author: COBB, Judge. COWART, Judge,

text:
    Pauline BROGAN, Personal Representative of the Estate of Jimmy Kenneth Rainey, Deceased, Petitioner, v. Terri Joyce Rainey MULLINS, Jimmy Kenneth Rainey, Jr., and Margaret Dell Rainey-Moore, Respondents.
    No. 84-243.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.
    As Modified on Motion for Clarification July 12, 1984.
    Rehearing Denied July 12, 1984.

      Edwin D. Davis, II, South Daytona, for petitioner.
    William N. Gambert, Daytona Beach, for respondents.
   COBB, Judge.

The petitioner, Pauline Brogan, as personal representative of the Estate of Jimmy Kenneth Rainey, deceased, seeks a writ of certiorari (alternatively, a writ of prohibition) to review an order of the trial court rendered on January 18, 1984. The record before us shows that the respondents, children of the decedent by a prior marriage, filed separate statements of claim against his estate on November 1, 1982. They failed to file an action on these claims against the estate until December 5, 1983, thereby running afoul of the applicable statute of limitations, section 733.709, Florida Statutes (1981).

The estate raised the issue of the statute of limitations and the trial court conducted a hearing thereon on January 10, 1984. At that hearing the attorney for the claimants, respondents herein, contended that there had been continuing negotiations with counsel for the estate but not fraudulent misrepresentations. The evidence was un-controverted that the personal representative did not authorize or negotiate a settlement at any time. Counsel for the claimants merely asserted that, in good faith, he expected the claims to be settled and that was why no court action had been filed within the limitation of one year. At the conclusion of the evidentiary hearing, the trial court denied the motion to dismiss and set the case for trial on the merits of the claims.

The respondents relied primarily on three cases in their argument to the trial court relating to the statute of limitations: State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950); Capital Bank v. Schuler, 421 So.2d 633 (Fla. 3d DCA 1982); and Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). These cases clearly do not support the respondents’ position that mere negotiations, absent fraud or misrepresentation inducing reliance, toll the running of a statute of limitations. More to the point is Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), which rejected the continuing treatment doctrine (analogous to continuing negotiations).

This petitioner, understandably uncertain of his procedural remedy for review, has sought alternative relief via cer-tiorari or prohibition. Since the former is discretionary, we first consider the latter. The petitioner cites to no authority in civil case law to support invocation of the remedy of prohibition where the trial court erroneously rejects an affirmative defense based on an applicable statute of limitations. Previously, we have held that prohibition is a proper appellate remedy when the state seeks to prosecute a criminal case after the statute of limitations has expired. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA), review denied, 389 So.2d 1108 (Fla.1980). Prior Florida Supreme Court cases support that conclusion. See Reino v. State, 352 So.2d 853 (Fla.1977) and State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974).

Justice Alderman, in his special concurrence in Sherrod v. Franza, 427 So.2d 161 (Fla.1983), persuasively sets forth the rationale for rejecting prohibition as an available remedy in cases wherein the trial judge rules on a factual issue; in that case, whether or not the speedy trial rule entitled the defendant to discharge. Nevertheless, the majority held otherwise. There is no logical distinction in regard to jurisdiction (hence, prohibition) between a civil court and a criminal court after expiration of an applicable statute of limitations. If prohibition lies in one case, it must lie in the other.

We therefore issue the writ of prohibition and direct the dismissal of the Respondents’ various petitions for payment of claim.

WRIT GRANTED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

It is claimed that grievous judicial error occurred in this case when the personal representative of an estate orally urged the trial judge to summarily apply a statute of limitations (§ 733.709, Fla.Stat. (1981)) and to summarily deny a petition for payment of claims against an estate and the trial court entered a non-final order declining to summarily deny the petition and ordering the petition and claims to be set for a final hearing. The personal representative seeks review of the non-final order by an extraordinary remedy of either prohibition or certiorari.

PROHIBITION: The basic question in every prohibition case is one of jurisdiction and a writ of prohibition should not issue if the inferior tribunal has the requisite jurisdiction although it may have committed or is about to commit reversible error.

Prohibition is an extraordinary remedy that is concerned with the jurisdiction of the trial court to act and should not be used to circumvent the rule limiting appeals of non-final orders. When a trial court has subject matter jurisdiction and that jurisdiction has been properly invoked and perfected over the person of the defendant or the res involved in the suit by proper service of proper process, the trial court does not lose jurisdiction because of any ruling it makes whether that ruling is correct or not. Neither the running of a statute of limitations nor an erroneous ruling relating thereto deprive a trial court of jurisdiction. Insofar as legal practice and procedure is concerned the statute of limitations is merely an affirmative defense and whether it is asserted or not or whether the trial court correctly or incorrectly refuses to rely on it to summarily deny a petition for payment of a claim in an estate, the jurisdiction of the court is not involved or affected.

Reino v. State, 352 So.2d 853 (Fla.1977), involved a petition for writ of prohibition in the Supreme Court of Florida and the issue of whether first degree murder offenses committed between the date the United States Supreme Court effectively struck down the death penalty and the date the Florida legislature reenacted the death penalty were capital crimes not subject to the statute of limitations or noncapital crimes subject to the two year statute of limitations in criminal cases. The supreme court predicated its jurisdiction on article V, section 3(b)(4), Florida Constitution, 1972. At that time that subsection of the constitution authorized the supreme court to “issue writs of prohibition to courts and commissions in causes within the jurisdiction of the supreme court to review” and the review of criminal “capital” cases was peculiarly within that language. Since Reino this particular subsection of the constitution was revised in the 1980 amendment to the constitution and is now section 3(b)(7). The change in the language may or may not be relevant here. Of course, district courts of appeal have jurisdiction to issue writs of prohibition. However, the question here is not one of jurisdiction of the court but the propriety of the remedy. This involves the proper scope of the remedy of prohibition. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980), review denied, 389 So.2d 1108 (Fla.1980), cited Reino broadly for the proposition that when the State seeks to prosecute after the statute of limitations has expired, the proper method to prevent the prosecution is by prohibition. In this case the majority extends Reino and Carcaise to a ruling involving a statute of limitations in a civil probate case. This is another example of a court considering a substantive issue of law without specifically and adequately considering the procedural propriety of the remedy presenting that issue, then other courts citing the first case as authority for a correct application of the remedy. A case such as Reino should not be cited as authority for propriety of the remedy because it is only an example where the remedy was used and the propriety of the remedy was not explicitly considered by the court. However, Carcaise does not cite Reino as merely an example but as authority and from it extracts a principle that is broader than the facts of Reino but not broad enough to include this civil case. Similarly the majority opinion in this case extends the broad principle stated in Car-caise far beyond the facts in Carcaise and completely out of the criminal field and into the civil field. Stating that there is no logical distinction in regard to jurisdiction between a civil court and a criminal court, the majority opinion uses a case involving the peculiar jurisdiction of the Florida Supreme Court to review a capital case {Rei-no ) to rationalize, and implicitly hold, that prohibition is a proper remedy to obtain review in a district court of appeal of a trial court’s non-final order in a probate case declining to summarily deny a creditor’s claim against an estate as against an oral assertion by the personal representative of a statute of limitations when the personal representative is free to assert the statute of limitations as an affirmative defense (Fla.R.Civ.P. 1.110(d)) and to take a direct appeal from a final judgment.

It is true that the Florida Supreme Court has extended the remedy of prohibition to situations beyond its historical definition but until that court explicitly extends and approves of the use of the extraordinary remedy of prohibition by the district courts of appeal to review non-final orders declining to summarily deny claims as against assertions of statutes of limitations in civil actions or amends Florida Rule of Appellate Procedure 9.130(a)(3), which restricts review of such non-final orders, this court should not do so.

That the remedy of prohibition is inappropriate and is being misapplied in this case should be apparent to all from the mere fact that prohibition is directed not to a party in a litigation but against the officer who is acting without jurisdiction. Judge Wetherington was a respondent in Reino, Judge Durden was the respondent in Carcaise, but in this case the trial judge is not even a respondent, yet the majority issues a writ of prohibition. Further, the writ issued in this case does not prohibit the exercise of jurisdiction by a judicial officer; to the contrary the majority opinion directs the trial court to exercise jurisdiction which is the antithesis of the sole proper ground for issuing a writ of prohibition.

CERTIORARI: As a fall back position the majority opinion states that even if the majority deemed prohibition to be an improper remedy in this case in the exercise of discretion they would grant certiorari.

It is a clearly established principle of law that a statute of limitations is properly asserted as an affirmative defense in a pleading responding to the pleading asserting a supposedly barred claim, rather than being asserted by motion, oral or written, to summarily dismiss or deny the supposedly barred claim. See Fla.R.Civ.P. 1.100(a) and 1.110(d). Accordingly, the denial of a suggested summary application of a limitations defense does not constitute judicial error. Even in the exceptional case where the applicability of a limitations defense might appear on the face of the pleading alleging the supposedly barred claim and it would not be judicial error to dismiss the claim on motion based on the limitations defense, it is, nevertheless, not judicial error to deny such summary application of a statute of limitations, for several good reasons. First, because the statute can still be more properly asserted as an affirmative defense in a defensive pleading, there is no judicial error in denying its summary application. Next, the limitations defense can be waived by not being asserted as a pled defense. Furthermore, by requiring the limitations statute to be pleaded, the opposing party can seek to avoid it by filing a reply containing a waiver, estoppel or other avoidance as contemplated by Florida Rule of Civil Procedure 1.100(a).

