author: ERVIN, Chief Judge. ERVIN, Chief Judge.

text:
    Daniel PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. AT-497.
    District Court of Appeal of Florida, First District.
    May 30, 1984.
    On Rehearing Oct. 26, 1984.
    Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

This case raises the issue of which date triggers the running of the time for speedy trial — the receipt by prison officials of the capias at the institution where appellant was incarcerated, or service of the capias upon the defendant by county officials in Duval County upon his return from prison? We agree that under the provisions of Florida Rule of Criminal Procedure 3.191(a)(1), effective January 1, 1981, the applicable time began when the capias was served, and because less than 180 days had expired from such time until disposition of the charges against the appellant, the lower court correctly denied the motion for discharge. Accordingly, the judgment and sentence for the offense which appellant had sought to be discharged is affirmed.

In March, 1982, appellant escaped from the Jacksonville Correctional Institution, resulting in an information for such offense being filed and a capias issued on April 29, 1982. Later, on June 13, 1982, appellant was arrested in Dade County on charges of aggravated assault and concealment of a firearm. He was convicted of the latter offense only, and on October 19, 1982, was placed in the custody of the Department of Corrections. Receipt of the outstanding Duval capias for the offense of escape was acknowledged by Department officials on December 8, 1982, and was filed by them as a detainer. While he was still serving the Dade County sentence, the lower court ordered appellant’s return to Duval County to answer the pending escape charge, and on May 26, 1983 he was formally arrested there for such offense.

The provisions of amended Rule 3.191(a)(1), which are fully applicable to the facts before us, require that every person charged with a felony be brought to trial within 180 days without demand. Such persons include those “in custody in a jail or correctional institution of this state or a political sub-division _” (e.s.) The committee note to subsection (a)(1) states: “(1) Prisoners in Florida institutions are now treated like any other defendant [formerly (b)(1) ].” Rule 3.191(b)(1), as it existed before its amendment in 1980, generally provided that persons convicted of felonies, not involving violence, were to be brought to trial within one year, or, if the felony was a non-capital offense involving violence, within two years. Thus, the effect of the amendment was to shorten the period of time from one or two years to 180 days within which to try state prisoners, thereby making the same time periods applicable to all persons charged with felonies.

The crucial question, of course, is from what specific event does the 180-day period run? Subsection (a)(1) of the present rule states that “the time periods established by this section shall commence when such person is taken into custody as defined under (a)(4).” Subsection (a)(4), insofar as it is applicable to the facts in this case, states that a person is taken into custody when he “is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, ...” (e.s.) Significantly omitted from the provisions of (a)(4) is that language formerly contained in Rule 3.191 (b)(1) and applicable to state prisoners: “The period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment.” (e.s.) Thus, under the present provisions of the rule, the appellant could not have been considered in custody for the offense of escape until he was arrested in Duval County on May 26, 1983. Accordingly, the detainer filed with the prison officials was ineffective to commence the running of the time for speedy trial. Cf. State v. Bassham, 352 So.2d 55 (Fla.1977); State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974); State v. Lazarus, 433 So.2d 1314 (Fla. 2d DCA 1983); Gardner v. Peach, 384 So.2d 1334 (Fla. 1st DCA 1980); State v. Fives, 409 So.2d 221 (Fla. 4th DCA 1982).

Thus, the effect of the amendment is to give prisoners in Florida the benefit of the 180-day period provided to all persons arrested for non-capital felonies. If, however, the prisoner’s custody ensued from an imposed sentence, a detainer lodged at the institution resulting from the filing of a separate offense does not bring into play the running of the time for speedy trial, for the simple reason that the prisoner is not in custody as a result of the conduct giving rise to the offense which was the subject of the detainer. As such, the prisoner’s situation is analogous to one who is in custody in a county jail awaiting trial on charges arising in that county, and, while being so held, a detainer from another county is served on the custodial county’s officials. Cf. Lazarus v. State.

AFFIRMED.

BOOTH and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING

ERVIN, Chief Judge.

In his motion for rehearing, appellant correctly points out that our opinion of May 30, 1984, holding that the time for speedy trial had not run due to appellant’s incarceration in state prison, overlooked the legal effect of the arrest and booking report, disclosing that on the date of arrest appellant had been charged with escaping from the Duval County Correctional Center. As a result, he argues that because he was placed into custody for such offense, the time for speedy trial ran not from the date he was returned to Duval County from prison and there arrested, but from the date of his original arrest. We agree with his contention, grant the motion for rehearing and reverse.

The only facts in the record relating to appellant’s arrests in Miami are those recited in the arrest and booking report as ' follows:

The [defendant] subj fled into room 822 [of the Castaways Motel] after ... uniform officers and the victim pointing him out. The subject pulled a small blue steel revolver on victim. The [defendant] after running into the room ran out the back door. The [defendant] was apprehended and a 32 cal fire arm [sic] was found in the right rear pocket. The victim made a positive ID on the subj. A record check showed the [defendant] to be an escapee from Jacksonville FL verified. Subj is Fugitive From D.O.C. warrant [No.] FW753-8.

Although the record does not disclose that appellant was then actually served with the fugitive warrant, the arrest and booking report does reveal that on the date appellant was taken into custody, the following four charges were filed against him: (1) carrying a concealed weapon, (2) escaping from the Duval County Correctional Center, (3) loitering and prowling, and (4) aggravated assault.

The crucial time period for determining from what event the 180-day period begins is, as we stated in our earlier opinion, established by Florida Rule of Criminal Procedure 3.191(a)(4), providing that a person is taken into custody when he “is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, ....” We consider that if evidence exists disclosing that a person is booked into custody for a specific offense, one must presume that he was in fact arrested for that offense. Florida Rule of Criminal Procedure 3.111(c), prescribing the duties of the booking officer, i.e., the officer who commits the defendant to custody, requires him to advise the defendant immediately of his right to counsel, and, if he is unable to pay for a lawyer, that one will be provided immediately at no charge. Subsection (c) of the rule thus interacts with subsection (a)’s requirement that “[a] person [who is] entitled to appointment of counsel ... shall have counsel appointed when he is formally charged with an offense, or as soon as feasible after custodial restraint or upon his first appearance before a committing magistrate, whichever occurs earliest” (e.s.). Thus, the act of booking or placing a person into custody for an offense clearly implies that an arrest has occurred.

The record of appellant’s initial incarceration, although meager, satisfies us that he was committed into custody for the offense of escape from the Duval County Jail, notwithstanding the record’s failure to disclose that he was actually served with a fugitive warrant for that offense. As was observed by the Second District Court of Appeal in Hargrove v. State, 281 So.2d 390, 391 (Fla. 2d DCA 1973): “The important thing is whether the prisoner is held in custody on the charge in question. If he is, then the State must bring him to trial within the time allowed.” We agree that our original opinion did not consider the effect of the booking officer’s report. This case, involving an arrest report revealing that the specific charge of escape had been filed against appellant, is similar in its facts to those in Strickland v. State, 435 So.2d 934 (Fla. 1st DCA 1983), wherein the court held that the time for speedy trial began to run from the date the arrest report stated defendant had been arrested for escape in Putnam County, rather than the date a capias was later served on the defendant for such offense. Accordingly, we must conclude that the time for speedy trial on the Duval County charge of escape ran from the date appellant was taken into custody, or booked on that charge — not from the date that he was transferred from state prison to Duval County and was there formally arrested for such offense.

In saying the above, we are not unaware of our prior holding in Morris v. Nimmons, 414 So.2d 568 (Fla. 1st DCA 1982), wherein we held that the defendant, having escaped from the Jacksonville Correctional Center and arrested in Nassau County for the offenses of resisting arrest and battery on a law enforcement officer while, the officer was attempting to serve a capias issued by Duval County on the escape charge, was not entitled to the benefits of the speedy trial rule until he was returned to Duval County and arrested there on the escape charge. The facts recited in Nimmons, relating to the defendant’s arrest, appear to be even more sparse than those in the record before us, in that they are found in a stipulation agreeing that the defendant “ ‘was arrested in Nassau County pursuant to the capias, and was charged with additional law violations stemming from the arrest.’ ” Id. at 570. The court was unable to find from the record before it whether the defendant had actually been arrested on the Duval County charges at the time of the occurrence of separate offenses in Nassau County. Additionally the Nimmons opinion did not — as here — relate that the arrest and booking report disclosed that appellant had been placed into custody in the Nassau County Jail on the escape charge.

