text:
    CITY OF HOMESTEAD, et al., Appellants, v. Jack LEVY, et al., Appellees.
    No. 83-717.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Richard M. Gale, Michael E. Watkins, Homestead, for appellants.
    Sylvester P. Adair, Homestead, for ap-pellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Appellant city permitted (without ordinance or resolution) the erection of a flagpole on certain city property in 1976. In 1982 the City Council, by motion duly adopted, directed the city manager to move the flagpole from its original site to other city property. The appellees then instituted the instant proceedings, contending, among other things, as follows:

“9. That the most recent meeting of the City Council proposal was made by one of the Council members to remove the flagpole and demolish the base and wall, utilizing the services of a bulldozer.
10. That this motion was seconded and to the best of this affiant’s knowledge unanimously adopted.
11. That this procedure is contrary to the rules and regulations governing the municipal bodies in that this proposal of such drastic magnitude was not on the agenda, but was introduced surreptitously by one of the Council members”.

The appellees then sought a temporary injunction preventing this removal. The trial court found, in its final judgment, the following:

“This Court finds that the City Council of the City of Homestead failed to comply with the prerequisties set forth in Ordinance No. 80-01-01, said Ordinance being that law of the City of Homestead which governs action on items not on the Council agenda. It is therefore, ...”

and because the flagpole had already been removed, directed that it be reinstalled at its original site. This appeal ensued and involves the proper construction of the city ordinance relative to the council considering non-agenda items at a duly called council meeting. The ordinance of the City of Homestead, No. 80-01-01 relating to such, reads as follows:

“Section 1. That Section 2-30 of the Code of Laws of the City of Homestead be and is hereby revised to read:
Sec. 2-30. Action on petitions, etc.
(a) Upon recognition by the presiding officer, any person, in his own behalf or for another, may address the council concerning any new request, petition, complaint or other communication. Unless decided otherwise by a five-sevenths (¾) vote or by unanimous vote of the quorum present, any such request, petition, complaint or other communication shall be taken under advisement and placed upon the next or subsequent official agenda for report prior to any action on the same by the council...
(b) Except by a five-sevenths (⅝) vote or by unanimous vote of the quorum present, the council shall take no action as to any matter not appearing on the current official agenda and having been duly noticed and published by law.

The trial court held that this section was not complied with when the Council adopted a motion as a non-agenda item to relocate the flagpole, even though the council’s action was unanimous, all members of Council being present.

It is argued in support of the trial courts ruling that notwithstanding the unanimous vote to relocate the flagpole, it was first necessary for the Council to cast a vote to take up the matter. We disagree and reverse. Section (b) above set forth, provides the method as to how the Council acts upon a motion of a member relating to a non-agenda item. Even though Section (a) may require a separate vote to take up a matter presented by a member of the audience or by petition, which we do not here decide, it is clear from a reading of Section (b) that a separate vote is not necessary to adopt a non-agenda item proposed by a member of the Council if it passes by the necessary vote.

Construction of city ordinances are a question of law, see Clark v. Kreidt, 145 Fla. 1, 199 So. 333 (1940); Winter v. Playa del Sol, Inc., 353 So.2d 598 (Fla. 4th DCA 1977), unless their meaning is ambiguous. We find no ambiguity in the clear language of Section (a) and (b) above and hold that the City Council duly enacted the motion under attack. This action of the City Council being clearly within their authority, it is therefore left to the citizens of Homestead, if they feel that the City Council misused this authority, to make their response at the next election. For the reasons above stated, the injunction entered below is erroneous and is hereby vacated and the trial court is directed to enter final judgment in favor of the defendants upon remand.

Reversed and remanded.

      . See Young v. City of Gurdon, 169 Ark. 399, 275 S.W. 890 (1925); Miller v. City of Lincoln, 94 Neb. 577, 143 N.W. 921 (1913); Emmons v. Southern Pacific Co., 97 Or. 263, 191 P. 333 (1920).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FAR OUT MUSIC, INC., Far Out Productions, Inc., Far Out Management, Ltd., Steven Gold and Jerry Goldstein, Appellants, v. Leroy Lonnie JORDAN, Sylvester Allen, Harold Brown, and Howard Scott, individually and as the recording and performing musical group known as “War”, Appellees.
    Nos. 83-1229, 83-1244.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Silver & Silver and Richard R. Booth, Miami, for appellants.
    Haddad, Josephs & Jack and Gary Ger-rard, Coral Gables, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Dico Co., Inc. v. Meekins, Inc., 407 So.2d 1067 (Fla. 4th DCA 1981).


text:
    ADMIRAL FARRAGUT CONDOMINIUM APARTMENT ASSOCIATION, INC., Appellant, v. William H. GODARD and Patricia Godard, his wife, J.R. Hass and Margaret L. Hass, his wife and Raymond Khachab, Appellees.
    No. 83-1406.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Becker, Poliakoff & Streitfeld and Edward S. Polk, Fort Lauderdale, for appellant.
    Rosenberg, Reisman & Glass, Miami, Leonard Frishman; Demeo & Sherman, and Thomas Sherman, Coral Gables, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. AGB Oil Co. v. Crystal Exploration and Production Co., 406 So.2d 1165 (Fla. 3d DCA 1981), rev. denied, 413 So.2d 875 (Fla.1982); Simco Operating Corp. v. City National Bank of Miami Beach, 341 So.2d 232 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 952 (Fla.1977); Butler v. Richard Bertram & Company, 281 So.2d 227 (Fla. 3d DCA 1973).


text:
    The STATE of Florida, Appellant, v. Seymour PLASNER, Appellee.
    No. 83-1588.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Michael Tarre, Coral Gables, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

This is an appeal from an order dismissing an information because of pros-ecutorial delay from the date of a fire in August, 1981 until an arrest for arson in December, 1982. In order to secure a dismissal of an indictment or information because of a prosecutorial delay in the filing of the charges, a defendant has the burden of showing prejudice. Barber v. State, 438 So.2d 976 (Fla. 3d DCA 1983); See also State v. Parent, 408 So.2d 612 (Fla. 2d DCA 1981). In the instant arson case it is clear that the defendant never met this burden. The defendant contended that because the debris from the fire was removed from the premises some three to four months after the fire; by persons not under control of the state, he was thereby prevented from examining the debris to determine if it might disclose a defense to the arson charge. Under this reasoning the state would not have the statutory time to file a charge, but would be limited to a period of approximately four months in the instant case. A person does not have a right to be arrested. The state has the statutory time to bring a charge unless the delay prejudices a defendant. See Barber v. State, supra and State v. Parent, supra. The. evidence tendered by the defendant does not show prejudice, but to the contrary, demonstrates some doubt, as to whether or not the fire was started by arson. His experts revealed by their testimony, from examination of the evidence that was preserved, that there was a possibility of the fire starting from causes other than arson.

Therefore, for the reasons above stated the order of dismissal is reversed and the matter is returned to the trial court for further proceedings.

Reversed and remanded with directions.


author: SCHWARTZ, Chief Judge.

text:
    NATIONAL HEALTH LABORATORIES, INC., Appellant, v. BAILMAR, INC., Appellee.
    Nos. 83-1592, 83-995.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and David M. Rogero, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

National Health Laboratories, Inc., which was a business tenant of the appellee, Bail-mar, Inc., appeals from an adverse judgment in the principal sums of $101,082.00 for additional rental based upon increases in the cost of living index, and $2,034.15 for increased property taxes. We reverse the former and affirm the latter award.

The operative facts are undisputed. In February, 1972, National’s predecessor and Bailmar entered into a lease agreement, prepared by the lessee, for a five-year term commencing April 1, 1972 at a base rent of $1,574.00 per month. Two renewal options were provided; the first, for a three year term beginning April 1, 1977; the second, for an additional two years thereafter. Both options were duly exercised and National Health vacated the premises at the end of the second renewal term on March 31, 1982, having made the specified monthly payments.

The lease provided that Bailmar could receive cost of living increases in the rent as of April 1, 1975 and at the commencement of each of the two renewal terms in proportion to the progressive increases in the Miami Wholesale Price Index for March, 1975, 1977 and 1980, respectively. It was specifically provided, however, that

In order to effect the aforementioned rental adjustments at the end of the third year of the term hereof and/or in the event of exercise by Lessee of the renewal options, Lessor shall deliver to Lessee within 30 days after publication thereof a true copy of each specified Index, and shall, as soon as practicable thereafter, compute the rental rate for the period and advise Lessee in writing. Pending determination of the increase, if any, Lessee shall continue to pay rent at the rate in effect for the immediately preceding period, and shall pay any ar-rearages caused by delays in the computation of such increase upon receiving notice from Lessor of the increase. The existence of any such arrearages shall not constitute any default under any provision of this lease agreement, [e.s.]

The lease also provided:

TWENTY-FIFTH: Lessee shall during the term hereof and any extensions thereof reimburse Lessor immediately upon demand for one fourth of the increase, if any, of the real property taxes applicable to the lots and buildings of which the demised premises constitute a part, over said taxes for the year 1971....

In addition, along with a standard “time of-the-essence” clause, the nineteenth clause of the lease stated:

NINETEENTH: The rights of the lessor under the foregoing shall be cumulative, and failure on the part of the lessor to exercise promptly any rights given hereunder shall not operate to forfeit any of the said rights.

