author: SHIVERS, Judge. SHIVERS, Judge.

text:
    HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Hillsborough County Government Employees Association, Inc., and Communication Workers of America, Local 3178, Appellees.
    No. AI-484.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied March 16, 1984.
    See also, Fla.App., 424 So.2d 132.
    E. John Dinkel, III, and Martha A. Curtis, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Stephen A. Meek, Staff Counsel, Public Employees Relations Commission, Tallahassee, for appellee Public Employees Relations Com’n.
    Cary R. Singletary, Tampa, for appellee Hillsborough County Government Employees Assn.
    W. Gray Dunlap, County Atty., and Van B. Cook, Asst. County Atty., Clearwater, and Robert D. Hall, Jr., of Alley & Alley, Chartered, Tampa, for County of Pinellas, Board of County Com’rs, amicus curiae.
   SHIVERS, Judge.

The Hillsborough County Board of County Commissioners (County) appeals an order of the Public Employees Relations Commission (PERC) verifying the results of a representation election and certifying the Hillsborough County Government Employees Association, Inc. (Association) as the exclusive collective bargaining representative for a designated group of county employees. We order the election set aside and reverse PERC’s order certifying the Association as the exclusive bargaining representative for the county employees.

The Association filed a representation-certification (R-C) petition with PERC seeking to represent certain employees of the Hillsborough County Hospital and Welfare Board, Division of Emergency Medical Services. Thereafter, the Communication Workers of America, Local 3178 (CWA), the union previously certified as the exclusive collective bargaining representative for the employees of the Division of Emergency Medical Services, filed a motion to dismiss, as intervenor, alleging, inter alia, that the Association’s R-C petition was invalid since the Association had failed to disclose its affiliation with the Hillsbor-ough County Police Benevolent Association (HPBA) in its registration. PERC denied this motion, finding that the affiliation of the Association was not relevant to its right to file a R-C petition.

After rejecting CWA’s motion to dismiss, this case proceeded to a hearing and ultimately to a decision by PERC defining the employee bargaining unit. Subsequent to this hearing, the County filed a motion to dismiss, also claiming, inter alia, that the Association was not properly registered due to its failure to disclose its affiliation with the HPBA. PERC likewise denied this motion, finding that questions concerning the validity of the Association’s registration were not properly raised in a R-C proceeding. PERC, however, did direct that an investigation be conducted as to the Association’s relationship with the HPBA.

Subsequent to the election in which a majority of the votes were cast in favor of the Association, PERC requested the County to submit any evidence that it had concerning the alleged affiliation between the Association and the HPBA. The County responded in the form of a memorandum and evidence in support of its allegation of non-registration. The evidence so submitted indicated interlocking officers and business agents between the Association and the HPBA, that the Association and the HPBA operated from the same office, that counsel for the Association in litigation with the Pinellas County PERC had filed the Association’s pleadings on Florida PBA stationery, and that the Association had received and was receiving technical assistance, staff support, and financial assistance from the HPBA and the Florida PBA. Thereafter, the County received a letter from PERC’s general counsel setting forth her determination that the Association and the HPBA were not affiliated, although counsel noted that a sympathetic relationship existed between the Association, the HPBA and the Florida PBA. This letter concluded by recommending that the Association amend its registration in order to fully comport with the registration requirements of section 447.305(l)(h), Florida Statutes (1979), and to clarify its relationship with the HPBA and the Florida PBA. Ultimately, the Association apparently filed a petition to amend its registration to reflect that it is associated with the HPBA.

The County launches a three-prong attack on PERC’s order. First and foremost, the County challenges the verification of election results by way of the Association’s registration status as an employee organization. The County argues that the Association was improperly registered during the pendency of this case, since the Association failed to disclose its affiliated status with the HPBA. As a result of this defect, the County contends that the Association should have been ineligible to file a R-C petition. If ineligible to file a R-C petition, the County asserts that PERC, consistent with its previous decisions and decisions of this court, should have dismissed the Association’s petition and invalidated the election results.

PERC responds to the County’s arguments by stating that although PERC and this court have previously allowed objections to a registration application to be raised in a R-C proceeding as grounds for dismissing the petition and invalidating the election results, such objections to an employee organization’s registration status, absent a charge that the employee organization does not possfess a valid registration license, are no longer permissible under current law. PERC recites that the 1979 amendments to section 447.305, Florida Statutes, converted the registration of employee organizations to a separate licensing proceeding under section 120.60, Florida Statutes. As a result thereof, PERC contends that its sole duty, with respect to an employee organization’s registration status in a representation case, is to determine whether the employee organization possesses a current registration license. PERC asserts that all other questions concerning the validity of an employee organization’s current registration license are not properly raised in a R-C proceeding. Based on its interpretation, PERC argues that it properly denied the County’s motion to dismiss since the Association possessed a current, unrevoked registration license throughout the R-C proceedings. We disagree.

Section 447.305 of the Florida Statutes provides for the registration of employee organizations. Specifically, section 447.305 presently provides, in pertinent part, that:

(1) Every employee organization seeking to become a certified bargaining agent for public employees shall register with the commission pursuant to the procedures set forth in s.120.60 prior to requesting recognition by a public employer for purposes of collective bargaining and prior to submitting a petition to the commission requesting certification as an exclusive bargaining agent. Further, if such employee organization is not registered, it may not participate in a representation hearing, participate in a representation election, or be certified as an exclusive bargaining agent. The application for registration required by this section shall be under oath and in such form as the commission may prescribe and shall include:
(a) the name and address of the organization and of any parent organization or organization with which it is affiliated. (emphasis added)

As can be seen by the above-quoted section, unions seeking to become certified bargaining agents must register with PERC as a prerequisite to the union being recognized, certified, or participating in an election. Section 447.305 specifically mandates that if an employee organization is not so registered, it may not participate in a representation election or be certified as an exclusive bargaining agent. To be validly registered, a union must disclose the name and address of any parent organization or organization with which the union is affiliated.

This court has held that the registration requirements of section 447.305 are not mere “hyper-technicalities”. North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556, 561 (Fla. 1st DCA 1980). The information required under this section, e.g., a union's identity, affiliation, and financial status, is important. This information is especially relevant in representation cases since the primary purposes of'union registration relate to R-C proceedings. As stated in North Brevard, supra, one of the purposes of the registration requirements is that “of having financial and other information on the Union available for a significant period of time prior to the election so as to allow employees to make an informed free choice in an election.” 392 So.2d 561.

Although recognizing that this court has maintained that the registration requirements of section 447.305 require meaningful disclosure, PERC argues (i) that the amendment of section 447.305 in 1979 relegated its duty in a representation case to that of determining whether the union possesses a current registration license, and (ii) that if a union does so possess a current license, then a public employer cannot attack the validity of the union’s registration through a motion to dismiss. To the contrary, we find that the legislature in amending Chapter 447, Florida Statutes, did not intend to foreclose a public employer’s ability to raise defects in the critical disclosure requirements of section 447.305 through a motion to dismiss in a representation proceeding. The legislative history behind the 1979 amendments to Chapter 447 indicates that the primary purpose of these amendments was to eliminate a “Catch 22” situation created by the 1977 revision to the bargaining law. Otherwise, the 1979 amendments were not to significantly alter the current registration, qualification, or filing procedures mandated by section 447.305. Furthermore, in the Staff Analyses of House Bill 1086, the bill that proposed the amendments of section 447.-305, it is correctly pointed out that under the then present situation an employee organization which did not, among other things, register with PERC pursuant to section 447.305(1) could not request recognition by a public employer or submit a petition to PERC requesting a representation election.' The Staff Analyses, in analyzing the probable effects of section 447.-305 after amendment, then assert that current registration with PERC would continue to be a prerequisite to an organization being recognized, certified, participating in an election, or participating in a representation hearing. From this and other materials, we infer that the legislature did not intend to alter the status quo whereby PERC was required to enforce the statutory requirements of section 447.305 as a precondition to PERC’s consideration of a union as a registered organization, and that PERC’s failure to do so, could and can be raised by a public employer by a motion to dismiss in a R-C proceeding.

We also find equally unpersuasive PERC’s argument that the meaningful disclosure required by section 447.305, and a public employer’s enforcement of the same through a motion to dismiss, has been superseded by the inclusion of language in section 447.305 that registration is to conform procedurally to the licensing provisions of section 120.60 of the Florida Statutes. As previously brought to the attention of this court by PERC in the case of Pinellas County Data Processing Control Board v. PERC, Case No. 00-13, unpublished order rendered March 7, 1980, registration proceedings were governed by the licensing provisions of section 120.60 prior to the 1979 amendments to section 447.305. The reference to section 120.60 in section 447.305 thus appears only to be a clarification of the application of section 120.60 to section 447.305. Furthermore, the fact that registration is to conform proeedurally to the requirements of section 120.60 does not mean that these proceedings are exclusive. The most appropriate time and forum for a public employer to challenge a union’s registration is a R-C proceeding. PERC has repeatedly taken the position that a public employer is not a party to registration licensing proceedings. See In re Petition of City of Boynton Beach, 7 FPER 1112181 (Fla. PERC 1981); In re Registration of Florida Nurses Association, 7 FPER H 12218 (Fla. PERC 1981). If PERC’s position is accepted, a public employer would be unable to contest misstatements in a union’s registration either in licensing proceedings or R-C proceedings. As previously noted, we find and hold that R-C proceedings are a proper forum for a public employer to raise the issue of deficiencies in a union’s registration. Our holding is in accord with the unpublished order of this court rendered in Pinellas County Data Processing Control Board v. PERC, Case No. 00-13, supra, which case received considerable discussion in the respective parties’ briefs.

