author: JOANOS, Judge. JOANOS, Judge.

text:
    William Joel KEEL, Appellant, v. STATE of Florida, Appellee.
    No. AP-10.
    District Court of Appeal of Florida, First District.
    June 23, 1983.
    Rehearing Denied Oct. 14, 1983.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant contends that the trial court erred in denying his motion to dismiss the information charging him with attempted escape because it is a non-existent crime. We have determined that appellant was properly charged in the information and that the crime of attempted escape does exist. Therefore we affirm.

The information charged that appellant, “being lawfully confined as a prisoner in a prison, jail, road camp, or other penal institution or while working on the public roads or being transported to or from a place of lawful confinement, did attempt to escape from the lawful custody of the Florida Department of Corrections .... ”

Appellant argues that the statutory crime of escape itself includes an attempt to escape, thus there can be no attempt to commit that crime. The authority cited by appellant in support of his position which presents a situation most similar to the present case is Sykes v. State, 397 So.2d 991 (Fla. 1st DCA 1981). In Sykes, this court concluded that controlling precedent required a determination that the crime of attempted grand theft does not exist because the attempt itself is included within the statutory definition of grand theft. However, a comparison of the statute involved in Sykes, Section 812.014, Florida Statutes, and the statute involved in the present case, Section 944.40, Florida Statutes, shows that the rationale of Sykes does not apply in this case. Section 812.014 states that “a person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another ...,” i.e., the definition of theft includes the attempt. There is, however, no comparable definition of escape in Section 944.40. Section 944.40 states that an escape or attempt to escape, alternatively, constitutes a second degree felony. The statute does not provide that a person is guilty of “escape” if he either escapes or attempts to escape. Thus attempted escape may occur in fact, and when that happens it does not become the offense of escape itself “by legislative fiat,” as is apparently the situation in regard to attempted grand theft. See Sykes at 993.

The information in this case properly charged appellant with a crime pursuant to the statute. The denial of appellant’s motion to dismiss the information is AFFIRMED.

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

ON MOTION FOR REHEARING OR CERTIFICATION

JOANOS, Judge.

Appellant has moved for rehearing or certification arguing that our distinguishing section 944.40, Florida Statutes, from the theft statute, section 812.014, Florida Statutes, involved in Sykes v. State, 397 So.2d 991 (Fla. 1st DCA 1981) was incorrect. We adhere to our earlier opinion and deny the motion.

As support, appellant points to: Ervin v. State, 410 So.2d 510 (Fla. 2d DCA 1981) in which the district court construed section 812.019, Florida Statutes, which pertains to dealing in stolen property; Hestor v. State, 363 So.2d 26 (Fla. 4th DCA 1978), in which section 918.14, Florida Statutes, relating to tampering with evidence, was considered; and McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980) involving section 843.01, Florida Statutes, the statute involving resisting an officer with violence. We agree with appellant that the language of the statutes involved in those cases is similar to the language of section 944.40, in which an attempt is described as a violation of the statute. However, each of those cases, as well as the Sykes case, were concerned with a situation where the defendant was charged in the charging document with a violation of the statute in question, but found guilty of an “attempt” as a lesser included offense pursuant to an instruction on attempts. The courts determined that to be improper. We quibble not with the holdings in those cases. However, the point raised in the appeal before us is whether a defendant may be charged in the information with attempted escape in violation of the statute. The statute, section 944.40, provides that attempted escape is a violation of the statute. The defendant was charged with an attempt to escape in violation of the statute. The jury found him “... GUILTY of Attempted Escape as charged in the Information.” Judgment was entered adjudging him guilty of attempted escape in violation of section 944.-40. The cases cited as support by appellant all dealt with the general attempts statute, section 777.04, Florida Statutes, being en-grafted upon a situation where the statute that the defendant was charged with violating included an attempt as a violation of the statute itself. That is simply not the question raised in this appeal.

Motion DENIED.

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

      . Section 812.014 provides:
      (1) A person is guilty of thett if he knowingly obtains or uses, or endeavors to obtain or to use; the property of another with intent:
      (a) To deprive the other person of a right to the property or a benefit therefrom.
      (b) To appropriate the property to his own use or to the use of any person not entitled thereto.
      Section 944.40 provides:
      Any person confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree ....


source: Caselaw Access Project

author: THOMPSON, Judge. THOMPSON, Judge.

license: Public Domain

text:
    EMPIRE OUTDOOR ADVERTISING, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. AP-420 and AP-421.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Sept. 26, 1983.

      Jeffrey Bercow and L. Martin Reeder, Jr., of Steel, Hector & Davis, Palm Beach, for appellant.
    Margaret-Ray Kemper, Appellate Atty., John H. Beck, Gen. Counsel for Dept, of Transp., Tallahassee, for appellee.
   THOMPSON, Judge.

This is an appeal from an order of the Department of Transportation (DOT) directing the removal of outdoor advertising structures (signs) owned by Empire Outdoor Advertising (Empire) without the payment of compensation. We affirm.

Empire raises the following questions on appeal: (1) whether the DOT erred in ruling that Empire’s signs may be removed without payment of compensation; (2) whether the DOT erred in ruling that Empire’s signs are not “on premises” signs; (3) whether the DOT should have dismissed the case because it failed to prove that Empire’s signs are located on a federal highway; and (4) whether the DOT erred in refusing to consider Empire’s exceptions to the recommended order and in denying Empire’s motion for reconsideration.

In 1958 a set of two signs was placed on the side of the “27th Avenue Market” and in 1965 Empire placed a similar set of signs on the side of “El Okey Market.” These markets are small grocery stores on 27th Avenue in Miami. The signs were lawful when erected as there were no state laws or rules regulating and requiring the permitting of signs within city or town limits until January 1, 1975. However, Empire failed to obtain permits for either set of signs on or after January 1, 1975. On May 11, 1981 the DOT served Empire with “notices of violation” on both sets of signs. The notices charged violation of § 479.07(1), Fla. Stat. (1981) for failure to display a state permit tag and violation of Fla.Admin.Code Rule 14-10.06(l)(b)(3) for failure to comply with minimum spacing requirements. Empire promptly filed permit applications with the DOT, which were rejected because during the time Empire had failed to get permits, other signs had been permitted and erected at locations that rendered it impossible for Empire’s signs to meet the spacing requirement.

Section 479.07 requires that Empire’s signs have permits and if not permitted they were illegal. The signs in question were not permitted for more than five years and they were illegal signs from the time that they were required to be permitted by law. Under the provisions of § 479.23 the DOT has a right to remove signs if they have been non-conforming signs for more than five years, and by the terms of § 479.17, the DOT is actually charged with a duty to remove signs “maintained, posted or displayed in. violation of this chapter.”

Section 479.24 requires that compensation be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become non-conforming. It does not require compensation for illegal signs. Empire’s signs were not only non-conforming but were illegal and had been illegal for more than five years. Although there is no explicit provision in § 479.24 that no compensation shall be paid for an illegal sign, surely the legislature could not have intended that a sign owner could fail or refuse to comply with the permitting law indefinitely and then be fully compensated by the DOT for the removal of its illegally maintained sign. Under the interpretation of § 479.24 urged by Empire, the DOT would be required to pay compensation upon the removal of any sign which had been lawfully in existence on December 8, 1971, without regard to the owner’s non-compliance with law subsequent to that date. A sign owner whose sign was rendered worthless because of changing traffic patterns or for other reasons, and who therefore might be indifferent to or even desirous of the removal of his sign, could obtain full compensation for the sign simply by refusing to obtain a permit or to pay the permit fee. Thus the sign owner would be rewarded for refusing to obey the law. This absurd result is foreclosed by the DOT’s interpretation of § 479.24. The DOT’s interpretation of Chapter 479, which it is charged with administering, is reasonable and should be affirmed.

The signs are not “on premises” signs as defined by § 479.16(1), Fla.Stat. The signs were not “constructed by the owner or lessee of a place of business” but were constructed by Empire, an advertising company.

There is competent substantial evidence to support the hearing officer’s ruling that 27th Avenue in Miami was a federal-aid primary highway.

Even if Empire’s exceptions had been timely filed its exceptions raised no new arguments and did not place any new factual or legal matters before the hearing officer and thus no prejudice resulted from the hearing officer’s refusal to consider them.

AFFIRMED.

ERVIN, C.J., and WIGGINTON, J., concur.

ON REHEARING

THOMPSON, Judge.

Empire Outdoor Advertising, Inc. (Empire) contends on rehearing that our opinion conflicts with the holding and rationale of Walker v. State, Department of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979) and other cases that followed. Walker and its progeny are factually different from this case and involved a question of law different from that involved herein. In Walker and the cases following it, the signs had been permitted at one time and the sign owners were seeking to renew delinquent permits. The signs in the instant case had never been permitted and had been in violation of Chapter 479, Florida Statutes for more than six years. In order to avoid any apparent conflict with Walker we recede from the use of the word “illegal,” in Empire. However, the fact remains that Empire’s signs were unlawful under Chapter 479 and were non-conforming as of January 1, 1975, the date that permitting was required. A further distinction in this case is that by the time Empire filed permit applications other signs had been permitted and erected at locations that rendered it impossible for Empire’s signs to meet the spacing requirement. In Walker and its progeny there was nothing to prevent the Department of Transportation from renewing the permits.