The present controversy arose from the fact that Bailmar did not take any action to collect either the cost of living adjustments or the tax payments until July 24, 1981— well-subsequent to the beginning of the final period of renewal — when its attorney wrote a demand letter for those amounts. In the ensuing litigation, the tenant contended, among other things, that the landlord’s failure to comply with the lease provisions concerning the escalations precluded their recovery; and that its demand for the taxes was untimely. The trial court ultimately ruled otherwise. Based upon the perceived effect of the nineteenth clause of the lease and the application of an identical provision in Philpot v. Bouchelle, 411 So.2d 1341 (Fla. 1st DCA 1982), it held on rehearing that the lessor was entitled both to the cost-of-living increases retroactive to April 1, 1975 — when they would first have become operative — and to the tax contributions due from the commencement of the lease in 1972.

The rental set forth in the foregoing paragraphs shall be subject to adjustment at the end of the first three years of the term hereof and, in this regard, shall be increased in proportion to the increase, if any, of the Wholesale Price Index for Miami, Florida (The "Index”) for the month of March 1975 over the month of March 1972, as published by the United States Department of Labor.
Lessee shall have the following options to renew this lease:
a) First Option — Provided that Lessee gives Lessor notice at least six months prior to the end of the term hereof, Lessee may renew this lease for an additional three (3) year period under the same terms and conditions, except that the rental for such additional period shall be increased in proportion to the increase, if any, of the Index for the month of March, 1977 over the month of March 1975, provided, however, that the Index for the month of March 1975 shall not be lower for purposes hereof than for the month of March 1972.
b) Second Option — Provided that Lessee duly exercises the First Option as stated above and provided that Lessee gives Lessor notice at least six months prior to the end of the period covered by the First Option, Lessee may renew this lease for an additional two (2) year period under the same terms and conditions, except that the rental rate for such additional period shall be equal to the rate during the First Option renewal period, increased in proportion to the increase, if any, in the Index for the month of March, 1980 over the Index for the month of March, 1977, provided however that the Index for the month of March 1977 shall not be lower for purposes hereof than for either of the months of March 1975 or March 1972.

a. Award of Cost of Living Increases Unjustified. We cannot approve that portion of the judgment which allows recovery for the rent escalations attributable to the rises in the pertinent indices of inflation. The lease is explicit in its requirement that “in order to effect” those increases, the lessor “shall” deliver the respective index to the lessee within 30 days of its publication, which would have occurred in April, 1975, April, 1977 and April, 1980; compute, “as soon as practicable thereafter,” the consequent supplemental rent due; and thereafter advise the tenant in writing accordingly. Admittedly, the ap-pellee did not comply with these provisions and did not even begin the process of doing so until July, 1981, over a year after the last period began to run. It is clear, particularly in the light of the “time of-the-essence” clause, that the non-compliance with this unequivocally mandatory pre-condition to their entitlement precludes recovery of the escalated amounts under the terms of the lease itself. Of the countless authorities which might be cited in support of the controlling proposition that a party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract, Home Development Co. of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965), Saul J. Morgan Enterprises, Inc. v. 57th Ave. Development Corp., 305 So.2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 586 (Fla.1975), and Sun Bank of Miami v. Lester, 404 So.2d 141 (Fla. 3d DCA 1981) seem among the closest to the present situation. See also, Homestead Properties v. Sanchoo, 443 So.2d 442 (Fla. 3d DCA 1984) for a recent application of the general rule.

Nor do we agree with the appellee and the trial court that Philpot compels, or even indicates a different result. That case indeed involved a clause, which was contained verbatim in the instant lease, that the rights of the lessor under the agreement are cumulative and are not forfeited by the failure to exercise any of them. But the court determined there only that this provision acted to preserve the already accrued rights of the landlord to insist upon the tenant’s multiple breaches of the option clause of the lease, notwithstanding its acceptance (under protest) of late payments of rent. This holding has no application to this case, however, in which the appellant had committed no breach whatever, and in which the landlord, by virtue of its failure to adhere to the contractual prerequisites to its acquisition, obtained no “right” to the inflation increments in the first place.

b. Award of Property Tax Increases Correct. Although it may seem paradoxical, we approve the requirement that the tenant pay its portion of the property tax increases for the same reason we have reversed the increased rental award: that is what the lease says. In sharp contrast to the time and notice conditions placed on the landlord for receiving the inflation-caused increases in rent, the tax clause provides only that the tenant “shall during the term hereof ... reimburse lessor [for those amounts] immediately upon demand.” There is no requirement, as the tenant now contends, that the demand be made within a reasonable period or indeed at any particular time; no basis for our inserting one when the appellant, as the drafter of the instrument, could have but did not, 11 Fla.Jur.2d Contracts § 106 (1979); and thus no ground to relieve the tenant of this obligation.

For these reasons, the judgment under review is reduced to $2,034.15 plus interest from the date of demand, July 24, 1981. The award to the appellee of $20,000 in attorney’s fees made below is consequently also reversed for reassessment in the light of the very substantial downward adjustment of its recovery effected by this opinion.

Affirmed in part, reversed in part.

      .In full, the renewal and escalation provisions were as follows:

      . SEVENTEENTH: It is understood and agreed between the parties hereto that time is of the essence of this contract and this applies to all terms and-conditions contained herein.

      . Although, under our view of the case, the fact is not controlling, it is of interest that Bailmar’s principal testified that he deliberately delayed making the demands because he wished to postpone the receipt of these additional amounts to a more favorable tax year.

      . The parties agreed upon the precise amounts involved.

      . It is for this reason that we believe that the waiver doctrine, which presupposes the existence of a right to be voluntarily relinquished, e.g., Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945), does not really apply to the facts of this case. Cf. note 3, supra.


author: LARRY G. SMITH, Judge.

text:
    Jerry Lee STARK, Appellant, v. STATE of Florida, Appellee.
    No. AO-185.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst., Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace A. Allbrit-ton, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

Appellant was charged with three sexual batteries alleged to have occurred while he was exercising familial, custodial, or official authority over his victims to coerce submission contrary to Section 794.-011(4)(e), Florida Statutes (1981). At the conclusion of the state’s case, in a trial by the court, the trial judge granted a motion for judgment of acquittal as to the crimes charged under Section 794.011(4)(e), but announced his intention to reduce the charges to sexual battery with slight force under Section 794.011(5), and appellant was subsequently convicted of these sexual battery offenses. We affirm.

Appellant concedes that the proof adduced below supports the conclusion that he used slight force in these sexual batteries. Nevertheless, he contends that Section 794.011(5) is .not a category 2 lesser included offense of Section 794.011(4)(e) because the informations in this case did not allege the use of any force in the performance of these sexual batteries. Bragg v. State, 433 So.2d 1375 (Fla. 2nd DCA 1983).

On the other hand, the state contends and we agree, that appellant has failed to preserve this point for review. When the trial court announced its intention to reduce the charges, defense counsel acquiesced stating: “O.K., then that’s only with — and I don’t agree with that, under this statute, but assume you do agree with the prosecution.... ” This comment did not apprise the trial judge of the specific grounds for appellant’s objection nor did it give the trial judge an opportunity to rule on the question raised in this court which is whether the informations in this case alleged the necessary element of force. Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982); compare Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982). No further objection or motion was made during trial pointing out the error now complained of, nor was there any objection to the several verdicts filed by the court, or motion for new trial on the grounds urged here. Moreover, fundamental error is not present in this case since a Section 794.011(5) offense is lesser in degree and penalty than a Section 794.011(4)(e) offense. Ray v. State, 403 So.2d 956, 961 (Fla.1981). The Bragg decision relied upon by appellant is distinguishable because Bragg objected to any instruction that sexual battery with slight force was a lesser included offense of the crime charged.

AFFIRMED.

WIGGINTON and NIMMONS, JJ., concur.


text:
    Lewis Simpson WALTON, Appellant, v. Ralph D. TURLINGTON, as Commissioner of Education, Appellee.
    No. AS-283.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 24, 1984.

      Richard H. Frank and Richard T. Done-lan, Jr., Law Offices of Frank & Kelly, P.A., Tampa, for appellant.
    Judith A. Brechner, Gen. Counsel, State Board of Educ., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

In this administrative appeal, Walton questions the effect of the court-ordered “sealing” under Section 943.058, Florida Statutes (1981), of his plea of nolo conten-dere to a charge of possession of marijuana, upon the subsequent action of the Education Practices Commission in revoking his teaching certificate for three years because of his conduct. We hold, contrary to Walton’s contentions, that the court sealing of the record of his criminal prosecution, plea, and probationary disposition, did not bar the Commission’s action against him, nor did it bar the use of testimony of police officers whose recollection of the marijuana incident was refreshed by reference to copies of their police reports prepared in connection with the marijuana prosecution. We affirm.

Appellee Turlington, as Commissioner of Education, charged in an administrative complaint that Walton, an annual contract high school teacher, by his possession of marijuana and marijuana paraphernalia was guilty of an act of gross immorality and moral turpitude, and of conduct which seriously reduced his effectiveness as an employee of the school system contrary to Section 231.28, Florida Statutes. At an evidentiary hearing before a DOAH hearing officer, the Board presented the testimony of two police officers who admitted that prior to their testimony they had refreshed their recollections by reading their copies of police reports prepared in connection with the marijuana prosecution. The hearing officer concluded that these copies of the police reports were the basis for a “record” within the meaning of the ex-pungement statute, Sections 943.045(7), 943.058, Florida Statutes (1981). The hearing officer concluded that the testimony of the police officers was inadmissible, and since it was essential to proof of the charges, the administrative complaint should be dismissed.