We have not overlooked the state’s argument asserting that the appellant first raised in his motion for rehearing the issue that the time for speedy trial ran from the date of his incarceration in Dade County for the offense of escape, and therefore, did not bring such issue to the attention of the trial court. As support for its position, the state refers to the following statement made by appellant’s attorney during the hearing on the motion for discharge:

An argument could be made when he was first picked up speedy trial time would begin to run, but I think the case law on that, Your Honor, is because there was pending charges down in Dade County, the speedy trial time would be tolled during that period and he could not be brought back to Duval County during those charges because the county had the right to pursue those, but once all the charges were over with and he was recommitted back to the Department of Corrections, then he was available to be brought back to Duval County, and that date was December 8, 1982.

As a result of the above representation, the state contends that appellant has waived his right to argue that the time for speedy trial began to run from the date of his arrests in Dade County. We disagree. Although appellant’s counsel erroneously stated that the time for speedy trial recommenced to run either when he was transferred to the Department of Corrections on October 19, 1982, or when the Department acknowledged receipt of the Duval County capias on December 8, 1982, the record discloses that more than 180 days had elapsed from either of those two dates when his motion for discharge was filed on June 23, 1983. Indeed, counsel never contended that speedy trial did not begin to run as of the date of appellant’s arrests in Dade County, but considered rather that the time from such arrests was tolled until the Dade C'ounty charges were disposed of. The lower court does not appear to have been under any misapprehension as to appellant’s position. In fact, the order denying the motion for discharge states:

The Defendant argues that more than 180 days have elapsed since his arrest in Dade County on June 12, 1982, the filing of the detainer with the Department of Corrections on December 8,1982, and the filing of the Information for Escape on April 29, 1982.

The lower court, however, incorrectly found that “there is nothing in the record to conclude other than that the Defendant was actually arrested on the Duval County charge of Escape at the time the Duval County authorities obtained his custody from the Department of Corrections for return.” This finding, as previously stated, was clearly refuted by the record.

Neither can appellant be said to have waived the point on appeal, which urged that the lower court erred in denying the motion for discharge on the alternative grounds that “more than 180 days had passed since the recapture of appellant for escape, the filing of the escape capias against him and his return to the custody of the Department of Corrections.”

Accordingly, we agree with appellant that the time for speedy trial began when he was placed into custody in the Dade County Jail on June 12, 1982 on the escape charge. That time having expired as of the date his motion for discharge was filed, the lower court erred in denying it.

Reversed.

ZEHMER, J., concurs.

BOOTH, J., dissents.

      . Evidence of a booking charge at the time a defendant is first placed into custody thus places this case in a different posture from those cases holding speedy trial does not begin to run from the time of the filing of a detainer in the county where the defendant is detained on other charges until he is returned to the custody of the demanding county and there formally arrested. See, e.g., State v. Lazarus, 433 So.2d 1314 (Fla. 2d DCA 1983); State v. Bassham, 352 So.2d 55 (Fla. 1977); State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974).


source: Caselaw Access Project

author: RYDER, Acting Chief Judge.

license: Public Domain

text:
    EAST NAPLES WATER SYSTEMS, INC., a Florida corporation, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, Florida, Appellee.
    No. 83-1539.
    District Court of Appeal of Florida, Second District.
    June 6, 1984.
    Rehearing Denied Sept. 13, 1984.

      James H. Siesky, P.A., Naples, for appellant.
    R. Bruce Anderson, Asst. County Atty., Naples, for appellee.
   RYDER, Acting Chief Judge.

East Naples Water Systems, Inc. (Water Systems) seeks review of a final order dismissing its suit with prejudice. We reverse.

Water Systems began operation of- its water and sewage treatment facilities in Collier County in 1975. On December 21, 1976, the Board of County Commissioners of Collier County (Collier County) enacted Ordinance No. 76-71 which was titled as follows:

An Ordinance relating to regulation of water and sewerage systems and bulk water utilities in Collier County, Florida; providing for definition of terms used in the ordinance; authorizing the Board of County Commissioners to prescribe classes and conditions of service, to set rates and charges for services, to adopt rules and regulations for administering this ordinance, to grant franchises for water and sewerage systems, to prescribe conditions for such issuance, to evaluate property for rate purposes, to inspect utility property, to modify rates and charges, to invoke penalties and revoke franchises under certain conditions; requiring furnishing of service by such utilities; prohibiting rates and charges not approved as provided in this ordinance; providing exemptions and penalties; providing that this ordinance shall be applicable to all public utilities now or hereafter operating under a franchise granted by the Board of County Commissioners of Collier County; repealing laws in conflict; authorizing the County of Collier to expend public funds for a fire hydrant system and providing for the repayment by property owners of the cost thereof; providing an effective date.

In May 1982, Water Systems filed a complaint for declaratory and/or injunctive relief. In Count I, Water Systems alleged that Ordinance 76-71 addresses three subjects, thereby violating the Florida Constitution. In Count II, Water Systems alleged that Ordinance 76-71, in its title, provides that the ordinance applies to all utilities operating under a franchise granted by Collier County; however, the terms of the ordinance “appear to be possibly applicable to non-franchised utilities.” It was alleged that the title did not sufficiently apprise the public of the purported scope of the ordinance, requiring that the ordinance be declared unconstitutional or be strictly construed to apply only to franchised utilities. In Count III, Water Systems challenged, inter alia, the “emergency” enactment of the ordinance. Water Systems alleged that no emergency actually existed. In Count IV, Water Systems alleged that Collier County “has, by inaction, unconstitutionally delegated its legislative authority to its Utility Director” and has failed to prescribe reasonable rules, regulations and procedures for franchise applicants.

In November 1982, the trial court ordered Water Systems to apply to Collier County for a rate increase, and ordered Collier County to hold a hearing and set Water Systems’ “final rates.” The court added that “the authority to set rates and collect revenues for utility services shall not be denied on the ground that the Board of County Commissioners has not previously granted a written franchise to the utility or to any of its predecessors.” It was noted by the court that neither the rate increase proceedings nor the court’s order shall be construed so as to prejudice Water Systems or waive Water Systems’ rights to challenge Ordinance 76-71, or the applicability of the ordinance to Water Systems.

Collier County issued its water and sewer rate order concerning Water Systems in December 1982. No appeal was taken from that order.

In May 1983, Collier County filed a motion to dismiss Water Systems’ complaint stating: “That the issue of the constitutionality of County regulation raised in Plaintiff Utilities Complaint is now moot, inasmuch as Plaintiff’s application for review of its water and sewer rates was acted upon by the County on December 20, 1982, and Plaintiff has not appealed the County’s decision.”

After the trial court granted Collier County’s motion to dismiss with prejudice, this appeal was filed.

Initially, we note that the validity of an ordinance may be tested in an action for declaratory relief. Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980); City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla. 3d DCA 1965). Of course, the question raised must be “real and not theoretical” and the party raising it must have “a bona fide and direct interest in the result.” City of Naples Airport Authority v. City of Naples, 360 So.2d 48 (Fla. 2d DCA 1978). The party raising the question also must have an actual, present and practical need for the declaration. May v. Holley, 59 So.2d 636 (Fla.1952); Floyd v. Guardian Life Insurance Company of America, 415 So.2d 103 (Fla. 3d DCA 1982); Grable v. Hillsborough County Port Authority, 132 So.2d 423 (Fla. 2d DCA 1961).

Appellant’s action for declaratory judgment seeks a declaration concerning the constitutionality of Ordinance 76-71 and a declaration of whether Collier County has the power to regulate appellant’s rates. In testing the sufficiency of a complaint for declaratory judgment, the merits of a claim are not to be weighed; rather, the question before a trial court is whether the plaintiff is entitled to a declaration of rights at all. Tavares v. Allstate Insurance Co., 342 So.2d 551 (Fla. 3d DCA 1977); Jezek v. Vordemaier, 227 So.2d 69 (Fla. 4th DCA 1969); Hankins v. Title and Trust Company of Florida, 169 So.2d 526 (Fla. 1st DCA 1964).

Water Systems is entitled to proceed with its action for declaratory relief if only because the action would determine whether Water Systems is subject to the jurisdiction of the Board of County Commissioners of Collier County. While it is possible that appellant will not prevail on the merits of the complaint, the merits have not yet been addressed and cannot be addressed on the motion to dismiss which was before the trial court. On a motion to dismiss, the trial court looks to the four corners of the complaint; consideration of matters not disclosed by the complaint or by a prior pleading is reversible error. Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So.2d 857 (Fla. 2d DCA 1975); H.E. Temples v. Florida Industrial Construction Co., Inc., 310 So.2d 326 (Fla. 2d DCA 1975).

We have considered the argument that this case is moot because Water Systems submitted a rate request to the Board of County Commissioners of Collier County. That argument is without merit. In his November 1982 order, the trial judge acknowledged that- the rate application would not prejudice Water Systems nor waive Water Systems’ rights to challenge Ordinance 76-71 or its applicability to Water Systems. In fact, there was no waiver of rights and the submission of the rate request and the decision not to appeal the County’s order on the request were not admissions of Collier County’s jurisdiction over Water Systems. The doctrine of mootness does not support the dismissal below. See Ervin v. Capital Weekly Post, Inc., 97 So.2d 464 (Fla.1957).