Assuming arguendo that it is judicial error to refuse to summarily apply the limitations defense in this ease, just how serious and egregious is that judicial error? After the trial court, by non-final order, declines to summarily apply a statute of limitations asserted by motion and declines to summarily deny a supposedly barred claim, the statute of limitations can still be properly asserted as an affirmative defense. Therefore, where this occurs and the claim and the affirmative defense are properly disposed of on final hearing, the judicial error in refusing summary application of the limitations defense would not even be reversible error because the harmless error statute, section 59.041, Florida Statutes, limits reversal to errors resulting in a miscarriage of justice. Peculiarly, this is the exact language that the Supreme Court of Florida used in limiting discretion in the use of certiorari in Combs v. State, 436 So.2d 93, 96 (Fla.1983):

The district court should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice (emphasis supplied).

If a judicial error is not serious enough to constitute reversible error it creates quite a legal paradox to consider it serious enough to warrant review by certiorari.

Again assuming error in the non-final order declining to summarily apply the statute of limitations defense, and further assuming that the error is reversible, such error would still be a mere legal error correctable on direct appeal from a final judgment and not a legal error serious enough to constitute a departure from the essential requirements of law so as to be subject to immediate interlocutory review by the extraordinary remedy of certiorari, as contemplated by Combs.

Still assuming, arguendo, that it was reversible error not to summarily apply the limitations defense in this case, the degree of seriousness of such error is identically the same as that in any other case seeking certiorari review of the denial, by non-final order, of motions to dismiss, motions for judgments on the pleadings, motions for summary judgment, and other motions which, if granted, would avoid a full hearing, where the correctness of such non-final orders are reviewable only on direct appeal from a final judgment. Article V, section 4(b)(1), of the Constitution of the State of Florida, provides that district courts of appeal have jurisdiction to review interlocutory orders to the extent provided by rules adopted by the supreme court. Review of this type of non-final order is not permitted under Rule of Appellate Procedure 9.130(a)(3) because they do not determine the issue of liability in favor of a party seeking affirmative relief. It is the intent of Rule 9.130(a)(3) that such non-final orders be reviewed only on direct appeal from a final judgment because the party aggrieved by such non-final orders often prevails at final hearing, and therefore, the total number of appeals is reduced by permitting but one review in such cases. That intent, and the supreme court’s exclusive constitutional authority to make that determination, should not be thwarted or circumvented by the use of certiorari as a substitute for a supreme court rule authorizing review of such non-final orders.

That this court is suffering from a “par-ens patriae complex” is shown by the fact that not only does the form of relief granted exceed the scope of the remedy of prohibition but it also exceeds the proper scope of the remedy of certiorari in that, as distinguished from review on appeal, the remedy by certiorari is merely to grant the writ and to quash the order or judgment that exceeds the jurisdiction of the lower tribunal and that constitutes the palpable miscarriage of justice. The majority opinion exceeds the remedy of certiorari when it directs the lower tribunal to take a specified action as is appropriate only by directions on remand after a reversal on review by appeal and in cases of mandamus.

The majority opinion in this case circumvents Rule 9.130 and is in direct conflict with eases from this and other courts which have held certiorari inapplicable to review similar non-final orders and have denied summary interlocutory review of mere legal error which is reviewable and correctable on direct appeal from final judgment. The discretionary aspect of cer-tiorari, emphasized in Combs, does not mean certiorari can properly be used arbitrarily to selectively review some of a class of non-final orders in which, if error occurs, the errors are legally similar and theoretically indistinguishable in magnitude and degree. Such a practice is contrary to basic equal protection concepts requiring equal legal treatment of similar cases. If we review some such non-final orders and grant relief when we find error, under constitutional concepts of equal protection we must review all similar non-final orders although after review we find no error. By using certiorari to review one selected non-final order out of a class of non-final orders which are reviewable only by direct appeal from a final judgment and not under Rule 9.130, the majority opinion disregards the constitutional equal protection clauses, Rule 9.130, the purpose and intention of the rule, and the caution in Combs that:

The district court should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

      . Section 733.709, Florida Statutes (1983), states:
      Claims undisposed of after 1 year. — When a person has filed a claim against an estate and the claim has not been paid, settled, or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment of it at the expiration of 1 year from the date the claim was filed, the claim shall be forever barred. No action shall thereafter be brought to enforce it. This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.

      . Technically, as the dissent notes, this cause should show the respondent circuit judge as a respondent in the style for purposes of prohibition. We do not choose to pick this nit as a basis to deny relief, nor do the appellate rules so contemplate. See Fla.R.App.P. 9.040(c).

      . Combs v. State, 436 So.2d 93 (Fla. 1983).

      . Even if we were to determine that prohibition is an improper procedural remedy herein, we would exercise our discretionary review power and grant certiorari. See Combs.

      . See Wehle and Belcher, Prohibition in Florida, 4 Fla.L.Rev. 546 (1951).

      . School Board of Marion County v. Angel, 404 So.2d 359 (Fla. 5th DCA 1981).

      . See Hunter v. Hunter, 359 So.2d 500 (Fla. 4th DCA 1978), rev. den., 365 So.2d 712 (Fla.1978).

      .The Reino court considered the supreme court’s exclusive jurisdiction in capital cases but appeared in Reino to discard it as a relevant jurisdictional factor. However the supreme court in Bundy v. Rudd, 366 So.2d 440 (Fla.1978), another case involving prohibition in a capital case, again alluded to its peculiar jurisdiction to review capital cases, stating: “Because the case is one in which a sentence of death might ultimately be imposed, we have jurisdiction. Art. V, § 3(b)(4), Fla. Const.; see Reino v. State, 352 So.2d 853 (Fla.1977).”

      . See Art. V, § 4(b)(3), Fla. Const.

      . See the dissent in Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981), and the specially concurring opinion in Sherrod v. Franza, 427 So.2d 161 (Fla.1983).

      . See, e.g., One Thousand Oaks, Inc. v. Dade Savings & Loan Assn., 417 So.2d 1135 (Fla. 5th DCA 1982); Hawaiian Inn of Daytona Beach, Inc. v. Snead Const. Corp., 393 So.2d 1201 (Fla. 5th DCA 1981).


source: Caselaw Access Project

author: PER CURIAM. FERGUSON, Judge

license: Public Domain

text:
    Carlyle S. FABAL and Nancy G. Fabal, his wife, Appellants, v. FLORIDA KEYS MEMORIAL HOSPITAL, United States Fidelity & Guaranty Company and Florida Patient’s Compensation Fund, Appellee.
    No. 83-952.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 17, 1984.
    Proenza & White and David J. White, Miami, for appellants.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Judith A. Bass, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellants seek reversal of summary final judgment entered by the Circuit Court for Monroe County in favor of the Florida Patient’s Compensation Fund. The judgment, in pertinent part, states:

THIS CAUSE came before the Court February 18, 1983, on the Defendant, FLORIDA PATIENT’S COMPENSATION FUND’S Motion for Summary Judgment, or in the alternative, Motion for Judgment on the Pleadings, and the Court, having heard argument of counsel and being otherwise duly advised in the premises, finds as follows:
1. The initial Complaint in this cause was filed on April 3, 1980. The initial Complaint did not name as a party Defendant, the FLORIDA PATIENT’S COMPENSATION FUND.
2. The FLORIDA PATIENT’S COMPENSATION FUND was first made a party Defendant to this litigation with the filing of Plaintiffs’ “Amended Complaint.” Said Amended Complaint was not filed until January 20th, 1982.
3. This medical malpraction [sic] action was brought by the Plaintiffs, CARLYLE S. FABAL and NANCY C. FA-BAL, his wife, for injuries sustained on or about June 28, 1978, when he fell and struck his head in the FLORIDA KEYS MEMORIAL HOSPITAL following an operation on June 26, 1978.
4. Plaintiffs’ cause of action, not having been commenced as against the FLORIDA PATIENT’S COMPENSATION FUND within two (2) years from June 28, 1978, is barred by Florida Statute § 95.11(4)(b)...
It is, therefore, ORDERED AND ADJUDGED that the Plaintiffs, CARLYLE S.FABAL and NANCY C. FABAL, his wife, take nothing by this action against the FLORIDA PATIENT’S COMPENSATION FUND and that the Defendant, FLORIDA PATIENT’S COMPENSATION FUND, go hence without day, with costs to be taxed against the Plaintiffs upon Motion duly noticed by the Defendant, FLORIDA PATIENT’S COMPENSATION FUND.

Appellants contend (1) that the trial court erred in failing to recognize that a claim against a non-tortfeasor insurance fund whose liability is solely derived from the negligent conduct of the tortfeasor is not barred by section 95.11(4)(b), Florida Statutes, and (2) the trial court erred in failing to recognize that section 95.11(4)(b) begins to run only upon discovery that the Florida Patient’s Compensation Fund extended coverage to Florida Keys Memorial Hospital.