The Commission adopted the hearing officer’s findings of fact, but disagreed with his conclusions of law. The Commission found that the findings demonstrated that appellant was in possession of marijuana and was therefore guilty of gross immorality and an act involving moral turpitude; further, that Walton’s conduct reduced his effectiveness as a school board employee as a matter of law. Accordingly, the Commission revoked his teaching certificate for three years.

Appellant contends that when all the provisions of Chapter 943 are considered together, the legislative purpose behind Section 943.058(6) is to permit judicial obliteration of all matters associated with an otherwise blameless individual’s encounter with the state’s criminal justice system. Underlying Section 943.058(6), appellant contends, is the principle of amnesty for individuals with minimal criminal involvement. He maintains that pursuant to Section 943.-058, the trial court absolved him from the consequences of his past arrest and prosecution, and appellee was not authorized to take account of the events associated with his former arrest so as to find him guilty of gross immorality and strip him of his teaching certificate as a consequence.

We disagree with the Commission’s argument that the effect of the ex-pungement statute is analogous to the granting of a full pardon by the Board of Pardons, and the cases it cites dealing with the effect of a pardon on subsequent disciplinary action are not persuasive. However, we agree that it is appellant’s conduct, not the criminal charge of conviction nor the records thereof, which forms the basis of the administrative complaint. We are in accord with appellee’s contention that the expungement of the records of the criminal prosecution places appellant in the same position as if he had never been charged with the crime. This does not mean, of course, that appellant may not be held responsible for his actions in a noncriminal proceeding, for as the Commission appropriately observes, it is not necessary for a teacher to be charged with or convicted of a crime in order to be subject to revocation of his certificate based upon conduct reflecting gross immorality or moral turpitude.

In sum, Section 943.058 merely seals appellant’s criminal record, it does not expunge his “criminal conduct.” Although we find no helpful Florida authority, we note the same interpretation of a similar Massachusetts statute. Mass.Gen.L.Ch. 94C, Sections 34 and 44, was approved in McDowell v. Goldschmidt, 498 F.Supp. 598 (U.S.D.C., Conn.1980), in connection with the dismissal of an F.A.A. air traffic control specialist convicted of possession of marijuana, and subsequently discharged by the F.A.A. We recognize that in McDowell’s case his criminal record for possession of marijuana was not sealed until after his discharge by the F.A.A., a fact taken into account by the Federal District Court. However, McDowell had sought reinstatement of his F.A.A. position based upon the expungement of his criminal records, and it was therefore pertinent for the court to observe that it was his misconduct, rather than the existence of a record of a judgment of conviction, with which the F.A.A. was properly concerned. See also, Taylor v. United States Civil Service Commission, 374 F.2d 466 (Ca.9, 1967), upholding the removal of an employee, notwithstanding the fact that his convictions had been expunged pursuant to a California probation statute, on the ground that he had twice engaged in immoral conduct violating the California Vagrancy Statute, and did not thereafter register as a sex offender.

Finally, we agree with the Commission that it was permissible for the police officers to refresh their recollections by viewing the police reports. Erhardt, Florida Evidence, Section 61.1, page 199 states: “If the witness’ memory is jogged and his testimony is based upon his independent recollection, it is immaterial what constitutes a spur to his memory. The testimony is from the memory of the witness and not from the writing or document. Therefore, the document need not be written by the witness himself, need not comply with the best evidence rule, need not have been made contemporaneously with the event and in fact need not be independently admissible.” See, also, Garrett v. Morris Kirschman and Company, Inc., 336 So.2d 566 (Fla.1976).

The order appealed from is AFFIRMED.

WIGGINTON and NIMMONS, JJ„ concur.


text:
    VOLKSWAGEN OF AMERICA, INC., Appellant, v. Walter Leighton LONG and Florence Long, his wife, Appellees.
    No. AS-291.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.

      Rumberger, Kirk, Caldwell, Cabaniss & Burke, P.A., Orlando; and Alan C. Sund-berg, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.
    S. Perry Penland, of Penland, Seelie, Morgan & Penland, P.A., Jacksonville, for appellees.
   ON MOTION FOR STAY OF MANDATE

PER CURIAM.

Appellant’s motion for this Court to stay the issuance of its mandate to the lower court is denied. Our previous per curiam affirmance as to all four points on appeal is reaffirmed. Fla.App., 443 So.2d 984. However, we would clarify our position as to the issue of whether refusal to allow evidence on the effect of appellee’s failure to wear his seat belt constituted reversible error. We hold that it did not and in so holding rely upon and adopt the reasoning in Lafferty v. Allstate Insurance Company, 425 So.2d 1147 (Fla. 4th DCA 1982). See also Insurance Company of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982) and Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966).

MILLS, THOMPSON and WIGGINTON, JJ., concur.


author: NIMMONS, Judge.

text:
    ENCOMPASS INCORPORATED, Appellant, v. Donald O. ALFORD and June Alford, Appellees.
    No. AS-323.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 24, 1984.

      John A. Barley, Tallahassee, for appellant.
    Edwin F. Blanton, Tallahassee, for appel-lees.
   NIMMONS, Judge.

Encompass Incorporated appeals from an order denying its motion for attorney’s fees pursuant to Section 713.29, Florida Statutes (1981), and pre-judgment interest. We affirm.

Encompass filed suit against the Alfords seeking foreclosure of a mechanic’s lien arising out of a dispute over the former’s construction of a house for the Alfords. Appellant’s amended complaint, although not divided into counts, purported to state claims for damages for breach of the construction contract, foreclosure of a mechanic’s lien under Chapter 713, and “equitable relief.”

The Alford’s attorney served upon counsel for Encompass an offer of judgment pursuant to Fla.R.Civ.P. 1.442. The offer stated:

OFFER OF JUDGMENT
Defendants, DONALD 0. ALFORD and JUNE ALFORD, by and through their undersigned attorney, file this their Offer of Judgment, pursuant to Rule 1.442, Florida Rules of Civil Procedure. Defendants offer to pay the sum of Nine Thousand Five Hundred Dollars ($9,500.00), which includes payment for taxable costs incurred to date as full and final settlement of this cause.

Counsel for Encompass timely accepted the offer by filing and serving its notice of acceptance which briefly stated that Encompass “hereby acknowledges acceptance of Defendants’ October 15, 1982, Offer of Judgment.” Pursuant to motion of Encompass, the trial court entered judgment on October 28, 1982, which provided that “Plaintiff, Encompass Incorporated, have and recover from Defendants ... the sum of $9,500.00, which sum includes costs incurred through October 15, 1982, for which let execution issue.”

Encompass filed on March 1, 1983, its motion seeking interest, costs and attorney’s fees. At the hearing thereon, Encompass withdrew its claim for costs. The trial court entered its order on March 29, 1983, denying Encompass' motion. On April 6, 1983, Encompass executed a satisfaction of the judgment and the satisfaction was subsequently recorded.

We first address the question of whether, assuming that Encompass qualified for attorneys fees as a prevailing party under Section 713.29, the absence of any reference in the offer of judgment and in the acceptance thereof precluded Encompass from recovery of fees. We hold that unless the offer and acceptance affirmatively indicate that the amount specified in the offer is to include attorney’s fees, the plaintiff, by accepting the offer, is not pre-eluded from seeking attorneys fees to which he may be entitled by statute. See Wisconsin Life Insurance Company v. Sills, 368 So.2d 920 (Fla. 1st DCA 1979); Parliament Insurance Company v. That Girl In Miami, Inc., 377 So.2d 1011 (Fla. 3rd DCA 1979); cf. Hernandez v. Travelers Insurance Company, 331 So.2d 329 (Fla. 3rd DCA 1976).

We next determine whether Encompass qualified for attorney’s fees as a “prevailing” party under Section 713.29 which provides:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

This section of the mechanic’s lien law entitles a plaintiff to recover attorney’s fees only in the event that he is successful in prosecuting his mechanic’s lien cause of action. Emery v. International Glass & Mfg. Inc., 249 So.2d 496 (Fla. 2nd DCA 1971); cf. Nelson’s, Inc. v. Halifax Construction Company, 305 So.2d 840 (Fla. 3rd DCA 1974); Mershon v. Buckles-Thompson, Inc., 383 So.2d 280 (Fla. 5th DCA 1980); but cf. S. C.M. Associates, Inc. v. Rhodes, 395 So.2d 632 (Fla. 2nd DCA 1981). In Emery, a lien claimant was unsucessful on his mechanic’s lien foreclosure count but was awarded damages for breach of contract. The Second District reversed the award of attorney’s fees to claimant holding that a claimant is not entitled to attorney’s fees under Section 713.29 unless his recovery is based upon the lien law.

Of course, in the case at bar there was no trial and no ruling upon the validity of appellant’s mechanic’s lien theory. Appellant asks us to presume that it prevailed on its mechanic’s lien theory. Appellant asks too much. Its complaint clearly sought money damages for breach of contract as an alternative to its lien foreclosure claim. The Alford’s offer under Rule 1.442 was for Encompass to take judgment against it for a sum certain. The offer was accepted as tendered. Neither the offer nor acceptance mentioned anything about a judgment enforcing a mechanic’s lien on the subject property or otherwise recognized the validity of appellant’s lien theory. Indeed, the judgment which the court subsequently entered at the appellant’s instance was a standard money judgment which mentioned nothing about a mechanic’s lien.