Empire has maintained its non-conforming signs for more than five years without payment of any fees and thus has been adequately compensated. These signs may be removed pursuant to § 479.23, Fla.Stat.

Rehearing denied.

ERVIN, C.J., and WIGGINTON, J., concur.


author: DAUKSCH, Judge.

text:
    James T. BRADLEY, et al., etc., Appellants, v. Michael GUY, et al., Appellees.
    No. 82-495.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1983.
    Rehearing Denied Oct. 17, 1983.

      Jack B. Nichols, of Jack B. Nichols, P.A., Orlando, for appellants.
    Robert W. Mixon, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for appellees Michael Guy and USAA, and Stephen W. Beik, of Pitts, Eubanks & Ross, P.A., Orlando, for appellees Michael Guy and West American Ins. Co.
   DAUKSCH, Judge.

This is an appeal from a judgment in a personal injury case. The minor appellant, Jimmy Bradley, was a passenger in a boat driven by the appellee, Michael Guy, and as a result of the alleged negligence of Michael, Jimmy was injured.

The primary issue on appeal is whether the court erred in refusing to give a requested jury instruction regarding the standard of care applied to boat operators. Appellant requested the following instruction on section 371.52, Florida Statutes (1979):

All boats, of whatever classification, shall be considered dangerous instrumentalities in this state and any operator of such boats shall, during any utilization of said boats, exercise the highest degree of care in order to prevent injuries to others.

Appellant argues, and we agree, that Florida Statute 371.52 (now known as section 327.32, Florida Statutes (1981)) places a higher degree of care upon a boat operator than a person who is not operating a boat.

Where a person is injured by another and no statutory exceptions apply, then the standard of care is governed and defined by the standard jury instruction on negligence, which was given in this case. That instruction reads:

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either of doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

The appellee contends that the standard negligence instruction was sufficient in this case. However, the law is well settled that it is the duty of the trial court to instruct the jury on the statutory law applicable to a case as well as all the issues presented. In City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981), the trial court refused to give a requested instruction concerning the driving under the influence statute. The Fourth District Court of Appeal said that the refusal of the court to advise the jury regarding the legal effect upon a civil case of a violation of a state law was error. Here, although no criminal penalties are directly attached to Florida Statute 371.52, that statute does set a higher standard of care upon boat drivers than upon other persons. In obiter dicta, the Third District Court of Appeal in Burton v. Varner, 296 So.2d 641 (Fla. 3d DCA 1974) makes reference to the statute and its imposing “a duty upon any operator [of a boat] to exercise the highest degree of care to prevent injury.”

In Branch v. Schumann, 445 F.2d 175 (5th Cir.1971), wherein admiralty retained exclusive jurisdiction of a boat accident since the alleged tort occurred on navigable waters, the court noted that Florida Statute 371.52 “imposes the highest degree of care on an owner-operator of a motorboat,” but held that the lower court did not err in failing to so instruct the jury because the defendant’s conduct was measurable by the standards of maritime law. Under maritime law the owner of a ship in navigable waters owes to his guests only the duty to use reasonable care under the circumstances. Id. at 178; See also, Green v. Ross, 338 F.Supp. 365, 367 (D.C.Fla.1972). (The court stated: “Plaintiff concedes that, under Branch v. Schumann, 445 F.2d 175 (5th Cir.1971), defendant Ross, cannot be held to the high standard of care created by F.S.A. § 371.52.”). The accident in the instant case is not governed by maritime law, therefore the standard of care as set forth in Florida Statute 371.52 should apply.

The Florida legislature has the authority to modify the common law, grant or create a right, or impose an obligation or liability by statute. See § 2.01 Fla.Stat. (1981); Florida E.C.R. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Drake Lumber Co. v. Semple, 100 Fla. 1757, 1771, 130 So. 577 (1930). Because the legislature has imposed the highest degree of care upon Florida boat operators, the courts should make juries aware of that standard in boat operator negligence cases, and it was error for the trial court to fail to do so in the instant case.

Appellants’ contentions regarding the trial court’s alleged error in denying their motion for new trial need not be addressed since this cause must be remanded based on the court’s failure to instruct the jury on Florida Statute 371.52. Appellants’ contention that the trial court erred in denying their motion in limine to limit the cross-examination of their expert witness on economics will not be considered because appellants did not properly preserve that issue for our review.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Melvin J. BOGART and Eva Bogart, his wife, Appellants, v. F.B. CONDOMINIUMS, INC., et al., Appellees.
    No. 82-2626.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 20, 1983.
    Lawrence Klepetko, Sarasota, for appellants.
    L. Norman Vaughan-Birch of Kirk, Pinkerton, Savary, Carr & Strode, P.A., Sarasota, for appellees.
   EDWARD F. THREADGILL, Jr., Associate Judge.

This is an appeal from an order dismissing appellants’ complaint for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The issue presented below was whether appellant showed good cause for an absence of record activity for more than one year. The trial judge found that good cause was not shown and dismissed the complaint. We agree that no good cause was shown.

The appellants now argue that we should reverse because the trial court failed to schedule the case for trial pursuant to appellants’ notice for trial. They rely on our recent opinion in Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So.2d 973 (Fla. 2d DCA 1983), in which we held that after a proper notice of trial is filed, a party has no duty to take any affirmative action to prevent dismissal of the cause for failure to prosecute. Accord Sarasota Cattle Co. v. Mikos, 431 So.2d 260 (Fla. 2d DCA 1983).

In the instant case a proper notice of trial was filed, and the case was set for trial. However, appellants’ attorney then filed a motion for continuance averring that due to the extended absence of some of his clients, he could not adequately prepare for trial. Pursuant to appellants’ motion, the court entered an order continuing the trial “until a date during the fourth quarter of 1978 or thereafter to be established by this court.” Thereafter, additional record activity occurred, including discovery by the appellants. However, the case was never rescheduled for trial. Finally, after a twelvemonth lapse in record activity, the court granted appellees’ motion to dismiss for lack of prosecution.

The point which distinguishes this case from those relied on by appellants is that here the court followed through on appellants’ notice for trial by setting the case for trial. The reason why the case was not tried on the appointed date was that the appellants were not ready. Though the ease could only be reset for trial by a court order, if a dismissal for lack of prosecution was to be avoided, it was incumbent upon the appellants to advise the court when the case was ready by the filing of a new notice of trial. If appellants were relying upon the court’s reference to the setting of a trial date during the fourth quarter of 1978, this was dispelled when the trial was not set during that time period.

While we adhere to our view that the filing of a proper notice of trial is sufficient to avoid a dismissal for lack of- prosecution when an order of trial is not forthcoming, we do not believe that a notice of trial once filed carries over beyond the setting of a trial date and a subsequent order of continuance. The caseload of our courts is such that the parties must bear their share of the burden of seeing to a prompt disposition of the trial docket.

AFFIRMED.

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


author: NESBITT, Judge.

text:
    Harry MALONE and Vonice Malone, his wife, d/b/a Acme Processors, Inc., Appellants, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 81-1840.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Nov. 2, 1983.

      Brigham, Reynolds, Moore, Muiré & Gay-lord and Toby Prince Brigham, Miami, for appellants.
    Margaret-Ray Kemper and Alan E. De-Serio, Tallahassee, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

This appeal arises from an eminent domain proceeding in which the trial court ordered a partial new trial. We have jurisdiction. Fla.R.App.P. 9.110(a)(3).

The Malones owned a parcel of land adjacent to State Road 25 in Dade County. They had constructed thereon a processing plant which converted waste cooking grease into an ingredient used in animal feed. The state Department of Transportation (DOT) condemned the entire ownership for purposes of expanding the road. DOT agreed that the Malones could move their facility to a new site and the parties stipulated as to what items at the old site would be removed.

At trial, the issue of property valuation was bifurcated with separate compensation to be alloted for the movable items and for the remainder of the condemned property. The jury award for the latter, comprising the real property, the shell of the factory building and certain immovables, was $53,-690. Concerning the former, an expert was permitted to testify as to the costs involved in relocating the Malones’ plant and in putting it back into operation. The jury awarded $170,155 for moving expenses. DOT filed a motion for new trial claiming, inter alia, that the issue of moving costs was improperly presented to the jury. The trial court granted a new trial solely on the issue of moving expenses. The Malones appealed.

Our inquiry begins with Article X, Section 6(a) of the Florida Constitution which provides:

No private property shall be taken except for a public purpose and with full compensation therefor ....

Both parties, being aware of Jacksonville Expressway Authority v. Henry G. Du Pree Co., 108 So.2d 289 (Fla.1958), agree that full compensation contemplates moving costs, but the parties diverge in their suggested applications of Du Pree to the present case. The Malones urge that moving costs include every expense involved in moving their plant to a new location and in making it functional again. These expenses, which are detailed later in this opinion, run from fees for real estate agents to search for a suitable new site to alterations needed to conform the plant to new safety and pollution standards. DOT takes a much more restrictive view of moving costs, as did the trial court after the new trial motion was argued. DOT contends that moving costs involve only the actual expense of physically moving property from one location to another and do not even contemplate costs of reassembly. The parties spent a significant portion of their briefs and oral argument attempting to interpret Du Pree to favor their respective views, but an examination of that case demonstrates that it is not particularly helpful to deciding the one sub judice.