We disagree and affirm in light of the views expressed in Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984); Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984); and Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA), pet. for review denied, 436 So.2d 100 (Fla.1983). See §§ 95.11(4)(b) and 768.54(3)(e)l, Florida Statutes (1977). See also Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA), cert. denied, 383 So.2d 1198 (Fla.1980).

Affirmed.

FERGUSON, Judge

(dissenting).

The ruling of the trial court on summary judgment, affirmed by the majority, is that for failure to join the Florida Patient’s Compensation Fund within two years after the cause of action accrued against the Florida Keys Memorial Hospital — although the action was timely filed against the hospital — the plaintiffs’ recovery will be limited to $100,000 even if proven damages are greater. The statute does not require, and there is no other justification for, the harsh result.

In defense to the summary judgment motion, plaintiffs responded that they did not initially join the Fund at the time the action was commenced against defendant hospital because it was not until June 15, 1981, that they learned of the Fund coverage. The Fund argued to the trial court that summary judgment was mandated by Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA), rev. denied, 436 So.2d 100 (Fla.1983), which at the time was the only authority on point. I think, respectfully, that Owens was incorrectly decided.

The facts in Owens were identical to those presented here — the plaintiff had timely filed suit against defendant hospital, but had not joined the Fund as a defendant until more than two years after the injury occurred. The issue there, as here, was whether the applicable statute of limitations barred plaintiff’s claim against the Fund. In holding that it did, the trial court relied heavily on the decision of this court in Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980).

The appellant in Owens had argued that the Fund is like an insurance program, and that the controlling cases are those which hold that when a defendant tortfeasor’s insurance company is joined as a party defendant, the statute which limits the time within which an action may be commenced against the tortfeasor is not available to the insurer as a defense. See, e.g., Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980); Davis v. Williams, 239 So.2d 593 (Fla. 1st DCA 1970). The Owens court rejected this contention based upon language in Menendez which states that the obligation of the Patient’s Compensation Fund is not to the health care provider, but rather is primarily to a plaintiff patient. Menendez, 371 So.2d at 1079. The Menendez court had also stated that the Fund’s obligation “is not secondary and is not a set-off.” Id. Based on its reading of Menendez, the Owens court reasoned that the “insurer’s exception” to the statute of limitations defense does not apply to cases involving the Fund. Owens, 428 So.2d at 710.

While the holding of Owens appears to flow logically from Menendez, an examination of Menendez is helpful to an understanding of my disagreement with the Owens result.

The main issue presented in Menendez was:

Is the defendant health care provider required to plead the Medical Malpractice Reform Act in order to receive the benefits of the limitation [of judgment statute] or may compliance with the statute be shown in limitation of the judgment after the entry of the jury verdict. 371 So.2d at 1978-79.

The court held that the plaintiff has the burden of making the Fund a party before judgment where recovery is sought against a health care provider in an amount exceeding $100,000. Thus, where the plaintiff failed to do this, he could not recover so much of the judgment as exceeded the $100,000 statutory limit from either the defendant hospital or the Fund.

First, the previously cited language from the Menendez decision of this court, which was embraced by the Owens court enroute to its severe conclusion, was written in response to a subsidiary question — whether Section 768.54(3)(e), which requires that the Fund be named as a defendant in the malpractice action, was an unconstitutional legislative attempt at rule-making in violation of principles laid down in Markert v. Johnston, 367 So.2d 1003 (Fla.1978). It was held in Markert that any legislative enactment prohibiting the joinder of motor vehicle insurers at the commencement of suit brought against an insured would be an invasion of the Florida Supreme Court’s exclusive right to establish rules of procedure. Solely for the purpose of hurdling the constitutional obstacle, the Menendez court distinguished the Fund from an insurance program. Subsequent decisions, however, render unnecessary such a forced distinction in order to preserve the constitutionality of the Medical Malpractice Reform Act’s joinder provision.

Second, the similarities between the Fund and an insurance program clearly preponderate over the dissimilarities. In Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980), the court held that the statute of limitations did not begin to run against an insurer upon the occurrence of the incident giving rise to the cause of action, reasoning that:

[T]he only actual or potential ground of the insurers’ liability to the plaintiff is the entirely derivative one to indemnify the hospital for any judgment rendered against it. 385 So.2d at 1135.

Further explaining why the statute of limitations as applied to the insurer should not be coterminous with the statute as applied against the tortfeasor-insured, the court quoted from Davis v. Williams, 239 So.2d 593 (Fla. 1st DCA 1970):

Appellant’s cause of action, if any, against appellee insurance company does not arise in tort but arises out of contract, and does not accrue until after appellant has secured a judgment against the alleged defendant tort-feasor to whom appellee issued its policy of professional liability insurance. It is therefore apparent that appellant’s cause of action to impose liability on appellee under the insurance policy issued by it has not yet accrued and, therefore, any statute of limitations which does not commence to run until the accrual of the cause of action has not yet been activated. 385 So.2d at 1136 (quoting from Davis, 239 So.2d at 595). [e.s.]

Analogously, there is no obligation on the part of the Fund unless (1) judgment is entered against the health care provider, and (2) the amount of the judgment exceeds $100,000. The claim against the Fund is also derivative in nature, depending not upon any tortious conduct by the Fund, but arising solely out of a contract whereby the Fund agrees to be liable for any damage award against the health care provider in an amount in excess of $100,-000, provided the health care provider complies with certain membership requirements. See § 768.54(2)(b), (Fla.Stat.1981); see also Florida Patient’s Compensation Fund v. Mercy Hospital, Inc., 419 So.2d 348 (Fla. 3d DCA 1982) (despite several differences between the Fund and an insurer, Fund is given same benefit that inures to private insurers — the avoidance of liability for punitive damages — since deterrent effect will not be achieved through punishment of defendant which committed no wrongful act).

An insurer is one who contracts to indemnify against specific perils, see Black’s Law Dictionary 721 (5th ed. 1979), which is precisely the Fund’s undertaking with respect to a health care provider. Although Menendez and Owens suggest that the Fund is not an insurer, they do not say what it is. A historical revíéw is helpful to that end.

The Fund was created to fill a void at a time when insurance companies were raising rates and withdrawing from the professional liability insurance market. That made it difficult for health care providers to obtain insurance without paying oppressive rates, and these additional costs were being passed on to the public. Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365, 367 (Fla.1981). Senate Bill No. 481 which created the Florida Patient’s Compensation Fund was entitled “AN ACT relating to medical malpractice insurance ...” and referred to participating members, specifically hospitals, as “insureds”. See Medical Malpractice Reform Act, Ch. 78-47, Laws of Florida 49. The bill also provided that “[m]anagement of the fund shall be vested with the Joint Underwriting Association authorized by subsection 627.-351(7) [of the Insurance Code]_” Id. at 55. There is not to be found in the original Medical Malpractice Reform Act, or any of its amendments, an intent to give to the Fund any substantive rights greater than those enjoyed by insurance companies. By requiring that the Fund be named as a defendant, the statute insures that the Fund is given notice of the suit and an opportunity to evaluate its rights and liabilities, to make a timely investigation, to negotiate with claimants, and to prevent fraud and collusion upon it. Cf. Hartford Accident & Indemnity Co. v. Mills, 171 So.2d 190, 195 (Fla. 1st DCA), cert. denied, 179 So.2d 346 (Fla.1965) (rights of insurer). The insurer’s right to notice and an opportunity to defend a claim is a common feature in a contract of insurance, from which does not necessarily follow a right to be insulated from judgment by virtue of a statute of limitations.

Third, plaintiffs correctly argue that Section 95.11(4)(b) does not apply to the Fund because it is not a person in privity with the health care provider. This limitations statute, which was applied by the court to bar the claim against the Fund, provides in a separate clause: “The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care.” [e.s.] Obviously, the majority gives to the Fund the status of a person in privity with the health care provider, which is incongruous with any juridical definition of privity.

Although the term “privity” has no definition which can be applied uniformly, Tallahassee Variety Works v. Brown, 106 Fla. 599, 610, 144 So. 848, 852 (1932), it is not completely elusive, but denotes a mutual or successive relationship to the same interest in property. Industrial Credit Co. v. Berg, 388 F.2d 835, 841 (8th Cir.1968); Osburn v. Stickel, 187 So.2d 89, 92 n. 2 (Fla. 3d DCA 1966). The relationship between the hospital and the Fund, whereby the Fund agrees to provide “coverage” to the hospital to the extent that a malpractice claim against the hospital exceeds $100,-000, does not remotely qualify as a privity relationship — else so might any contractual relationship. A good example of privity is set out in Strathmore Riverside Villas Condominium Association, Inc. v. Paver Development Corp., 369 So.2d 971 (Fla. 2d DCA), cert. denied, 379 So.2d 210 (Fla.1979) where it was said that the original purchaser of a newly constructed condominium home was in privity with the developer but a subsequent purchaser of the home was not. Applying the definition of privity to the term in its statutory context, the logical conclusion is that the two-year time period within which a medical malpractice action must be commenced against a tortfeasor health care provider applies only to any successor in ownership to that health care provider.