Additionally, addressing any argument that PERC may proffer to the effect that the deletion of subsection (6) from section 447.305 pursuant to the 1979 amendments indicates that the legislature intended to preclude PERC from enforcing a union’s improper registration in a R-C proceeding, we find that the mandatory language of section 447.305(1) provides PERC with sufficient authority to enforce the provisions of this section. If PERC fails to carry out its duty through its “ministerial” registration reviews, it is appropriate for a public employer to call to PERC’s attention a union’s deficiencies in this regard through a motion to dismiss. Upon receiving such notice, it is PERC’s responsibility to remedy the situation. As stated by this court in Bay County Board of County Commissioners v. PERC, 365 So.2d 767, 769 (Fla. 1st DCA 1978):

Clearly [the County’s motion to dismiss] brought to PERC’s attention Teamsters’ dereliction. It was then incumbent upon PERC to take some action to remedy the situation before the election was held. That PERC did not do.... Because PERC did not take that course of action, we deem it necessary under the circumstances of this case to set aside the election.

Finally, while not necessarily required due to our resolution of the above issue, we will address the County’s other two challenges to PERC’s order verifying the election results, since they will be important in the conduct of another election. These challenges relate to the question of whether PERC properly defined the bargaining unit to include CETA and white collar workers. We find and hold that the record fails to establish that PERC departed from the essential requirements of law in defining the bargaining unit as it did, and that there is competent, substantia] evidence to support its determination. See City of Ocoee v. Central Florida, 389 So.2d 296, 298 (Fla. 5th DCA 1980). On that basis, we affirm this portion of the order appealed.

Accordingly, the election is SET ASIDE; PERC’s order certifying the Association as the exclusive bargaining representative is REVERSED; and that portion of PERC’s order defining the bargaining unit is AFFIRMED.

ROBERT P. SMITH, Jr., and WIGGIN-TON, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

PERC has filed a Motion for Rehearing or for Clarification of Order. Pursuant to the Motion for Clarification, it is called to our attention that we did not explicitly address in our opinion whether the Association’s representation-certification petition should be dismissed. In that regard, we order the Association’s representation-certification dismissed under the circumstances of this case. See North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556 (Fla. 1st DCA 1980); City of Ocoee v. Central Florida, 389 So.2d 296 (Fla. 5th DCA 1980).

Our opinion being so clarified, the Motion for Rehearing is denied.

BOOTH and WIGGINTON, JJ., concur.

      . Prior (o 1979, the registration provision in section 447.305, Florida Statutes, provided in pertinent part, that:
      (1) Every employee organization, prior to requesting recognition by a public employer for purposes of collective bargaining, or prior to submitting a petition to the commission for purposes of requesting a representation election, shall adopt a constitution and bylaws and shall register with the commission by filing a copy thereof, together with a report in a form prescribed by the commission, and an amended report whenever changes are made, which shall include:
      (а) The name and address of the organization and of any parent organization or organization with which it is affiliated.
      (б) An employee organization which is not registered as provided in this section is prohibited from requesting recognition by a public employer or submitting a petition requesting a representation election. This prohibition shall be enforced by injunction upon petition of the commission to the appropriate circuit court.

        . Specifically, the Catch 22 situation, as explained in the summary for Senate messages on House Bill 1086, was that in 1977 registration of an employee organization was required with both the Division of Labor and PERC. However, registration with the Division of Labor was made a prerequisite to registration with PERC and certification by PERC was made a prerequi-sitc for registration with the Division of Labor. The “catch” was that registration with PERC is a prerequisite to obtaining certification. Thus, it was technically impossible for an organization to become registered and certified as a bargaining agent. House Bill 1086 resolved this problem.


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    ST. JOE PAPER COMPANY, Appellant, v. A.B. TAFF & SONS, INC.; Thomas E. Harrell and Alma Ruth Harrell, his wife; Harold Lambert and Jane H. Lambert, his wife; and William F. Shipman, Appellees.
    No. AS-309.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Rehearing Denied March 5, 1984.
    W.J. Oven, Jr., of Oven, Gwynn & Lewis, Tallahassee, for appellant.
    Roy T. Rhodes and William L. Grossen-bacher of Horne, Rhodes, Jaffry & Horne, Tallahassee, for appellee A.B. Taff & Sons, Inc.
    Hugh M. Taylor, Tallahassee, and Tracy L. Riddle, Quincy, for appellees Thomas E. Harrell, Alma Ruth Harrell, Harold Lambert and Jane H. Lambert.
   BOOTH, Judge.

This cause is before us on appeal from the judgment of the circuit court entered following a nonjury trial in a suit to establish the boundary between lands owned by the parties in Gadsden County. We adopt the facts and ruling of the able trial court, as stated in the final judgment, in pertinent part, as follows:

“3. The plaintiff, Taff, claims its title under a warranty deed to it, dated October 5, 1973, from the defendants, Harrell and Lambert, describing by courses and distances property recited as containing ‘924.-88 acres, more or less, and being part of Lot 59, and Lot 60, and a part of Lot 61 of McNeil’s Little River Survey of Forbes Purchase and being in Township 1 North, Range 4 West, Gadsden County, Florida.’ The courses and distances description commences at the ‘Northwest corner of Lot No. 60 of McNeil’s Little River Survey of Forbes Purchase.’ The calls successively run along the courses and distances set forth in a survey known as the ‘Shelter Survey’ which is in evidence and will be referred to more particularly hereinafter. This deed was recorded October 5, 1973 in the public records of Gadsden County at OR Book 165, Page 325.

4. Defendant, St. Joe, claims its title under a warranty deed to it from Blucher Blair and wife, dated October 2, 1952, recorded October 4, 1952 in Deed Book 100, Page 299 of the Gadsden County public records. It conveys:

‘All of Sections 19 and 20, of Township 1 North, Range 4 West and also all of Section 24, Township 1 North, Range 5 West.’

5. For purposes of this case, it is assumed that the plaintiff has title to lands included in Lots 59 and 60 of McNeil’s Survey and that its south boundary coincides with the north boundary of Sections 19 and 20 of Township 1 North, Range 4 West, which are St. Joe’s lands.

6. The disputed area is some 152 acres lying between two survey lines, one known as the Flanagan line and the other the Shelter line. Plaintiffs contend the Shelter line correctly marks the south boundaries of the McNeil Lots 59 and 60, which coincide with the north boundaries of Sections 19 and 20, Township 1 North, Range 4 West. The defendants claim the Flanagan survey line is the more credible location of the line between the McNeil Little River Survey Lots 59 and 60 and the fractional Sections 20 and 29 of Township 1 North, Range 4 West.

7. The lands involved here lie within the Forbes Purchase, which are certain grants of Indian interests confirmed by the government of Spain prior to acquisition of the Floridas by the United States from Spain under the treaty of cession. These grants have been recognized by the courts as having vested the title to these lands into private interests and were not part of the public domain acquired by the U.S. Government by the cession. Mitchel et al. v. United States, 9 Pet. 711, 9 L.Ed. 283; Clark v. Cochran, Fla. 1920 [79 Fla. 788], 85 So. 250. See also: Apalachicola Land etc. Co. v. McRae, Fla.1923 [86 Fla. 393], 98 So. 505.

8.There appears to have been made during or prior to May 1824 a survey and map of what is referred to as ‘General Plan of The Little River Survey in Forbes Purchase Gadsden County, Florida.’ A map was prepared by Daniel F. McNeil on which it is recited that the map represents 28,460 acres in the territory of Florida known as the John Forbes & Co. purchase, lying on the west side of the Ochlockonee and Little River. It recites a part was originally laid off by Messrs. Brown and McBride under the direction of John McKinnon, Esq. into square tracts of 800 acres by magnetic meridians and parallels intersecting each other at right angles and was subsequently in pursuance of a writ of partition granted by the Superior Court of West Florida in November term 1823, divided by the ‘undersigned,’ i.e. McNeil and by William Cameron into tracts of 400 acres, together with the irregular tracts on rivers and boundary lines as exhibited in an attached table. The northern boundary is an irregularly run line to which certain numbered lots abut, all of which are necessarily of irregular shape. Also, the eastern boundary lies along the stream flow of Little River to its junction with the Ochlockonee River and thence downstream adjacent to the Ochlockonee until it reaches the southeast corner of Lot 77. Along the river boundaries are also plotted fractional or irregularly shaped lots. A table shown on the map gives the acreages assigned to the various irregularly shaped lots with some containing more than 400 acres and some less. The south boundaries of Lots 59 and 60 are not along natural monuments, but they are shown as a straight east and west line at right angles to the east and west boundaries of the lots. Lots 59 and 60 adjoin each other with a common boundary on the west side of Lot 59. Both lots appear to be rectangles, with a north and south depth greater than that of the east and west width.

