, had parents who could bring the action in her behalf. In Gasparro, however, the infant had no parent, guardian, next friend, or other representative during the statutory period. The dissenter found it inconceivable to expect a minor to go out and "find" a next friend. On rehearing, the majority adhered to the affirmance but responded to the dissent, writing that in the absence of a statute, and in light of Slaughter, the limitation was not tolled despite the resultant hardship. This writer believes, as did the dissenter in Gasparro, that Slaughter is easily distinguishable, and therefore that Gasparro was wrongfully decided.
      This writer responds briefly to the special concurrence. Legal relationships are usually created by court action. An administrator or guardian, for example, is named by order of the court. A next friend relationship, similarly, does not exist until some competent person is appointed by the court or on his own initiative commences an action in the name of one who is incapable of suing in his own behalf. See Russick v. Hicks, 85 F.Supp. 281, 283 (W.D.Mich. 1949) (cited in Gasparro, 245 So.2d at 903 n. 4). I disagree with the concurrence to the extent it suggests that a "next friend” exists, for the purpose of the limiting statute, even though there has been no court recognition of the relationship. See Youngblood v. Taylor, 89 So.2d 503, 505 (Fla.1956) (a next friend is an officer of the court, especially appearing to look after the interests of the minor whom he represents). A next friend in the air, so to speak, will not do.
      In response to the dissent, the majority does not rely on the doctrine of fraudulent concealment. Instead, our view is that the statute of limitations did not begin to run until the minor’s parents were put on notice of the causes of action. For this reason, it does not matter here why the parents were without notice. The question whether the parents should have known of the incident prior to July 1981 is one of fact and is inappropriate for resolution on a motion to dismiss.

      . No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.