Fourth, the suggestion made in Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984)— that delay in making the Fund a party would seriously impair its right to defend— rings hollow. Initially, the health care provider must provide an adequate defense of the Fund as a condition precedent to any obligation of the Fund to pay a claim. § 768.54(3)(e)2., Fla.Stat. (1981). Further, since the Fund (like an insurer) will not be involved in the conduct which gives rise to the cause of action, its separate defense will, in most cases, be dependent upon or directly tied to the defense of the health care provider — whether the Fund be joined in the action early or late. Whether a plaintiff should be permitted to join the Fund as a defendant long after the action is commenced is answered by equitable principles, e.g., laches, and not by Section 95.11(4)(b).

Finally, although it is possible to hold that joinder of the Fund after two years from the date of the act which gives rise to the cause of action is permissible without rejecting the narrow holding of Menendez, I disagree with the Menendez rationale. Section 768.54(3)(e)l. provides that a plaintiff may not recover against the Fund unless the Fund “was named as a defendant in the suit.” The statute does not require, as the Menendez court construed it, that the plaintiff has the obligation to make the Fund a defendant or forfeit the right to enforce the full amount of a judgment. An inference even more reasonable than the one . drawn in Menendez is that the tort-feasor-health care provider is obligated to join the Fund as a party (just as an insured is obligated to give notice to his insurer), or be liable for the full amount of judgment. Imposing upon an injured party the obligation to sue not only the person who caused his injury, .but other unknown parties who may be liable in part only because of an agreement between the third party and tortfeasor, is procedurally wrong. That the liability of the actual tortfeasor is limited because he has contracted with a third party for excess damages should not preclude a plaintiff from obtaining a judgment against the tortfeasor for the full amount of his damages. It should be the health care provider’s obligation to limit its liability by bringing the Fund into the action by way of a third-party complaint. See Fla.R. Civ.P. 1.180(a).

Further, there is not to be found in Section 768.54 any language supportive of Menendez’ novel theory that the obligation of the Patient’s Compensation Fund is not to the health care provider, but rather is primarily to a plaintiff. To the contrary, Section 768.54(3)(e)3. provides explicitly that a judgment for a malpractice claimant is against the health care provider and that, as a matter of claims collection procedure, that portion of the judgment which exceeds $100,000 is to be presented to the Fund for payment. The procedure is the same as in the collection of a judgment against an insurance company.

For the foregoing reasons, the holding here should be that where a medical malpractice action against a health care provider is timely commenced, the statute of limitations in Section 95.11(4)(b) is no bar to the subsequent joinder of the Florida Patient’s Compensation Fund, subject only to the statutory requirement that the Fund be joined as a defendant in sufficient time so as to permit it, if warranted, to interpose a defense to the plaintiff’s claim. Such a holding is perfectly consistent with Section 768.54(3)(e)l. and with the holding in Men-endez which mandates only that the joinder must precede a judgment. The Fund has presented no compelling reason why this logical and workable interpretation of the statute should give way to the harsh rule of Owens.

      . Although not pertinent to the legal issues raised, I think the following worthy of note. Plaintiffs were represented initially by a law firm which also represents the Fund. It was not until after the expiration of two years from the date of the alleged tort that the law firm learned, through discovery, that the defendant hospital was a Fund member. That law firm withdrew in favor of present counsel.

      . Owens has since been followed in Burr v. Florida Patient's Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984), and an opinion of this court released prior to this one. Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984). Another case presenting the question is currently pending in this court. Lugo v. Glasser (Case No. 83-932, oral argument set for June 4, 1984).

      . Section 95.1 l(4)(b), Florida Statutes (1981) provides in part:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence .... The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care.

      . Section 768.54(3)(e)l., Florida Statutes (1981) provides in part:
      Any person may file an action against a participating health care provider for damages covered under the fund, except that the person filing the claim shall not recover against the fund unless the fund was named as a defendant in the suit. The fund is not required to actively defend a claim until the provisions of s. 768.44 are completed or waived, suit is instituted, and the fund is named therein. If, after the facts upon which the claim is based are reviewed, it appears that the claim will exceed 1100,000 or, if greater, the amount of the health care provider's basic coverage, the fund shall appear and actively defend itself when named as a defendant in the suit, [e.s.]

      . Recently, the Florida Supreme Court, in Van-Bibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), held that an insurance company non-joinder statute quite similar to the one invalidated in Markert was constitutional because it regulated a substantive, rather than a procedural, right. Thus, a concession that the Fund is akin to an insurer would no longer, under the authority of VanBibber, raise a question as to the constitutionality of Section 768.54(3)(e).
      For an informative discussion of legislature-court disagreement on the question whether joinder statutes are procedural or substantive in nature, see generally Motes, Comment: VanBibber v. Hartford Accident & Indemnity Insurance Company, 3 Trial Advocate Q. 15 (1984).

      . A successor is one who takes the place another has left. Wawak Co. v. Kaiser, 90 F.2d 694, 697 (7th Cir.1937). The term successor, with reference to a corporation, generally means another corporation which, through amalgamation, consolidation, or other legal succession, becomes invested with rights and assumes burdens of the first corporation. Schmoele v. Atlantic City R. Co., 110 N.J.Eq. 597, 160 A. 524, 526 (1932).

      . Section 768.54(3)(e)l., Florida Statutes (1981), set out supra note 4.

      . In Menendez, the appellant hospital did not question whether it was a plaintiff's duty to join the Fund as a defendant. The issue was only whether the hospital could limit its liability by joining the Fund after a judgment was entered in an amount exceeding |100,000.

      . Another hidden consequence of the majority holding is to simply shift liability from the Fund to legal malpractice insurers to the extent a judgment exceeds $100,000. The failure of plaintiffs’ original counsel in this case to ascertain whether recovery against the tortfeasor was limited owing to a contract between the tort-feasor and the Fund, and if so to name the Fund as a defendant, may be evidence of negligence. The same applies to plaintiffs’ attorneys in Owen, Burr, and Taddiken. This point cannot be lightly dismissed.

      .Section 768.54(3)(e)3., Florida Statutes (1981) provides in part:
      A person who has recovered a final judgment ... against a health care provider who is covered by the fund may file a claim with the fund to recover that portion of such judgment or settlement which is in excess of $100,-000....


author: PER CURIAM. BASKIN, Judge

text:
    J.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1751.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Council v. State, 442 So.2d 1072 (Fla. 3d DCA 1983).

BASKIN, Judge

(dissenting).

I am unwilling to agree with the majority that whenever the police observe an individual holding “a manila envelope,” probable cause exists to arrest the individual for possession of marijuana. In my view, the majority holding violates basic constitutional guarantees. U.S. Const, amends. IV, XIV. I therefore dissent.


author: DAUKSCH, Judge.

text:
    Raymond C. CLARK, d/b/a Ancient City Realty, Appellant, v. Harold SHERMAN, Robert D. Slewett, et al., Appellees.
    No. 83-1439.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Rehearing Denied July 5, 1984.
    James G. Sisco, St. Augustine, for appellant.
    Paul Martz of Martz & McClure, St. Augustine, and Kenneth L. Ryskamp of Goodwin, Ryskamp, Welcher & Carrier, P.A., Miami, for appellees.
   DAUKSCH, Judge.

This is an appeal from a judgment in a suit for a real estate broker’s fee.

Upon a review of the evidence it is our conclusion the trial judge erred in directing a verdict against the plaintiff because the question of whether the plaintiff was entitled to a fee was a factual question only the jury could decide. It is not for the judge to decide as a matter of law whether the plaintiff was a part of the procuring cause for the buyer and seller coming together in contract.

Was the plaintiff the one who introduced the buyer to the property and the seller? Did the seller agree to pay a broker’s fee if the plaintiff found a buyer? Was that agreement in existence at the time the buyer first found out about the property and did the agreement continue in effect until the sale was consummated? These are but some of the jury’s questions and they should have been the ones to decide.

The judgment is reversed and this case is remanded for trial.

REVERSED and REMANDED.

COWART, J., and COLEMAN, T.P., Associate Judge, concur.


author: SHARP, Judge.

text:
    Lena Mae CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1761.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Rehearing Denied July 9, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Carter appeals from the revocation of her probation and sentence of eighteen months. The sole issue on appeal is whether the trial judge properly calculated the sentence under the new sentencing guidelines. Fla.R.Crim.P. 3.701. We think the trial court erroneously added points to the sentencing guidelines score sheet for Carter’s violation of probation, thereby pushing the sentence beyond the recommended maximum range. However, we think that violation of probation may serve as a basis for imposing a sentence higher than the recommended range, upon appropriate findings by the court. Fla.R.Crim.P. 3.701(d)(6) & (11).

In this case appellant pleaded guilty on April 10, 1981, to resisting an officer with violence, and was placed on probation for three years. On June 24, 1983, the state filed an affidavit of violation of probation:

affiant has reason to believe that probationer has committed offenses against the laws of the State of Florida in that probationer committed the offense of Battery on a Police Officer, Trespass After Warning, Criminal Mischief, and Resisting an Officer with Violence on 5/15/82 in Winter Garden, FL.

Appellant pleaded guilty to the violation of probation charge of resisting an officer with violence, and was sentenced on November 8, 1983.