Statutes authorizing the award of attorney’s fees are considered in derogation of common law so as to require strict construction. Jackson v. Hatch, 288 So.2d 564 (Fla. 2nd DCA 1974) (interpreting Section 713.29); Kittel v. Kittel, 210 So.2d 1 (Fla.1967). Particularly in view of the authorities previously cited, we do not believe that Section 713.29 is susceptible to such a construction as would entitle the plaintiff to be regarded as a prevailing party on its mechanic’s lien cause of action.

Finally, we address appellant’s claimed entitlement to prejudgment interest. Appellant relies heavily upon Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2nd DCA 1978). In that case, which did not involve the intervention of a Rule 1.442 offer of judgment, the court held that when a foreclosure suit is based upon a breach of contract, the party to whom the debt is owed is entitled to interest from the date the debt is due. We do not disagree with that principle. However, that principle is unavailing to a plaintiff who accepts an offer of judgment which proposes a sum certain without specifying anything with respect to prejudgment interest. Unlike attorney’s fees awardable by statute to a prevailing party, prejudgment interest is an element of compensatory damages which must be determined by the trier of fact as any other element of damages. 32 Fla.Jur.2nd Interest and Usury § 17; Aetna Insurance Company v. Patrick Settembrino, 369 So.2d 964 (Fla. 3rd DCA 1978); cf. Division of Administration, etc. v. Tsalickis, 372 So.2d 500 (Fla. 4th DCA 1979). We conclude that an offer of judgment which contains only a single figure includes all elements of damages attributable to plaintiff’s cause of action, including the damage resulting from deprivation of the use of the money. See Davis v. Chism, 513 P.2d 475, 482 (Alaska 1973).

For the foregoing reasons, the order appealed is AFFIRMED.

SMITH and WIGGINTON, JJ., concur.

      . We hasten to add, however, that we do not decide that the nature of the judgment entered pursuant to Rule 1.442 would necessarily be determinative in a case where the plaintiff was proceeding solely on a mechanic's lien theory. It is not necessary for us to rest our decision on that one factor and so we leave that isolated question to be decided another day.


author: GLICKSTEIN, Judge. HURLEY, Judge,

text:
    David ZYFERMAN and Monia Zyferman, his wife, Appellants, v. Pete TAYLOR, individually and d/b/a Taylor Industrial Sales, and ITT General Controls, Appellees.
    No. 82-98.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied March 1, 1984.

      Robert E. Gordon of McGee, Jordan, Shuey, Koons, & Schroeder, P.A., Lake Worth, for appellants.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee-ITT General Controls.
   GLICKSTEIN, Judge.

This is an appeal by an injured plaintiff and his wife from a final judgment entered in favor of the defendant manufacturer following entry of a directed verdict in favor of the latter. We reverse and remand.

The issue is whether an injured plaintiff in a strict liability case has the burden of proving that the subject product has been used normally and maintained properly from the time of its original sale to the time of the malfunction causing the plaintiff’s injuries. We hold that the injured plaintiff does not have such burden.

Since this is a case wherein the court granted a directed verdict, the facts are stated in the light most favorable to the nonmoving party. Appellant, David Zyfer-man, was employed as a baker in West Palm Beach on the date of the accident involved herein. When he arrived at work at about 4 P.M. on the day of the accident, he turned on the switch for the boiler to produce steam for the baking oven. This switch was located near the oven doors. Normally it took about half an hour for steam to build. At about 7 P.M., appellant noticed no steam had accumulated in the boiler; so he shut off the switch inside the back of the building near the circuit breaker and went outside to look at the boiler, which was located outside in a boiler room. There he touched the reset button on the boiler but nothing happened so he bent down and looked at the bottom and saw no pilot light. Thereupon he went into the building, took a piece of newspaper and some matches, turned off the switch near the circuit breaker, went back out, and lit a match to the paper. When he bent down to put the paper to the pilot light, there was an explosion that set his clothing on fire.

The boiler was a used one purchased from and installed by Taylor Industrial Sales several months earlier. Although Mr. Taylor could not say who had previously owned or used the boiler, he testified that the controls were those provided by the manufacturer, and had not been modified or changed.

Plaintiffs’ expert witness was Walter Large, then service superintendent for Florida Public Utilities. He had inspected the boiler shortly after the explosion. It was his opinion, both at the time of the inspection and when he testified, that the cause of the explosion was “a faulty ther-mopilot relay, not functioning.” Mr. Large stated the accident could not have happened if the relay had functioned properly. “If this device functioned in the manner in which it was intended, the currents could have not reached the main solenoid valves and the amount of gas under the boiler at the time it was relit would be minimal and, actually, I have considered it practically no hazard.” Mr. Large testified that the unit was being used in its normal function and was not being used to do something it was not designed to do. He estimated that, had it not been defective, the unit could easily have lasted thirty years. Mr. Large also testified, based on photographs of the interior of the switch, that it contained corrosion and even a spider web. He speculated that operation in an area of high humidity could have caused the corrosion, because the unit was not hermetically sealed. Finally, Mr. Large testified that he saw nothing to indicate the control had been altered, changed or modified in any way.

Walter Runciman, product safety manager for ITT General Controls, had examined the thermopilot relay thirteen months after the accident. He corroborated the internal corrosion and said he doubted the unit worked on the date of the explosion. Mr. Runciman further testified he believed the control had never been opened before.

At the jury trial held herein, appellants evidently abandoned negligence and warranty theories which they had pled, judging from the testimony they presented, and relied only on strict liability. At the close of appellants’ case, the court directed a verdict in favor of appellees on all three theories. As to the strict liability theory, the court indicated the plaintiff had the burden of showing the thermopilot relay had been “properly maintained and used, so that the inference can be made, because of corrosion, that is what caused this thing.” In informing the jury of the directed verdict, the court said:

I think that the fact that there is a gap of nine years where we don’t know where the machine was or whether or not it was being operated properly or what it was exposed to is fatally defective on the part of the plaintiff and it is my judgment that the law requires that they put on evidence, at least, that it was being properly operated and was not exposed to any other problems during that intervening period of time, which they are unable to do.

The Florida Supreme Court adopted the doctrine of strict product liability, as set forth in Section 402A, American Law Institute Restatement (Second) of Torts, in West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976). The court quoted Section 402A of the Restatement, as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Id. at 84. It summarized the doctrine and the elements the plaintiff must establish in these words:

[Sjtrict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.

Id. at 86-87. It made the following statement of underlying policy:

The obligation of the manufacturer must become what in justice it ought to be — an enterprise liability, and one which should not depend upon the intricacies of the law of sales. The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves.

Id. at 92. Implied in the notion of enterprise liability is that the manufacturer can buy liability insurance and spread the cost among the buyers of the product by means of a modest price increase, whereas the injured person cannot readily insure himself against the particular hazard.

Florida does not have an extensive body of case law directly apropos of the issue on appeal. However, we can be guided by the First District Court of Appeal’s decision in Cassisi v. Maytag Company, 396 So.2d 1140 (Fla. 1st DCA 1981). It is carefully written, well thought out, and gives a thorough rationale for the law that it states.

In Cassisi, the purchaser of a new home clothes dryer in which a fire started that ravaged the house gave deposition testimony that, during the nineteen months she used the dryer, there had been no maintenance work or repairs on the dryer. An expert witness could not pinpoint a specific defect but concluded from his examination that the fire emanated from the dryer and that there had to have been a malfunction in the dryer that started the fire. Nevertheless, the trial court gave summary judgment on the ground the plaintiff’s proofs “failed to show their damages were caused by a product in a defective condition both at the time of the accident and the time it was within the possession of the manufacturer or the retailer.” Id. at 1142. The appellate court reversed the summary judgment that the trial court had ordered, even though the plaintiff had been unable to negate alternative theories as to the origin of the fire.

The Cassisi court stated that the plaintiff’s burden is to establish “(1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) that it existed at the time the retailer or supplier parted possession with the product.” Id. at 1143. Acknowledging that controversy has raged over the proper test for determining a product’s defective condition, the Cassisi court stated the standard under Section 402A in this manner: “Were the ordinary consumer’s expectations frustrated by the product’s failure to perform under the circumstances in which it failed?” Id. at 1144-45. This standard applies equally whether the defect results from a flaw in manufacturing, an error in design, or misinformation or inadequate warning. While this test is hard to apply in design defect cases, and an alternative test for those cases has been proposed, the court found it unnecessary to dwell on that problem, in that the facts of Cassisi suggest a defect in manufacture rather than design. The same is true in the present case.