Collier County also has argued to this court that Ordinance 76-71 has been superceded (insofar as regulation of Water Systems’ rates is concerned) by Ordinance 83-18. The County submits that enactment of the new ordinance highlights the mootness of the present dispute. This issue was not presented to the trial court and will not now be considered by this court. Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Lipe v. City of Miami, 141 So.2d 738 (Fla.1962). See Department of Revenue v. Joanos, 364 So.2d 24 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 467 (Fla.1979).

We REVERSE the trial court’s order dismissing the complaint. This case is REMANDED to the trial court for further proceedings consistent herewith.

SCHOONOVER and LEHAN, JJ., concur.


author: LEHAN, Judge.

text:
    ONE 1978 GREEN DATSUN PICKUP TRUCK, VIN HL620262180, TAG NO. WPN-271, and James Bryan Kruysman, Appellants, v. STATE of Florida, ex rel. MANATEE COUNTY for the Use and Benefit of the MANATEE COUNTY SHERIFF’S DEPARTMENT, Appellee.
    No. 83-2277.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.
    Terence Matthews, Bradenton, for appellant.
    No appearance for appellee.
   LEHAN, Judge.

This proceeding for the forfeiture of an automobile, pursuant to section 932.704, Florida Statutes (1981), resulted in a final judgment releasing the automobile to its owner. The owner appeals from the trial court’s refusal to award him the amount of storage fees as costs. We reverse.

We have not been provided with an argument by appellee in this matter which involves the often murky subject of governmental forfeiture proceedings. However, appellant has called to our attention a Fourth District Court of Appeal case which did not award storage fees as costs to a prevailing vehicle owner under somewhat similar circumstances. City of Pompano Beach, Broward County, Florida, for the use and benefit of the Pompano Beach Police Department, 352 So.2d 138 (Fla. 4th DCA 1977). The court in that case labeled forfeiture proceedings as “quasi-criminal” in nature and found that section 939.06, Florida Statutes (1975), authority for an award of costs to an acquitted or discharged criminal defendant, did not justify an award of storage fees as costs to the prevailing vehicle owner although the court’s opinion recognized the owner’s right to recovery of those fees upon seeking “a proper remedy.” Id. at 139. However, subsequent to City of Pompano Beach, the Fourth District characterized forfeiture proceedings as “essentially civil in nature and, therefore ... governed by the rules of civil procedure.” In re Forfeiture of Approximately $48,900 in U.S. Currency and Other Personal Property, 432 So.2d 1382, 1385-86 (Fla. 4th DCA 1983). See In re Forfeiture of One Hyd-roste Boat, 442 So.2d 1088 (Fla. 2d DCA 1983) (suggesting that one claiming an interest in seized property should file a responsive pleading in accordance with Florida Rule of Civil Procedure 1.140); In re Forfeiture of United States Currency in the Amount of $5,300, 429 So.2d 800 (Fla. 4th DCA 1983) (the rule to show cause should require parties claiming an interest in seized property to file a responsive pleading which should include any affirmative defenses, as provided by Florida Rule of Civil Procedure 1.110(c) and (e)).

We agree with the Fourth District in City of Pompano Beach that a vehicle owner who successfully defends a forfeiture proceeding has a right to claim storage fees and that the “government must properly seize and store the automobile or [upon improper seizure] pay the ... storage costs ... incurred_” 352 So.2d at 139. We do not agree, however, that the prevailing owner must seek another remedy for the recovery of storage fees. Considering fairness to the vehicle owner and judicial economy, there should be no necessity for another legal proceeding for that purpose.

Our conclusion is consistent with the foregoing characterization of forfeiture proceedings as civil in nature and with section 57.041, Florida Statutes (1981), providing for the award of legal costs and charges to the prevailing party. Section 932.704(3) refers to storage fees in forfeiture proceedings in the context of costs.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

RYDER, A.C.J., and SCHOONOVER, J„ concur.


author: PER CURIAM.

text:
    MIRASOL INTERNATIONAL, INC., Petitioner, v. Annette HINER, etc., Respondent.
    No. 84-1192.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.
    Lewis F. Collins, Jr. and Claire L. Hamner of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for petitioner.
   PER CURIAM.

Petition for writ of certiorari denied in that petitioner has an adequate remedy by appeal after final judgment. See United States Fidelity & Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981).

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


author: GRIMES, Judge.

text:
    Richard VAN DUSEN and Mary Van Dusen, his wife, Appellants, v. Virgil P. DOBSON and Opal Dobson, his wife, Appellees.
    No. 83-1625.
    District Court of Appeal of Florida, Second District.
    June 13, 1984.
    William S. Jonassen, Indian Rocks Beach, for appellants.
    Jonathan L. Alpert and Jacalyn N. Kolk of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Alex D. Finch, Clearwater, and Maxwell G. Battle, Jr., Tampa, for appellees.
   GRIMES, Judge.

The plaintiffs (appellants) sued for damages to their swimming pool which resulted after defendants (appellees) raised their immediately adjacent property by about six feet in the course of building a residence thereon. Two of plaintiffs’ experts testified that the addition in vertical distance between the properties increased the underlying ground water pressure to the extent that it cracked the side of the plaintiffs’ nearby swimming pool. By comparing previous topographical surveys with the existing site, one of these witnesses estimated that the defendants must have utilized approximately six hundred cubic yards of fill in the construction of their residence even though their variance permit had authorized only two hundred fifty cubic yards. Thus, while the testimony was conflicting, there was competent substantial evidence of the defendants’ unreasonable use of their property to the detriment of their neighbors. See Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (1917) (upholding a cause of action against the defendant’s unreasonable use of its property which resulted in raising the water table on the plaintiff’s land). The court erred in granting the defendants’ motion for judgment in accordance with motion for directed verdict.

We reverse the judgment for defendants and direct that the $16,900 jury verdict be reinstated. Upon remand, the trial judge may rule on the pending motion for new trial.

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

      . It would have been preferable for the judge to have ruled on the motion for new trial at the same time as he granted the defendants’ other motion. Navarro v. City of Miami, 402 So.2d 438 (Fla. 3d DCA 1981). If he had granted a new trial, the priority of that order could have been tested on this appeal, whereas in the event of a subsequent order granting a new trial, the plaintiffs will be entitled to another appeal. Fla.R.App.P. 9.110(a)(3).


author: SCHOONOVER, Judge.

text:
    Douglas Gordon ATKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1597.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.
    Douglas Gordon Atkinson, pro se.
    Jerry Hill, Public Defender, and Robert L. Williams, Jr., Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Douglas Gordan Atkinson, has appealed from convictions for solicitation of theft, conspiracy to commit armed burglary, and armed burglary. We agree with his contention that the ten year , sentence imposed for conspiracy to commit armed burglary was improper.

The appellant was sentenced on June 30, 1983. At that time, conspiracy to commit a burglary of any degree constituted a third degree felony punishable by a term of imprisonment not exceeding five years. §§ 777.04(4)(e), 810.02(2), 775.-082(3)(d), Fla. Stat. (1981); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982); Crook v. State, 385 So.2d 1136 (Fla. 1st DCA 1980); Williams v. State, 386 So.2d 631 (Fla. 2d DCA 1980); McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979). Although section 777.04(4)(c), Florida Statutes (1983), was amended in 1983, said amendment did not go into effect until October 1, 1983. We must therefore vacate the sentence for conspiracy to commit armed burglary and remand for proper sentencing.

Additionally, the trial court adjudged the appellant insolvent. Thereafter, the court assessed costs against appellant in the amount of $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). Appellant was not given adequate notice of, nor afforded an opportunity to object to, this assessment. Jenkins v. State, 444 So.2d 947 (Fla.1984). Accordingly, we hereby strike these costs. This decision is without prejudice to the trial court assessing costs against the appellant in accordance with Jenkins.

We find no merit in appellant’s other contentions and accordingly affirm in all other respects.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING.

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


text:
    In re Trust Under WILL OF Louis J. MARTELL, Deceased.
    No. 83-1989.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.
    Rehearing Denied Aug. 3, 1984.

      David A. Yukelja of Coble, McKinnon, Rothert, Barkin, Vukelja & Godbee, P.A., Daytona Beach, for appellants.
    Wm. Fletcher Belcher, St. Petersburg, and William Griffin of Law Offices of Stone & Griffin, St. Petersburg, for appel-lee.
   GRIMES, Judge.

This case examines the law applicable in construing the terms and provisions controlling the ultimate determination of trust beneficiaries under a testamentary trust.