In DuPree, the condemnee received a $110,000 award, including $6,000 for the reasonable cost of moving equipment and supplies to a new location. The equipment and supplies in Du Pree were personal property of the condemnee which could be removed to a new site without any loss in value. Permitting costs for their removal had nothing to do with their valuation. The present case, on the other hand, involves a maze of machinery, part of which was trade fixtures, and the rest of which was so completely integrated as to constitute a single functional unit. To merely take this factory apart and deposit it in another location would nearly destroy its value, especially since it served a unique purpose when assembled.

Although the question is novel in Florida, several other jurisdictions have been faced with the problems that arise from condemnation of properties containing trade fixtures or functional units worth much while in place but worth little when disassembled. These jurisdictions all recognize that in such situations the condemnee must be compensated for the machinery involved in the taking. State v. Gallant, 42 N.J. 583, 202 A.2d 401 (1964); Housing Authority of the Borough of Clementon v. Myers, 115 N.J.Super. 467, 280 A.2d 216 (1971); Rose v. State, 24 N.Y.2d 80, 246 N.E.2d 735, 298 N.Y.S.2d 968 (1969); Schnaible v. City of Bismarck, 275 N.W.2d 859 (N.D.1979); Gottus v. Redevelopment Authority of Allegheny County, 425 Pa. 584. 229 A.2d 869 (1967). Ordinarily when, as here, the machinery is removed, the amount allowed is the difference between the value of the machinery in place and its salvage value, but in the alternative, the cost of disassembling, trucking and reassembling the machinery may be calculated. When the latter method is used, the amount actually awarded should not exceed the valuation reached under the first method, Housing Authority of the Borough of Clementon v. Myers, 280 A.2d at 223; Rose v. State, 298 N.Y.S.2d at 976, 246 N.E.2d at 740; Schnaible v. City of Bismarck, 275 N.W.2d at 866, the rationale being that the con-demnee should not be compensated in a greater amount than the value of the property condemned. We adopt the reasoning of these foreign cases. Thus, a remand is necessary and the jury must be presented with evidence of the value of the Malones’ machinery in place as well as its salvage value in order to calculate the upper limit beyond which an award for moving expenses may not rise.

Of course, this disposition does not relieve us of the responsibility of determining whether the moving expense computation itself was based upon proper evidence. That issue was the focus of DOT’S new trial motion.

The only testimony on the issue of moving expenses was that of the Malones’ expert, Ivan Butler. Mr. Butler testified as to the anticipated total cost of the Malones’ relocation based on six cost items. Certain of the costs had already been incurred because the Malones’ plant had been dismantled and at least partially trucked away. The remainder were estimated by Butler. His estimates were derived from detailed examinations of the plant while it was functioning, bids received for work to be done and his extensive experience in moving and valuing the cost of moving other industrial plants. His qualifications in this last regard were unassailed and indeed unassailable.

DOT, again relying on DuPree, supra, at 292, argues that the moving costs were speculative because not “definitely ascertained” and that the condemnee’s burden of moving costs cannot be proved by mere speculative testimony. In the alternative, DOT argues that the expert’s evaluations should have been based on costs as they existed at the time of the taking and not at the time that the costs were or would be incurred.

We cannot agree that the expert’s testimony was speculative. Considering that certain phases of the plant’s relocation were not completed, the testimony was as reliable as it could be. In other words, the mere fact that some of the move had not yet taken place does not render the expert’s cost figures unreliable or speculative. As the Court of Appeals of New York pointed out in Rose v. State, supra, movable machinery may be “valued by determining either the actual or contemplated costs of disassembling, trucking and reassembling the item at a new location.” 298 N.Y.S.2d N.Y.S.2d at 976, 246 N.E.2d at 740 (emphasis supplied). The expert’s testimony involved computation of actual costs and a reliable estimate of contemplated costs. As such it was not speculative.

The reasoning employed in Rose and the other cases which award moving costs as an element of valuation also disposes of DOT’s alternative argument that such costs should be calculated by reference to prices at the time of taking. As stated above, the award is either the actual or contemplated costs of moving on the one hand or the adjusted value of the machinery at the time of taking on the other (with the former figure, if used, not to exceed the latter). The aim is full compensation. Full compensation is not achieved by revaluing the actual cost of moving based on rates on the date of taking. The award should be based on the allowable costs incurred or that will be incurred as long as the move is undertaken seasonably.

Having rejected DOT’s objections to the expert’s testimony in general, we now proceed to an examination of its specific components. In so doing, we are not unaware that, as DOT argues, certain of the testified-to expenses might be recoverable under the Uniform Relocation Assistance Act, 42 U.S.C. § 4601-4655 (1977) (URAA), and applicable federal regulations. See Robzen’s, Inc. v. United States, Department of Housing and Urban Development, 515 F.Supp. 228 (M.D.Pa.1981). For instance, Cost Items I, III and VI listed below would apparently fall within the URAA’s scheme of recovery. See Robzen’s, Inc., supra, at 236-39. We nonetheless view the URAA as irrelevant to our determination of the propriety vel non of the submitted cost items. The URAA was intended only as a supplementary measure enabling recovery by displaced condemnees of expenses not otherwise compensable under traditional eminent domain principles of state law. See Robzens, Inc., supra, at 232-33; Division of Administration, State Department of Transportation v. Grant Motor Co., 345 So.2d 843 (Fla. 2d DCA 1977). Thus, our function is to assess the validity of the cost items based solely upon our interpretation of Florida law. These items, presented by Mr. Butler, were as follows:

Cost Item I $120,000.00
To move all of the Malones’ processing plant except the land and building and other items which were agreed between the parties to be treated as real estate taken, the processing plant had to be disconnected and dismantled, loaded into trucks and taken to the assumed relocation site; unloaded, put back together, hooked up and put into operating condition by a contractor who did this kind of work.
Cost Item II 3,250.00
Some of the tanks at the old location had special concrete slab foundations directly related to the tank installation and which were not part of the real estate taken nor paid for under the value of the property taken. To reinstall the tanks required the pouring of their concrete foundations directly related to them as a piece of the equipment.
Cost Item III _________ 525.00
Moving the processing plant required that the Malones find a relocation site having the suitable zoning for this operation. They employed the real estate firm of Reiseman and Buckbinder to search for the appropriate site.
Cost Item IV _________ 4,297.00
An architect was employed to prepare the layout drawing of the existing processing plant schematic. This information was necessary in order to develop the written specifications of the work to be done in the dismantling and reassembling of the plant. The cost charged by the architect, J. King McMullen, for this work was $1,184.
Other consultants were hired to give information about the modifications or changes involved in taking things apart and putting them back together. Brent Perry, who gave his time and advice, charged $84.
The firm of Villanueva-Chartrand was employed to study the waste water treatment feasibility of various relocation sites and to study and consult on the reinstal-lation of that equipment at the relocation site. Waste water treatment to a grease recycling plant is a critical element of environmental concern and regulation that has to be met and which requires special expertise. Mr. Villanueva’s charges totalled $3,029 for his work in this connection.
The firm of Ochmanski and Associates were specialists in OSHA requirements for industrial safety. The processing plant had to meet new OSHA requirements when it was moved and reassembled at the relocation site. The expertise and consultation of Mr. Ochmanski was necessary to determine the work necessary to meet the OSHA requirement to reinstall and set up the processing plant at the new location. He charged $400.
Cost Item V __________ 9,800.00
A number of OSHA and environmental regulations and code requirements had been enacted since the Malones’ processing plant was constructed. It was “grandfathered in.” However, to move the plant and reassemble it elsewhere meant that the reinstallation had to meet these new provisions of the law. Therefore, to accomplish the move made necessary by the taking, the Malones had to install “safety ladders” around the equipment. They had to “color code” the different kinds of pipes. Perimeter earthen dikes around storage tanks were required. Dade County required water conditioning for private water and additional equipment in the treatment of waste water. None of this was required to operate the processing plant at the site taken. But to locate and reinstall the same plant to the same operating function and condition at the new site required that all of these items be provided.
Cost Item VI _________ 32,283.00
The processing plant had to be shut down so that it could be disassembled, moved, reassembled, hooked up and reinstalled to the same function as before. This “down time” was estimated by Ivan Butler to require three months before the plant could again start processing the waste cooking grease which continued to accumulate during the three-month period. Daily collection of the waste grease had to be maintained and the substance stored during the “down time.” But grease is perishable — so, in conjunction with the Relocation Department of the Department of Transportation, the idea of cold storage was developed. The method devised was to contain the grease in drums, transport them to cold storage for the “down time” period, transport them out of cold storage and process the accumulated grease in overtime hours to the daily operation when the plant was reinstated and operating again.