In calculating Carter’s sentence, the court employed the new sentencing guidelines. It added thirty-six points to the score sheet because appellant was on probation for the offense for which she was being sentenced. The court determined that this constituted being under “legal constraint” at the time the offense for which appellant was being sentenced was committed. Fla.R.Crim.P. 3.988(d)(IV). But, Carter was not under any legal constraint at the time she committed the offense for which she was sentenced. See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

However, we think that a violation of probation may serve as a legitimate reason to exceed the presumptive sentence established in the guidelines in the discretion of the trial judge, provided the basis is stated in writing. Fla.R.Crim.P. 3.701(d)(ll). Accordingly, we vacate the sentence and remand this cause for resen-tencing.

SENTENCE VACATED AND CASE REMANDED.

COBB and COWART, JJ., concur.

      . § 843.01, Fla.Stat. (1979).

      . The state argues that the trial court erred in sentencing appellant under the guidelines since they were not in effect at the time the offense was committed. This argument has been rejected by the First District Court of Appeal in Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

      . We note that effective February, 1984, the Sentencing Guidelines Commission amended Florida Rule of Criminal Procedure 3.701(d) as follows: "The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next highest cell (guideline range) without requiring a reason for departure.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701; 3.988—Sentencing Guidelines), No. 65,216 (Fla. May 8, 1984) [1984 F.L.W. 169]; Fla.R.Crim.P. 3.701(d)(14). The supreme court adopted the amendment on May 8, 1984, but the rule has not, as yet, been approved by the legislature. § 921.001(4)(b), Fla.Stat. (1983).
      However, assuming such a committee note or rule is now in effect, we do not think the amended rule can be applied retroactively. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Wilensky v. Fields, 267 So.2d 1 (Fla.1972); Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924); U.S. CONST, art. I, § 9, cl. 3; Art. I, § 10, Fla. Const.


author: SCHEB, Judge.

text:
    Glynn ADDISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-2187.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant Glynn Addison, Jr., challenges a five-year prison sentence imposed outside the recommended sentencing guidelines. We affirm.

Defendant was placed on five years probation on May 19, 1980, for the offense of grand theft. On August 4, 1983, the state filed an affidavit alleging that defendant violated his probation by:

Violation of Condition (5) of the Probation Order, in that, on August 1, 1983 . probationer did possess marijuana, less than five grams, as evidenced by his arrest for Possession of a Controlled Substance — Cannabis (misdemeanant) and further attested to by Deputy William Andreu of the Charlotte County Sheriff’s Office.
Violation of Condition (9) of the Probation Order, in that, on August 1, 1983 probationer did consume alcohol as evidenced by his arrest for Driving While Under the Influence and Driving With Unlawful Alcohol Blood Level and further attested to by Deputy William An-dreu of the Charlotte County Sheriffs Office.

Defendant appeared before the trial judge with his counsel on October 10, 1983, and entered a plea of nolo contendere to these alleged violations. He elected to be sentenced under the new sentencing guidelines, pursuant to section 921.001(4)(a), Florida Statutes (1983). See also In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

The court and counsel explained to defendant that although the scoresheet prepared under the sentencing guidelines indicated the recommended sentence would be any non-state prison sanction, that the trial court had the option of going outside those guidelines in imposing a sentence. The trial judge recalled that when he placed the defendant on probation, he emphasized the importance of defendant abstaining from the use of alcoholic beverages. He further mentioned his admonition to defendant at that time that violation of these conditions of probation would result in a prison sentence. The trial judge then accepted defendant’s plea and sentenced him to five years imprisonment with credit for time served. This timely appeal followed. We have jurisdiction pursuant to section 924.-06(l)(e), Florida Statutes (1983), and Florida Rule of Appellate Procedure 9.140(b).

Defendant first contends that his violation of probation relates to the instant offense for which he was sentenced. He argues that Florida Rule of Criminal Procedure 3.701(d)(ll) precludes any factors relating to the instant offense from being considered as reasons for deviating from the guidelines. We think defendant’s basic premise is incorrect. To begin with, the subsequent conduct involved in his probation violations, i.e., possession of marijuana and driving while under the influence of alcoholic beverages, was not related to the offense of grand theft for which he was sentenced. Furthermore, even assuming that such probation violations did relate to the instant offense, nothing in rule 3.701 says that matters excluded for purposes of guidelines computation cannot be considered as reasons for departure from the sentencing guidelines. See Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).

Defendant further contends that the court erred in sentencing him outside the guidelines, because there was no clear and convincing reason to warrant such action. Again, we disagree. We think that violation of a substantive condition of probation can be a basis for a trial court to exercise its discretion in sentencing outside the area of the guidelines. See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). The violations alleged here were substantial and were not contested by defendant. While a defendant may appeal a sentence outside the guidelines, it is not the function of this court to re-evaluate the exercise of the trial judge’s discretion in this area. Rather, our role is to assure that there is no abuse of that discretion. Here, the trial judge stated his basis for departing from the guidelines in writing and imposed a sentence within the statutory parameters. Given this factual situation, no abuse of discretion has been shown.

In responding to this appeal, the state alleges that the new sentencing guidelines are not applicable, because the sentence here was a “resentencing” after probation. We reject the state’s position. When the defendant was originally placed on probation, the trial court withheld imposing sentence. § 948.01(3), Fla.Stat. (1983). Probation does not constitute a sentence. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Rather, the sentencing occurred on October 10, 1983, after revocation of probation. Thus, the defendant was entitled, at his election, to be sentenced under Florida Rule of Criminal Procedure 3.701. Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984); see Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984).

Affirmed.

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

      . Florida Rule of Criminal Procedure 3.701(d)(ll) provides:
      Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.


text:
    David Daryl BODINE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1589.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.
    James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Bodine appeals from three sentences of thirty months to run concurrently for forgery and uttering a forgery. The sentences were imposed on October 3, 1983, after Bodine pleaded guilty to possession of a firearm by a convicted felon, which constituted a violation of his five years probation on the forgery and uttering crimes. Bodine elected to be sentenced under the new sentencing guidelines, and he argues that the trial court erred in calculating his sentence by adding to his total score fifteen points for possession of a firearm, -under the category of “prior record.” We agree.

Florida’s' sentencing guidelines define “prior record” as “any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense.” (Emphasis added). Fla.R.Crim.P. 3.701(d)(5)(a). This subsequently committed crime which formed the basis for Bodine’s probation revocation should not be considered as a part of his prior record because it had not been “disposed of” before he committed the forgery offenses.

Under the guidelines the presumptive sentence in this case (minus the fifteen points improperly added) was the first bracket, any non-state prison sanction. The sentences given fell within the next bracket. We held in Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), that if Florida Rule of Criminal Procedure 3.701(d)(ll) is complied with, the court may exceed the guideline range where there has been a violation of probation. We therefore vacate the sentences and remand for resentencing.

SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.

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

      . § 831.01, Fla.Stat. (1981).

      . § 831.02, Fla.Stat. (1981).

      . § 790.23, Fla.Stat. (1983).

        . See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).


author: GRIMES, Judge. CAMPBELL, Judge,

text:
    Coye Elliott BOYETT, Appellant, v. STATE of Florida, Appellee.
    No. 83-2352.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal* involves the question of whether the sentencing guidelines are applicable to a sentence imposed upon a revocation of probation after the effective date of the guidelines when the original probation order predated the guidelines.

On August 17, 1982, defendant was found guilty by a jury of the unlawful possession on April 17,1982, of a short-barreled shotgun in violation of section 790.-221, Florida Statutes (1981). On September 29, 1982, the trial judge adjudicated appellant guilty and placed him on five years probation with the condition that he serve 360 days in jail with credit for time served. Appellant’s conditional prison term was completed in June, 1983. On August 5, 1983, he was charged by affidavit with violations of probation on July 22, 1983, and July 30, 1983.

The sentencing guidelines became effective on October 1, 1983. At appellant’s hearing on October 27, 1983, he pled guilty to the probation violations and opted to be sentenced under the guidelines. In the course of the hearing, the trial judge was informed that appellant also was currently on probation for aggravated battery in Miami. The judge considered a sentencing guidelines scoresheet which resulted in a recommended sentence of “any nonstate prison sanction.” However, the judge sentenced appellant to three years in state prison. In doing so, he noted as “Reasons for departure,” that appellant had been on probation before for aggravated battery, had a “Drinking problem/Threat to Society,” and had already served approximately one year in jail as a condition of the probation he was charged with violating. Appellant contends that the court improperly departed from the sentence recommended under the guidelines.

Though not raised below, the state first contends that the sentencing guidelines were totally inapplicable because the appellant was placed on probation before October 1, 1983. Thus, since appellant was “sentenced” when he was originally placed on probation, the state reasons that the three year prison term imposed upon the revocation of probation simply constituted a “resentencing.” The state’s position also gains some support from section 948.06(1), Florida Statutes (1983), which provides that upon revocation of probation, the court may “impose any sentence which it might have originally imposed before placing the probationer or offender on probation.” Nevertheless, we do not accept these arguments.