Louis J. Martell executed his will on July 31, 1970. Article 4 of the will created a testamentary trust which named eight beneficiaries, including Arthur J. Landry. The trust generally provided for the payment of income to each beneficiary until the youngest attained age forty, at which time the remaining assets of the trust were to be distributed in equal shares to the eight beneficiaries and the trust was to terminate. The trust also contained the following provision:

In the event any of the before named remaindermen shall not be living at the time of the distribution of the trust assets, his or her share shall pass to his or her issue per stirpes. Should any of the before named remaindermen not be living at the time of distribution and not have issue surviving him or her, his or her share shall be divided proportionately among the remaindermen then surviving and those remaindermen deceased with issue living at that time.

Louis J. Martell died on November 20, 1971. At the time of his death Arthur J. Landry was alive as were his three children,' Jeanne Thompson McEwen, Louis Landry, and Patricia Bruback. Jeanne Thompson McEwen had a minor child, born on October 19, 1970, named Robert Phillip McEwen, II. This child was “adopted away” on December 28, 1971, and his name was changed to Brice Robert Bishop. Jeanne Thompson McEwen died on February 5, 1974.

Arthur J. Landry died on April 25, 1979. On May 7, 1981, the youngest of the named trust beneficiaries attained age forty, resulting in the termination of the trust. As of that date, Arthur J. Landry was survived by his two remaining children, Louis Landry and Patricia Bruback, and his adopted away grandson, Brice Robert Bishop.

The Royal Trust Bank of Florida, N.A., as trustee, filed a petition in the circuit court for determination of remainder beneficiary. The issue presented was whether Brice Robert Bishop was entitled to a one-third interest of the one-eighth share of the trust estate to be distributed to the issue of Arthur J. Landry, per stirpes. The trial court, after hearing, determined there was no factual dispute and held that Brice Robert Bishop, Louis Landry, and Patricia Bru-back were each entitled to a one-third interest of the one-eighth share of the trust estate. Louis Landry and Patricia Bruback prosecute this appeal.

At the time of the execution of the will, at the time of the creation of the testamentary trust, and at the time of the adoption of Brice Robert Bishop, an adopted away child inherited from his natural kindred. § 63.151 and § 731.30, Fla.Stat. (1971). In 1973, however, the legislature changed the law relating to the effect of adoption. See Ch. 73-159, § 17, Laws of Fla. Under the laws in effect at the time of the termination of the trust, an adopted away child did not inherit from his natural kindred. Section 63.172, Florida Statutes (1979), provides in pertinent part:

(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
(b) It terminates all legal relationships between the adopted person and his relatives, including his natural parents, except a natural parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship. (Emphasis supplied.)

Therefore, in determining whether Brice Robert Bishop was entitled to share in the proceeds of the trust estate, we must first decide the date which controls the application of the law.

Generally, courts look to the law in effect when a testamentary trust terminates rather than the law at the time the will was written or when the testator died to determine whether an individual comes within a class of remaindermen designated by will to take at the expiration of an intermediate or life estate. Haskell v. Wilmington Trust Co., 304 A.2d 53 (Del.1973); Breckinridge v. Skillman’s Trustee, 330 S.W.2d 726 (Ky.1959); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo.1958); In Re Sollid, 32 Wash.App. 349, 647 P.2d 1033 (1982); Wheeling Dollar Savings & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977); Annot., 139 A.L.R. 1111-1117 (1947); Annot., 79 A.L.R.2d 1453 (1961); 80 Am.Jur.2d Wills § 1422 (1975); 96 C.J.S. Wills § 695(5)e (1957). See also Lewis v. Green, 389 So.2d 235 (Fla. 5th DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981), where the court in dicta stated that the law in effect when the trust terminates will control the ultimate determination of the trust beneficiaries. Contra Warner v. First National Bank of Atlanta, 242 Ga. 661, 251 S.E.2d 511 (1978); Wallace v. Noland, 246 Ill. 535, 92 N.E. 956 (1910).

Notwithstanding, our first inclination was to select the date of Louis Mar-tell’s death as controlling because this was when the testamentary trust became effective. Sternberg v. Florida National Bank of Jacksonville, 114 Fla. 580, 154 So. 844 (1934). Though he may not have had any reason to consider it, the testator could be presumed to know that as of that date an adopted away child was still an heir of his natural parents and therefore a potential beneficiary under the trust. Yet, the testator must also be presumed to know that the law concerning inheritance by adopted children was subject to change, and he selected the date when the youngest named beneficiary reached forty years of age as the date upon which the beneficiaries were to be determined. By that time the legislature had decided as a matter of public policy that the inheritance of those who were natural heirs should not be diminished at the expense of one who is also entitled to inherit from his adoptive parents. Therefore, we hold that the controlling date for purposes of selecting the applicable law was May 7, 1981, the date upon which the trust terminated and the beneficiaries were determined.

Pursuant to section 63.172(l)(b), Florida Statutes (1979), the testator could have insured the inclusion of an adopted away child by making an appropriate reference in the provisions of the trust. Having failed to do so, the statute must be applied as written and Brice Robert Bishop is a stranger to his former relatives for all purposes including inheritance. Thus, he cannot inherit from the trust as a lineal descendant or issue of his natural grandfather, Arthur J. Landry.

The rationale set forth in Lewis v. Green, 389 So.2d 235 (Fla. 5th DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981), in support of an adopted child’s participation in the probate estate of his adopted parents is equally applicable in denying Brice Robert Bishop’s participation in the subject testamentary trust:

The better view is that adopted children are the issue and the lineal descendants of their adopting parents for the purposes of inheriting under a will, or trust instrument. In re Clancy’s Estate, 159 Cal.App.2d 143, 323 P.2d 763 (2d DCA 1958); Merson v. Wood, 202 Va. 485, 117 S.E.2d 661 (1961); In re Will of Henderson, 64 Misc.2d 280, 314 N.Y.S.2d 766 (N.Y. Surrogate 1970); In re Thompson, 53 N.J. 276, 250 A.2d 393 (1969); In re Trusts Created Under Will of Adler, 30 Wis.2d 250, 140 N.W.2d 219 (1966). Courts look to the law of the applicable state at the time of termination of the prior life estate rather than the law at the time the will was written, or when the testator died, to determine the testator’s intent to include or exclude adopted children. In re Estate of Moulton, 62 Cal.App.2d 1, 133 Cal.Rptr. 500 (4th DCA 1976). The explanation offered is that the testator must have known the laws of descent and inheritance would change over the duration of a long term trust.
In Florida, the legislature substantially revised the laws concerning adoption in current years. An adopted child is no longer the “heir” or “descendant” of the natural parent. The adopted child is transformed by legislative fiat to become the heir, issue and descendant of the adopting parent as well as the other members of the adopting family.

Id. at 241.

Moreover, we find section 63.172, Florida Statutes (1979), is not unconstitutional as applied to the instant case. A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. A substantive, vested right is an immediate right of present enjoyment, or a present fixed right of future enjoyment. City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935); Division of Workers Compensation v. Brevda, 420 So.2d 887 (Fla. 1st DCA 1982). To be vested, a right must be more than a mere expectation based on anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand. Division of Workers Compensation v. Brevda. At the time .of Brice Robert Bishop’s adoption, his expectancy to share in the remaining assets of the trust was most uncertain. Upon termination of the trust, he would share in the proceeds only if he survived his natural grandfather and mother. This mere possibility of sharing in the trust proceeds in the future is hardly an interest of such substance as to be entitled to constitutional protection.

In reaching our decision we note apparent conflict with the holding of our sister court in Green v. Quincy State Bank, 368 So.2d 451 (Fla. 1st DCA 1979). In that case the trustor executed an inter vivos irrevocable trust on December 26, 1956. The trust instrument provided, among other matters, that if the trust beneficiary should die before attaining the age of forty years, the trust assets would be divided in equal shares, one share to each of his living children and one share to his surviving widow. The trust beneficiary had three children, one of whom was adopted away on February 17, 1972. The trust beneficiary died on June 9, 1977, prior to having attained the age of forty years, and was survived by a wife and three children (including the child who had been adopted away).

Under the law in effect at the time of the creation of the irrevocable trust, and at the time of the adoption, an adoptee inherited from his natural parents as well as his adoptive parents. Under the law in effect at the time of the termination of the trust, an adoptee no longer inherited from his natural parents. The First District Court of Appeal held that the determination of who would constitute a living child of the trust beneficiary under the terms of the irrevocable trust agreement must be determined by the law in effect when the agreement was executed. In refusing to apply the new law which had become effective by the time that the trust terminated, the court stated:

While it is true that each person is presumed to know the law, it may not be logically concluded that one is presumed to know that the Legislature will change a law dealing with the meaning of a sentence or clause contained in an irrevocable trust agreement. We do not perceive that the Legislature intended that the provisions of Chapter 73-159, Section 17 would have retroactive application. We base that conclusion upon the subsequent provision contained in Section 22 of said chapter that “any adoption made before the effective date of this act shall be valid, and any proceedings pending on the effective date of this act are not affected.”