Under the reasoning and case law we have espoused, Cost Item I was clearly an appropriate one for valuation by the jury-

As to Cost Item II, the value of the concrete slabs undoubtedly should be part of the compensation award. Realistically, though, the Malones should not be awarded the cost of pouring new ones. This would afford them new slabs and their attendant value instead of the value of old slabs, which is what was taken from them. However, the new slabs were apparently necessitated by the removal of property which the parties specifically agreed was movable. It would have been preferable to value the old slabs as part of the building shell. This was not done and we cannot now broach that portion of the jury’s award, the appealed order having limited a new trial to the issue of moving expenses. See Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361 (Fla.1974); Braddock v. Seaboard Air Line Railroad Co., 80 So.2d 662 (Fla.1955); Archer-Daniels-Midland Co. v. A. & P. Bakery Supply and Equipment Co., 240 So.2d 73 (Fla. 3d DCA 1970); cert. denied, 244 So.2d 432 (Fla.1971). Thus, we direct this cost item to be submitted to the jury upon retrial, confident that our previously-discussed limitation upon the moving expense award will prevent any overcompensation.

We hold that Cost Item III is not compensable. Florida law requires that courts take into account all facts and circumstances bearing a reasonable relationship to the loss occasioned an owner by virtue of his property being taken. Behm v. Division of Administration, Department of Transportation, 383 So.2d 216 (Fla.1980); Jacksonville Express Authority v. Henry G. DuPree Co., supra; Estate of Horowitz v. City of Miami Beach, 420 So.2d 936 (Fla. 3d DCA 1982). Certainly the Malones were required to find a suitable location for their new plant. They were not, however, reasonably required to employ a real estate firm to assist them in this regard.

In contrast was the work performed by the architect whose fee was presented under Cost Item IV. Mr. Butler testified that the layout drawing of the existing processing plant was necessary to its reconstruction. Obviously no one could memorize the complex layout of the plant. Therefore, this portion of Cost Item IV was compensable.

The remainder of the fees under Cost Item IV were not appropriate. These fees were incurred in order to comply with several pollution, health and safety regulations of the state, local and federal governments. Compliance with such “police power” regulations is not compensable under Florida law. Florida East Coast Railway Co. v. Martin County, 171 So.2d 873 (Fla.), cert. denied, 382 U.S. 834, 86 S.Ct. 79, 15 L.Ed.2d 78 (1965). For the same reason, we hold that Cost Item V is not recoverable.

We also reject the expenses claimed under Cost Item VI. The movement and storage of the waste grease itself is related to the “down time” of the plant. As such, it is unrelated to the actual valuation of the plant even under the moving-expense method.

Consequently, upon remand the moving-expense issue must be retried as indicated by the above discussion. To recapitulate, Cost Items III, V and VI shall not be resubmitted to the jury. Cost Item IV is appropriate only insofar as it omits fees incurred from compliance with pollution, health and safety laws or regulations. As to Cost Items I and II, since much of the estimated costs have no doubt already been realized, these items should be resubmitted to incorporate the actual costs. The somewhat repetitious judicial labor involved will be minimal and is justified in the interests of obtaining an accurate award.

The order granting a new trial is affirmed, as modified, and the cause remanded for further consistent proceedings.

      . See Dependable Air Conditioning and Appliances, Inc. v. Office of Treasurer and Insurance Commissioner, 400 So.2d 117, 119 (Fla. 4th DCA), pet. for review denied, 411 So.2d 381 (Fla.1981).

      . The URAA is a federally-assisted compensation program which may be invoked when the federal government is involved in a condemnation project. State Road 25, where the subject property is located, is also U.S. Highway 27. It is undisputed here that the Malones are eligible displacees under the URAA.


author: HERSEY, Judge.

text:
    Harry F. KLINEFELTER, III, Appellant, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 82-1547.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Nov. 1, 1983.
    Christopher B. Knox, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellee.
   HERSEY, Judge.

This appeal presents the single, simple and clear-cut issue of the effect of rendition of an arbitration award after expiration of the period established by contract or rule within which the award was required to have been rendered. The parties argue construction of documents, the effect of language and the existence of facts which might or not constitute waiver. We have considered but need not, and therefore do not, address those arguments. Clearly the arbitrators acted too late and had no jurisdiction at the time the award was rendered. The trial court thus erred in refusing to vacate the award, and we reverse on that basis and remand for further appropriate proceedings.

REVERSED and REMANDED.

DOWNEY and BERANEK, JJ., concur.


author: SHIVERS, Judge.

text:
    Leonard SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. AQ-185.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 26, 1983.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Spencer appeals his convictions and sentences for armed robbery and unlawful display of a firearm during the commission of a felony. Although we find no merit in appellant’s contention that the double jeopardy clause bars his prosecution for these offenses, we find that appellant was improperly convicted and sentenced for both the greater and lesser included offense. We affirm in part and reverse in part.

Spencer was accused of robbing a gas station while using a pistol on August 25, 1982. A two-count felony information was filed against him. Count I alleged armed robbery, contrary to section 812.13(2)(a), Florida Statutes (1981). Count II alleged that appellant unlawfully displayed a pistol firearm while committing a felony, contrary to section 790.07(2), Florida Statutes (1981).

A separate misdemeanor charge of being in possession of a firearm with an altered or removed serial number was brought against appellant, and on September 23, 1982, appellant pled guilty in county court to this charge. On October 21, 1982, appellant filed a motion to dismiss the felony charges, asserting that principles of double jeopardy precluded his prosecution on the other charges. At the hearing on the motion to dismiss, Officer Streeter testified that on August 25, 1982, he received a BOLO for a black male who had allegedly just perpetrated an armed robbery at a service station. Streeter proceeded to a location near the service station where Officer Bolger had stopped a vehicle. Appellant and another person were occupying the vehicle and were taken into custody. A hat and a gun were discovered inside the stopped vehicle. The serial number on the gun was obliterated. The victim identified appellant as being the robber and also identified the hat and gun as being utilized during the offense.

The trial court denied appellant’s motion to dismiss, and appellant pled nolo conten-dere on both felony charges, reserving his right to appeal the denial of the motion to dismiss. Appellant was adjudicated guilty and sentenced to 20 years on Count I with the requirement that he serve three years before being considered for parole. Appellant was also convicted on Count II and sentenced to ten years imprisonment to run concurrently with the sentence on Count I.

The double jeopardy clause has three major facets. It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The classic test for determining whether two separate statutory offenses are the “same offense” for double jeopardy purposes was enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The test is “whether each provision requires proof of an additional fact which the other does not.” Id. at 304, 52 S.Ct. at 182. Sub judice, appellant admits that the crime to which he pled guilty in the first prosecution, possession of a firearm with an altered or removed serial number, is not the same offense under the Blockburger test as either of the crimes involved in the subsequent prosecution, armed robbery and display of a firearm while committing a felony. Nevertheless, appellant argues that principles of collateral estoppel should bar his subsequent prosecution.

It is true that collateral estoppel— the principle that bars relitigation between the same parties of issues determined at a previous trial — is a part of criminal as well as civil law. It is also true that the doctrine of collateral estoppel is an ingredient of the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In the instant case, appellant argues that the fact of his possession of a firearm was resolved in the initial prosecution for possession of a firearm with an altered or removed serial number. Possession of a firearm is also an element of the crimes of armed robbery and display of a firearm while committing a felony. Appellant reasons that the doctrine of collateral estoppel bars the State from relitigating this issue, and, therefore, the State cannot prove its case in the subsequent felony prosecution.

Appellant, however, overlooks the fact that in the initial prosecution the issue of possession of a firearm was decided against him. The theory of collateral estop-pel, as applied in criminal cases, requires that when an issue in a criminal trial is determined in a way favorable to the defendant the State is estopped from raising that issue in a subsequent prosecution. United States v. Venable, 585 F.2d 71 (3d Cir.1978). All of the collateral estoppel cases cited involve situations where the outcome of previous litigations necessarily involved the resolution of an issue in a way favorable to the defendant. See Ashe v. Swenson, supra, and cases cited therein; Gragg v. State, 429 So.2d 1204 (Fla.1983). Logically, if the doctrine of collateral estop-pel were applied in appellant’s case, the State would not need to prove possession of the firearm in appellant’s subsequent prosecution because that issue was conclusively determined against appellant in the prior prosecution. The fact that the State cannot do that very thing is referred to as a lack of “mutuality” in the use of the doctrine of collateral estoppel in the criminal law. See United States v. DeAngelo, 138 F.2d 466 (3d Cir.1943). Although the State cannot use collateral estoppel to prove elements of its case which have previously been determined in a way adverse to the defendant in a prior trial, there is no reason why the State should be estopped from proving these facts again in a subsequent prosecution unless the prior conviction was for “the same offense.”

We have not overlooked appellant’s argument that In Re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), is applicable to the instant case. Nielsen held that a conviction of a Mormon on a charge of cohabiting with his two wives over a two and one-half year period barred a subsequent prosecution for adultery with one of those wives on the day following the end of that period. The Supreme Court discussed Nielsen in a footnote in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and pointed out that a strict application of the Bloekburger test would have permitted the subsequent prosecution. 432 U.S. at 166-67, n. 6, 97 S.Ct. at 2226, n. 6. Nielsen, however, is not a case where the doctrine of collateral estoppel was applied. Rather, the Court in Nielsen thought that the crime of adultery was the “same offense” as cohabitation even though the crimes of adultery and cohabitation each technically included an element the other did not. In the instant case, it cannot be said that possession of a firearm with an altered or removed serial number is the same offense as armed robbery or display of a firearm while committing a felony.