9. Lands outside the Little River Survey seem to have been the subject of some government surveys with assignment of sections and townships in accord with the normal rectangular system and being tied in with other official surveys. However, it appears that such surveys accorded no recognition to the Little River Survey, but purported to project section and township lines into the area without notice of or tying into the Little River Survey lots.

10. It seems clear that a number of surveys have been made in the area, with the placing of monuments and markers, blazing of trees, painting of trees, and other indicia of lines of lot and section boundaries.

11. A long commentary could be written on the various features on the ground, which would be supportive of both the Shelfer and the Flanagan surveys. Suffice it to say that each is supported by significant markers. We do not have field notes on the McNeil Survey, and the map refers only to trees as markers on the southern boundary of Lots 59 and 60. These references are to pine trees shown as standing on the southern line. Presumably these are witness trees in existence in 1824. It is obvious that Sections 19 and 20, Township 1 North, Range 4 West are not whole sections if the McNeil Survey is given any validity. These are in fact fractional sections. It seems to be conceded that the McNeil Survey Lots 59 and 60 do lie north of and adjacent to fractional Sections 19 and 20.

12. The most significant evidence is the deposition testimony of Mr. Blucher Blair, who sold Sections 19 and 20 to St. Joe in 1952. He positively testified that he had caused his north line to be surveyed by Mr. Shelfer, that he had marked the northeast corner of Section 20 with an iron axle or other metal marker, and that he had gone along the north boundary of his lands and had cleared the line and painted trees on the line. He also had inserted an iron pipe along this line, and also set an iron or steel beam at the point on the survey, which now is the southwest corner of lands claimed by Taff. His testimony indicates that this is the line recognized by St. Joe at that time, as it installed there one of its standard St. Joe concrete markers.

13. There is also evidence that Mr. Gragg, a predecessor in the chain of title of Taff s claim, placed his marker at the point Mr. Blair and St. Joe had placed theirs at the Shelfer Survey northeast corner of Section 20. Also, there is evidence of the installation by Mr. Gragg of one strand of barbed wire along the Shelfer line.

14. The evidences to support the line claimed by St. Joe include location of a witness spring mentioned in the field notes of government surveyor Joseph Wright, made in 1825, which is described as being 66 feet south of a mile post which would mark the northwest corner of fractional Section 19. This reference point in only a general way ties in with surveys relied upon by St. Joe. There are some other markers in the form of concrete markers, identified with St. Joe, along the line. East of the property involved here are rather consistent markers of south corners of McNeil Survey Lots 50, 49, 41, 40, 31, and 30. All of these lots are on the same tier of lots as Lots 59 and 60, and their south boundaries are the south boundaries of the McNeil Survey. These corners applied to a straight line moves in a general east-west direction but with a marked bias toward the north, with the effect that as that line is applied westward the size of the McNeil lots is markedly reduced considerably below the described 400 acres assigned to these lots.

15. The Flanagan Survey started at an old concrete monument designated as the southwest corner of McNeil Lot 75. The course eastward proceeds on what is described as an old blazed line to a point 416.4 feet east of the point of the southwest corner of Lot 60. The line then moves almost due north 1043 feet, then moves on an easterly course along what is described as an ‘Old blazed line’ and continues on that course to an old stake shown to be at the north junction corner of Sections 21 and 22. Thus this survey makes a significant jog in Lot 60, moving over a thousand feet to the north before continuing on a straight easterly course. If the line of the old blazed line west of the jog was extended eastward along the same course, it would virtually coincide with the Shelter Survey line.

16. The jog in the Flanagan line places the southern boundary of most of Lot 60 and all of Lot 59 and the other McNeil lots in the southern tier over a thousand feet further north than the southern boundary of McNeil lots in the same tier, west of Lot 60. The map of the McNeil Survey indicates no such jog anywhere along its southern boundary in those areas.

17. The Shelter Survey is deemed the more credible of the surveys offered in evidence, though, as noted, there are monuments and markers to support the line contended for by St. Joe. However, any uncertainty as to the location of the boundary may be resolved by resort to evidence of the intent of the parties. The Court places itself as nearly as possible in the situation of the parties at the time of the conveyance, and will consider the construction given by the parties as shown by their acts and admissions. Section 17, Adjoining Landowners, 1 Fla.Jur.2d Page 462; Am. Jr.2d, Boundaries, Section 2. See also: McCormick-Hannah, Inc. v. Magender [Magruder], Fla.1935, [121 Fla. 142], 163 So. 407; Hancoy Holding Co. v. Lambright, Fla.1931, 133 So.2d 631 [133 So. 631] and Citizens State Bank v. Jones, Fla.1930, 131 So.2d 369 [100 Fla. 1492, 131 So. 369],

18. The testimony of Mr. Blair, together with other acts of himself and of St. Joe in recognizing the Shelter Survey line as the northern boundary of the lands acquired by St. Joe, abundantly establish that that line was the line the parties recognized as the northern boundary of the lands conveyed to St. Joe by the Blairs. Supportive and consistent with this are the acts of Mr. Gragg and his successors. It appears that it has only been in comparatively recent times that St. Joe or its agents have sought to claim a different line.

19. In view of all these considerations it is adjudged that the effective boundary between the Taff lands and those of St. Joe is that shown on Plaintiffs Exhibit 8, being a plat prepared by Biddy, Chapman and Associates for St. Joe Paper Company, designated a plat of North Line of Sections 19 and 20, Township 1 North, Range 4 West. The plat shows a hatched area marked ‘Encroachment — 151.99 acres more or less.’ Red marks have been made on the exhibit representing the corners of the ‘encroachment,’ which is the disputed area. The boundary adjudged to be controlling is that lying from corner marked in red ‘B’ to corner marked in red ‘C.’ All lands lying within the area marked ‘Encroachment’ are found to be owned by the plaintiff, Taff.

20. Accordingly, the equities are with the plaintiff, A.B. Taff & Sons, Inc., and against the defendant, St. Joe Paper Company. The rights of the parties are hereby declared as hereinbefore described. The plaintiff, Taff, is determined to be the owner of the property described in Paragraph 5(a) of the Complaint filed August 13, 1981, which description is by reference incorporated herein, and that the claims of St. Joe Paper Company in said property are denied.”

We have considered the record and briefs filed by the parties, as well as heard oral argument, in this cause and find that the record amply supports the conclusion of the trial court that the Shelter line is the true line. As to Paragraph 17 of the trial court’s order, quoted supra, we do not agree with appellant’s contention that this paragraph is based on the doctrine of boundary by acquiescence. The trial court in that paragraph refers to his consideration of the intent of the parties, as shown by their acts with reference to the location of the line. This is a reference to the “doctrine of practical location,” an equitable principle described in Florida Jurisprudence, as follows:

In fixing the location of boundary lines, all words of description used in the instrument of conveyance must be harmonized and given effect if possible. Generally, if there is no ambiguity in the descriptions used, they are to be taken as conclusive evidence of the intention of the parties. Where, however, the location of boundary lines is uncertain by reason of inconsistent or conflicting or otherwise ambiguous descriptive calls in the conveyance, the intention of the parties becomes the primary guide in locating the proper boundaries, particularly where a conflict of interest appears under a different construction. The court places itself as nearly as possible in the situation of the parties at the time of the conveyance, and will consider the construction given by the parties as shown by their acts and admissions, (footnotes omitted)

The trial court, confronted with conflicting surveys and conveyances of the property on the north side of the boundary by a metes and bounds description, while that on the south side of the boundary was conveyed according to the government survey, took extensive testimony and viewed the property, walking the disputed area. His determination that the Flanagan line, with its unexplained 1,000-foot “jog” to the north, was less credible than the Shelter Survey is overwhelmingly supported by the record before us.

Accordingly, the judgment below is affirmed.

ERVIN, C.J., and ZEHMER, J., concur.

      . 1 Fla.Jur.2d § 17, Rules of construction; effect of intent of parties, at 463.


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Claude ROSS, Appellee.
    No. 83-512.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing En Banc and Certification of Importance Denied April 25, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellee.
   HURLEY, Judge.

This appeal concerns the trial court’s sentencing authority. Specifically, the question is whether the court may place a defendant on probation and require participation in a drug rehabilitation program pursuant to section 397.12, Florida Statutes (1981), rather than impose a mandatory minimum sentence of incarceration pursuant to section 775.087(2)(a), Florida Statutes (1981). We hold that the mandatory minimum sentencing statute controls and, in this instance, operates to divest the trial court of its discretionary authority to withhold imposition of sentence and place the defendant on probation.

Claude Ross was found guilty of two counts of robbery with> a firearm. Additionally, he pled guilty to one count of attempted robbery with a firearm and, thereafter, was adjudicated guilty of all three charges. Despite the express finding that the defendant utilized a firearm during the commission of each offense, the trial court declined to impose mandatory incarceration. Instead, over the state’s objection, the court withheld imposition of sentence and placed the defendant on probation for each of the offenses. For the first robbery conviction, the court attached a special condition of probation which required the defendant to participate in a three-year in-patient drug and alcohol rehabilitation program. The second robbery conviction resulted in a fifteen year probationary period which is to run consecutive to the three-year in-patient program. The attempted robbery conviction also resulted in a fifteen year probationary term which is to run consecutive to the three-year in-patient program and concurrent with the other fifteen year term of probation. The state appeals and asserts that all three sentences are illegal.