368 So.2d at 453.

We cannot agree with the court’s reasoning in Green that section 22 precludes the application of section 17. Chapter 73-159, Laws of Florida, constituted a complete revision of section 63.011 through 63.291, Florida Statutes (1971). The plain meaning of section 17 was that all prior legal relationships between the adopted person and his natural relatives were to be terminated. Section 22 was merely intended to.protect the validity of prior adoptions effectuated by former lawful procedures.

In summary, we hold that the law in effect when the Martell trust terminated controls the ultimate determination of trust beneficiaries. Since section 63.172, Florida Statutes (1979), was the law in effect when the testamentary trust terminated, Brice Robert Bishop was not entitled to a share in the trust assets which were to be distributed to his natural grandfather, Arthur J. Landry, per stirpes. Accordingly, the decision of the trial court is reversed.

BOARDMAN, A.C.J., and DANAHY, J., concur.

      . Chapter 73-159, § 17, Laws of Florida, provides:
      Section 17. Effect of judgment of adoption.—
      (1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
      (a) It relieves the natural parents of the adopted person, except a natural parent who is a petitioner, of all parental rights and responsibilities; and
      (b) It terminates all legal relationships between the adopted person and his relatives, including his natural parents, except a natural parent who is a petitioner, so that the adopted person thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship; and
      (c) It creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a legitimate blood descendant of the petitioner. This relationship shall be created for all purposes, including inheritance and applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.
      (2) If a parent of a child dies without the relationship of parent and child having been previously terminated and a spouse of the living parent thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption.
      This statute with slight variation appears as section 63.172, Florida Statutes (1979).

      . Chapter 73-159, § 22, Laws of Florida, provides:
      Section 22. Effect on prior adoption proceedings. — Any adoption made before the effective date of this act shall be valid and any proceedings pending on the effective date of this act are not affected thereby.
      This provision appears as section 63.222, Florida Statutes (1979).


text:
    Lee SWENSEN and Respiratory Equipment Leasing and Sales Service Corporation, Appellants, v. J. Allen LOFTON and Judith A. Lofton, individually, and doing business as J.A. Lofton Interiors, Appellees.
    No. 83-2517.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Daniel D. Peck of Peck & Peck, Naples, for appellants.
    Michael R.N. McDonnell of McDonnell, Buckel & Berry, Naples, for appellees.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

The opinion of the Court dated May 25, 1984, is withdrawn, and the following opinion is substituted therefor.

This is an interlocutory appeal from an order granting a' temporary injunction brought pursuant to Rule of Appellate Procedure 9.130(a)(3)(B). We agree with appellants’ contention that appellees’ application for temporary injunction is insufficient because it fails to set forth clearly, definitely and unequivocally sufficient factual allegations to support appellees’ conclusion of “irreparable damage” necessary to warrant intervention of a court of equity. Cramp v. Board of Public Instruction of Orange County, 118 So.2d 541 (Fla.1960); F.V. Investments, N.V. v. Sicma Corp., 415 So.2d 755 (Fla. 3d DCA 1982); Quadomain Condominium Association v. Pomerantz, 341 So.2d 1041 (Fla. 4th DCA 1977); First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla. 2d DCA 1963). For this reason we conclude that the temporary injunction was improperly entered. Accordingly, we reverse the order with directions to dissolve the temporary injunction issued pursuant to such application.

Additionally, we note that the order as rendered is improper and provides an additional ground for reversal because it lacks any specific reasons for entry of the temporary injunction as required by Florida Rule of Civil Procedure 1.610(d). F.V. Investments, N.V. v. Sicma Corp.; Seashore Club of Atlantic City v. Tessler, 405 So.2d 767 (Fla. 4th DCA 1981). We further note that earlier in these proceedings this court entered an order striking this point from our consideration. Our order was predicated upon the parties’ assertions that a transcript and an amended order with specific findings of fact would be provided to this court and that, therefore, this issue would be moot. However, neither the transcript nor such an amended order was ever presented to this court. Therefore, we are unwilling to use the error of the defective order as an additional ground for reversal because of our prior ruling in this case. The motion for rehearing and clarification is granted to the extent of this opinion and otherwise denied.

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


text:
    Eurich Zwingli GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 84-837.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Rehearing Denied Sept. 19, 1984.

      A. Broaddus Livingston, John W. Boult and Eurich Z. Griffin of Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Petitioner seeks a writ of certiorari to review the circuit court’s affirmance of the county court’s conviction and sentencing of petitioner for being in actual, physical control of a motor vehicle while under the influence of alcohol, a violation of section 316.193(l)(a), Florida Statutes (1982). The county court revoked petitioner’s driver’s license for six months pursuant to section 322.28, Florida Statutes (1982). We deny the petition.

The evidence established that at approximately 2:30 a.m., a police officer found petitioner in the driver’s seat of a car which was stationary in a traffic lane facing in a direction opposite to that in which traffic was to flow. The engine was stopped, the key was in the ignition, the lights were on, and the footbrake apparently was depressed by petitioner’s foot, as indicated by the illumination of the rear brake light on the car. Petitioner was, or appeared to be, asleep. The brake light went off when the petitioner got out of the car after the arresting officer shook him to awaken him. Petitioner does not take issue with the sufficiency of the evidence on the basis of which the jury found him to be under the influence of alcohol. The issues presented to us principally involve the definition of “in actual, physical control” under section 316.193(l)(a), whether petitioner was in actual, physical control of the car, and, if so, whether his license was properly revoked under section 322.28.

We do not find merit in petitioner’s argument that the trial court incorrectly instructed the jury on the definition of “actual, physical control.” The instruction was the same as that found in Florida Standard Jury Instructions in Misdemeanor Cases (1981 ed.) which were approved by the Florida Supreme Court as guidance for trial courts. In re Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).

We do not find merit in petitioner’s arguments concerning error in the failure of the county court to declare a mistrial.

Also, we find no error in the denial of petitioner’s motions for judgment of acquittal and for a new trial. We disagree with petitioner’s argument that he was not in actual physical control of the car. Apparently the brake light, which was illuminated when the officer approached the car, went off when petitioner got out of the car. That is circumstantial evidence that petitioner was, in fact, exercising control over the vehicle. Furthermore, even without the evidence as to the brake light, there was circumstantial evidence that petitioner had operated the vehicle on the public street. See State v. Eckert, 186 Neb. 134, 181 N.W.2d 264, 268 (1970). In addition, the reasoning of the factually similar case of Hughes v. State, 535 P.2d 1023 (Okla.Crim.App.1975), is persuasive. In Hughes, defendant was found sitting in the driver’s seat of an automobile which was parked at a ninety-degree angle in the road. Although the engine was not running, the key was in the ignition. The Oklahoma Appellate Court used a definition of “actual physical control” as encompassing control which “meant the ‘ability to keep from starting/ ... ‘to exercise directing influence over/ and ‘the authority to manage’.” Id. at 1024. This is similar to the foregoing Florida Standard Jury Instruction saying that “[defendant must have had the capability and power to dominate, direct or regulate the vehicle, regardless of whether or not he is exercising that capability or power at the time of the alleged offense.” The following statement of the Oklahoma court reflects our conclusions:

We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle'and could have at any time started the automobile and driven away. He therefore had “actual physical control” of the vehicle within the meaning of the statute.

Id.

We believe the intent of the Florida legislature was similar to that which the Hughes court attributed to the Oklahoma legislature, to wit:

that the legislature, in making it a crime to be in “actual physical control of a motor vehicle while under the influence of intoxicating liquor,” intended to enable the drunken driver to be apprehended before he strikes.

Id.

Petitioner argues that affirmance of his conviction might discourage inebriated drivers from pulling over to “sleep it off.” We, of course, agree that such conduct should be encouraged. However, petitioner was found in his car in the middle of the road, and, as the Minnesota Supreme Court said in State v. Juncewski, 308 N.W.2d 316, 320 (Minn.1981) (quoting State v. Ghylin, 250 N.W.2d 252 (N.D.1977), “the real purpose of the statute is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” See State v. Schuler, 243 N.W.2d 367 (N.D.1976).

Finally, we conclude that petitioner’s sentence which in part revoked petitioner’s driver’s license for six months was correct. Section 322.28 provides that revocation of a driver’s license is a penalty for the offense of driving a motor vehicle while under the influence of alcoholic beverages. Section 316.193 defines that offense as including being in the actual physical control of a motor vehicle while under the influence of alcoholic beverages when affected to the extent that one’s normal faculties are impaired.