Appellant’s conviction for display of a firearm while committing a felony, however, must be reversed. That crime is a lesser included offense of armed robbery in situations where, as here, the two crimes arise out of a single transaction. State v. Gibson, 8 FLW 76 (Fla.1983). Appellant cannot be convicted or sentenced for both a greater and lesser included offense. Bell v. State, 437 So.2d 1057 (Fla.1983).

Accordingly, appellant’s conviction and sentence for armed robbery is affirmed. His conviction for display of a firearm while committing a felony is reversed, and the sentence is vacated.

ROBERT P. SMITH, Jr. and NIMMONS, JJ., concur.

      . The Court stated:
      [C]an it be doubted that the adultery charged in the second indictment was an incident and part of the unlawful cohabitation? We have no doubt of it. True, in the case of Snow, we held that it was not necessary to prove sexual intercourse in order to make out a case of unlawful cohabitation; that living together as man and wife was sufficient; but this was only because proof of sexual intercourse would have been merely cumulative evidence of the fact. Living together as man and wife is what we decided was meant by unlawful cohabitation under the statute. Of course, that includes sexual intercourse. And this was the integral part of the adultery charged in the second indictment, and was covered by and included in the first indictment and conviction. The case was the same as if the first indictment had in terms laid the unlawful cohabitation for the whole period preceding the finding of the indictment. The conviction on that indictment was in law a conviction of a crime which was continuous, extending over the whole period, including the time when the adultery was alleged to have been committed. The petitioner’s sentence, and the punishment he underwent, on the first indictment, was for that entire, continuous crime. It included the adultery charged. To convict and punish him for that also was a second conviction and punishment for the same offense.
      131 U.S. at 187, 9 S.Ct. at 675.


author: THOMPSON, Judge.

text:
    STATE of Florida, Appellant, v. ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, a corporation, Appellee. DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, a corporation, Appellee.
    Nos. AN-94, AN-95.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    Rehearing Denied Nov. 4, 1983.
    Mitchell D. Franks and Louis F. Hubener, Asst. Attys. Gen., Tallahassee, for appellant, State of Florida.
    Segundo J. Fernandez, Deputy Gen. Counsel, Richard P. Lee and Gordon D. Cherr, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellant Dept, of Environmental Regulation.
    Peter J. Winders & Donald E. Hemke of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee Atlantic Intern. Inv. Corp.
    Cynthia S. Tunnicliff, Tampa, for appel-lee Max Simon.
   THOMPSON, Judge.

The State of Florida (State) and the Department of Environmental Regulation (DER) appeal a final judgment which found a taking by the State and ordered the State to institute eminent domain proceedings. We reverse.

In 1967 and 1968 Atlantic International Investment Corporation (Atlantic) bought approximately 14,000 acres of land in Volu-sia and Brevard Counties at a cost of slightly more than $7,000,000. Atlantic is owned by Mondex, a development corporation, which is owned by Summit Organization, a holding company. This land was platted as a subdivision known as Cape Atlantic Estates (CAE) and was registered with the Division of Florida Land Sales and Condominiums (DFLS & C), a division of the Department of Business Regulation (DBR) or with its predecessor, the Florida Land Sales Board. Atlantic sold one and one-quarter and two and one-half acre lots in CAE under agreements for deed primarily to non-Florida residents by telephone. The agreements provided the land would be improved by graded dirt roads and drainage, with costs thereof advanced by Atlantic and repaid through assessments against the property. Some of the agreements for deed or contracts offered by Atlantic during trial indicated that the South County Drainage District (SCDD), initially created by Ch. 67-1022, Laws of Fla., would install the ditches and canals by 1973 and would maintain the roads and ditches. DFLS & C required Atlantic to enter into an improvement trust agreement. Improvements to CAE were begun in 1967 first under the Bristol plan and then under the Garcia plan. By 1970 Atlantic had expended about $560,-000 for improvements and had completed a 12 mile main outfall canal. Atlantic voluntarily suspended sales of lots in CAE in 1972, when more than 95% of the lots were subject to agreements for deed. According to Mr. Trella, President of Atlantic and a member of SCDD’s board, Atlantic sold approximately $28,000,000 worth of lots in CAE.

Volusia and Brevard Counties objected to SCDD’s 1971 petition in circuit court to amend the reclamation plan for CAE. The Department of Pollution Control (DPC), DER’s predecessor, moved to intervene and to file objections to SCDD s amended reclamation plan. Also in 1971 DPC asserted that it had permitting jurisdiction over CAE. The circuit court’s decision that Vol-usia County’s 1970 home rule charter abolished SCDD, that SCDD’s obligations were assumed by Volusia, and that SCDD’s attempt to extend its boundaries into Brevard County was void were affirmed in South County Drainage District v. Brevard County, 277 So.2d 31 (Fla. 1st DCA), cert. denied, 281 So.2d 211 (Fla.1973). In December 1973, after the termination of the SCDD litigation, Atlantic and Volusia County entered into an agreement forming a special improvement district with the same name as SCDD to fulfill the “functions, responsibilities, duties and obligations” of the former SCDD in Volusia County. Atlantic ultimately applied with DPC for a permit in September 1974.

In August 1974 DFLS & C ordered Atlantic to show cause why its order of registration should not be suspended or revoked. In a November 6, 1974 letter the regional engineer of the waste-water section of DPC informed Garcia, engineer for SCDD, that based on review by the regional staff and comments from Volusia and Brevard Counties, Atlantic’s permit was denied. The letter stated Atlantic had not reasonably assured DPC that the results of the project would be in accord with applicable laws, rules, and regulations, and that in DPC’s opinion “the project [would] have significant adverse effects on water quality as well as the aquatic resources in the area.”

In February 1975 Atlantic filed a petition for declaratory judgment in Leon County Circuit Court against DBR, DFLS & C, DPC, and Volusia County. This petition requested that Volusia County be required to drain CAE and install improved dirt roads in CAE within a reasonable period of time, that DPC be required to approve Atlantic’s plans and issue a permit to improve and drain CAE, that DPC be enjoined from interfering with the improvement and drainage of CAE, and that DBR and DFLS & C be enjoined from revoking or suspending Atlantic’s registration to sell land in CAE until the court determined the parties’ rights and obligations. Alternatively, Atlantic requested in excess of $30,000,000 from the State and the defendants for impairment of contract between Atlantic and the CAE lot purchasers, between Atlantic and SCDD, and between Atlantic and Volu-sia County. Atlantic also sought, alternatively, in excess of $30,000,000 from the State for a taking of private property without compensation. As an additional alternative remedy, Atlantic sought in excess of $30,000,000 against Volusia County for breach of contract. Atlantic also requested that DFLS & C be restrained from revoking or suspending Atlantic’s registration to sell land in CAE. The Leon County Circuit Court issued a temporary injunction restraining DPC, DBR, and DFLS & C from interfering with Atlantic’s improvements and sales of CAE. Atlantic was also restrained from selling any lots in CAE as approved by DFLS & C’s registration orders until further order of the court. At a subsequent hearing the injunction was dissolved, the lower court retained jurisdiction of the taking issue pending completion of the administrative proceedings, and Atlantic was permitted to amend its complaint. Volusia County’s motion to dismiss Atlantic’s amended complaint and to strike portions of Atlantic’s amended complaint was denied in a May 27, 1975 order. Volusia’s interlocutory appeal from this order was dismissed with no finding of reversible error. Volusia County v. Department of Business Regulation; 325 So.2d 454 (Fla. 1st DCA 1976).

Atlantic sought administrative review of the DPC letter denying the permit. In December 1975 a hearing officer recommended that the permit issue, subject to certain conditions. However, in May 1976 DER entered a final order denying the permit. Atlantic then filed a petition for writ of certiorari in this court and an appeal with the Environmental Regulation Commission, regarding DER’s final order denying the permit. Prior to a decision by this court on the petition for certiorari, but subsequent to oral arguments, Atlantic and DER entered into a stipulation and consent agreement which provided, inter alia, the following: (1) a 13-month baseline study would be conducted to establish water quality standards for discharges from the project; (2) that after construction of a modified drainage facility DER would issue a 3-year temporary operation permit if the facility complied with the plans attached to the agreement; (3) that the facility would be monitored; and (4) if, upon expiration of the temporary permit no water quality violations remained uncured, DER would issue the operation permit. The parties’ joint motion for this court’s approval of this agreement stated that it “resolve[d] or rendered] moot all issues formerly in dispute before this Court.” On June 29, 1977, this court approved the stipulation and consent agreement, vacated the DER order sought to be reviewed, remanded to DER for proceedings consistent with the terms and conditions of the stipulation and consent agreement, and dismissed the petition for writ of certiorari.