The trial court relied upon section 397.12, Florida Statutes (1981), which provides that

When any person, including any juvenile, has been charged with or convicted of a violation of any provision of chapter 893, or of a violation of any law committed under the influence of a controlled substance, the court, Department of Health and Rehabilitative Services, Department of Corrections, or Parole and Probation Commission, whichever has jurisdiction over that person may, in its discretion require the person charged or convicted to participate in a drug rehabilitation program licensed by the department under the provisions of this chapter. If referred by the court, said referral may be in lieu of, or in addition to, final adjudication, imposition of any penalty or sentence, or any other similar action. If the accused so desires final adjudication, his constitutional right to trial shall not be denied. The court may consult with oi^seek the assistance of any agency, public or private, or any person concerning such a referral. Assignment to a drug program may be contingent upon budgetary considerations and availability of space.

On the other hand, section 775.087(2)(a), Florida Statutes (1981), provides that

(2)Any person who is convicted of:
(a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes; ...
... and who had in his possession a “firearm,” as defined in s. 790.001(6), or “destructive device,” as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.

The question is which statute controls. The answer turns on a determination of the Legislature’s intent for it is axiomatic that “once expressed, the legislative will must prevail. The extent and severity of punishment ‘are peculiarily questions of legislative policy.’ ” Borges v. State, 394 So.2d 1046, 1049 (Fla. 4th DCA 1981) (Hurley, J., concurring and quoting Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958)). Notwithstanding that the purpose of section 397.12 is to provide an alternative to criminal imprisonment for individuals who commit drug related offenses or other offenses while under the influence of narcotics and who are capable of rehabilitation, we hold that an individual convicted of committing a crime with a firearm — even though under the influence of narcotics— must be sentenced as provided in section 775.087(2)(a). We reach this conclusion for several reasons.

First, section 775.087(2)(a) is the later promulgated statute. It took effect substantially as currently written on May 14, 1975 (Chapter 75-7, Senate bill no. 55). Section 397.12 first appeared in similar form in 1973 and took effect on July 1, 1973 (Chapter 73-350, House bill no. 1358). Thus, assuming — but without deciding— that the statutes conflict, section 775.-087(2)(a) should prevail as the last expression of legislative will. Askew v. Schuster, 331 So.2d 297 (Fla.1976); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946), cert. denied, 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1947). The Legislature, in passing the later statute, is presumed to know the earlier law. And, unless an explicit exception is made for an earlier statute, the later statute controls.

In addition, we note that section 775.087(2)(a) is unambiguous: “any person” convicted of robbery, among other crimes, and who possesses a firearm “shall be sentenced to a minimum term of imprisonment of 3 calendar years.” (Emphasis supplied.) The statute’s mandate is clear. Moreover, well-settled rules of construction require that a statute’s terms be construed according to their plain meaning. Carson v. Miller, 370 So.2d 10 (Fla.1979); Reino v. State, 352 So.2d 853 (Fla.1977); State v. Egan, 287 So.2d 1 (Fla.1973).

Finally, it is significant that there exists no express indication that the Legislature intended section 397.12 to serve as an exception to section 775.087(2)(a)’s mandatory term of imprisonment. The one major exception which now exists pursuant to section 958.05, Florida Statutes (1981), for youthful offenders, is not analogous. First, section 958.05 became effective after the enactment of section 775.087(2)(a). Second, section 958.05 mandates certain treatment for youthful offenders whereas section 397.12’s “[reference to drug abuse program” is discretionary. Third, section 958.05 itself provides for mandatory one year sentences for particularly serious crimes or dangerous offenders. Brown v. State, 436 So.2d 243 (Fla. 4th DCA 1983); Cochran v. State, 410 So.2d 595 (Fla. 2d DCA 1982); Patterson v. State, 408 So.2d 785 (Fla. 2d DCA 1982); Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981).

Thus, we hold that section 397.12, Florida Statutes (1981), is not an exception to the mandatory requirements of section 775.087(2)(a), Florida Statutes (1981). Further, we hold that the terms of probation imposed below constitute illegal sentences which must be vacated. Accordingly, we direct the trial court to vacate the terms of probation imposed for each of the two robbery counts and, in place thereof, to resen-tence the defendant in accord with the principles set forth in this opinion. As for the probationary term imposed as a result of the plea of guilty and subsequent conviction for attempted robbery, we direct the court to permit the defendant to withdraw his plea inasmuch as the court cannot impose the sentence which led to the entry of the bargained plea. See Brod v. State, 437 So.2d 152 (Fla.1983); State v. Green, 421 So.2d 508 (Fla.1982).

LETTS and GLICKSTEIN, JJ., concur.


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

text:
    DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellant, v. John L. ALLEN, et al., Appellees.
    No. 82-1672.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    Rehearing Denied April 5, 1984.

      Alan E. DeSerio, Robert I. Scanlan, J. Jay Reilly, Oval Boone and John H. Beck, Tallahassee, for appellant.
    Gerald S. Livingston, Orlando, and David W. Foerster, Jacksonville, for appellee Peterson Outdoor Advertising.
    No appearance for appellee Allen.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment after jury verdict in a condemnation action. The jury returned a verdict awarding $62,-750 to Peterson Outdoor Advertising for two billboards and leasehold interest. The Department of Transportation (DOT), the condemning authority, appeals from that judgment and initially contends that the court erred in ruling that Peterson was entitled to a separate verdict for its interest in the property acquired.

The title owner of the property on which the billboards were located was the First National Bank and Trust Company of Riviera Beach. It filed an answer in the condemnation action requesting full compensation for the land being taken. Peterson, which leased a portion of the land, filed its answer demanding full compensation for its property interest in two sign structures which were located on the property pursuant to a lease agreement. Peterson claimed entitlement to lost profits, lost permits, loss of revenue from advertisers and infringement on the right to remain in undisturbed possession for the duration of the lease.

At the pre-trial conference, the court ruled that Peterson held a separate property interest from the fee owner and that a separate jury verdict would be entered as to each property interest. At the conference, Peterson dropped its claim for business damages.

DOT argues that while Peterson, as lessee, was an owner for purposes of entitlement to compensation, it was not entitled to a separate verdict. Section 73.081, Florida Statutes (1981), states:

Form of verdict — The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated and the amount to be paid therefor, together with any damage to the remainder caused by the taking and including business damages when allowable by statute. When severance damages, business damages, moving costs, separate compensation for permanent improvements made by a mobile home owner under s.73.072, or other special damages are sought, the verdict shall state the amount of such damages separately from the amounts of other damages awarded.

This section had previously been amended in 1970 by chapter 70-284, Laws of Florida. The title to the revision states:

AN ACT RELATING TO EMINENT DOMAIN PROCEEDINGS: AMENDING SECTION 73.081, FLORIDA STATUTES, PROVIDING FOR SEPARATE STATEMENTS IN THE VERDICT OF CERTAIN DAMAGES: PROVIDING AN EFFECTIVE DATE.

The former statute read:

Form of verdict — The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated; the amount to be paid therefor, together with any damage to the remainder caused by the taking, including business damages when allowable by statute. The compensation awarded by the jury for each parcel of property sought to be appropriated shall be determined as a whole, irrespective of the separate interests of the various parties or the various items of damages claimed as to each parcel.

DOT argues that although the present statute no longer specifically states that the compensation shall be determined as a “whole,” it also does not contain language indicating legislative intent that separate verdicts be entered for each interest in a parcel of property.

In support of its position, DOT relies on Carter v. State Road Department, 189 So.2d 793 (Fla.1966), wherein the supreme court held that when the jury shall try what compensation is to be made to defendants for property sought to be appropriated, it must evaluate both interests of leasehold and fee owners and render an inclusive verdict. Likewise, in City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla.1975), the court held that although Article X, § 6 of the Florida Constitution provides that no private property shall be taken except for public purpose and full compensation thereof to be paid to each owner, this did not require a separate jury verdict for the interest of each owner in a parcel of land acquired in an eminent domain proceeding. In Rich v. Harper Neon Co., 124 So.2d 750, 753 (Fla. 2d DCA 1960), the Second District considered the question of:

[Wjhether in the trial of an eminent domain case a jury should apportion the damages to a tract of land between the owner of the fee and various other interested parties such as mortgagors, tenants, lienholders, etc., or should the verdict for the jury only include the damages suffered by the owner of the fee to a tract and subsequently thereafter the trial judge apportion the jury verdict between the various claimants.

The court then quoted approvingly from Porter v. Columbia County, 75 So.2d 699 (Fla.1954):

[Sjuch questions as interest in the property, ownership, liens on property, may be determined in the same action in a summary proceeding after the jury has ascertained and rendered a verdict as to the value of the property taken and damages to the remainder.

Id. at 753.

Peterson claims that Carter, Casino Realty, and Rich were correct under section 73.081 (1969), but that the 1970 amendments thereto clearly intended to eliminate the so-called “unity rule” replacing it with a rule which permitted the jury to render a verdict for each property interest being acquired.