The Cassisi court then discussed the nature and quantum of proof, sufficient for submission of the case to the jury, that the plaintiff must produce to establish that his injuries were caused by a manufacturing defect. Id. at 1146-51. The court rejected the rule of the line of cases exemplified by Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964), that in order to establish a causal connection between his injuries and the alleged defect the plaintiff must be able to negate all alternative possibilities as to cause. 396 So.2d at 1147; see id. at 1151. Analogizing to res ipsa loquitur, the court in Jakubowski held, as did appellees in Cassisi and the trial court in the instant case, that the plaintiff had to show that the product was not improperly handled or its condition otherwise changed after the defendant relinquished control. See 42 N.J. at 183-84, 199 A.2d at 829-30. The Cassisi court, however, found more appropriate the rule set out in Greco v. Bucciconi Engineering Company, 283 P.Supp. 978 (W.D.Pa.1967), affirmed, 407 F.2d 87 (3d Cir.1969): “[W]hen a product malfunctions during normal operation, a legal inference, which is in effect a mirror reflection of the Restatement’s standard of product defectiveness, arises, and the injured plaintiff thereby establishes a prima facie case for jury consideration.” 396 So.2d at 1148. The Cassisi court noted that the practical effect of this rule is that if the manufacturer wishes to avoid a jury’s consideration of the issues, the manufacturer must offer evidence showing there are no genuine issues of material fact to be resolved by a jury — rather than suggest alternative explanations of the malfunction. Id. at 1151. The court observed that this burden falls on the manufacturer even though he has relinquished exclusive control of the product, unlike the usual circumstances where res ipsa loquitur applies. Id. at 1151-52. That the defendant no longer controlled the product when the injury occurred is, however, a factor for the jury to consider in deciding whether the product was defective while it was still in the manufacturer’s control. Id. at 1152. Among other factors to be considered are the age of the product, the length and severity of its use, its state of repair, its expected useful life and whether it had been used abnormally. Id. It is ordinarily for the trier of fact to weigh such evidence. Id. If, however, the defendant showed the malfunctioning product was very old, frequently repaired and too ruggedly used, such facts could negate any inference the defect occurred during manufacture, because failure of a product under such circumstances can hardly be said to frustrate the consumer’s reasonable expectations. Id.

We believe that Cassisi is a correct statement of the law; and that the trial court erred in ordering a directed verdict for appellee/defendant ITT Controls. The testimony of the injured plaintiff and the expert witnesses, Large and Runciman, set up a prima facie case that the explosion that injured Mr. Zyferman was caused by malfunction of a thermopilot relay that was defective from the time of manufacture. That the accident could be alternatively explained was something the defendant could have reinforced in presenting its defense, but the plaintiff was not bound to prove normal use and proper maintenance during the life of the relay unit. Conceivably, if the defendant showed superannuation, misuse or bad maintenance, the court could thereafter direct a verdict for the defendant as a matter of law; but mere existence of alternative theories for the accident cannot be the basis for taking the weighing of the evidence out of the jury's hands.

This is not to say that the plaintiff has proven the manufacturer’s liability, only that the plaintiff has adduced enough evidence to set up a dispute as to material facts that properly a jury must resolve. It may be that with or without further evidence from the defense a jury will find for the defendant. Appellee’s brief nicely marshals evidence and arguments that might persuade a jury; but these are not pertinent at this juncture. The trial court erred in directing a verdict for the defendant. It is not an element of a strict liability claim that plaintiff account for the use and maintenance of the product from the time it left the manufacturer’s hands to the time of the accident.

ANSTEAD, C.J., concurs.

HURLEY, J., concurs with opinion.

HURLEY, Judge,

concurring.

I agree that when measured by the standard in Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), the plaintiff in the case at bar adduced sufficient proof to withstand a directed verdict. At the same time, I believe that some of the confusion stems from the fact that this case was framed and tried on the theory of a manufacturing flaw when, in reality, the proof suggests a design defect. See Campbell v. General Motors Corp., 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224 (1982); Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978).

      . The individual, Taylor, who installed the subject boiler, is a nominal appellee, the plaintiffs having entered into a settlement with him prior to trial.


author: HERSEY, Judge.

text:
    VECTA CONTRACT, INC., Appellant, v. John T. LYNCH and Jean T. Lynch, his wife, Appellees.
    No. 82-2615.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellant.
    Larry Klein and Ricci & Roberts, West Palm Beach, for appellees.
   HERSEY, Judge.

John T. Lynch obtained a jury verdict in the amount of $80,000 as compensation for personal injuries occasioned by the collapse of a defectively designed chair allegedly manufactured by Vecta Contract, Inc. Twenty thousand dollars was awarded to his spouse, Jean T. Lynch, for derivative losses. Vecta appeals the final judgment entered thereon suggesting that there was insufficient evidence to go to the jury on the question of whether Vecta manufactured the defective chair. In a products liability case it is necessary to present evidence that the defendant manufactured or produced the product that caused the injury. Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla.1982). The issue on appeal here is the sufficiency of the evidence adduced to satisfy this requirement.

“Sufficiency is a test of adequacy. Sufficient evidence is ‘such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.’ ” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). It is not the function of the trial judge or the appellate court to (re)weigh evidence. Id. The jury should decide the issues where there is the possibility of different conclusions or inferences from the evidence. Ranger v. Avis Rent-A-Car System, Inc., 336 So.2d 467 (Fla. 3d DCA 1976). Only when there is no evidence or reasonable inferences drawn from the evidence to support the nonmov-ing parties’ position should a trial court direct a verdict. Marcano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA), appeal dismissed, 365 So.2d 714 (Fla.1978). The appellate tribunal’s concern is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs, 397 So.2d at 1123.

The record reveals that chairs of the genre that collapsed under plaintiff were originally manufactured by a company named Burke, Inc. That company, together with the right to manufacture the chairs, was acquired by Vecta. It was thus incumbent on plaintiff to show that the particular chair was manufactured by Vecta rather than by Burke. This was accomplished by attempting to show (1) the approximate date on which Vecta acquired the manufacturing rights and (2) that the chair was manufactured subsequent to that date.

In order to prove the date on which acquisition occurred plaintiff introduced the testimony of a manufacturer’s representative who had dealt with the Burke and Vecta chairs. On direct examination this witness, Eugene Lisa, testified that Vecta acquired Burke “in the late sixties.” On cross-examination the witness was asked whether he had personal knowledge as to the date of acquisition. His response was:

It would have to have been prior to 1973 because at that time I did work in an office furniture dealership and we did have a Vecta catalog as opposed to a Burke catalog. From what I remember of the history given on the company, the late sixties appears to be a time frame when the transition occurred.

The second element of proof, the date of manufacture of the chair, was attempted to be established by the testimony of David Jenkins, an engineer on the faculty of a university. His pertinent testimony, responding to cross-examination, was as follows:

Q Do you have any idea, Doctor, any opinion as to the age of this chair?
A No, sir, I do not.
Q You don’t know if it was a new chair or if it was a chair that was ten years old, do you?
A From the appearance of the other chairs in the photograph I would say they are not terribly old. They weren’t ten years old, I don’t believe, simply because they were clean, free of scratches and stains and things like that. But, that’s the only way I can—
Q Which photographs are you talking about that show they are clean and free of scratches?
A That would be Exhibit 1.
Q Are you able to tell from this Exhibit 1, Doctor, Plaintiffs’ Exhibit 1, whether there are any scratches on the base or the metal shaft?
A It’s really quite difficult to say.
Q Yes. Now, with respect to the plastic that’s shown, wouldn’t you really need a magnification to see if there was any damage of any kind to that?
A That’s correct, yes.
Q You haven’t told us about using a magnifying glass in examining the pictures. Did you use one?
A I did not.

There was testimony, then, regardless of its weight, that Vecta acquired Burke in the late sixties and that chairs presumably purchased at the same time as the defective chair (which was not available for inspection) were not more than ten years old. The accident occurred in 1977. The chairs were therefore manufactured between 1967 and 1977.

It is true that the jury could have placed the date of acquisition as 1968 or 1969 and the date of manufacture as anytime subsequent to that presumed date. On the other hand the evidence supports an inference that acquisition occurred in 1969 and manufacture in 1968. There is no legal justification for tipping the scales in favor of either alternative. The choice amounts to rank speculation. This a jury is not permitted to do. Florida Rate Conference v. Florida Railroad & Public Utilities Commission, 108 So.2d 601 (Fla.1959). We therefore determine that the plaintiff, appellee here, did not offer sufficient evidence that defendant manufactured the defective chair to take the issue to the jury. A verdict should have been directed for the defendant.

Accordingly we reverse and remand with directions to enter judgment for the defendant.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


text:
    Esther HOUSTON, Appellant, v. John I. WHITWORTH, Jim Graham and Jim Graham, Inc., a Florida corporation, Appellees.
    No. 83-105.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.

      Joel M. Weissman of Sales & Weissman, P.A., West Palm Beach, for appellant.
    John P. Shevock of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale, for appellee Whitworth.
   HERSEY, Judge.

The controversy culminating in this appeal arises from an agreement for the purchase and sale of real property. An action to rescind that agreement (and for other relief) brought by appellees resulted in a final judgment rescinding the agreement and requiring return to appellees of their earnest money deposit. From this judgment the prospective seller appeals.

The agreement contains a provision which is particularly relevant to subsequent operative events: the seller was to provide the buyer with title insurance which insured marketability of the title and, further, if title was found not to be marketable then “the seller agrees to use reasonable diligence to make said title good and marketable and shall have a reasonable time to do so .... ”

From evidence in the record it is clear that title was not good and marketable on the date set for closing in that there were several serious title defects. It is equally obvious that the buyer offered the seller only ten days to clear the title. We have no hesitation in holding that, as a matter of law, ten days is less than a reasonable time under the circumstances of this case. What is a reasonable time depends upon the context in which the term is used. As applied to remedial action required to clear title to property, it depends upon the number and complexity of title clouds or defects. It may be defined as that period of time which a reasonably competent practitioner would require to perfect title using due diligence and skill and taking into account the particular title problems in evidence. See generally Betts v. Thrasher, 103 Fla. 926, 138 So. 500 (1931); Meola v. Sparks, 138 Fla. 364, 189 So. 408 (1939).