In August 1977 St. Johns River Water Management District (St. Johns) notified Atlantic it was considering asserting jurisdiction over CAE. In March 1978 Atlantic notified DFLS & C that completion of the CAE improvements was impossible. DFLS & C rejected Atlantic’s proposal to offer its remaining inventory in CAE as an alternative to cash payments from the improvement trust funds at the customers’ option. Subsequent to DFLS & C’s issuance of a March 1979 notice to show cause, Atlantic filed suit in Leon County Circuit Court against DFLS & C alleging breach of the 1973 improvement trust agreements. This action was consolidated with the 1975 Declaratory Judgment action in Leon County Circuit Court. Atlantic filed an amended and supplemental complaint against DFLS & C, DBR, DER, Volusia County, St. Johns, and the State of Florida. The complaint was dismissed as to St. Johns for failure to state a cause of action against St. Johns. Atlantic’s second amended and supplemental complaint asserted a taking on or before September 1,1977 against DFLS & C, DBR, DER, Volusia, and the State, and a $30,000,-000 breach of contract action against Volu-sia County and the State. The taking count against Volusia County was dismissed and the breach of contract action was severed for purposes of trial. However, the trial court’s order specifically stated that the dismissal of Volusia County did not prevent proof of Volusia’s actions and of their cumulative effect on Atlantic’s property. Motions to dismiss by DER, DBR, and the State were denied. Volusia County’s motion for judgment on the pleadings was granted as to the breach of contract count. Atlantic’s cross-appeal regarding the final judgment dismissing Volusia County as a defendant was dismissed by this court pursuant to a motion by Volusia County. Atlantic’s subsequent petition for writ of mandamus, filed with the Florida Supreme Court, requesting that this court be directed to exercise appellate jurisdiction over this cross-appeal was denied. Atlantic International Investment Corporation v. District Court of Appeal, First District, 440 So.2d 351 (Fla.1983).

Claude and Geraldine Rosser and Max Simon, purchasers of lots in CAE, moved to intervene in the case. Their motions to intervene were granted, subject to their filing an assignment from Atlantic of its cause of action for inverse condemnation as to the lots under contract to the Rossers and Simon as of the date of the alleged taking. This assignment from Atlantic to the Rossers and Simon was subsequently filed with the circuit court. The circuit court certified the class defined as all deeded lot purchasers in CAE and all purchasers who were paying on agreements for deed in CAE and who had not been declared in default. Simon’s motion to represent the class was granted and the Rossers’ motion to represent the class was denied.

Prior to trial the lower court entered an order stating that the action regarding the taking of monies in the trust fund was abated in this action as DBR had no claim to the monies, that entitlement to the trust funds would be decided in the interpleader action in another case, and that the parties’ actions regarding the fund would not be relevant to Atlantic’s claim that lots in CAE had been “taken” in 1977. At the close of Atlantic’s case in the four day non-jury trial, DFLS & C and DBR were dismissed. Atlantic’s cross-appeal regarding the final judgment dismissing DBR as a defendant was dismissed by this court pursuant to a motion by DBR. Atlantic subsequently filed a petition for writ of mandamus with the Florida Supreme Court, requesting that this court be directed to exercise appellate jurisdiction over this cross-appeal. This petition for writ of mandamus was consolidated with the petition for writ of mandamus regarding dismissal of Atlantic’s cross-appeal against Volusia and the petitions were denied. Atlantic International Investment Corp. v. District Court of Appeal, First District, Nos. 63,175 and 63,-446 (Fla. August 3, 1983).

In a 50 page final judgment the lower court found that the “cumulative effects of the actions of the various agencies of the State” amounted to a taking as of September 1,1977 and ordered that the state institute eminent domain proceedings.

We reverse the final judgment entered below. Under the rationale enunciated in Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), Atlantic’s election to file a petition for writ of certiorari in this court in 1976 foreclosed it from proceeding with an alternative remedy in circuit court. Additionally, even if Atlantic had not made a choice of the type described in Key Haven, the judgment on appeal would be reversed because the facts do not support the trial court’s finding that there was a taking.

By contesting the validity of DER’s denial of the permit in a petition for writ of certiorari Atlantic elected the district court as the judicial forum and was thereby foreclosed from proceeding with an alternate remedy in circuit court. See Key Haven, 427 So.2d 153 (Fla.1982). Atlantic’s taking claim regarding the lots in CAE could and should have been raised in the 1976 action in this court. By proceeding in circuit court on a taking claim, after Atlantic had sought review of DER’s denial of the permit in this court and after it had entered into a stipulation and consent agreement with DER, which was approved by this court, Atlantic effectively sought to do that which is impermissible under Key Haven. Atlantic’s position at oral argument that the final executive action was the grant of a DER permit in 1977, such that the petition for writ of certiorari filed in this court was not an election of the type discussed in Key Haven, is simply not tenable. The May 1976 DER order denying the permit was clearly final agency action. Indeed, in 1976 Atlantic must have felt DER’s denial of the permit was final agency action since it sought a review thereof in this court. That the circuit court reserved jurisdiction on the taking issue in 1975 when dismissing the temporary injunction is of no consequence, especially sincé Atlantic subsequently filed a petition for writ of certiorari in this court after DER denied the permit, instead of electing to return to circuit court.

Even if Atlantic’s petition for writ of certiorari filed in this court had not been an election of the type discussed in Key Haven, the trial court erred in finding a taking because the facts herein do not support such a finding. See generally Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). Even assuming, solely for the purposes of argument, that the State is liable for the collective acts of DPC, DER, SCDD, Volusia County, and St. Johns, we conclude from the facts that there was no basis upon which to find a taking.

Although the trial court found that the cost of improvements to CAE increased, in 1977 prices, from $6,000,000 to $17,000,000 primarily because of the requirement of stabilized roads and the extra handling of materials, these increased costs of improvement cannot be attributed to DER. Stabilized roads were not required by the terms of the 1977 stipulation and consent agreement which Atlantic entered into, apparently knowingly and voluntarily, with DER. Additionally, stabilized roads were not required by DER.

Atlantic’s position that delay in the permitting process between 1971, when DPC intervened in the SCDD litigation and asserted permitting authority, and 1974 should be attributed to DER is not tenable because Atlantic did not file a permit application until September 1974. Atlantic cites Fla.Admin. Code Rule 17-4.07(2) for the proposition that DPC required it to conduct pre-application discussions with DPC prior to filing a permit application. Rule 17-4.-07(2) does not support this proposition, as it deals with applications which have been filed with DPC but which have been found to be deficient by DPC. Florida Administrative Code Rule 17-4.07(8) also does not support Atlantic’s argument. Even Fla.Admin. Code Rule 17-4.06, regarding consultations, is permissive and not mandatory. DPC’s rules did not forbid Atlantic to file an application with DPC prior to such consultation. Had Atlantic filed an application, DPC’s rules would have required an agency decision within 60 days. See Fla. Admin. Code Rule 17 — 4.07(1). If Atlantic had filed such an application and if DPC had granted the permit, Atlantic would presumably have received that which it desired. On the other hand, if Atlantic had filed such an application and DPC had denied the permit, Atlantic could have sought review of the agency action. However, Atlantic chose to wait until September 1974 to file an application. Accordingly, any delay between 1971 and 1974 regarding the permitting was of Atlantic’s own making and cannot now be attributed to DPC.

As a result of our decision that Atlantic made a Key Haven choice when it filed a petition for writ of certiorari in this court in 1976 and that there is no basis for a taking, the remaining points raised by the State and DER need not be addressed. The final judgment of the lower court is reversed with instructions to enter judgment for the State and DER.

REVERSED.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.


author: JOANOS, Judge.

text:
    Sylvester PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. AN-314.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    Rehearing Denied Oct. 27, 1983.
    Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

Appellant Sylvester Perkins appeals from a judgment based upon a jury verdict adjudging him guilty of “bail bond jumping” in violation of section 843.15, Florida Statutes, and sentencing him to prison for five years. He argues two points on appeal. We affirm on both points.

Perkins was charged with bail bond jumping after failing to appear at his trial for possession of a firearm by a convicted felon. At the bond jumping trial, the bail bondswoman testified that she bonded out Perkins and explained to him the conditions of the bond. She further stated that she talked to Perkins the day before the possession trial and told him that they had picked the jury and he was going to trial. The chief bailiff for the possession trial testified that Perkins was present for jury selection and that the judge told everyone to return at 1 p.m. the next day. He further testified that Perkins failed to appear the following day at 1 p.m., that Perkins’ wife came about 1:30 p.m., informing the court that he was on his way, that the jury was dismissed about 2 p.m., after which Mrs. Perkins went into the hallway and Mr. Perkins arrived about five minutes later. Judge Oliff questioned the bailiff regarding the instructions and events. Counsel for Perkins objected to the questioning, to which the judge replied that it was his obligation to clarify the confusion and continued to question the witness. The questioning was conducted in a manner such that it was not revealed that Judge Oliff was also the judge who presided over the possession trial. However, at the conclusion of Judge Oliff’s questioning, Perkins’ attorney orally moved to have Judge Oliff recuse himself because of the line of questioning and because Judge Oliff was the same judge involved in the earlier proceedings. The motion was denied. The state rested. Counsel for Perkins moved for judgment of acquittal which was denied. Later Perkins testified that he had been told by his attorney to be in court between 1:00 and 1:30 and that he was late because of a job interview. After the evidence was concluded, Perkins’ attorney renewed the motion for judgment of acquittal, which was denied.