In the first place, it is difficult to see how it can be said that appellant was “sentenced” to probation when section 948.-01(3), Florida Statutes (1983), provides that in placing a defendant on probation the court shall “withhold the imposition of sentence.” In any event, section 921.001(4)(a), Florida Statutes (1983), unequivocally provides that the sentencing guidelines “shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced” under the guidelines. The sentencing of persons on probation was not excluded from the ambit of the statute. See also Committee Note (c) to Florida Rule of Criminal Procedure 3.701 which contemplates that one whose probation is revoked should be sentenced under the guidelines.

There had to be a cutoff date after which the guidelines would be applied. This comprehensive legislation which so drastically affects sentencing in Florida necessarily overrides any inconsistency which may remain in section 948.06(1). Since appellant was sentenced after October 1, 1983, he was entitled to be sentenced under the guidelines. Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). In arriving at this decision, we are comforted by the knowledge that our sister court reached the same conclusion in Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

In deliberating upon the merits, we believe the trial judge stated clear and convincing reasons to depart from the sentencing guidelines. Appellant was also currently on probation for .aggravated battery, and this had not been considered in the guideline calculations. Moreover, it was reasonable to conclude that appellant should not merely be put back on probation or sent to county jail for a term which could not exceed one year because he had already served 360 days as a condition of a probation which was now being revoked.

We also address appellant’s argument that the trial judge erred in imposing a public defender lien as a condition of parole. We agree. A trial court may not set conditions of parole. Ingram v. State, 442 So.2d 404 (Fla. 2d DCA 1983). However, since we hold that appellant was properly sentenced under sentencing guidelines, he is not entitled to parole, section 921.001(8), Florida Statutes (1983), and the issue is moot.

In view of Judge Campbell’s position and the fact that many others placed on probation before October 1, 1983, may now be faced with the consequences of a revocation, we certify to the supreme court as a question of great public importance:

IS A DEFENDANT WHO WAS PLACED ON PROBATION BEFORE OCTOBER 1, 1983, ENTITLED TO ELECT TO BE SENTENCED UNDER THE SENTENCING GUIDELINES AFTER OCTOBER 1, 1983, UPON A REVOCATION OF HIS PROBATION?

AFFIRMED.

BOARDMAN, A.C.J., concurs.

CAMPBELL, J., concurs in part; dissents in part.

CAMPBELL, Judge,

concurring in part and dissenting in part.

I concur with the majority’s opinion that the trial judge stated clear and convincing reasons to depart from the sentencing guidelines. I also agree that a trial judge cannot impose conditions of parole where parole is applicable. I respectfully disagree with my colleagues’ conclusion that sentencing guidelines are applicable to a sentence imposed after October 1, 1983, for violation of a term of probation that was imposed prior to October 1, 1983. I, therefore, do not receive the same comfort as they do in relying on Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

I would hold, in conflict with Duggar, that sentencing guidelines are not applicable to a sentence imposed after October 1, 1983, as a result of revocation of probation that was imposed prior thereto. Neither sections 921.001 or 921.005, Florida Statutes (1983), or Rule 3.701 make specific reference to that circumstance. Admittedly, section 921.001(4)(a) provides that guidelines shall be applied to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs thereafter when the defendant affirmatively selects the guidelines.

I could engage in some speculation and debate as to whether sentencing in the content of section 921.001 and Rule 3.701 occurs when a defendant is placed on probation. Duggar held that it does not, citing section 948.01(3), Florida Statutes (1983). However, as a result of “sentencing guidelines,” probation will often be imposed and thus, under the guidelines, equate to a “sentence.” Rule 3.701 b seems to contemplate that all dispositions under the guidelines in fact equate to a “sentence” when it refers to the “sentence decision-making process.” The concept of probation as a “sentence” under the guidelines is further supported by the contrast of “incarcerative sanctions” referred to in Rule 3.701 b7. Further, Florida Rule of Criminal Procedure 3.710 makes reference to “sentences other than probation.” In Duggar, adjudication of guilt had been withheld when probation was imposed prior to October 1, 1983, whereas here, appellant was adjudicated guilty at that time. I see no significance in that distinction, however.

I conclude that it is not necessary to speculate on the accurate definition of “sentencing,” because in enacting sections 921.001 and 921.005, the legislature did not amend or, in any way, alter the provisions of chapter 948, Florida Statutes (1982). Section 948.06(1), which Duggar does not address, specifically provides that when probation is revoked, the court may “impose any sentence which it might have originally imposed before placing the probationer on probation.”

When appellant was placed on probation, sentencing guidelines were not in effect. The trial judge placed appellant on probation as an alternative to other punishment available to the trial judge at that time. Section 948.06(1) is not only still viable, it is logical. A trial judge should not be forced to alternatives that limit him after violation of probation to methods of punishment more restrictive than existed when he afforded the defendant the alternative of probation.

      . The supreme court recently approved an amendment to the rule which specifically provides that sentences imposed after revocation of probation should be in accordance with the guidelines. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988-Sen-tencing Guidelines), 451 So.2d 824 (Fla.1984).

      . As a consequence of such an anomaly, the supreme court has now approved the amendment of rule 3.701 to include subsection (d)(14) which reads in part:
      The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next highest cell (guidelines range) without requiring a reason for departure.

        Id. at 827.


author: NESBITT, Judge.

text:
    James E. REDFORD, Jr., Ruth Shack, William G. Oliver, Phyllis Miller, and Linton B. Tyler, as members of and constituting the Dade County Property Appraisal Adjustment Board, and Franklin B. Bystrom, Dade County Property Appraiser, Appellants, v. The STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    Nos. 82-2227, 82-2228.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 30, 1984.

      Schultz & Hollander and Steven Schultz, Miami, Robert A. Ginsburg, County Atty., and James K. Kracht, Asst. County Atty., for appellants.
    Jim Smith, Atty. Gen., and J. Terrell Williams, Asst. Atty. Gen., for appellee.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for Eastern Air Lines, Inc., as amicus curiae.
    Steel, Hector & Davis, Miami, for Pan American World Airways, Inc., as amicus curiae.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   NESBITT, Judge.

These consolidated appeals by the Property Appraisal Adjustment Board (Board) and the Property Appraiser, defendants below, challenge a summary judgment in favor of the Department of Revenue (DOR). We affirm.

The Dade County Property Appraiser granted ad valorem tax exemption to certain leasehold- interests on real property located at the Miami International Airport. Thereafter, he submitted the tax roll to the DOR for review. § 193.114(5), Fla.Stat. (1977). Florida Administrative Code Rule 12D-8.20 specifically allows the DOR to review the tax roll to determine whether the exemptions granted by the Appraiser are all properly documented and made in conformity with the law. In this case, the DOR exercised its authority to disapprove the roll because it found that the tax exemption granted to the lessees was improper. § 193.114(6), Fla.Stat. (1977). It directed the Appraiser to place the property on the tax roll.

After the Appraiser complied, the Board on its own motion held hearings to review the exemptions. §§ 194.032 & 196.194, Fla. Stat. (1977). The Board granted an exemption for the leaseholds and officially certified the 1979 tax roll. Shortly thereafter, the Appraiser also certified the tax roll containing the exemption in accordance with section 193.122, Florida Statutes (1977). The DOR then unilaterally requested that the Appraiser file suit against the Board based upon a consistent and continuous violation of the law. When the Appraiser refused to bring the requested action against the Board, the DOR then commenced this action to compel the Board and the Appraiser to place the leasehold interest upon the ad valorem tax roll of Dade County. The complaint also sought a merit determination that the leaseholds were not statutorily exempt from taxation. The trial court, in a merit determination, found the leaseholds were not exempt and ordered the Appraiser to prepare a supplemental tax roll containing assessments of the subject property and certifying the roll for collection. The Board and the Appraiser have appealed.

A number of issues are raised but we find that our inquiry is limited by the parameters of authority conferred by section 195.092 which provides:

Authority to bring and maintain suits. —The Department of Revenue shall have authority to bring and maintain such actions at law or in equity by mandamus or injunction, or otherwise, to enforce the performance of any duties of any officer or official performing duties with relation to the execution of the tax laws of the state, or to enforce obedience to any lawful order, rule, regulation or decision of the Department of Revenue lawfully made under the authority of these tax laws.

This statute is both a substantive grant of supervisory power and a complement to the supervisory powers elsewhere granted to the DOR. See, e.g., §§ 193.114(5), (6), 195.002, 195.027, 195.096 & 195.097, Fla. Stat. (1977). It enables the DOR to compel obedience to its interpretation of the tax rules and regulations.

The courts, in resolving an action brought under this provision, need only determine whether the DOR is lawfully exercising its power over the particular tax official or authority. Turning then to the present case, the issue before us is limited to whether the DOR has the power to compel obedience to its decision that the subject property be placed on the tax roll. We readily conclude that section 195.092 authorizes the DOR’s superintending power to compel obedience of the taxing official to place the property on the tax roll. Furthermore, an action brought under this section does not contemplate a merit determination. Other portions of the taxing code afford the taxpayer who is aggrieved by the agency action the right to raise any and all defenses in a subsequent proceeding. See § 194.171(2), Fla.Stat. (1977). This is particularly true in the present case because the taxpayers are not before the court and therefore may not, by a judgment in this case, be precluded in subsequent litigation from the exercise of his right to prove that an exemption was proper. See State ex rel. Burbridge v. St. John, 143 Fla. 876, 197 So. 549 (1940) clarifying 143 Fla. 544, 197 So. 131.