We need not and therefore do not determine whether rescission was an appropriate remedy here. We hold simply that buyers’ application for relief was premature. The final judgment is therefore reversed and this cause is remanded to permit the seller a reasonable time within which to perfect title and tender a commitment letter for marketable title insurance.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Albert MALCZEWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 83-1555.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1984.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William L. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Albert Malczewski appeals a conviction and sentence for aggravated battery imposed upon him after the denial of his motion to dismiss a count of an amended information which charged him with aggravated battery. We affirm.

The amended aggravated battery count which Malczewski sought to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) alleged that on March 16, 1983, Malczewski, “by use of a deadly weapon, to-wit [sic]: a knife, did knowingly and intentionally touch or strike Dwain Reeder against his will by stabbing the money bag Dwain Reeder was clutching to his chest, thereby placing Dwain Reeder in fear.”

As grounds for dismissal of this amended count, which he labeled as “confusing and contradictory,” Malczewski outlined the following material, undisputed facts:

1. That on March 16, 1983, Dwain Reeder, an employee of Publix Supermarkets was walking to a bank accompanied by one Tony Gregoris for the purpose of making a deposit at said bank.
2. Mr. Reeder was carrying a money bag which contained bundles of checks and currency in it.
3. While walking to the bank, Mr. Reeder was accosted by an armed individual who demanded Mr. Reeder relinquish possession of the money bag.
4. Mr. Reeder held said money bag next to his chest and at first did not drop it or relinquish possession of it.
6. The armed individual thereupon struck [sic] an object, believed .by Mr. Reeder to be a knife, into said money bag, but not coming into contact with Mr. Reeder himself.
6. Mr. Reeder’s body never came into direct contact with the object he believed to be a knife, nor did he suffer any physical injury from said object.

The state filed a traverse under Florida Rule of Criminal Procedure 3.190(d) which admitted the allegations contained in paragraphs 1 through 6 of Malczewski’s motion to dismiss. However, the traverse added the following facts which the state believed necessary for a fair determination of the issue:

a. The victim was carrying the night money bag from the Publix Store to a nearby bank for deposit.
b. In the bag was $4,650.00 in cash and over $6,000.00 in checks.
c. The Defendant approached from the rear, pulled out a pistol and pointed it at both victim Reeder and victim’s assist-ant_ The Defendant pointed the pistol at both of them and clicked it twice. Both victims believed the gun was real and deadly and were in great fear for their lives.
d. The Defendant ordered the victim to “drop the bag”. Instead, the victim clutched the bag to his chest. The Defendant then pulled out a knife and lunged at the victim Reeder. The Defendant stabbed the bag, which was held against Reeder’s chest. The knife blade went through the bag, puncturing several of the checks and deposit slips which were inside. The victim used the bag for protection and only the bag prevented the knife from entering victim’s chest.

The applicable 1981 Florida Statutes provide in relevant part as follows: “784.03 Battery. — (1) A person commits battery if he: (a) Actually and intentionally touches or strikes another person against the will of the other;_ 784.045 Aggravated battery. — (1) A person commits aggravated battery who, in committing battery: ... (b) Uses a deadly weapon.”

The trial court entered an order denying Malczewski's motion to dismiss the amended aggravated battery count. Malczewski thereafter pled nolo contendere as to the amended count, expressly reserving his right to appeal the denial of his motion to dismiss. The court subsequently rendered an order adjudicating him guilty of aggravated battery and sentencing him thereon to a ten-year term of imprisonment.

Malczewski contends that the stabbing of the money bag carried by Dwain Reeder did not constitute an aggravated battery because there was never any actual contact between the knife which he wielded and Reeder. He contends further that in order for a battery to occur the victim or plaintiff must suffer an actual harmful or uncon-sented contact which is caused by the criminal defendant or tort-feasor. Goswick v. State, 143 So.2d 817 (Fla.1962); Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981); Rodriguez v. State, 263 So.2d 267 (Fla. 3d DCA 1972). The state responds that the accusatory pleading establishes a harmful or offensive contact, stressing that it is a general proposition of criminal law that a battery may be against something carried by the victim. See 6A C.J.S. Assault & Battery § 70; Respublica v. DeLongchamps, 1 U.S. (Dall.) 111, 1 L.Ed. 59 (1784). The state contends and we agree that under the facts of this case the victim was subjected against his will to an intentional touching by Malczewski. See Grant v. State, 363 So.2d 1063 (Fla.1978).

The issue before us is whether the language of Florida’s battery statute, section 784.03(l)(a), particularly the words, “[a]etually ... touches or strikes another person,” encompasses the conduct engaged in by Malczewski. None of the Florida cases cited by either party is directly on point.

Turning to hornbook law, Dean William Prosser wrote:

The protection [afforded a plaintiff by an action for the tort of battery] extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand, will be sufficient.... His interest in the integrity of his person includes all those things which are in contact or connected with it.

W. Prosser, Law of Torts § 9 at 34 (4th ed. 1971). (Emphasis added.)

Commentators have stated that the above common law rule with respect to the tort of battery applies as well to the crime of battery. In 6 Am.Jur.2d Assault and Battery § 37 at 38, it is stated:

The rules that to be held liable for a battery the offender need not directly effect the unlawful contact with the person of the victim, and that a battery need not be committed directly against the person of the victim, but may be committed against anything so intimately connected with the person of the victim as in law to be regarded as a part of that person, are applicable in criminal prosecutions for battery, as are the principles that there may be a battery in the legal sense of the term even though no physical harm resulted therefrom....

(Footnotes omitted and emphasis added.) Similarly, in 6A C.J.S. Assault and Battery, § 70 at 440-41, cited by the state, it is said: “It is essential to the [criminal] offense of battery ... that there be a touching of the person of the prosecutor, or something so intimately associated with, or attached to, his person as to be regarded as a part thereof.... The contact may have been ... with something carried by him.” (Footnotes omitted and emphasis added.)

The eighteenth century criminal case cited by the state, Respublica v. DeLongch-amps, lends support to the logical and reasonable proposition of criminal law that there need not be an actual touching of the victim’s person in order for a battery to occur, but only a touching of something intimately connected with the victim’s body. See also Stokes v. State, 233 Ind. 10, 115 N.E.2d 442 (1953).

In Respublica v. DeLongchamps, which is almost directly on point, the defendant struck the victim’s cane. In affirming his conviction for assault and battery, the Supreme Court of Pennsylvania said that the assault and battery

is, perhaps, one of that kind, in which the insult is more to be considered, than the actual damage; for, though no great bodily pain is suffered by a blow on the palm of the hand, or the skirt of the coat, yet these are clearly within the legal definition of assault and battery.... [TJherefore, any thing attached to the person, partakes of its inviolability_

1 U.S. (Dall.) at 114, 1 L.Ed. at 61. (Emphasis added.)

In Stokes, the defendant fired a gun at the victim. The bullet perforated the victim’s necktie and creased his shirt. In upholding the battery conviction, the Indiana Supreme Court held, quoting from one of its earlier cases, Kirland v. State, 43 Ind. 146 (1873), that “ ‘[o]ne’s wearing apparel is so intimately connected with the person, as in law to be regarded, in case of a battery; as a part of the person.’ ” 115 N.E.2d at 443.

Several out-of-state cases have suggested the same result as DeLongchamps and Stokes by way of dicta. See Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956); State v. Sudderth, 184 N.C. 753, 114 S.E. 828 (1922); Reese v. State, 3 Tenn. Cr.App. 97, 457 S.W.2d 877 (1970).

Considering the above-quoted authorities and case law on the subject of the crime of battery, we hold that the word “person” in our state’s battery statute, section 784.03(l)(a), means person or anything intimately connected with the person. Applying this definition of “person” to the facts of this case, we submit that it would be an overly restrictive construction of section 784.03(l)(a) to decide that the money bag which Reeder clutched to his chest to protect himself from a serious injury or death, when Malczewski- “actually” stabbed it with a knife during his attack, was not a part of Reeder’s “person” as contemplated by the statute.

Accordingly, we affirm Malczewski’s conviction and sentence for aggravated battery.

AFFIRMED.

GRIMES and LEHAN, JJ., concur.


author:
PER CURIAM.
      SHARP, Judge,

text:
    Carl A. SCHONACHER, Appellant, v. STATE of Florida, Appellee.
    No. 83-703.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I would dismiss this case because it is moot. Schonacher appealed the legality of his sentence on double jeopardy grounds. He has now served all the time for which he was sentenced.


author: THOMPSON, Judge.

text:
    Donnie G. SPAUGH, Appellant, v. MUNYAN PAINTING CONTRACTORS and Auto Owners Insurance Company, Appellees.
    No. AR-211.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.
    Rehearing Denied Feb. 29, 1984.
    Dennis M. Jansen of C. Wade Yeakle, III, P.A., St. Petersburg, for appellant.
    Kurt P. Hampp of Jacobs, Robbins, Gay-nor, Hampp, Burns, Cole & Shasteen, St. Petersburg, for appellees.
   THOMPSON, Judge.

The claimant appeals a workers’ compensation order contending, inter alia, that the deputy commissioner (deputy) erred in concluding that because the doctors did not express their ratings in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA Guides) he could not consider their testimony to determine the amount of claimant’s anatomical impairment. We reverse as to this point'.