In Perkins’ first point on appeal, he argues that the judge’s questioning of the bailiff, over objection, deprived him of a fair trial. We disagree. A trial judge may ask questions of witnesses and clear up uncertainties so long as the judge does not depart from neutrality. Watson v. State, 190 So.2d 161 (Fla.1966), cert. denied 389 U.S. 960, 88 S.Ct. 339, 19 L.Ed.2d 369 (1967). The questioning by the trial judge in this case cleared up the indefiniteness of the times that certain events took place. After reviewing the transcript we can find no indication that the judge’s neutrality was compromised nor was there any indication that the judge believed Perkins was guilty. Further, the questioning was done in a manner so as not to indicate to the jury that the presiding judge was the same judge that presided over the possession proceedings. But for Perkins’ attorney’s statements in the motion for recusal at the conclusion of the judge’s questioning, that revelation would not have been made to the jury.

Likewise, we cannot agree with Perkins’ second point on appeal which was that the trial court should have granted his motion for judgment of acquittal. The prosecution proved a prima facie case of guilt and the factual question of intent was properly left to the jury.

AFFIRMED.

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


author: ERVIN, Chief Judge.

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Ralph B. BARRY and Career Service Commission, Appellees.
    No. AP-268.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    Rehearing Denied Oct. 11, 1983.

      Rosa Carson, Asst. Gen. Counsel, Dept, of Corrections, Tallahassee, for appellant.
    Gene Johnson, Tallahassee, for appellee Ralph B. Barry.
    Jim Smith, Atty. Gen. and Jeffrey A. Miller, Asst. Atty. Gen., for appellee Career Service Com’n.
   ERVIN, Chief Judge.

The Department of Corrections (Department) appeals from the Career Service Commission’s (Commission) final order, pursuant to Barry’s appeal of a disciplinary action, granting a directed verdict in favor of Barry on grounds that the Department had not provided Barry with sufficient notice of the reasons for his suspension to afford him a fair opportunity to meet the charges. We do not find it necessary to discuss the five points raised by the Department. Instead, we reverse upon the sole finding that Barry waived any error based on insufficiency of notice by his failure to raise that issue to the Commission, and we conclude therefore that sufficiency of notice was an improper basis for the directed verdict.

Barry had been employed by the Department since 1972, and was serving as a security shift supervisor at the Zephyrhills Correctional Institution with permanent status in the state career service system, when he was suspended on October 20, 1981, for five work days. He received a letter from the Department, dated October 1, 1981, pursuant to Florida Administrative Code, Chapter 22A-10.041, informing him of his right to request an informal predetermination conference and advising him of the charges. Following Barry’s predetermination conference, he received a letter on October 20, 1981, notifying him of his suspension from employment, including the Department’s reasons, and of his right to take an appeal to the Commission. He then filed an appeal to the Commission in which he discussed in detail the event in question, alleging that he had made a reasonable effort to prevent a possible escape, including such factual information as the time of day, the date, and the names of persons involved. The Commission, on its own motion, granted a directed verdict in favor of Barry after receiving testimony of a superintendent with the Department who signed the letters of October 1, and October 20. The directed verdict was granted on grounds that the Department had failed to conform to applicable law, as the charges stated in the letters did not adequately apprise Barry of sufficient facts to enable him to prepare his defenses and therefore did not meet the due process requirements of section 110.227(5)(a), Florida Statutes and Fla.Admin.Code Rule 22A-10.042(3)(b).

We decline to rule on whether the letters constituted adequate notice of the charges because we find that Barry waived the right to a directed verdict on this basis. At no time after receipt of either letter, at the predetermination conference, or at the hearing before the Commission, did Barry request that the written notice be made more specific, or indicate that he was precluded from a reasonable opportunity of defending himself due to the failure of notification with reasonable certainty of the charges. See, e.g., Powell v. Board of Public Instruction of Levy County, 229 So.2d 308 (Fla. 1st DCA 1969). To the contrary, his notice of appeal to the Commission indicated his awareness of the subject of, and grounds for, the charges against him, and was an attempt to challenge the merits of the suspension on the facts. Barry did not demonstrate, nor do we find evidence in the record of, prejudice to him with respect to the notice furnished.

Accordingly, we REVERSE and REMAND this cause to the Commission for further proceedings on the merits of the disciplinary action.

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

      . This period of suspension was subsequently reduced to 10 hours.

      . The conference would not be in the nature of an evidentiary hearing, although Barry could have the assistance of counsel. The letter advised that no decision of whether or not disciplinary action would be taken until the conclusion of such conference.

      . The charges contained in the letter were as follows:
      You are being charged with permitting an inmate to escape due to negligence and failure to follow written instructions. The basis for these charges are contained in the Special Investigation report from Inspector Bill Beardsley dated September 4, 1981. This conduct violates Zephyrhills Correctional Institution Post Orders, Shift Supervisor — Evening Shift, Section I dated January 26, 1981 and Department of Corrections Rules 33-4.-02(12); 33-4.03(13) and (34), F.A.C., copies of which are attached and made a part hereof.

      . The following reasons for the suspension were stated in the letter:
      This suspension is the result of your violation of Department of Corrections Rules 33-4.-02(12); 33-4.03(13) and (34), F.A.C. and Zephyrhills Correctional Institution Post Orders, Shift Supervisor-Evening Shift, Section I dated January 26, 1981.
      The penalty for violation of the afore cited rules violations would be far more severe but we have taken into consideration your almost ten years of service with the Department of Corrections. We can appreciate your concern for the protection of the inmate informant; however, other methods could have been used to protect the informant which would not have jeopardized the security of the institution and community. As a direct result of your not having inspected the confinement cell of inmate Stanley after being advised that he was using a hacksaw blade to cut through a security bar on his window and planned to escape, he was able to escape the confines of Zephyrhills Correctional Institution and pose a real threat to the community. Your decision to wait to react to this emergency situation rather than to take steps to eliminate this possible danger was negligent.

      . Section 110.227(5)(a), Fla.Stat., provides:
      (5)(a) Any permanent career service employee who is subject to suspension or dismissal shall receive written notice of such action at least 10 days prior to the date such action is to be taken. Subsequent to such notice, and prior to the date the action is to be taken, the affected employee shall be given an opportunity to appear before the agency or official taking the action to answer orally and in writing the charges against him. The notice to the employee required by this paragraph shall be sent by certified mail....

      . Rule 22A-10.042(3) Predetermination Procedures; Notice, Form, Delivery provides:
      (3) The notice shall be signed by the person authorized to make the final decision or his/her designated representative and shall include the following:
      (a) The date the Agency proposes to take final action.
      (b) The specific charges or reasons for the action. Identification of any documents on which the charges are based shall be included. (e.s.)


text:
    TRANSGULF PIPELINE COMPANY/DEPARTMENT OF COMMUNITY AFFAIRS, and Jim Smith, Attorney General of the State of Florida, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF GADSDEN COUNTY, Florida, a political subdivision of the State of Florida, Henry Dover, and Midway Community Council, Inc., Appellees.
    Nos. AR-140 and AR-141.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 26, 1983.

      See also, 415 So.2d 1331.
    Gary P. Sams and Carolyn S. Raepple of Hopping, Boyd, Green & Sams, Tallahassee, for appellant Transgulf Pipeline Co.
    Jim Smith, Atty. Gen., John J. Rimes, III, Asst. Atty. Gen., Robert M. Rhodes, Sp. Asst. Atty. Gen., and C. Lawrence Keesey, Dept, of Community Affairs, Tallahassee, for appellants Dept, of Community Affairs and Jim Smith.
    John Shaw Curry of Johnson, Harnett, Curry & Slay, Quincy, Marva A. Davis, Quincy, and Ernest W. Welch of Welch & Monroe, Tallahassee for appellees/cross appellants Board of County Com’rs of Gadsden County, Henry Dover and Midway Community Council, Inc.
    Thomas G. Pelham of Akerman, Senter-fitt & Eidson, Tallahassee, for amici curiae, Upper Keys Citizens Ass’n, Inc. and Friends of the Everglades, Inc.
   SHIVERS, Judge.

Transgulf Pipeline Co. (Transgulf), and the Department of Community Affairs and Attorney General (State) appeal the order of the circuit court which finds section 380.-07(3), Florida Statutes (1981), facially unconstitutional based on principles of unlawful delegation of legislative power and vagueness. We reverse.

This case previously came before this court by way of petition for writ of prohibition or certiorari which this court denied in Smith v. Willis, 415 So.2d 1331 (Fla. 1st DCA 1982). The facts of this case are aptly reported in Smith v. Willis and will not be repeated here. The sole question before the circuit court following the denial of a writ in Smith v. Willis was the facial constitutionality of section 380.07(3), Florida Statutes. The challenged statute reads:

(3) Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of Chapter 120. The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.