Accordingly, that portion of the trial court order which determined that the property should be placed on the assessment rolls and certified for collection is correct. The remainder of the order which purports to determine whether an exemption is appropriate is beyond the scope of the relief which may be granted pursuant to section 195.092 and therefore must be vacated. Once the tax roll has been certified for collection, the taxpayer will have sixty days to challenge the assessment. § 194.171(2).

Affirmed in part, vacated in part.

      . We reject the appellant’s contention that the DOR was estopped to change its position from approval to disapproval because we find that there was no detrimental reliance insofar as the appropriate administrative and judicial review occurred subsequent to the DOR's disapproval.


author: JORGENSON, Judge.

text:
    Marshall Ian FARKAS, Appellant, v. Karin FARKAS, Appellee.
    No. 83-700.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 31, 1984.

      Gerald E. Rosser, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.

       Did not participate in oral argument.

   JORGENSON, Judge.

Marshall Farkas appeals the final judgment entered by the trial court in this dissolution of marriage action. In particular Mr. Farkas asserts that the trial court abused its discretion in distributing the assets of this twenty-four-year marriage. We agree and for the following reasons reverse and remand this action to the trial court with directions to equitably distribute the marital assets.

Mindful of our limited jurisdiction to review orders of trial courts in dissolution matters, see Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983), we nevertheless conclude that the trial court abused its discretion when it awarded the former wife ninety per cent of the marital assets of this long-term marriage. The equities in this case do not support such a disproportionate distribution. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ingram v. Ingram, 379 So.2d 955 (Fla.1980); Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981).

The confusion below emanates primarily from the trial court’s treatment of certain funds which were inherited by the wife late in the marriage. Those monies were held by the wife in certain trust accounts; however, the interest from those funds was contributed by the wife to the couple’s endeavors. The trial court, although it is not clear, apparently considered the interest monies as giving rise to a special equity in favor of the wife. This record will not justify such a result. See Ball v. Ball, 335 So.2d 5 (Fla.1976).

At the time of the dissolution the parties jointly owned four parcels of real estate: one, the marital domicile with an equity of approximately $78,000; two, a condominium unit (the Briarwinds) with an equity of approximately $17,000; three, a condominium unit (Bay Gardens) with an equity of approximately $11,000 and four, an interest in a time share unit condominium (Sanibel Beach) with a value of approximately $6,000.

The trial court awarded to the wife all the husband’s interest in the marital residence, all the husband’s interest in the Briarwinds condominium (but left him liable on the Briarwinds mortgage) and gave the wife half interest in the Bay Gardens condominium. The trial court divided equally the parties’ interest in the time share condominium but found that the wife was entitled to a $2,000 credit because inherited funds were used for a portion of the purchase. Contrary to the trial court’s findings the record demonstrates that the $2,000 in question was in the form of a note collateralized by the inheritance but subsequently paid from joint funds. The trial court also required the husband to transfer to the wife his interest in an I.R.A. account (except for $1,200) which will cause him to incur a substantial tax penalty.

There is nothing in this record that will support the disparate distribution of the jointly owned property that occurred in this case. As this court has previously stated, record title is the starting point with the division of property. See Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980) (citing Ball), review denied mem., 399 So.2d 1144 (Fla.1981). The contribution of interest income from the wife’s con-cededly separate funds does not give rise to a special equity in the real property or the I.R.A. account any more than the husband’s contribution of his salary to the couple’s joint endeavors.

We therefore reverse and remand this action with directions to the trial court to apply the principles stated in Canakaris and Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982). See also Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983) (award to the wife, as lump sum alimony, of the husband’s interest in the marital home reversed where husband was clearly “shortchanged” by award).

Reversed and remanded with directions.

      . As Judge Letts, whose views we share, has pointed out in Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984) (Letts, J., specially concurring), and Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984) (Letts, J., dissenting in part), our jurisdiction is indeed quite limited.


author: BASKIN, Judge.

text:
    Julia Tedesco VALENTINE, Guardian of the person and property of Drayton Chew Valentine, a minor, Appellant, v. Milton KELNER, Guardian Ad Litem, Appellee.
    No. 83-1254.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    As Clarified July 17, 1984.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin; Hall & Hedrick, Miami, for appellant.
    Kelner & Kelner, and John Kelner, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.

       Did not participate in oral argument.

   BASKIN, Judge.

Drayton Valentine died in 1974. In his will he created a trust for the benefit of his son Drayton Chew Valentine. Drayton Valentine's wife, Julia Tedesco Valentine, was named guardian of the child and of his property, and the Philadelphia National Bank later became trustee. In 1977, Mrs. Valentine adopted Drayton Chew Valentine. She received an average of $3,000 a month from the trust; she spent the entire amount without obtaining prior court approval. During her guardianship Mrs. Valentine failed to file annual returns until the trial court entered an order in 1981 requiring her to file them. After conducting a hearing concerning the expenditures, the trial court ordered Mrs. Valentine to repay to Drayton $112,705.34 spent before the adoption and $263,665.25 spent after the adoption. The trial court determined that Mrs. Valentine was not entitled to use Drayton’s funds: before the adoption the funds were not spent on the reasonable care of the child and after the adoption, she was under a legal duty to support and maintain her adopted child. In this appeal Mrs. Valentine argues that the trial court erred in failing to consider the terms of the trust when making its determination. We agree and reverse.

After the trial court reached its decision, and while this appeal was still pending, this court decided Ash v. Coconut Grove Bank, 443 So.2d 437 (Fla. 3d DCA 1984). Ash established that when a trust is designed to discharge parental responsibility, the parental obligation is alleviated to the extent contemplated by the trust. See also Annot., 121 A.L.R. 176, 197-207 (1939). Under Ash the trial court erred in refusing to take into consideration the extent to which the testator may have intended to relieve the natural guardian of the obligation to support. On remand, the trial court need not accept appellant’s interpretation of the trust; if the court finds that the testator intended to alleviate parental responsibility, then Ash principles apply; otherwise the trial court should be guided by the standards of Beck v. Beck, 383 So.2d 268 (Fla.3d DCA 1980).

Although we recognize what appears to be a conflict between section 744.-397(3), Florida Statutes (1981), which requires parental support of a minor and section 744.444(8), Florida Statutes (1981), which permits a guardian of the property to use the ward’s funds to pay reasonable living expenses on the ward’s behalf without obtaining court approval, we believe the issue has been resolved by Ash. Consequently, we conclude that the natural guardian of a minor must obtain court approval prior to expending assets of the ward notwithstanding trust provisions which purport to relieve the natural guardian of legal duties.

We find no merit in appellant’s assertion that the trial court is required to itemize the expenses allowed and disallowed.

An order of the probate court arrives in the appellate court clothed with the presumption of its correctness and will be affirmed if it can be supported on any theory. In re Estate of Schor, 172 So.2d 888 (Fla.3d DCA 1965). The findings of a probate court are entitled to the same weight as the findings of any other trier of fact. In re Estate of Winslow, 147 So.2d 613 (Fla.2d DCA 1962). The burden is on the appellant to show that the findings and order of the probate court are clearly erroneous. Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933).

Beck at page 272-273.

The trial court deemed it necessary to impose sanctions for the guardian’s failure to comply with accounting requirements and failure to obtain court approval for expenditures of the ward’s funds. We find no abuse of discretion in the court’s removal of Mrs. Valentine as guardian.

We have considered appellant’s other arguments and find them to be without merit.

For these reasons, we reverse and remand for further proceedings consistent with this opinion.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. William TROISE, Appellee.
    No. 83-2163.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 23, 1984.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellant.
    Markus, Winter & Feldman and Kenneth N. Feldman, Miami, for appellee. ■
    Before NESBITT and FERGUSON, JJ., and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. See State v. Gieseke, 328 So.2d 16 (Fla.1976); State v. Cohen, 442 So.2d 346 (Fla. 5th DCA 1983); Bates v. State, 355 So.2d 128 (Fla. 3d DCA 1978); Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977).


text:
    Maria Rosa de TORRES, Appellant, v. CHEVRON TRAVEL CLUB, INC., a California corporation and Insurance Company of North America, a Pennsylvania corporation, Appellees.
    No. 83-2420.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 30, 1984.
    Gregg J. Ormond, Coral Gables, for appellant.
    Stephens, Lynn, Chernay, Klein & Zuck-erman and Robert M. Klein, Miami, for appellees.

      Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that: (1) the decedent’s Chevron credit card and Chevron travel club membership were, without dispute, terminated for failure to pay overdue credit card charges prior to the decedent’s accidental death; (2) the decedent’s Chevron credit card, but not his Chevron travel club membership, was thereafter reinstated upon payment of the overdue credit card charges prior to the decedent’s accidental death; (3) the group accidental loss of life insurance policy provided to Chevron travel club members was, therefore, not in effect as to the decedent at the time of the decedent’s death; and (4) there was no reasonable notice requirement implied by law as a pre-condition to terminating the decedent’s Chevron travel club membership inasmuch as the contract between the parties contained provisions indicating the intent of the parties as to the termination of Chevron travel club membership, to wit: (a) Chevron travel club membership was made dependent on the member being a Chevron credit card customer in good standing, (b) the Chevron credit card, without dispute, could be canceled at any time without notice, and (c) upon cancellation of the Chevron credit card, it is plain that the parties intended that Chevron travel club membership would terminate. See Sound City, Inc. v. Kessler, 316 So.2d 315, 318 (Fla. 1st DCA 1975).