The general rule for valuation of property subject to a leasehold interest is to ascertain the entire compensation as though the estate belongs to one person and is unencumbered. This “undivided fee rule” is more fully described in 4 Nichols on Eminent Domain, § 13.35[2] (3d Ed. 1978), which offers the following analysis:

Although the general rule regarding removable tenant fixtures is that they are not to be valued separately as personal property but are taken into account insofar as they enhance the value of the realty, it would seem that the entire interest of the lessee, i.e., the leasehold interest with its value enhanced by the sign erected on it under the terms of a lease, should be valued as a unit, if possible.

Where the sign and land are under separate ownership, Nichols states:

Since a lessee’s and lessor’s interests are both involved, an apportionment between the lessor and lessee is usually made after the value of the unencumbered fee.

In Wingert v. Prince, 123 So.2d 277 (Fla. 2d DCA 1960), the Second District stated that the compensation awarded by the jury shall be determined as a whole, irrespective of the various interests held in the parcel. The trial court then determines the portion to be awarded each of the owners, lessees, mortgagees, judgment creditors and lien-holders in respect to the compensation awarded and the method of apportionment among interested parties, together with the disposition of any other matters arising from the taking. In Porter v. Columbia County, 75 So.2d 699 (Fla.1954), the court discussed the policies underscoring this method:

The purpose of the eminent domain proceeding is to determine the value of the property taken and the damage to the remainder, irrespective of ownership. Such questions as interest in the property, ownership, liens on the property, may be determined in the same action in a summary proceeding after the jury has ascertained and rendered a verdict as to the value of the property taken and damages to the remainder.

Id. at 700.

The Florida rule requiring the jury to evaluate the interest of both the fee owner and the leaseholder and render an inclusive verdict is more fully outlined in Florida Eminent Domain Practice and Procedure, (CLE 3d Ed.1978), which states:

It is mandatory that severance damages, business damages, moving costs and other special damages be itemized_ Insofar as apportionment of a leasehold interest is concerned, the law remains the same in that this is a matter to be decided by the trial court in a proceeding supplemental to the jury trial itself.

Id. at 211.

The proceeding referred to in the last sentence of the above quote is that set out in section 73.101, Florida Statute (1981), which provides:

Form of judgment — The judgment shall recite the verdict in full and shall state that the estate or interest in the property described in the petition and sought to be appropriated by the petitioner shall vest in the petitioner upon the payment of, or securing by deposit of money, the amount found by the verdict of the jury. Where there are conflicting claims to the amount awarded for any parcel, the court, upon appropriate motion, shall determine the rights of the interested parties with respect to the amount awarded for each parcel and the method of apportionment, together with the disposition of any other matters arising from the taking.

Peterson’s interest (the claim for business damages having been abandoned) is not classified as special damages and therefore a separate award was not proper under section 73.081, Florida Statutes (1981). The jury verdict recites that Peterson was to receive $62,750 “for value of its property interest in the form of outdoor advertising signs affixed to the land acquired.” This constituted the value of its leasehold interest for which section 73.101 provides that the judge is to determine its value in a supplemental proceeding. The revision made by chapter 70-284, while providing for a separate statement in the verdict of certain damages, is not designed to provide a separate statement for a leasehold interest. We therefore conclude that the correct method was for the jury to establish the value of the land as a unit including the value of any improvements.

The remaining questions concern the proper method of determining value in these circumstances. In this case, the signs are properly regarded as trade fixtures which in Florida are considered as personal property rather than realty. They may be removed by the tenant at the end of his term provided that removal does not substantially injure the freehold. See Wetjen v. Williamson, 196 So.2d 461 (Fla. 1st DCA 1967).

In Division of Administration, Department of Transportation v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977), the court held that Southeastern Propane Gas Company, which had a service and easement agreement with the owners of a mobile home part to supply liquified petroleum gas, had established an easement by the installation of underground gas lines and other equipment for the purpose of serving the trailer park. The court found that Southeastern Propane Gas had lost its underground gas lines by the condemnation action and had to incur costs to remove any salvageable items on the condemned parcel. However, any incidental frustration of the performance of the service contract and easement agreement by the condemnation of the land serviced by the agreement was not compensa-ble in the eminent domain proceedings. The only compensation which would be permitted would be the value of lost fixtures located on the condemned land as well as the cost of removing other trade fixtures which were salvageable from the land. Citing State Road Dept. v. Bramlett, 189 So.2d 481 (Fla.1966), the court noted that damages to a business located on land appropriated in eminent domain proceedings do not constitute part of the constitutionally protected right of just compensation for the public taking of private land and are only compensable as provided by statute.

In the instant case, the applicable statute is section 479.24, Florida Statutes (1981), which provides in part:

Compensation for removal of signs; eminent domain; exceptions.—
(1) Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided.
(2) Compensation shall be made pursuant to the State’s eminent domain procedures, chapters 73 and 74.

This statute was passed by the legislature for purposes of implementing 23 U.S.C. § 131 dealing with controlled outdoor advertising. This is part of the Highway Beautification Program and, as recognized in Walker v. Dept. of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979), expresses the legislative intent that signs be considered property interests for which compensation must be paid.

While DOT does not take exception to Peterson’s entitlement to just compensation for the value of the signs, the parties disagree as to how the award should be calculated. Peterson contends that when, as here, the signs cannot be effectively relocated in the same market area, the cost of reproducing the signs new, less depreciation, is not the exclusive method for calculating damages. In support of this argument, Peterson cites State of Washington v. Obee Advertising, Inc., 9 Wash.App. 943, 516 P.2d 233 (1973), wherein the court held that the “income approach” of valuation was proper. This method defines the present worth of rental income from the signs as calculated using a multiplier factor.

In response, DOT states that the income approach is a veiled attempt to claim business damages. It states that the testimony offered by Peterson was designed to show income from a commercial enterprise, a portion of which was derived from this location. We agree with DOT s contention. Actually it was not income generated from the land itself, but was from the business operated on the land. The income from the signs was business damages and Peterson relinquished its claim to business damages at the pre-trial conference. The proper method of valuation of the signs was the cost of removing the signs, and if not removable, it was the replacement value less depreciation.

We REVERSE and REMAND for further proceedings consistent herewith. Peterson’s motion for attorney fees is hereby granted. Determination shall be made by the trial court in accordance with section 73.131(2), Florida Statutes. See Tosohatchee Game Preserve, Inc. v. Central and Southern Florida Flood Control District, 265 So.2d 681 (Fla.1972).

DAUKSCH and COBB, JJ, concur.


author: PER CURIAM.

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Roy H. SUMNER, et al., Appellees.
    No. AM-256.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Jim Smith, Atty. Gen., and Harry F. Chiles, Asst. Atty. Gen., Tallahassee, for appellant.
    Roy H. Sumner, pro se, for appellees.
   PER CURIAM.

Appellees, inmates at Polk Correctional Institution at the time of the proceedings below, filed a “petition for administrative determination” pursuant to Section 120.56, Florida Statutes, seeking a determination that an interoffice memorandum issued by the Superintendent of Polk Correctional Institution was an improperly promulgated rule, thus constituting an invalid exercise of delegated legislative authority. The interoffice memorandum or directive, which applied only within Polk Correctional Institution, provided that:

EFFECTIVE SATURDAY, MARCH 6, 1982, INMATES WILL NO LONGER BE PERMITTED TO RECEIVE VISITORS ON BOTH SATURDAY AND SUNDAY OF THE SAME WEEK.
VISITING POLICY IN THE PAST HAS PERMITTED INMATES TO RECEIVE VISITS ON BOTH SATURDAY AND SUNDAY OF THE SAME WEEK, BUT NOT FROM THE SAME VISITOR. THIS CHANGE MEANS THAT YOU MUST RECEIVE ALL YOUR VISITORS ON EITHER SATURDAY OR SUNDAY. IF YOUR [sic] RECEIVE A VISIT ON SATURDAY, YOU WILL NOT BE PERMITTED TO RECEIVE ANOTHER VISIT ON SUNDAY.
THIS CHANGE IN VISITING PROCEDURE WILL HELP ALLEVIATE THE OVERCROWDED SITUATION IN THE VISITOR’S PARK AND ALLOW YOU AND YOUR FAMILY TO VISIT TOGETHER MORE COMFORTABLY.

Said memorandum was promulgated without published notice and without any opportunity accorded members of the public and affected persons to be heard because the Superintendent did not consider it a rule but rather authorized under the provisions of Section 945.21, Florida Statutes, Department of Corrections Rule 33-5.01, Florida Administrative Code, and Department of Corrections “Policy and Procedure Directive” Number 3.04.12, issued April 8, 1981.

Rule 33-5.01, Florida Administrative Code, states that:

The secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the institution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary.

Pertinent provisions of the afore-stated policy directive, Policy and Procedure Directive 3.04.12, at paragraph V.A. 1 and paragraph V.B., respectively, are as follows:

Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circumstances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day.
There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant distance, especially when such visits are on an infrequent basis.

The hearing officer found that Directive Number 3.04.12, which was not adopted as a rule, appears to have been promulgated on authority of Department of Corrections Rules 33-4.02(8), 33-3.05, and 33-5, Florida Administrative Code, none of which set out visiting conditions with the specificity found in the directive.