We find no error, certainly no error constituting a miscarriage of justice, and therefore deny the petition. See Combs v. State, 436 So.2d 93 (Fla.1983).

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


author: RYDER, Chief Judge.

text:
    STATE ex rel. Alfonso CORTEZ, Petitioner, v. The Honorable E. Randolph BENTLEY, as Circuit Judge of the Tenth Judicial Circuit of the State of Florida, Respondent.
    No. 84-937.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.

      Robert Lee Dennis of Dennis & Dunn, Okeechobee, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee and Gary 0. Welch, Asst. Atty. Gen., Tampa, for respondent.
   RYDER, Chief Judge.

Petitioner seeks a writ of certiorari, or in the alternative, a writ of mandamus commanding the trial court to show cause and to appoint counsel at public expense to represent the petitioner during his appeal of the trial court’s denial of his motion to vacate judgment and sentence. Fla.R. Crim.P. 3.850.

Mandamus denied. A writ of mandamus “is by nature a discretionary writ which issues only upon the showing of a clear legal right in the relator to the performance of an indisputable legal duty by the respondent.” State ex rel. Eichenbaum v. Cochran, 114 So.2d 797, 800 (Fla.1959). See also Heath v. Becktell, 327 So.2d 3, 4 (Fla.1976). The writ is used to enforce “a clear legal right to the performance of clear legal duty rather than to establish such a right.” State v. Gamble, 339 So.2d 694, 695 (Fla. 2d DCA 1976).

Certiorari denied. See Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979) and Hooks v. State, 253 So.2d 424, 426 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972).

SCHEB and OTT, JJ., concur.


text:
    Versia POLLARD and Dock Pollard, Appellants, v. ALLSTATE INSURANCE COMPANY and Sears Roebuck & Co., Appellees.
    No. 83-2413.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Rehearing Denied Aug. 24, 1984.
    Ronald H. Trybus of Tindall & Trybus, Tampa, for appellants.
    Timothy F. Prugh and Danell DeBerg of Prugh & Rywant, Tampa, for appellees.
   PER CURIAM.

Affirmed. See Bates v. Winn-Dixie Supermarkets, Inc., 182 So.2d 309 (Fla. 2d DCA), cert. denied, 188 So.2d 813 (Fla.1966).

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


author: JOANOS, Judge.

text:
    Sammie Lee DAVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AU-402.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    William F. Kachergus of Maness & Ka-chergus, Jacksonville, for appellant.

      Joseph W. Lawrence, Dept, of Professional Regulation, Tallahassee, for appel-lee.
   JOANOS, Judge.

Sammie Lee Davis appeals from a final order of the State of Florida Department of Professional Regulation, Board of Funeral Directors and Embalmers, which revoked his license as a funeral director and embalmer. The question before us is whether appellant, in accepting a position as manager of a funeral home during a period when his license was suspended, was lawfully determined to have violated Sections 470.-031(l)(e) and 470.036(l)(i), Florida Statutes. We conclude that he was not.

Appellant had been involved in the funeral business since 1932, receiving a license to embalm in July 1945, and a license to serve as funeral director in July 1947. On March 27, 1980, appellant’s dual license was suspended for one year, and on April 1, 1981, he was issued probationary licenses for a three year period. The suspension and probation followed appellant’s conviction on federal charges of cashing two social security checks for families of deceased persons. On the conviction, he served four months and 17 days in the federal correctional system.

Before appellant went to prison, Rogers, a witness arid complainant in this license-revocation proceeding, asked appellant to work for him when his sentence was completed. • Pursuant to this job offer, appellant was employed by Rogers from June 1980 until March 1982. Testimony was presented and the hearing officer found, that the job offer was predicated on Rogers’ desire to capitalize on appellant’s popularity with the black community. Complainant Rogers acknowledged that his business increased from $70,000 earned in the quarter before appellant went to work for him to $146,791 earned in the first quarter of 1982, when appellant was working for him. Rogers fired appellant in March 1982.

On August 19, 1980, in an effort to comply with the requirements of the Board during his license suspension, appellant notified the Board that he was working for Rogers’ Mortuary. No action was taken by the Board in response to appellant’s letter. At the hearing, appellant testified that he filed no further reports with the Board because Rogers told appellant that as appellant’s employer, he (Rogers) had the responsibility of filing the reports.

On March 11, 1982, Rogers filed a criminal complaint charging appellant with grand theft. It was this complaint that initiated an investigation and the proceedings which culminated in revocation of appellant’s license. The grand theft charges filed against appellant were eventually dropped by the state attorney’s office.

With regard to the operation of the mortuary business, it was uncontroverted that appellant did no embalming. The testimony that appellant engaged in directing funerals came only from Rogers, the complainant. However, there was testimony that indicated that patrons of the mortuary felt that appellant was making all the arrangements for certain funerals.

In its final order dated August 17, 1983, the Board dismissed Counts One and Two of the Administrative Complaint; but found that appellant had violated Sections 470.-031(l)(e) and 470.036(l)(i), Florida Statutes as charged in Count Three. Appellant’s dual license to practice the profession of funeral directing and embalming was revoked and he was fined $500.

Count Three of the Administrative Complaint, the only count which the board found appellant had violated, charged: (1) that on or about March 27, 1980, the Board had suspended appellant’s license for one year and placed him on three years probation following the license suspension; (2) that appellant became manager of a funeral home while his license was suspended; and (3) that based upon the foregoing, appellant had violated Sections 470.031(l)(e) and 470.036(l)(i), Florida Statutes.

This case points up the tension between the strict construction required in a license revocation proceeding and the deference an appellate court is called upon to accord administrative findings of fact. Cases dealing with license revocation consistently hold that statutes authorizing the revocation of a license to practice a business or profession must be strictly construed for they are penal in nature. State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930). Pattishall was a revocation proceeding against a licensed dentist. The accusation charged the dentist with employing one who was not a licensed dentist of the state, and allowing this person to practice dentistry in his office. The court found that the accusation failed “to charge the dentist with having committed any act which under the provisions of the statute constitute grounds for the revocation of his license to practice dentistry.” Id. 126 So. at 148. The court analogized the provisions of the statute in regard to acquiring a license to practice dentistry and the revocation of such license to the statutes in regard to procuring a license to practice law and the disbarment of attorneys. In so doing the court found that the law applicable to disbarment of attorneys was applicable, and cited to State ex rel Fowler v. Finley, 30 Fla. 302, 11 So. 500, 503 (1892), where the court said:

“The proceedings in such matters are summary in their nature, but not arbitrary or despotic. The court acts in the exercise of a sound discretion and according to law. The charges preferred against the attorney should be specific, due notice of them must be given, and full opportunity afforded for an answer and a fair investigation of their merits. The consequences to an attorney of a judgment disbarring him from the practice of his profession are serious enough to suggest such a course. His profession may be a source of great value to him, equal to any property rights which he may have, and the loss of it may inflict destitution and poverty upon himself and family. In such proceedings the attorney is clearly entitled to have the causes urged as a ground for his disbarment specifically and particularly stated, in order that he may meet them, and a defect in the proceedings in this respect is a ground for interposition by the supreme court. Ex parte Bradley, 7 Wall. 364 [19 L.Ed. 214]; Ex parte Robinson, 19 Wall. 505 [22 L.Ed. 205]; State ex rel v. Kirke [12 Fla. 278], supra; Ex parte Burr, 9 Wheat. 529 [6 L.Ed. 152].”

This insistence that charges respecting revocation of a license must be “particularly and specifically stated” was reiterated by this court in Bowling v. Dept. of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981), where the court said “[i]n a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term competent substantial evidence takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120.” In Bowling the court echoes the concern expressed by the Florida Supreme Court in State v. Pattishall, supra, with regard to the higher seriousness accorded to the requirement of substantiality when the matter at stake is a license that allows one to earn a livelihood, saying “when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as ‘substantial’ as the consequences.” Bowling, supra, at 172. In Bowling, the court rejected the Department’s evidentiary findings on the ground that they lacked a substantial basis for establishing Bowling’s guilt on the eight counts with which he was charged. The court vacated the order revoking Bowling’s license. Substantiality of evidence in license suspensions and revocations was stressed too in Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Bach concerns a six-month suspension of a dentist’s license and a one-year suspension of license for a dental hygienist, the wife of the suspended dentist. The court found that the record clearly indicated that Mrs. Bach administered an anesthetic, a procedure which a dental hygienist is precluded from performing. Evidence that the dentist permitted this conduct was circumstantial. The court reinstated the dentist’s license, ruling that the law of agency would not permit the conclusion, in the absence of evidence of Dr. Bach’s knowledge, that he impliedly authorized or permitted his wife’s proscribed acts. A recent Third District Court of Appeal case, Robinson v. Florida Dept. of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984), Opinion filed May 2, 1984, turns on the substantiality requirement of Bowling. An administrative complaint was filed against Robinson in 1981. The hearing officer’s recommendation of license suspension and fine was predicated on the testimony of one dentist, a general practitioner, employed by the complainant after he left Robinson. The court termed it self-evident that a professional license ought not be suspended on the testimony of one interested witness. The court found no competent substantial evidence to support revocation and reversed.