Based on the decisions of this court at the time of the hearing the deputy correctly concluded that an anatomical impairment rating must be based on the AMA Guides, even for accidents occurring prior to August 1,1979. However, in an en banc opinion decided subsequent to the hearing this court held the use of the AMA Guides was not required to determine the existence or degree of permanent impairment resulting from accidents occurring prior to August 1, 1979. Peck v. Palm Beach County Board of County Commissioners, 442 So.2d 1050 (Fla. 1st DCA 1983). Since the accident involved herein occurred on November 23, 1977, prior to the date § 440.15(3)(a) Fla.Stat. (1979) became law, the deputy erred in concluding that because the doctors did not express their ratings in accordance with the AMA Guides he could not determine the exact amount of claimant’s anatomical impairment. We therefore reverse on this point and remand for determination of claimant’s degree of anatomical impairment based on medical testimony without regard to the AMA Guides.

We find there is competent substantial evidence to support the deputy’s finding that claimant reached maximum medical improvement on May 4, 1981. There is also competent substantial evidence to support the deputy’s finding that claimant failed to conduct a good faith work search. Accordingly, these findings are affirmed. The issue raised by claimant concerning the deputy’s failure to award permanent total disability benefits based on loss of wage earning capacity is moot as a result of our disposition of the issue regarding the inadequate work search.

Reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.

SHIVERS and JOANOS, JJ., concur.


text:
    Sandra WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 83-978.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has been given an opportunity to file a supplemental brief in proper person but has chosen not to respond. Accordingly, having reviewed both the Anders brief filed by the public defender and the record on appeal, we find no reversible error with respect to the judgment and sentence. “However, because the appellant was found insolvent by the trial court, that portion of the court’s order requiring the appellant to pay court costs and to make payments to the Victim’s Crime Compensation Fund is stricken.” Music v. State, 429 So.2d 101 (Fla. 2d DCA 1983); see also Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983). Furthermore, the portions of the sentencing order requiring both the payment of restitution and the payment of the public defender’s fee as conditions of parole are also stricken because a trial court is without jurisdiction to impose conditions of parole. Alexander v. State, 426 So.2d 1197 (Fla. 2d DCA 1983); Tindell v. State, 423 So.2d 635 (Fla. 2d DCA 1982).

Affirmed as modified.

HOBSON, A.C.J., and BOARDMAN and RYDER, JJ., concur.


text:
    Richard Thomas LAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1121.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has been given an opportunity to file a supplemental brief in proper person but has chosen not to respond. Accordingly, having reviewed both the Anders brief filed by the public defender and the record on appeal, we find no reversible error with respect to the judgment and sentence. “However, because the appellant was found insolvent by the trial court, that portion of the court’s order requiring the appellant to pay court costs and to make payments to the Victim’s Crime Compensation Fund is stricken.” Music v. State, 429 So.2d 101 (Fla. 2d DCA 1983); see also Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).

Affirmed as modified.

HOBSON, A.C.J., and BOARDMAN and RYDER, JJ., concur.


text:
    Milton V. KLINE, Appellant, v. STATE of Florida, Appellee.
    No. AR-204.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Rehearing Denied Feb. 24, 1984.

      Paul E. Risner, Law Offices of Victor Africano, Live Oak, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Appellant pled nolo contendere to the offense of perjury, Section 837.02, Florida Statutes (1979), reserving the right to appeal the trial court’s ruling that his false statement was in regard to “a material matter” as required for conviction under the statute. He also reserved his right to appeal upon the alternative grounds that the perjury statute, and Section 837.011(3), providing that whether a matter is “material” for purposes of perjury is a matter of law for the court, are unconstitutional because they deny the accused the right to trial by jury protected by the Sixth Amendment, Constitution of the United States, and Article I, Section 16, Constitution of the State of Florida. We affirm.

The allegedly perjurious testimony occurred at a pre-trial hearing on October 20, 1979 in the pending case of State v. Theodore Robert Bundy, in Columbia County, in which Bundy was on trial for the murder of Kimberly Leach. Bundy had filed a motion to suppress the testimony of one Anderson, a state’s witness, whose recollections of the incident about which he was to testify had been enhanced by hypnosis. Appellant was called by the defense as an expert witness in the field of forensic hypnosis for the purpose of establishing that Anderson’s testimony was unreliable, due to the effects of his hypnotically induced recollection of the events he observed. The allegedly false statements all pertained to appellant’s educational background which he gave upon being questioned on voir dire to establish his qualifications as an expert witness.

The information filed by the state alleged that the following four statements, in the alternative, were false:

A. That he held a masters degree in Medical Psychology at Columbia University, or
B. That he held a doctoral degree in Clinical Psychology at Penn State University, or
C. That he received post-doctoral training in Clinical Psychology at New York University, or
D. That he had received psychoanalytic training at William Allyson White Institute of Psychiatry and Psychoanalysis.

On this appeal the parties focus their arguments upon the statement in paragraph “B” pertaining to appellant’s claim that he held a doctoral degree in Clinical Psychology from Penn State University. Appellant admits that this statement was untrue. Our resolution of this appeal on the basis of the paragraph “B” statement makes it unnecessary to address the various contentions made by the parties with respect to the others. As a matter of information, the trial court granted the motion to dismiss as to the statement in paragraph “A,” since a tape recording of his testimony disclosed that the court reporter’s transcript of the hearing erroneously quoted him as stating that he had a masters degree in “Medical” Psychology from Columbia University, whereas he actually stated that he had a masters degree in “Clinical” Psychology from that University. With respect to paragraph “C” of the information, appellant stated that he intended to state that he received “post-graduate doctoral” training in Clinical Psychology at New York University, rather than “post-doctoral training.” Further, with respect to paragraph “D,” appellant contended that his testimony was true, in that he had taken courses in psychoanalytic training at William Allyson White Institute of Psychiatry and Psychoanalysis, although he agreed, as the state contended, that he had not completed the training for psychoanalysis at that institution which requires a minimum of four years in a set curriculum.

Appellant further supported his motion to dismiss with the deposition testimony of Circuit Judge Wallace Jopling, who presided at the hearing in which the allegedly perjurious statements were made. In his deposition, the trial judge was asked “if he [appellant] had not made the statement that he had a doctoral degree in Clinical Psychology at Penn State University, would he [appellant] have still qualified before you [Judge Jopling] as an expert witness in forensic and clinical hypnosis in your court?” Judge Jopling answered “Yes, I would say he would have.” Judge Jopling further testified, however, that he thought a doctoral degree in Clinical Psychology from Penn State University would be a “major achievement” in that area.

With respect to the first issue on appeal, appellant contends that his testimony was not “material” because whether or not he held a doctoral degree in Clinical Psychology from Penn State University had no bearing upon the main issue before the court, which was the guilt or innocence of Bundy. He argues further that it had no bearing upon the secondary issue being tried in the suppression hearing, which was whether the witness Anderson was affected by being subjected to hypnosis so that his testimony should be suppressed as unreliable. Appellant maintains, citing to Judge Jopling's testimony, that the trial judge would still have found appellant to be qualified as an expert in the field of forensic hypnosis even without the alleged doctorate degree from Penn State.

We hold that the trial judge did not err in determining that appellant’s testimony was in regard to a material matter as required by the statute. A misrepresentation is material if it has the mere potential to affect the resolution of the issue before the tribunal, whether it be in the guilt or innocence phase of the trial, or in a pre-trial suppression hearing. In Shelton v. State, 157 Fla. 482, 26 So.2d 444 (1946), the Supreme Court had before it the question of whether the place of residence of a defendant in a divorce case was material to such a degree that false testimony about it would constitute perjury. The court stated that an essential element of the crime is the untruth of a statement made under oath about some matter material to the main or a secondary issue. The matter bears this character, the court confirmed, if it could have influenced the tribunal on the issue before it. Fields v. State, 94 Fla. 490, 114 So. 317, 318 (1927).

The rule regarding materiality was concisely stated in Gordon v. State, 104 So.2d 524, 531 (Fla.1958):

The cases hold that in order for testimony to be material it must have some weight and reference to the determination of an issue which is before the court for judicial determination. It is not essential that the false testimony bear directly on the main issue. It is sufficient if the false testimony is collaterally or corroboratively material to the ultimate material fact to be established. The degree of materiality is not of any important consequence, (citations omitted).

Although not the only criteria, certainly one of the main criteria by which the qualifications of an expert witness may be determined and his testimony evaluated are the institutions attended and degrees earned in a special field of expertise. Although we recognize from Judge Jopling’s testimony that appellant would have been considered qualified by him without the false statement regarding the doctoral degree from Penn State, it is just as obvious that appellant’s statement concerning the holding of that degree was considered as having some bearing upon appellant’s qualifications as an expert. However, in our view the test is not the weight or credibility attached to the witness’ statement by the particular judge or trier of fact required to consider it. Misrepresentations which tend to bolster the credibility of a witness, whether successful or not, are regarded as material for purposes of supporting a perjury conviction. 317, at 318. Fields v. State, 114 So.

Finally, we address appellant’s argument that the perjury statute is unconstitutional because it denies an accused his constitutional right to a jury trial. The Florida Supreme Court, like most other state courts and the federal courts, has held that the question of materiality in a perjury prosecution is a matter of law for the court. Rader v. State, 52 So.2d 105 (Fla.1951); Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 629 (1929); see also, Annotation, Materiality of testimony assigned as question for court or jury, 62 A.L.R.2d 1027 (1958). Although this rule has been followed unquestioningly by the courts, it has been the subject of criticism by legal scholars on the grounds that it deprives defendants of their right to a trial by jury on an essential element of the crime of perjury. Lillich, The Element of Materiality in the Federal Crime of Perjury, 35 Ind.LJ. 1 (1959). See also, People v. Clemente, 285 App.Div. 258, 136 N.Y. S.2d 202 (1954), aff'd mem., 309 N.Y. 890, 131 N.E.2d 294 (1955).