The Department of Corrections challenged appellees’ petition on the grounds, among others, that appellees had no standing to challenge the invalidity of the alleged “rule” because they are not substantially affected parties; that Polk Correctional Institution is not, in and of itself, an agency; and that the memorandum is not a rule since it is not applicable agency wide but only within the confines of the institution.

Addressing each of the Department’s afore-stated contentions respectively, the hearing officer found and concluded, in pertinent part, as follows:

1. ... The memorandum applies to each of the petitioners. The memorandum substantially limits the number of visits that each of the petitioners is able to enjoy. But for the memorandum, each of the petitioners would be likely, on occasion, to have more visitors than allowed under the February 18, 1982 memorandum. Each of the petitioners is therefore substantially affected by the memorandum and has standing to maintain this proceeding.
2. ... Section 120.52(l)(d), Florida Statutes, defines “agency” to include:
Each other state office and each state department, departmental unit described in Section 20.04, commission, regional planning agency, board, district, and authority ...
The definition is broad enough to encompass Polk Correctional Institution as a unit of the Department of Corrections. To the extent that Polk Correctional Institution is not such a departmental unit, however, the February 18, 1982 memorandum should nonetheless be construed as having been adopted by an “agency” because the superintendent’s authority to adopt it has been expressly delegated to the superintendent by the agency head of the Department of Corrections. Department of Corrections Rule 33-5.01, Florida Administrative Code.
3. ... While the policy memorandum clearly does not have department-wide or state-wide applicability, it does apply to a broad class of persons: all inmates at Polk Correctional Institution. Furthermore, it applies to future occurrences and establishes new policies that will govern future occurrences rather than resolving an occurrence that occurred in the past. The issue of whether a given action constitutes an order or a rule is analogous to the determination of whether a given action constitutes a “judicial inquiry” or a legislative one, a distinction discussed by Justice Holmes in Prentis v. Atlantic Coastline Company, 211 U.S. 210, 226 [29 S.Ct. 67, 69, 53 L.Ed. 150] (1908):
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is the purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.
The superintendent’s memorandum applies to everyone subject to the superintendent’s power. It applies to future not past occurrences, and establishes a new policy to be followed in the future. Its applicability is thus general, and it constitutes a rule within the meaning of Section 120.52(14), Florida Statutes.

The hearing officer further found that:

4. ... Section 945.21(l)(i), Florida Statutes, specifically authorizes the Department of Corrections to adopt and promulgate regulations relating to visiting hours and privileges. The Department has sought to satisfy this invitation by adopting a rule which authorizes each prison superintendent to adopt “policies” stating the conditions and circumstances for visits. Department of Corrections Rule 33-5.01, Florida Administrative Code. The Department has more explicitly set guidelines for superintendents to follow through its Policy and Procedure Directive Number 3.04.12. This latter directive, however, was not promulgated as a rule. The superintendent’s memorandum comports with the policies set out in the Department’s Policy and Procedure Directive. Both the memorandum and the Policy and Procedure Directive constitute agency statements of general applicability that implement policy. They thus constitute rules within the meaning of the Administrative Procedure Act. Section 120.52(14), Florida Statutes. The Department has sought to satisfy its responsibility to promulgate its policies as rules by entitling them “policy and procedure directives” or by delegating responsibility to prison superintendents. The labeling and the delegation do not, however, change the facts that the policies are rules and that rule-making procedures and requirements were ignored.

Based upon the afore-quoted rationale, the hearing officer concluded, in his final order of May 5, 1982, that the Superintendent’s memorandum constituted an invalid exercise of delegated legislative authority. From that order, the Department of Corrections has appealed.

We conclude that the hearing officer correctly determined that the inmates were substantially affected persons and that the cause involved an invalid exercise of delegated authority because the Department of Corrections failed to promulgate its Policy and Procedure Directive Number 3.04.12 as a rule, contrary to the requirements of Section 945.21, Florida Statutes.

In so concluding, we note that Rule 33-1.07(4), as amended July 29, 1981, provides that:

(4) Any material contained in such Directives and Operating Procedures that meets the definition of “rule” contained in Section 120.52(14), Florida Statutes, shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statute.

The amended version both clarifies the pri- or version of the rule and supports the holding herein.

Accordingly, because neither the Department of Corrections’ Directive No. 3.04.12, upon which Polk Correctional Institution’s own directive or interoffice memorandum was based, nor that institution’s own directive, was adopted as a rule, we affirm the order of the hearing officer entered May 5, 1982.

BOOTH, WIGGINTON and NIMMONS, JJ., concur.

      . Section 945.21, Florida Statutes, provides, in pertinent part, as follows:
      (1) The department is authorized to adopt and promulgate regulations governing the administration of the correctional system and the operation of the department. In addition to specific subjects otherwise provided for herein, regulations of the department may relate to:
      (1) Visiting hours and privileges.
      (2) Regulations of the department shall be adopted and filed with the Department of State as provided in chapter 120.

      . Chapter 33-5, Florida Administrative Code, concerns itself with the issue of visitors at the institution and is broken down into nine subheadings, 33-5.01 to 33-5.09, namely, Authority of the Secretary, Posting of Visiting Policies, Visiting Records, Inmates in Special Status, Refusal of Visit by Inmate, Inmate’s Visitors List, Visitation Denial, Visiting Procedures, and Type of Visitors, respectively.

      . For the purpose of this decision, it is unnecessary to decide whether Polk Correctional Institution is in itself an agency for Administrative Procedure Act purposes.

      . At the time the Department of Corrections issued its policy directive, Rule 33-1.07 provided as follows:
      (1)The Secretary may issue Policy and Procedure Directives applicable to operations throughout the Department.
      (2) A Regional Director may issue Regional Operating Procedures, consistent with Rules and Directives, applicable to operations throughout the Region.
      (3) A Superintendent of an institution may issue Institutional Operating Procedures, consistent with Rules, Directives, and Regional Operating Procedures, applicable to operations within the institution.
      (4) Such Directives and Operating Procedures shall be written statements of policy and procedure which implement or supplement rules of the Department or higher level Directives or Operating Procedures. Subject to the provisions of Chapter 120, Florida Statutes, they shall be fully binding on all persons to whom they apply.


author: LESTER, M. IGNATIUS, Associate Judge.

text:
    Jose Ramon RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1811.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Randolph Q. Ferguson, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and LESTER, M. IGNATIUS, Associate Judge.
   LESTER, M. IGNATIUS, Associate Judge.

The sole question presented in this appeal is whether the evidence as to the value of the steering boxes taken from Bud’s Auto Parts was sufficient to sustain the conviction of the defendant/appellant, Jose Ramirez, for grand larceny.

The appellant contended that the State presented no evidence as to the personal knowledge of the steering boxes, their condition, and what vehicles they came from. The appellant argues that in the absence of such proof the conviction of grand larceny must be reversed.

The appellant urges that the proof of value was an essential element of grand larceny which must be established by the State beyond and to the exclusion of every reasonable doubt. Negron v. State, 306 So.2d 104 (Fla.1974).

The appellee argues that Jorge Seone, Sr., the owner of Bud’s Auto Parts, had been in the auto parts and wrecking business all his life, and he testified that the used steering boxes were each worth definitely more than $100.00. It is entirely permissible to use the owner or victim to establish the market value. See Butler v. State, 354 So.2d 437 (Fla. 3d DCA 1978).

The appellant had urged the court to consider the holding in Taylor v. State, 425 So.2d 1191 (Fla. 1st DCA 1983). In Taylor, the owner admitted on cross-examination that he did not deal in used merchandise and had no idea as to the value of the “CB” at the time of the theft. In the present case, however, Mr. Seone, Sr., the owner of the steering boxes, not only dealt in these types of auto parts on a day to day basis, but also testified with some degree of certainty as to their fair market value at the time of the theft.

We find that the evidence presented on the value of the steering boxes was competent and sufficient and thus, we will not substitute our judgment for that of the finder of fact. Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974).

Affirmed.


author: SCHEB, Judge.

text:
    Pamela WHITE, Appellant, v. HILLSBOROUGH COUNTY HOSPITAL AUTHORITY and John L. Vanderschilden, M.D., Appellees.
    No. 82-2653.
    District Court of Appeal of Florida, Second District.
    July 15, 1983.
    Rehearing Denied Sept. 8, 1983.
    Mary Ann Stiles of Stiles & Livingston, P.A., and David B. Webster of Rood & Webster, Tampa, for appellant.
    Michael N. Brown of Allen, Dell, Frank & Trinkle, Tampa, for appellee Vanderschil-den.
   SCHEB, Judge.

Appellant challenges the trial court’s order upholding the constitutionality of section 768.28(9), Florida Statutes (Supp.1980), ( which precludes negligence actions against 1 state employees acting within the scope of ■their employment. We affirm.

Appellant Pamela White alleged that she suffered injuries from a surgical procedure performed on her in August 1980 in Tampa General Hospital which is operated by Hillsborough County Hospital Authority. Appellant charged that her injuries resulted from the negligence of John L. Vander-schilden, M.D., while he was acting in the scope of his employment with the appellee hospital.