The circuit court held that this section constitutes an unlawful delegation of power in that it allows a hearing officer from the Department of Administrative Hearings to decide whether to conduct an appeal on the record made below (the record of the local government proceeding) or to conduct a de novo hearing under section 120.57, Florida Statutes (1981). The circuit court interpreted the word “appeals,” used in the second sentence of section 380.07(3), to mean an appeal in the classic judicial sense, i.e., “an examination of the record of a lower tribunal to ascertain if its conclusions of law coincide with applicable principles of law.” The court reasoned that the legislature had provided insufficient guidelines to direct the discretion of a hearing officer in making a determination as to whether to conduct a Chapter 120 “de novo” evidentia-ry hearing or to conduct an “appeal” on the record. The circuit court also found that the provisions of section 380.07(3) are so uncertain that men of common intelligence must necessarily guess at their meaning.

As noted by counsel for amici curiae, section 380.07(3), Florida Statutes, “is hardly a model of clarity.” That fact, however, does not make the statute unconstitutional. When reviewing statutes, courts have the duty, if reasonably possible and consistent with constitutional rights, to resolve all doubts in favor of the statute’s constitutionality. Falco v. State, 407 So.2d 203 (Fla.1981). If a statute can be interpreted in a way which will uphold its constitutionality, courts must adopt that interpretation. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). This is true even where a statute is reasonably susceptible of another interpretation which would render it unconstitutional. Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979).

In the instant case, it is not necessary to interpret the word “appeals,” as used in section 380.07(3), in its most narrow, technical sense. To do so would render that section illogical since the first sentence of section 380.07(3) mandates a hearing pursuant to Chapter 120, and Chapter 120 makes no provision for an “appeal” in the technical sense. We think that the legislature intended to use this term in its broadest, non-technical sense, i.e., to mean merely an application to a higher authority. This broader interpretation is implicitly the one taken by this court in the case of General Development Corp. v. Florida Land and Water Adjudicatory Commission, 368 So.2d 1323 (Fla. 1st DCA 1979). In General Development Corp., this court interpreted section 380.07(3):

Although the above quoted subsection states that the Commission “shall encourage the submission of appeals on the record”, it requires the Commission to hold a hearing pursuant to Chapter 120. Chapter 120 contains no particular provision which relates to an appellate review proceeding by an administrative agency. Section 120.57 sets forth the procedures to be used in all proceedings in which the substantial interests of a party are determined, and these procedures should be followed in hearings on appeals to the Commission.
The items which constitute the record in Section 120.57 proceedings are specified in subsections 120.57(l)(b)5, for formal proceedings, and 120.57(2)(b), for informal proceedings. Neither of these subsections specify hearings occurring prior to the commencement of 120.57 proceedings. However, both subsections specify that the record shall include evidence .received or considered.
In agency proceedings for a rule or order, evidence that is irrelevant, immaterial, or unduly repetitious is excluded, but all other evidence, if of a type commonly relied upon, is admissible. The evidence may be received in written form and testimony shall be made under oath. Section 120.58(l)(a). A party may conduct cross-examination when testimony is taken or documents are made a part of the record. Section 120.58(l)(f).
In appropriate cases, where the testimony has been made under oath and the parties have had the right of cross-examination, the testimony and exhibits presented at the hearing before the local government should be admitted into evidence at the 120.57 hearing before the Commission. In cases where the hearing before the local government is full and complete, the record of the local government proceedings might be the only evidence that is necessary.
In the case before us, the testimony given at the hearing before the City was not made under oath and there was not an adequate opportunity for cross-examination. Under these circumstances, the hearing officer did not err in determining that the hearing on appeal from the development order would be a full eviden-tiary hearing and not submitted “on the record”. In effect, the prehearing order determined that the record of the hearing below would not be admissible as evidence.

Id. at 1325-1326. In other words, the decision to be made by the Commission or its hearing officer is not whether to conduct a de novo evidentiary hearing as opposed to a classic appellate review, but whether certain evidence is to be admitted at the Chapter 120 hearing. Viewed in this way, section 380.07(3) does not grant the Commission or its hearing officer any greater procedural discretion than that possessed by any other agency conducting a Chapter 120 hearing. Under this construction, section 380.07(3) contains sufficient procedural guidelines and is not vague.

We do not agree with appellees that “de novo” proceedings pursuant to section 120.-57 would make a mockery of the local hearing and decision-making process. Any DRI applicant who chooses to “sit out” the local decision-making process or who purposely fails to exercise procedural rights (such as cross-examination) at the local government hearing does so at his own risk. If the local government entity conducts its hearing with adequate procedural safeguards, such a hearing would presumably be considered full and complete by the Commission or its hearing officer and admitted into evidence at the section 120.57 hearing. As such, the record of the local government hearing could provide competent, substantial evidence to support findings of fact made by the Commission or its hearing officer notwithstanding other evidence which might be adduced by the applicant at the section 120.57 hearing.

Appellant Transgulf contends that the circuit court also found section 380.07(3) unconstitutional due to lack of substantive standards to guide the Commission or its hearing officer in making determinations pursuant to section 380.07. Since the substantive standards to be used in making determinations under Chapter 380 are contained in sections 380.06(8) and 380.06(11), Florida Statutes, Transgulf argues that the circuit court implicitly found those sections unconstitutional also. We find this contention without merit. The circuit court order in the instant case makes no mention of section 380.06 or any of the substantive standards contained therein. Furthermore, the decision of this court in Smith v. Willis, leaves no doubt that the only issue before the circuit court was the constitutionality vel non of section 380.07(3), Florida Statutes. Therefore, the circuit court did not err in failing to grant Transgulf relief based on its counterclaim which asserted the unconstitutionality of sections 380.06(8) and 380.06(11), Florida Statutes.

Appellees denominate as a cross-appeal their argument that the holding of the circuit court can be upheld on an alternative ground rejected by that court. We agree with the circuit court that section 380.07(3) does not violate separation of powers principles by delegating judicial powers to the executive branch in violation of article Y, section 1 and article II, section 3 of the Florida Constitution. Article II, section 3 provides that no person belonging to one branch of government should exercise any powers appertaining to either of the other branches unless expressly provided in the constitution. Article Y, section 1 expressly provides that Commissions and administrative officers may be granted “quasi-judicial” power in matters connected with the functions of their offices. Appellees argue, however, that the power of “appeal” granted to the Florida Land and Water Adjudicatory Commission under section 380.07(3) is a pure judicial function rather than a quasi-judicial function. The argument must fail since it is based on the same narrow interpretation of the word “appeal” which we have rejected supra. Nor does the use of a hearing officer to conduct a hearing and make recommended findings of fact and conclusions of law constitute a pure judicial function. See generally State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). Under Chapter 120, the final, quasi-judicial decision is made by the agency and is subject to judicial review.

Accordingly, the order of the circuit court holding section 380.07(3), Florida Statutes (1981), unconstitutional is REVERSED.

ROBERT P. SMITH, Jr. and NIMMONS, JJ., concur.


author: PER CURIAM.

text:
    Harry T. HILSMAN, Appellant/Cross-appellee, v. Barbara Paulette HILSMAN, Appellee/Cross-appellant.
    No. 82-638.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Nov. 2, 1983.
    Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant/ cross-appellee.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A. and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for ap-pellee/cross-appellant.
   PER CURIAM.

Based on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we affirm the final judgment of dissolution in all respects except for the provision which requires the former husband to maintain life insurance for the benefit of each child “during the child’s minority and through college.” (Emphasis supplied). On remand, we direct the trial court to delete the phrase, “and through college.” See Blum v. Blum, 382 So.2d 52 (Fla.3d DCA 1980); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

ANSTEAD, C.J., HURLEY, J., and WES-SEL, JOHN D., Associate Judge, concur.


author: ANSTEAD, Chief Judge. WALDEN, Judge,

text:
    J.I. CASE COMPANY, Appellant, v. STEEL FABRICATORS, INC., Appellee.
    No. 82-2531.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Nov. 8, 1983.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appellant.
    Ben J. Weaver of Weaver, Weaver & Lardin, P.A., and Russell E. Carlisle of Car-lisle & Lecates, Fort Lauderdale, for appel-lee.
   ANSTEAD, Chief Judge.

The trial court’s order striking the defensive pleadings of the appellant is hereby affirmed. A prior order prohibited any destructive testing of the material that was the subject matter of appellee’s products liability claim against the appellant. There is substantial competent evidence in the record to support the trial court’s findings that appellant willfully violated this prior order and that such violation prejudiced the appellee’s ability to prosecute its claim against the appellant.

We agree with the appellant that a trial court should be very cautious in considering matters of this kind and should reserve for the extreme case a sanction as severe as the striking of pleadings. Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980). In most instances this will involve a consideration of not only the circumstances surrounding the alleged misconduct but also a consideration of the prejudicial effect of the misconduct. It is clear that the trial court utilized such an analysis here. Given evidence to support the trial court’s determination, we are not free to substitute our opinion as to the propriety of the sanction imposed.

While affirming the trial court’s action here, we repeat our concern that the nature of the sanction imposed should be carefully tailored to the violation involved and its effects. In addition, wherever possible, a determination should be made as to whether the violation was occasioned by the conduct of the party or his attorney, and the sanctions should be imposed accordingly. While this does not mean that sanctions may not be imposed against a party because of his attorney’s misconduct, such sanctions should be avoided if the court’s purpose can be accomplished by limiting the sanctions to the person responsible for the violation.

HERSEY, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

In my opinion the sanction imposed represented an abuse of discretion because it was too severe in light of the circumstances.

I would reverse.