Affirmed.


text:
    E. Peter GOLDRING, Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. 83-2880.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 17, 1984.

      John G. Fletcher, South Miami, for appellant.
    E. Gary Early, Tallahassee, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

Goldring applied to the Department of Environmental Regulation (DER) for a permit to mine limestone on a site in Dade County. The matter was referred to a hearing officer who concluded that the DER did not have jurisdiction over the property in question. The DER rejected this legal conclusion, determined that it had jurisdiction and found that Goldring had not demonstrated an entitlement to a permit. We find that the hearing officer correctly decided that the DER did not have jurisdiction and thus we reverse the order appealed.

The project site is in the middle of a vast prairie, lying approximately four and one-half miles to the north of Florida Bay. The site is w,et enough to support sawgrass as the dominant vegetation. For approximately ten per cent of the year, the land is completely submerged. The sole source of water on the site is rain water which either falls immediately on the site or to the northwest.

The basis upon which jurisdiction is asserted is Florida Administrative Rule 17-4.-28(2) which provides in pertinent part:

Pursuant to Section 403.061, 403.087 or 403.088 F.S., those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series of excavated water bodies to, the following categories of waters of the state to their landward extent as defined by Section 17-4.02(17), F.A.C. require permit from the department prior to being undertaken:
(c) bays, bayous, sounds, estuaries, and natural tributaries thereto;

There can be no doubt that the Florida Bay which defines coastal areas sought of the site in question constitutes state waters. The issue before us is whether the site upon which the mining permit is sought constitutes the landward extent and boundary of those state waters. Reasoning that the test of the landward extent is that area which is dominated by a species on the list contained in Florida Administrative Code Rule 17-4.02(17), the DER concluded that the subject site whose dominant species, sawgrass, is on that index must be within the landward extent of the Florida Bay. Goldring admits, as he must, that the dominant species is sawgrass, but contends that the presence of an index species is not a conclusive indication of the landward extent of a water body. We agree.

We begin our analysis with section 403.-817, Florida Statutes (1981) which authorizes the DER to establish rules relating to the landward extent. Paragraph 1 recognizes that the levels of waters of the state rise and fall making it difficult to determine the natural landward extent of waters. Paragraph 2, after authorizing the DER to establish by rule the method for determining the landward extent of waters continues:

Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state.

While upon quick perusal it might appear that the presence of an index species is a conclusive indication of the landward extent of a water body, a closer reading of the statute indicates that such was not the intent.

The legislature apparently recognized that certain plants like to have their “feet wet” on a periodic basis; thus, it determined that the existence of these plants in an area provided a good indication of the landward extent and obviated the need for detailed and scientific measurements of the tidal flow. In other words, the landward extent is not defined as that area upon which certain vegetation is found, but rather is that area subject to regular and periodic inundation by a water of the state as indicated by the presence of particular species common to such an area. Thus, as the hearing officer correctly pointed out:

The most important point from Section 403.817 for this case is that the landward extent of a state water is that portion of land covered by water as the result of dynamic, regular, and periodic action from the state water body itself. The river must flood, the tide must rise or the stream must meander in order to create the landward extent of each water body, (e.s.)

The presence of an index species is but a way of measuring the action of the state waters.

The foregoing concept is embodied in Florida Administrative Code Rule 17-4.-28(2)(g) where it states:

The department recognizes that the natural border of certain water bodies listed in this section may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in Section 17-4.02(17), F.A.C., is to guide in the establishment of the border of the water bodies listed in this section. It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange waters with a recognizable water body (i.e., areas within the landward extent of waters of the state as defined in Section 17-1^.02(17)). (e.s.)

The requirement that the area is “customarily submerged” and “exchanges water” is another way of expressing that the landward extent is that area subject to regular and periodic inundation.

The DER in reaching its conclusion that it had jurisdiction found that there was a one-way flow of water from the subject site to the Florida Bay and that this satisfied the requirement of an “exchange.” However, from what we have already observed it is clear that the word “exchange” in the rule must contemplate a flow of water from the water of the state to the site. That water flows in the opposite direction does not trigger the agency’s right to regulate.

Applying these principles to the facts of the present case, we readily conclude that Mr. Goldring’s property is not within the landward extent of Florida Bay. The site in question lies four and one-half miles north of the recognizable edge of Florida Bay. Were we to utilize the vegetation index as the determinative factor, then the presence of sawgrass would clearly place the property within the landward extent of Florida Bay. However, the anomaly is that Florida Bay is salt water, while sawgrass is a fresh water species. Clearly, the dynamic action of the Bay does not have an effect on Mr. Goldring’s property. The fact that the land is incidentally wet enough from rainfall to support saw-grass does not supplant the requirement that the land be subject to inundation by the water of the state. Accordingly, we find that the area in question is not within the landward extent of Florida Bay and thus, the DER does not have jurisdiction.

One final feature of the DER’s order requires our attention. After finding that there was jurisdiction, the DER rejected the hearing officer’s conclusion that no policy statement existed sufficient to support the use of the cumulative impact doctrine but declined to remand for a factual determination of whether there was a cumulative impact because there were independent reasons for denying the permit. The effect of this ruling was that if, upon review, it was determined that: (a) the DER had jurisdiction; and (b) the stated basis for denial of the permit was improper, the DER would have another opportunity to rebuff Mr. Goldring’s efforts to obtain a permit. We will not permit the DER’s attempt to nullify a decision rendered by this court and in any event hold that the record does not contain the requisite factual foundation and explication of public policy to support the use of the cumulative impact doctrine.

Reversed.


text:
    Anthony THAYER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1545.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied July 18, 1984.
    Nelson E. Bailey, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirm on the authority of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

LETTS, HURLEY and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    Stewart REID, Appellant, v. STATE of Florida, Appellee.
    No. 83-628.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied July 25, 1984.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Reid was convicted of operating a motor vehicle while intoxicated and causing the death of a human being contrary to Section 860.01, Florida Statutes (1981). In seeking to reverse the judgment of conviction and sentence, Reid contends the trial court erred in denying his motion to suppress the results of a blood test. In addition, he maintains that the evidence of negligence was insufficient to take the case to a jury.

The accident in question occurred on North Federal Highway in the City of Boca Raton. The deceased was exiting a church parking lot at the direction of a city traffic officer who was stationed in the middle of the northbound traffic lanes. Reid was traveling north on Federal Highway and failed to heed the officer’s direction to stop, causing him to collide with the accident victim.

Shortly after the accident, two law enforcement officers arrived on the scene. Officer Ehrhardt was investigating the traffic aspects of the ease and Officer Rut-ter was conducting a criminal investigation. Rutter found Reid sitting in the median strip adjacent to the accident scene. He advised Reid of his mission and the possibility of criminal charges arising therefrom. After checking Reid’s truck and smelling the odor of alcohol, Rutter smelled Reid’s breath, which also contained a strong alcohol odor. Since it was necessary to take Reid to the hospital, Rutter asked Reid if he would submit to a chemical, or blood, test while there, and Reid agreed to do so. Later at the hospital, while waiting for the lab technician to perform the blood test, Rutter talked further with Reid, advised him of his constitutional rights and of the implied consent law. Reid advised him he had been drinking beer during the afternoon and had just finished the last one before the accident. The cab of his truck contained an empty beer can and broken wine bottles. The blood test revealed a .231 blood alcohol reading.

We find no merit to Reid’s attack upon the order denying his motion to suppress the blood test results. Reid, who was in full possession of his faculties before and during his hospital visitation, consented to the testing to determine his blood alcohol level. Furthermore, there was no melding or confusion concerning Officer Rutter’s function with Officer Ehrhardt’s function in their respective dealings with Reid. Rutter made it clear at all times that he was conducting a criminal investigation, not a traffic investigation. Thus, the privilege attendant upon a traffic accident report does not pertain here. State v. Coffey, 212 So.2d 632 (Fla.1968).

Finding no merit in Reid’s other contentions, we affirm the judgment and sentence appealed from.

AFFIRMED.

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


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Gwen MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1164.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
    ' Jim Smith, Atty. Gen., Tallahassee, and Andrew W. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984).

ANSTEAD, C.J., and DOWNEY, JJ., concur.

GLICKSTEIN, J., concurs only in reversal with opinion.

GLICKSTEIN, Judge,

concurring only in the reversal.

I concur in the reversal because it was error for the trial court to proceed as it did. However, I disagree with the analysis and “per se” rule adopted in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), for all of the reasons recited in my concurring and dissenting opinion in Hooper v. State, 452 So.2d 611 (Fla. 4th DCA 1984), which I need not repeat here.

Whatever the Supreme Court of Florida decides, I hope it will resolve the conflicts between the district courts of appeal at an early date because of two important concerns. First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers’ resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people’s surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people’s spokespersons making statutory expressions of our citizens’ social value judgments.