The trial court granted Dr. Vanderschil-den’s motion to dismiss and entered final judgment in his favor on the basis of section 768.28(9). That statute bars a suit against an officer or employee of the state or any of its subdivisions where the employee is acting in the scope of employment, unless he or she acted with malicious purpose or with wanton and willful disregard of another’s rights. The trial court’s order expressly upheld the constitutionality of section 768.28(9).

Appellant forcefully argues that she has been deprived of her right to “redress of any injury” guaranteed by Article I, section 21, of the Florida Constitution. She contends that section 768.28(9) is unconstitutional, because it makes suit against the state the exclusive remedy and eliminates any cause of action for simple negligence against state employees acting within the ' scope of their employment. The legislature’s failure to provide reasonable alternatives for recovery by an injured person, she .claims, renders the statute unconstitutional. She relies principally on Kluger v. White, 281 So.2d 1 (Fla.1973). In Kluger the supreme court held that absent “overpowering public necessity” the legislature may not take away a vested right without providing a reasonable alternative “to protect the rights of the people of the State to redress for injuries.”

We are not persuaded by appellant’s argument. Strong policy reasons support the legislative immunization of state employees from personal liability. State, Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981). Here, the right of an injured party to seek redress has not been abolished. Rather, the legislature has merely substituted the state and its agencies, which previously could not be sued because of sovereign immunity, for the individuals who could have been sued. Knowles. Thus, appellant’s cause of action has not been destroyed but has been converted to an action against a state agency.

Appellant further points out that since her exclusive remedy is against the state, a negligent employee cannot be held personally liable for a judgment in excess of the monetary limits imposed by statute on the state’s liability. In effect, appellant’s cause of action has been limited by a cap of $50,000 per elaimant/$100,000 per occurrence. § 768.28(5), Fla.Stat. (Supp.1980). While this is a matter of concern, it is not a sufficiently compelling reason to render the statute unconstitutional. As discussed in Kluger, even where a cause of action is reduced, as opposed to being destroyed, it is not essential that the legislature provide a substitute remedy. See Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA), petition for review denied, 411 So.2d 383 (Fla.1981).

As noted, appellant’s claim relates to incidents which occurred in August 1980. We hold that under section 768.28(9), which became effective June 30, 1980, Dr. Van-derschliden is personally immune from suit for ordinary negligence in performance of his governmental employment, and appellant’s action may be maintained only against the governmental entity. We affirm the trial court’s holding that section 768.28(9) is constitutional.

AFFIRMED.

HOBSON, A.C.J., and DANAHY, J„ concur.

      . Appellant declined the opportunity to amend to allege that Dr. Vanderschildcn acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property.

      . Appellant may seek reimbursement from the legislature for damages in excess of the statutory limits. § 768.28(5), Fla.Stat.


author: WALDEN, Judge.

text:
    Ronald P. JAWORSKI, Appellant, v. DEWOODY & HAMNER, P.A., Appellee.
    Nos. 82-1202, 82-2557.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Appellees’ Motion for Rehearing and Clarification Denied April 25, 1984.
    Appellant’s Motion for Rehearing and for Rehearing En Banc Denied April 25, 1984.

      David L. Gorman, North Palm Beach, for appellant.
    Robert T. Scott, Palm Beach, for appel-lee.
   WALDEN, Judge.

This is an action for breach of an employment contract provision, i.e., a covenant not to compete. It involves certified public accountants with Appellant, Jaworski, being the Defendant in the trial court.

Appellant presents seven (7) points for consideration. With the exception of Point 6, Jaworski has failed to demonstrate reversible error. We, therefore, affirm as to them.

Point 6 states:

“The trial court erred as a matter of law by including a conditional order of new trial or an order of remittitur regarding the appellant’s counterclaim for libel in the final judgment.”

A jury trial was held on Jaworski’s counterclaim for libel. The verdict was in favor of Jaworski. It was in the sum of Five Thousand Dollars ($5,000.00) against De-Woody and Hamner, P.A., and in the sum of One Thousand Dollars ($1,000.00) against Hamner, individually. It was not joint and several and, necessarily, the verdicts would have to be in equal amounts since the theory of the case against De-Woody and Hamner, P.A. was predicated solely upon the doctrine of respondent superior. The trial court correctly noted in the final judgment that such verdicts constituted fundamental error, citing Keyes Co. v. Sens, 382 So.2d 1273 (Fla. 3rd DCA 1980). However, the trial court went on to order a remittitur which, if Jaworski declined it, would result in a new trial on both liability and damages. We hold, based on Keyes Co. v. Sens, supra, that this treatment by the trial court in ordering a new trial on liability, constituted error and that the consequence of the mentioned fundamental error should be a new trial on the issue of compensatory and punitive damages only.

The judgment which provides a new trial as to liability and damages, as concerns Jaworski’s counterclaim for libel, is reversed to the degree that it provides a new trial as to liability.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY and LETTS, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Judy A. HEDGES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1553.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Appellant, Judy Hedges, not having a license, sold alcoholic beverages to an undercover agent and was duly convicted and punished for selling alcoholic beverages without a license, a misdemeanor violation of section 562.12, Florida Statutes (1981). It being discovered that the alcoholic beverages had been previously stolen, appellant was also charged with trafficking in stolen property, a felony under section 812.019, Florida Statutes (1981). This appeal is from a plea of nolo contendere to the felony charge reserving the right to appeal the denial of a motion to dismiss on the ground of former jeopardy. Essentially appellant’s argument is that because the sale transaction and the alcoholic beverages involved in the misdemeanor charge and conviction is the same property and the same transaction involved in the felony charge, both charges are but facets of one criminal transaction or episode and double jeopardy prohibits appellant’s conviction of both offenses. The answer to this argument is that the single transaction rule was abolished by section 775.021(4), Florida Statutes, and, in any event, the aspects of that rule never provided a correct analysis for double jeopardy purposes. A substantive analysis of the statutes and charges involved, which is the correct theory, reveals that because the misdemeanor charge required at least three essential constituent elements ((1) alcoholic beverages, (2) a sale and (3) the absence of a license) not required by the felony offense and because the felony offense had at least two essential constituent elements ((1) stolen property and (2) knowledge, actual or constructive, of the stolen character of the stolen property) not required of the misdemeanor offense, these two statutory offenses are substantively different and can never be “the same offense” within the meaning of the constitutional double jeopardy prohibition. Accordingly, it is legally immaterial that each offense may contain one or more substantive elements in common (i.e., that a sale is, substantively, the same as trafficking, or that alcoholic beverages is, substantively speaking, property); a person can be constitutionally charged, tried, convicted and punished for a violation of both statutory offenses although the two criminal charges are based on one set of interrelated facts and circumstances (a single criminal transaction or episode) and the allegations and proof of facts overlap, such as when the sale required by the misdemeanor charge is also alleged or offered in proof as the act of trafficking in the felony charge and the alcoholic beverages in the misdemeanor charge is the same property which constitutes the stolen property in the felony charge. Intrinsically, the two offenses are substantively different. This case is different from most identity of offense-double jeopardy cases because it does involve successive prosecutions (former jeopardy) rather than two prosecutions in a single trial setting. However, this distinction is without meaning except under the rationale of some federal cases, such as those cited in the majority opinion in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983).

      . Because the proper rationale for the disposition of this case is in accord with the rationale and result in Borges v. State, 415 So.2d 1265 (Fla.1982), Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982), Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), and Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981), it is necessarily in direct conflict with O'Hara v. State, 448 So.2d 524 (Fla. 5th DCA 1984); Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983); Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983), rev. granted, No. 63,807 (State v. Baker); Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), rev. granted, Nos. 63,135 (Baker v. State) and 63,269 (State v. Baker); Stone v. State, 402 So.2d 1222 (Fla, 5th DCA 1981); James v. State, 399 So.2d 424 (Fla. 5th DCA 1981). All related and relevant cases are cited in O’Hara. See also Madry and Banks v. State, 448 So.2d 8 (Fla. 5th DCA 1984).


text:
    FEDERATED MUTUAL INSURANCE COMPANY, Appellant, v. Raymond F. HELTON and Jo Anne Helton, his wife, Appellees.
    No. 83-545.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1984.
    Rehearing Denied March 28, 1984.
    William C. Blake, Jr., and H. Dennis Rogers of Blake & Associates, P.A., Tampa, for appellant.
    Susan R. Whaley and Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   PER CURIAM.

Affirmed on authority of Florida Farm Bureau Mutual Insurance Co. v. Quinones, 409 So.2d 97 (Fla. 3d DCA), petition for review denied, 419 So.2d 1197 (Fla. 1982); Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1981).

HOBSON, A.C.J., and GRIMES and SCHEB, JJ., concur.


author: PER CURIAM. PER CURIAM. FERGUSON, Judge

text:
    Samuel COOPER a/k/a Mat Stahling, Appellant, v. The STATE of Florida, Appellee.
    No. 83-990.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied April 17, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Pitts v. State, 425 So.2d 542 (Fla.1983); McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), approved, 425 So.2d 1 (Fla.1983).

ON REHEARING

PER CURIAM.

Rehearing denied.

FERGUSON, Judge

(concurring).

I concur in the affirmance, and I write only to set out the facts and issue presented on this recurring question of law.