In addition to substantial evidence to support a license revocation, the cases require that the accusation state with specificity the acts complained of, to allow the licensee a fair chance to prepare a defense. Hickey v. Wells, 91 So.2d 206 (Fla.1957). In Hickey a dentist was charged with (1) allowing an unlicensed person to practice dentistry, (2) being the proprietor of the office where the illegal activity occurred, and (3) giving aid in performance of the unlawful acts by making his equipment available. The Board suspended Hickey for three years. The Supreme Court reversed on the ground that Hickey had not been accorded a fair opportunity to prepare a defense because the charge did not specify that “the practice of dentistry” took “place on some person at a given time, and (by statute) in the office of the appellant.” Id., 209. In accord is Moncrief v. State, Comm’r of Insurance, 415 So.2d 785 (Fla. 1st DCA 1982), in which this court vacated an order as to a count of an administrative complaint which charged a bail bondsman with failure to have his office open during the morning hours of March 1979. There was no factual dispute on this issue, and Moncrief was fined $100 because he failed to maintain his office during “normal business hours” in violation of section 648.-34(2)(c) and Rule 4-1.04, F.A.C. Since the term “normal business hours” was not defined in either the statute or the rule, the court said the Department was required to prove by conventional facts that the bonding office should be accessible to the public between the hours of 8:00 or 9:00 a.m. and 4:00 to 6:00 p.m., as the Department contended. See also: Reed-Gautier Funeral Home, Inc. v. State Bd. of Funeral Directors and Embalmers, 295 So.2d 366, 368 (Fla. 3d DCA 1974) — “The offense charged against the petitioners plainly does not fall within the statutory language.”

Taken at face value, the Count Three charges on which the Department based its revocation of appellant’s license indicate that it is the Department’s position that appellant was automatically in violation of the one-year license suspension (March 27,1980 to March 27,1981) when he accepted employment as manager of a funeral home. However, the statute does not require one to have a license to manage a funeral home. Rather, the statute provides that each licensed funeral establishment must have at least one full-time licensed funeral director in charge. Section 470.024(2), (6). In a comparable situation this court reversed the Board’s license suspension and fine of a licensed funeral home and its licensed director. The issue was whether the licensees unlawfully “knowingly employed unlicensed persons in the practice of funeral directing.” The court reversed the order and dismissed the charges, finding “[t]o the extent the issue is one on which we should defer to the Board’s professional expertise, the order comes to us without the necessary elucidation. of the Board’s definition of ‘the practice of funeral directing’ and without a record foundation that would support the views attributed to the Board upon this appeal.” Woodward v. Department of Professional Regulation, 432 So.2d 146, 147 (Fla. 1st DCA 1983).

In license revocation proceedings, case law requires strict construction of statutes and specificity of charges. In the case before us, the Board’s Count Three charges do not comport with the hearing officer’s findings of fact nor do they state with the requisite specificity the grounds relied upon by the Board to revoke appellant’s license. The hearing officer found that in December 1980 and in late February or early March 1981, appellant arranged and conducted two funerals. “Thus, during the period of his license suspension, respondent held himself out to the public as a funeral director and did perform in this capacity.” (Record, p. 456). Section 470.-002(4), Florida Statutes offers as one definition of the “practice of funeral directing — offering or holding oneself out as offering such services.” The testimony presented at the hearing, although conflicting on whether appellant ever served as a funeral director, clearly supports a finding that in the eyes of his public appellant was performing as a funeral director. Therefore, while the hearing officer’s findings of fact do indeed support a finding that appellant may have been in violation of Section 470.002(4), Florida Statutes, such a finding will not support revocation of appellant’s license, for Count Three of the Administrative Complaint does not charge appellant with this particular violation.

The Board cites Chicken’n Things v. Murray for the proposition that the reviewing court may not “determine sufficiency of the evidence if there was some evidence to support the verdict or judgment complained of, ... ” and Powell v. Board of Public Instruction of Levy Co. to refute appellant’s claim that in license revocation actions the charges must be specific. Chicken’n Things deals with a worker’s compensation disability claim, so is distinguishable from Bowling, supra, where the court held that the threat of license revocation required truly substantial evidence to support the charges. In Powell, a teacher challenged the specificity of the charges against him but the court found that so long as “the party involved is informed with reasonable certainty of the charges against him, has a reasonable opportunity to defend himself, and the proceedings are conducted in a fair and reasonable manner,” then due process has been satisfied. Powell is distinguishable in that in Powell the risk was the loss of a teaching position, but not the loss of a teaching certificate. Therefore, the result in Powell does not rise to the level of seriousness contemplated by courts called upon to decide license revocations. Nor can it be seriously contended that being charged with managing a funeral home placed appellant on notice and enabled him to defend against a charge that he was acting in violation of a lawful order of the Board, particularly since appellant had notified the Board of his employment with Whittington-Rogers Mortuary shortly after he began working for the organization.

To be in violation of the Board’s amended order which suspended for one year his dual license to act as a funeral director and embalmer, appellant had to serve as a funeral director. The Board takes the position that managing a funeral home is synonomous with serving as a funeral director. Our research has not disclosed a case that offers the elucidation sought by the court in Woodward, supra, regarding the Board’s definition of funeral directing, nor have we found a case that distinguishes between management activities and funeral directing activities. The statute deals with management of a funeral home as an activity that does not require a license. Here the Department failed to allege any facts that would constitute a charge that appellant was acting as funeral director, and there is no evidence in the record that demonstrates that appellant violated his license suspension by acting as manager of the Whittington-Rogers Funeral Home.

Therefore, the Board’s order revoking appellant’s license is reversed and the cause is remanded with directions to reinstate appellant’s license.

SHIVERS and THOMPSON, JJ., concur.

      . § 470.031 Prohibitions; penalties.—
      (1) No person shall:

      (e) Use or attempt to use a license registration which has been suspended or revoked.

        § 470.036 Disciplinary proceedings.—
      (1) The following acts constitute grounds for which the disciplinary actions in subsection
      (2) may be taken:

      (i) Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failure to comply with a lawfully issued subpoena of the board or department.

      . § 470.024 Funeral establishment; licen-sure.—
      (2) No person shall conduct, maintain, manage, or operate a funeral establishment unless an establishment operating license has been issued by the department for that funeral establishment.

      (6) Each licensed funeral establishment shall have at least one full-time director in charge and shall have a licensed funeral director reasonably available to the public during normal business hours for that establishment.

      . § 470.002 Definitions.—
      (4) "Practice of. funeral directing” means making, at need or preneed, arrangements for, or directing the arrangements for, the preparation and transportation of dead human bodies for final disposition, or using, in connection with one’s name the words "funeral director," "licensed funeral director,” "undertaker,” or "mortician”; or offering, or holding oneself out as offering such services. However, nothing herein shall be construed to require a direct disposer or an agent registered under chapter 470.028 to be a funeral director, (e.s.)

      . Chicken’n Things v. Murray, 329 So.2d 302, 304 (Fla.1976).

        . Powell v. Bd. of Public Instruction of Levy Co., 229 So.2d 308, 311 (Fla. 1st DCA 1970).


author: SHARP, Judge.

text:
    Perry C. BROWN a/k/a Perry O. Brown, Appellant, v. STATE of Florida, Appellee.
    No. 83-742.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    Rehearing Denied Oct. 4, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION FOR REHEARING

SHARP, Judge.

We grant Brown’s motion for rehearing in this case in view of State v. Rhoden, 448 So.2d 1013 (Fla.1984), and Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), and vacate our per curiam affirmance, 456 So.2d 1194 (Fla.App.1984). Brown argues the trial court erred in sentencing him as a habitual offender because it failed to make a finding that an enhanced sentence is necessary to protect the public, as is required by section 775.084(8), Fla.Stat. (1983). No contemporaneous objection was made by defense counsel.

In Rhoden, the trial court failed to comply with the provisions of section 39.111(6), Florida Statutes (1981), in sentencing a juvenile defendant as an adult. The Florida Supreme Court held that a contemporaneous objection was not necessary. The language of section 39.111(6) is replete with mandatory language, similar to section 775.084(3). We cannot logically distinguish the two kinds of sentencing errors. Accordingly, we vacate Brown’s sentence and remand this ease for resentencing.

SENTENCE VACATED; REMANDED.

COBB, C.J., and DAUKSCH, J., concur.