However, without assessing the soundness of the arguments, pro and con, which have not been fully presented on this appeal, we decline to address this particular question since our research has revealed that the Florida Supreme Court has considered this question and has held that materiality remains a question of law for the judge though, like many other questions of law, it may become a mixed question of law and fact. Wolfe v. State, 271 So.2d 132 (Fla.1972). Although the Supreme Court’s reported decision in Wolfe does not reveal that this particular constitutional argument was considered, we note that the Third District Court of Appeal’s decision in Wolfe v. State, 256 So.2d 533, 536 (Fla. 3rd DCA 1972), which the Supreme Court reviewed, indicates that this was an issue in the case. We therefore do not feel constrained to go against the longstanding rule of law in this state, particularly when no justification for our doing so is suggested except that we should adopt the view espoused by appellant. See, Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

AFFIRMED.

WIGGINTON and NIMMONS, JJ., concur.


text:
    James Y. LIN, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PSYCHOLOGICAL EXAMINERS, Appellee.
    No. AT-110.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Rehearing Denied Feb. 29, 1984.

      Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Tallahassee, for appellant.
    Randall A. Holland, Asst. Atty. Gen., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Lin appeals from a final order of the Board of Psychological Examiners denying his application for licensure as a psychologist by endorsement under Section 490.-006(1), Florida Statutes. His sole contention is that issuance of a license by the Board is mandatorily required under Section 120.60, because the Board’s final action in denying a license, after a formal hearing requested by appellant, was not rendered within the 90-day time limit of Section 120.60(2). We affirm.

The chronology of events which led to this proceeding commenced with Lin’s application for a license filed August 13, 1982. On November 4, 1982, the Board notified Lin that his application would be denied, and informed him of his right to request a hearing pursuant to Section 120.-57, Florida Statutes, within 21 days of the denial. Lin requested a hearing, which was held on February 25, 1983. The Board’s final order denying the license was dated March 18, 1983, filed April 15, 1983. This appeal ensued.

Section 120.60(2) provides for a 90-day time frame within which after receipt of an application for a license, the agency shall examine the application, notify the applicant of any errors or omissions, request any additional information required by the agency, and either approve or deny the license. Appellant focuses upon the further provisions of Section 120.60(2) which provide that every application for license “shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information .... ” It further provides that the 90-day or shorter period “shall be tolled” by the initiation of a proceeding under Section 120.57, and shall resume “10 days after the recommended order is submitted to the agency and the parties.” Further, the statute provides that any application for a license “not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved ...,” subject to further provisions relating to completion of any examination required, not pertinent here.

We agree with that portion of appellant’s argument that Section 120.60(2) contains no provision for the tolling of the 90-day period when a hearing under Section 120.57 is conducted by the agency, rather than by a hearing officer or other authorized officer. We disagree, however, with appellant’s conclusion that the wording and intent of the statute is that the agency is thus committed to a 90-day period within which to examine the application, request any further information, hold a hearing if necessary, and render a final order. Appellant’s only explanation for this interpretation is that if the agency retains total control of the application, it should be held responsible for the statutorily mandated time limit of 90 days, but that the 90-day period may be tolled, and allowance made for an administrative hearing when the matter is referred for hearing outside the agency.

Appellant’s interpretation may be one, but it is not the only interpretation of Section 120.60(2) that may be made, and we think it is not the most reasonable nor logical. Fundamentally, appellant’s view ignores the distinction between a “denial” under Section 120.60, and a “final order” under Section 120.59. The terms are not— insofar as an analysis of the interplay between Sections 120.60 and 120.59 is concerned — synonymous and interchangeable. A more rational and unquestionably a more workable interpretation of the 90-day provision is that it is complied with, as in this case, when the agency notifies the applicant of its intent to deny the license within the 90-day period. The Board here completed the statutorily mandated examination and processing of the application, and rendered its notice of intention to deny within the 90-day period. At the same time it properly notified appellant of his right to prevent the denial from becoming final by invoking the hearing provisions of Section 120.57. Once appellant availed himself of the right to a hearing, the provisions of the Administrative Procedures Act governing hearings, which are not found in Section 120.60, became applicable. Since no special time constraints are provided for entry of a final order by the agency, after a hearing, so far as Section 120.60 is concerned, we must look elsewhere in the statutes governing hearings, to find what time limits are placed upon the agency. We conclude that Section 120.59(l)(a), providing that a final order shall be entered within 90 days after the hearing if conducted by the agency, governs the Board’s actions in this case. This interpretation allows both statutes to be fully operative in their given spheres, and avoids the incongruous and irrational results that would be produced by appellant’s interpretation. Appellant offers no rational basis for his argument that the entire licensing process, including a formal hearing, if one is held by the agency, must be compressed into a 90-day period, whereas, if the matter is referred outside the agency for hearing, ample time is allowed for the scheduling of a hearing, notification of the parties, conduct of the hearing, consideration of the issues of law and fact, and the rendition of an appropriately detailed order approving or denying the application. The other interpretation, urged by the Board, and which we accept, appears to us to accomplish the objectives stated in the law itself, which provides that “the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons.” Section 120.60(2). We have considered the cases cited by appellant, viz, State, Department of Business Regulation v. Hyman, 417 So.2d 671 (Fla.1982); World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981); G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 362 So.2d 951 (Fla. 1st DCA 1978), and conclude that they do not dictate a contrary result.

AFFIRMED.

WIGGINTON and NIMMONS, JJ., concur.


text:
    Aaron W. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. AT-210.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Rehearing Denied Feb. 24, 1984.
    Lloyd L. Vipperman, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellant’s contention that his double jeopardy rights were infringed, or that he was prejudiced in the defense of the conspiracy charge for which he was tried by reason of a material variance between the information and bill of particulars and the proof at the trial, have been considered and found to be without merit. We also disagree with appellant's contention that the changes in the substantive statute, Section 944.47, Florida Statutes, amended effective July 1, 1982, could not be applied to the conspiracy charge against him, and therefore affirm.

A defendant is not entitled to a bill of particulars specifying the exact day upon which a crime occurred if the exact date is not known. State v. McGregor, 409 So.2d 504 (Fla. 4th DCA 1982). Moreover, as appellant concedes, there was only one conspiracy here. Epps v. State, 354 So.2d 441 (Fla. 1st DCA 1978). However, it is abundantly clear that acts constituting the conspiracy occurred both before and after the effective date of the statutory amendment to Section 944.47, which increased the penalty for introduction of contraband into a state penal institution from a third degree felony to a second degree felony, thereby causing the conspiracy to commit that crime to become a felony, rather than a simple misdemeanor. Cases decided under the RICO statute, Section 943.-462, Florida Statutes (1979), hold that that statute, applying to a course of ongoing criminal activities, much as a conspiracy does, may be applied to criminal activities occurring before the effective date of that act, and thus not offend constitutional prohibitions against ex post facto laws, as long as at least one act occurred after the effective date of the statute. Carlson v. State, 405 So.2d 173, 174 (Fla.1981); State v. Whiddon, 384 So.2d 1269, 1271 (Fla.1980). By analogy to the reasoning applied in the RICO cases, since acts in the conspiracy here clearly occurred after the effective date of the statutory amendment, the mere fact that the conspiracy commenced before the effective date of the amendment does not render the application of the amended law to appellant’s crime an impermissible retroactive application of the law.

Furthermore, evidence of prior, similar criminal conduct is admissible to prove the existence, formation or organization of a conspiracy charged. US. v. Torres, 519 F.2d 723 (2nd Cir.1975), cert. den. 423 U.S. 1019, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975); 20 A.L.R.Fed. § 4(c), Conspiracy — “Prior Similar Conduct.”

AFFIRMED.

WIGGINTON and NIMMONS, JJ., concur.


author: NESBITT, Judge.

text:
    John C. ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1512.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Michael H. Bloom, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

The ¡defendant was charged in a three-count information with possession of cocaine, phencyclidine and less than twenty grams of cannabis. He entered a plea of nolo contendere to the possession of cocaine charge and the state announced a nolle prosequi on the other two counts. The trial court entered a finding of guilt, withheld adjudication of guilt, and placed the defendant on probation. The defendant appeals an order modifying the special conditions of his probation.

When the court placed the defendant on probation, it imposed a condition that he enter a drug rehabilitation program. The parties contemplated that he would enter a program in his home state of New Jersey. The defendant subsequently petitioned the trial court for permission to leave Dade County to go to New Jersey and enter a rehabilitation program there. The trial court granted this petition, but in doing so imposed the additional condition that the defendant not engage in any gambling activity while in New Jersey. The defendant is a professional gambler.

Relying on Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1979), the defendant contends that, in the absence of an affidavit alleging a violation of the terms and conditions of probation, the trial court was without jurisdiction to enter the modification order. We recently overruled Buckbee in Rodriguez v. State, 441 So.2d 1129 (Fla. 3d DCA 1983), recognizing that an order aggravating the terms of probation does not raise a jurisdictional problem. Rather, when there is no record basis for modifying the terms of probation; doing so places the defendant in double jeopardy. Since there was no such substantial record basis to support the order enhancing the conditions of the defendant's probation, we vacate that portion of the order appealed from which prohibited Anderson from engaging in gambling activity.

Affirmed as modified.