Cooper was charged in a two-count information with (1) robbery with use of a firearm and (2) possession of a firearm while committing a robbery. Identification of appellant as the perpetrator was the only issue at trial. There is no question but that the robbery was completed — not attempted. Accordingly, the trial court, in compliance with the amended version of Florida Rule of Criminal Procedure 3.510, did not give the jury an instruction on attempted robbery. See Henry v. State, 445 So.2d 707 (Fla. 4th DCA 1984) (instruction on attempted robbery precluded by procedural rule where only evidence presented proves that offense was completed).

The jury returned a verdict of not guilty on the charge of robbery with a firearm and guilty as to the charge of possession of a firearm while committing the robbery.

As a single issue on. appeal appellant contends: “The trial court erred in denying defendant’s motion in arrest of judgment where defendant was acquitted of robbery but convicted of possession of a firearm during the commission of a robbery, the only issue at trial was the identity of the perpetrator of the robbery, and the verdicts were therefore legally inconsistent.”

The two verdicts are indeed facially inconsistent. The question we must answer is whether a trial court’s Rule 3.510 determination that an offense charged in one count of a multi-count information was completed, prevented the jury from making a contrary finding as to a separate offense arising out of the same incident in the same trial, where, as to that second offense, the jury was given court instructions which allowed it to make an independent decision as to whether the offense was completed or attempted. Our affirmance, relying on Pitts and McCray, necessarily answers the question in the negative. What we are saying, I think, is that a trial court’s assessment of the evidence under Rule 3.510 is merely for the purpose of eliminating unwarranted and confusing instructions and is not a legal determination which limits a jury’s power to make contrary findings otherwise consistent with given instructions.

      . Florida Rule of Criminal Procedure 3.510 provides in pertinent part:
      Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
      (a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.

      . The instruction to the jury on the possession of firearm count was as follows:
      Before you can find the defendant guilty of unlawful possession of a firearm while engaged in a criminal offense, the State must prove the following two elements, beyond a reasonable doubt:
      1. The defendant displayed a firearm, and
      2. He did so while committing or attempting to commit the felony of robbery, [e.s.j
      We do not decide whether it would have been erroneous to instruct the jury on attempted robbery in connection with the firearm possession charge if there had been a timely objection.


text:
    Jacqueline Austion MADRY and Debra Ann Banks, Appellants, v. STATE of Florida, Appellee.
    Nos. 82-1290, 82-1291.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Appellants, Madry and Banks, entered a victim’s hotel room and took property from him by threatening him with a knife. On these facts appellants claim double jeopardy prohibits their conviction for the two offenses of armed burglary (§ 810.02(2)(b), Fla.Stat. (1981)) and armed robbery (§ 812.-13(2)(a), Fla.Stat. (1981)). Appellants' argument is that because the knife alleged to be the “dangerous weapon” in the armed burglary charge is the same knife alleged to be the “deadly weapon” in the robbery charge, both offenses are but facets of the same criminal transaction or episode. Therefore, appellants argue, the armed burglary offense is a Brown v. State, 206 So.2d 377 (Fla.1968), category four lesser included offense of the greater armed robbery offense and was absorbed by, and became an element of, the armed robbery offense, and the conviction and sentence for the armed burglary offense should be vacated, citing Mahaun v. State, 377 So.2d 1158 (Fla.1979). Appellants argue, further, that since the greater crime of robbery with a deadly weapon could not be proved without also proving the lesser crime of armed burglary, the conviction for armed burglary must be considered a lesser included offense of the armed robbery and the conviction for armed burglary reversed, citing State v. Hegstrom, 401 So.2d 1343 (Fla.1981). This is the same argument that has often been accepted by this court. However, it is essentially a double jeopardy analysis based on the single transaction rule, which rule was abolished by section 775.021(4), Florida Statutes. Under the correct theory, utilizing a substantive analysis of the statutes and charges involved, it is quickly apparent that because armed burglary has at least three essential constituent elements ((1) an entry, (2) a structure or conveyance, (3) a specific intent to commit an offense in the structure or conveyance) not required by the offense of armed robbery and because armed robbery has at least four essential constituent elements ((1) a taking, of (2) personal property, from (3) the actual possession or custody of another, by (4) force, violence, assault or fear) not required by the offense of armed burglary, these two statutory offenses are substantively different and can never be “the same offense” within the meaning of the constitutional double jeopardy prohibition. Accordingly, it is legally immaterial that each offense may contain one or more substantive elements in common (i.e., a “dangerous” (burglary) or a “deadly” (robbery) weapon), a person can be constitutionally charged, tried, convicted and punished for violation of both statutory offenses although the two criminal charges are based on a single set of interrelated facts and circumstances and the allegations and proof of facts overlap, as when the “dangerous” weapon with which the burglar is armed (§ 810.02(2)(b), Fla. Stat.) is also the “deadly” weapon that is carried (§ 812.13(2)(a), Fla.Stat.) by the burglar when he commits a robbery. Likewise it is legally immaterial that the charged armed robbery may have been the object of the specific intent in the armed burglary or that the burglary may have been only a necessary incident of the main motive or objective or intent of the defendant to commit the armed robbery or that but for burglary the robbery would not, or could not, have occurred. Intrinsically, the two offenses are substantively different.

      . Because the proper rationale for the disposition of this case is in accord with the rationale and result in Borges v. State, 415 So.2d 1265 (Fla.1982); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), and Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981), it is necessarily in direct conflict with O’Hara v. State, 448 So.2d 524 (Fla. 5th DCA 1984); Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983); Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983), rev. granted, No. 63,807 (State v. Baker); Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), rev. granted, Nos. 63,135 (Baker v. State) and 63,269 (State v. Baker); Stone v. State, 402 So.2d 1222 (Fla. 5th DCA 1981); James v. State, 399 So.2d 424 (Fla. 5th DCA 1981). All related and relevant cases are cited in O’Hara. See also Hedges v. State, 448 So.2d 5 (Fla. 5th DCA 1984).


author: WENTWORTH, Judge.

text:
    ESCAMBIA COUNTY, Florida, Appellant/Cross-Appellee, v. CITY OF PENSACOLA, a municipal corporation, Appellee/Cross-Appellant.
    No. AO-482.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Rehearing Denied April 24, 1984.

      Robert L. Nabors, of Nabors, Potter, McClelland, Griffith & Jones, Titusville, Paul G. Drummond, County Atty., Pensacola, for appellant/cross-appellee.
    Don J. Catón, City Atty., John W. Fleming, Asst. City Atty., Pensacola, Talbot D’Alemberte and W. Peter Burns, of Steel, Hector & Davis, Miami, for appellee/cross-appellant.
   WENTWORTH, Judge.

Appellant Escambia County seeks review of a declaratory judgment by which certain county-provided services were determined to be of no real and substantial benefit to the City of Pensacola, and the County was ordered to fund such services “by sources on or behalf of [sic] the unincorporated area.” Appellee City of Pensacola seeks review of the court’s dismissal of the City’s claim for damages based on the expenditure of county-wide revenues for the contested services in a prior tax year. We find that neither party has presented any point of reversible error and we therefore affirm the order appealed.

The order prohibits the funding of the County Sheriff’s Road Patrol and local road system from county-wide revenues. Absent real and substantial benefit to City property or residents, Article VIII, Section 1(h), Florida Constitution, prohibits the funding of such services from county-wide property taxes, and § 125.01(7), Florida Statutes, prohibits the funding of such services from county-wide revenues. See Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1979); City of St. Petersburg v. Briley, Wild & Assoc., Inc., 239 So.2d 817 (Fla.1970). The recent opinion in Palm Beach County v. Town of Palm Beach, 426 So.2d 1063 (Fla. 4th DCA 1983), indicates that the relevant standard is essentially a mixed question of law and fact; as such, it is necessarily dependent upon the particular circumstances of each case.

In the controversy before us both parties presented extensive evidence and expert testimony, and the record contains evidentiary support for the trial court’s finding that the contested services are of no real and substantial benefit to the City property or residents. Unlike Palm Beach, in the present case the parties argued, and it appears that the trial court did consider, the value of unquantifiable benefits. And while City of St. Petersburg, supra, indicates that the municipal benefits need not be direct or primary, it does not appear (contrary to the County’s assertion) that the trial court applied an incorrect légal standard in the present case.

The County also contends that the trial court erred in requiring allocation of various intra-departmental and extra-departmental appropriations utilized for the operation of the Sheriff’s Road Patrol and the local road system. But the County concedes that “costs in a budget that are purely a part of a challenged service should be aggregated with the more identifiable budget costs to determine the true costs of a service.” We conclude that such cost-accounting as the trial court mandated in the present case is a permissible method of piercing budget manipulation and ascertaining the true cost of the contested services.

The City asserts that the County’s sovereign immunity was waived when the City agreed to postpone legal action during the course of protracted negotiations between the parties. However, as Manatee County v. Town of Longboat Key, supra, indicates, a municipality may not recover a money judgment against a county for past tax years because of the county’s sovereign immunity, which may be legislatively waived only by clear and unequivocal language. In the present case the City has shown no such legislative waiver, nor does the record otherwise establish any clear and unequivocal effective waiver. The City’s claim for damages based on a prior tax year was therefore properly dismissed.

The order appealed is affirmed.

LARRY G. SMITH and JOANOS, JJ., concur.