      . (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant. The procedure shall be as follows:
      (a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as an habitual felony offender or an habitual misdemeanant.
      (b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.
      (c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.
      (d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.
      (e) For the purpose of identification of an habitual felony offender or an habitual misde-meanant, the court shall fingerprint the defendant pursuant to s. 921.241. (Emphasis added).
      § 775.084(3), Fla.Stat. (1983).


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

text:
    VON ENGINEERING COMPANY, a Florida corporation, Appellant, v. R.W. ROBERTS CONSTRUCTION CO., INC., a Florida corporation, and The American Insurance Company, a New Jersey corporation, Appellees.
    No. 83-1376.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 19, 1984.

      Edward A. Dion, Orlando, for appellant.
    Michael B. Jones of Stanley, Harmening, Lovett & Livingston, Orlando, for appellee The American Ins. Co.
    No appearance for appellee R.W. Roberts Const. Co.
   FRANK D. UPCHURCH, Jr., Judge.

Von Engineering Company appeals from a final order dismissing its amended complaint against The American Insurance Company. Von Engineering filed a complaint against R.W. Roberts Construction Company, Inc. and The American Insurance Company, seeking confirmation of an arbitration award pursuant to Chapter 682, Florida Statutes. The complaint alleged that in June, 1979, Von Engineering and Roberts executed a subcontract whereby Von Engineering agreed to provide steel products for the construction of a building. Roberts was the general contractor on the project. American was surety on a performance/payment bond.

Von Engineering claimed Roberts had not paid for all labor and material it furnished and sued Roberts and American. Roberts and American, represented by the same attorney, moved to compel arbitration. The court granted the motion and directed the parties to proceed with arbitration.

Von Engineering then filed a demand for arbitration naming Roberts as the party upon whom the demand was being made and sent the demand to the attorney. Roberts filed an answer and counterclaimed, but American did not participate. The arbitrator ruled for Von Engineering, but Roberts failed to pay the $18,376.36 awarded by the arbitrator.

American moved to dismiss Von Engineering’s present action for confirmation, claiming it was not a party to the arbitration proceedings and the arbitration award was entered solely against Roberts. An amended complaint was filed alleging that American had notice of the arbitration proceedings and elected not to participate. The sole question is whether the trial court erred in dismissing this amended complaint.

The purpose of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. Raney v. Jimmie Diesel Corp., 362 So.2d 997 (Fla. 3d DCA 1978). In considering such a motion, the trial court is required to accept all well pleaded allegations in the complaint as true. Id.

Principles of indemnity law hold that when a surety has notice of a suit against the principal and is afforded an opportunity -to appear and defend, a judgment rendered without fraud or collusion is conclusive against the surety as to all material questions therein determined. MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973). See also Lake County v. Massachusetts Bonding & Ins. Co., 75 F.2d 6 (5th Cir.1935). A corollary to this principle is that where it is not made to appear that the surety knew of and had an opportunity to defend the suit, then the judgment is prima facie evidence that the surety is liable, sufficient to support a verdict unless it is rebutted by proof that it was obtained through fraud or collusion or that the loss of liability created by the judgment arose from acts other than those indemnified against under the conditions of the bond. Heritage Ins. Co. v. Foster Elec. Co., 393 So.2d 28 (Fla. 3d DCA 1981). See also Lake County v. Massachusetts Bonding. In this case, Von Engineering alleged that American had actual knowledge of the arbitration proceeding and was afforded an opportunity to defend but chose not to do so. Under MacArthur and Lake County, the arbitration award would be conclusive against American if such allegations were proved and it was error for the lower court to dismiss the complaint.

American argues that none of the cases above involved application of the common law indemnity principles to arbitration proceedings or awards where the surety was not a party. American claims that under principles governing arbitration proceedings, the arbitration award cannot be enforced against it since it was not a party to the proceeding. See, e.g., Solon v. Jones & Laughlin Steel Corp., 53 App.Div.2d 964, 385 N.Y.S.2d 837 (1976); Overseas Distributors Exch. v. Benedict Bros. & Co., 5 App.Div.2d 498, 173 N.Y.S.2d 110 (1958) and Hosek Mfg.-Overland Foundry Co. v. Teats, 107 Colo. 200, 110 P.2d 976 (1941), which stand for the proposition that an arbitration award cannot be enforced against one who was not a party to the arbitration proceeding.

It is true, as American asserts, that in arbitration proceedings, persons whose rights are affected have a right to be heard and to present evidence after reasonable notice. Cassara v. Wofford, 55 So.2d 102, 106 (Fla.1951). See also Tassinari v. Layer, 189 So.2d 651 (Fla. 2d DCA 1966); § 682.06 Fla.Stat. (1983). However, this same principle of due process applies in all judicial proceedings. See Cassara, 55 So.2d at 106. The common law nevertheless recognizes that in certain situations such as where indemnity agreements are involved, a judgment against the indemni-tee or principal may be conclusive (or even prima facie evidence) against the indemnitor or surety even though the latter did not participate in the earlier proceedings. American proffers no argument as to why such common law principles comport with due process in a judicial setting but would violate due process if applied to an arbitration award and we can think of none.

REVERSED.

COBB, C.J., and ORFINGER, J., concur.


text:
    Gregory ZATLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1861.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 22, 1984.
    Gregory Zatler, Daytona Beach, pro se.
    Doris E. Jenkins, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Zatler appeals from an order of the Circuit Court for Marion County denying his petition for writ of mandamus. The petition was filed after Zatler unsuccessfully sought reconsideration by the Florida Parole and Probation Commission of his Presumptive Parole Release Date (PPRD). In November, 1983, Zatler was advised by the Commission that it had no plans to re-open his case.

The lower court summarily denied Zatler’s petition because it believed the Commission’s action was reviewable by direct appeal under Chapter 120, Florida Statutes, and hence mandamus would not lie. See Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1982). However, effective June 6, 1983, appellate jurisdiction to entertain direct appeals by prisoners or parolees from orders of the Commission was eliminated and review of a PPRD is now proper by petition for an extraordinary writ filed in circuit court. Hansen v. Florida Parole and Probation Commission, 436 So.2d 349 (Fla. 1st DCA 1983); Thomas v. Florida Parole and Probation Commission, 436 So.2d 349 (Fla. 1st DCA 1983). See Chapter 83-78, § 1, Laws of Florida.

As to the propriety of mandamus in such cases, in Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.), cert. denied 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974)(which was decided prior to adoption of the Administrative Procedure Act, Chapter 120, Florida Statutes) the supreme court stated that while mandamus does not lie to compel the granting of parole, it does lie to compel the Commission to exercise its discretion without consideration of illegal grounds or other improper bases. See also Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982). Zatler contends by this action that the Commission has improperly re-set his PPRD because it extended the date without good cause.

Zatler relies on various statutory provisions which provide in essence that a PPRD, once established, is binding on the Commission except for good cause in exceptional circumstances, section 947.173(3), Florida Statutes, or for reason of institutional conduct or the acquisition of new information not available at the time of the initial interview, section 947.16(4), Florida Statutes. See Moats v. Florida Parole and Probation Commission, 419 So.2d 775 (Fla. 1st DCA 1982). See also Jackson v. Florida Parole and Probation Commission, 429 So.2d 1306 (Fla. 1st DCA 1983). However, case law also provides that the Commission may correct a clerical mistake or computational error made in setting the prisoner’s PPRD. Priester v. Florida Parole and Probation Commission, 434 So.2d 1008 (Fla. 1st DCA 1983); Moore v. Florida Parole and Probation Commission, 415 So.2d 817 (Fla. 1st DCA 1982).

In this case, it is not entirely clear from the record before us, why Zatler’s PPRD was changed from October 30, 1984 to October 29, 1985. It may be that a computational error was originally made and the Commission was merely correcting the PPRD, but we cannot be completely sure of this. The lower court, because it believed mandamus was not proper, never reached the substantive issues here, though it did state that it believed Zatler’s petition may have some merit.

In light of these circumstances, we reverse and remand to the circuit court for expeditious consideration of the merits of the petition.

REVERSED and REMANDED.

COBB, C.J., and ORFINGER, J., concur.

      . Appearing as section 120.52(1 l)(d), Florida Statutes (1983).

      . Section 947.173(3) provides:
      The commission may affirm or modify the authorized presumptive parole release date. However, in the event of a decision to modify the presumptive parole release date, in no case shall this modified date be after the date established under the procedures of s.947.172. It is the intent of this legislation that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.

      .Section 947.16(4) provides:
      Within 90 days after any interview for parole, the inmate shall be advised of the presumptive parole release date. Subsequent to the establishment of the presumptive parole release date, the commission may, at its discretion, review the official record or conduct additional interviews with the inmate. However, the presumptive parole release date may not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.