author: ADKINS, Judge. OVERTON, Judge,

text:
    Norman MILLER, Petitioner, v. David C. NOLTE, Respondent.
    No. 63336.
    Supreme Court of Florida.
    July 12, 1984.

      Clifford M. Miller of Miller & Miller, Vero Beach, for petitioner.
    Robert Jackson of the Law Offices of Robert Jackson, Vero Beach, for respondent.
   ADKINS, Judge.

This case is before us on discretionary review on the basis of conflict with Cape Cave Corp. v. Lowe, 411 So.2d 887 (Fla. 2d DCA), review denied, 418 So.2d 1280 (Fla. 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The question presented is whether a taxpayer is foreclosed from contesting a tax assessment because of his failure to file an action within sixty days from the date the assessment was certified for collection.

This action was originally brought when the taxpayer petitioned the Indian River County Property Appraisal Adjustment Board, pursuant to chapter 194, Florida Statutes (1981), to contest the amount of the property assessment on his real estate. After a hearing, the board orally denied the taxpayer relief. On December 4, 1981, the taxpayer was mailed a written notice of the denial of his petition. On March 2, 1982, the taxpayer filed a complaint in the circuit court. The property appraiser filed a motion to dismiss the complaint alleging, among other things, that the statute of limitations, section 194.171(2), Florida Statutes (1981), prohibited taxpayer’s suit. The court entered summary judgment in favor of the property appraiser on that basis. The taxpayer appealed to the Fourth District Court of Appeal which affirmed the circuit court’s order.

Section 194.171(2) provides:

No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.-122(2).

The district court found the issue presented in this case had been resolved by this Court in Coe v. ITT Community Development Corp., 362 So.2d 8 (Fla.1978). Miller v. Nolte, 427 So.2d 248 (Fla. 4th DCA 1988). In its brief opinion, the district court stated that Coe held that the sixty-day time limitation expressed in section 194.171(2) is a jurisdictional statute of non-claim rather than a statute of limitation. Id. at 248. Because the statute was found to be a statute of non-claim rather than a statute of limitation, the district court could not accept the taxpayer’s contention that a deficiency in the property appraisal adjustment board’s order should estop the appraiser from asserting the statute as an affirmative defense to taxpayer’s claim. The court determined it was “compelled” to hold that the taxpayer’s failure to act within the sixty-day period was a complete bar to the action. The district court recognized that its decision expressly and directly conflicted with Cape Cove Corp. v. Lowe, 411 So.2d 887 (Fla. 2d DCA), review denied, 418 So.2d 1280 (Fla.1982), of the Second District Court of Appeal. The court even stated that it might well have opted for Cape Cove’s solution because it appeared to be “eminently fair and equitable” if the court had had “the freedom to choose.” 427 So.2d at 249. In reaching its conclusion, the district court stated:

[TJhere is no escaping the fact that Cape Cave is wholly predicated on a chance remark from Williams v. Law, 368 So.2d 1285 (Fla.1979). Admittedly, Williams does use the term “statute of limitations” in reference to section 194.171(2). We can only suggest that this passing reference is but another example of what the Supreme Court characterized as “an inartful use of the term.” It is inconceivable that the Supreme Court would overrule a prior decision, issued only eight months before, without a word of explanation. Thus, we conclude that Coe expresses the law of Florida and is disposi-tive of this case.

Id. (citation omitted).

We must admit that an examination of the handful of cases which have dealt with the time limitation in section 194.171(2) do not provide an obvious answer to the issue in this case. In 1978 this Court rendered its decision in Coe. There we held that the statute was a jurisdictional statute of non-claim rather than a statute of limitations which would, of course, be available as an affirmative defense. We noted that this Court had consistently characterized the statute as a non-claim statute since Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942). We concluded that there was no reason to recede from our earlier decisions because the substance, purpose, and rationale for the statute had not been altered since Rudisill.

Eight months after Coe this Court decided Williams v. Law, 368 So.2d 1285 (Fla. 1979). In Williams we were faced with the issue of whether the time limitation in section 194.171(2) for seeking judicial review was a violation of article V, section 2(a) of the Florida Constitution which provides that this supreme court shall adopt rules for practice and procedure in all courts including time for seeking appellate review. In our opinion we stated that section 194.171(2) “constitutes a statute of limitations governing the time for filing an original action to challenge [the board’s] decision.” Id. at 1287.

We also referred to this section, formerly known as section 192.21, as a statute of limitations in our 1972 decision in Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972). In that case we were faced with the issue of whether the taxpayer had lost his right to challenge an assessment because he had failed to exhaust his administrative remedies and to institute such a challenge within the sixty-day time limit set forth in section 192.21. The subject property had been assessed for the value of both the realty and the improvements and the property, in fact, clearly qualified for an unimproved land assessment. We held that the running of the statute of limitations would not bar a challenge to an assessment where the assessment was void. Id. at 4. Chief Justice England, writing for the majority in Coe, recognized that the Court had referred to the statute as a statute of limitations in Lake Worth Towers but called it “an inartful use of the term.” 362 So.2d at 9.

After a reexamination of these eases and the purpose and rationale underlying the statutory provisions concerning the review of tax assessments, we must retreat from our 1978 characterization of this statute as being a non-claim statute. We agree with the district court’s observation that Cape Cove’s solution is probably eminently fair and equitable. In Cape Cove the appellant corporation had filed a complaint challenging its property tax assessment more than sixty days after the tax roll had been certified for collection. The Court discussed in detail the statutory provisions concerning the duties of the property appraiser and the county property appraisal adjustment board (referred to as PAAB) and also those provisions pertaining to the rights and remedies available to an aggrieved taxpayer. The Cape Cove court noted that the property appraisal adjustment board had failed to timely perform a duty it owed to the taxpayer under section 194.032(5), Florida Statutes (1979). That section requires the board to render a written decision in each case except those cases where the complaint is withdrawn by the petitioner or is acknowledged by the property appraiser as correct. The decision is to contain findings of fact, conclusions of law, and reasons for the appraiser’s determination and is to be issued within twenty days of the last day the board is in session. In Cape Cove the court concluded that the board was es-topped from raising section 194.171(2) as a bar to the corporation’s action because of its failure to give proper and timely notice of its decision to the taxpayer/corporation.

We find the rationale of Cape Cove persuasive. The court stated:

[Sjince our legislature has seen fit to require a written decision, complete with findings of fact, conclusions of law, and reasons for the decision, when a taxpayer does file a petition with the PAAB, it is clear to us that the legislature intended that the taxpayer have the benefit of that written decision before deciding whether to then seek judicial review. We consider it eminently reasonable, therefore, for a taxpayer to assume, as appellant appears to have assumed, that the PAAB will comply with section 194.-032 and that it (the taxpayer) has at least forty days from the date of issuance of the PAAB’s decision to file a complaint for judicial review. It is clearly ¾,trea-sonable to require the taxpayer to check on the PAAB to make sure it has timely fulfilled its statutory responsibilities when the taxpayer has set in motion a process under which that taxpayer has a right to expect timely notice that the running of a statutory limitation period has begun.
... [T]he legislature made it clear in section 194.032 that the taxpayer is entitled to notification of the reasons for the denial as well as the bare fact of denial.
Accordingly, we hold that the PAAB is estopped to raise the statute of limitations contained in section 194.171(2) as a defense to appellant’s action.

411 So.2d 889 (footnote omitted, emphasis in original).

In Rudisill this Court was faced with the question of whether a thirty-day time limit on when suit could be instituted deprived the taxpayer of due process. The Court held that it did not. In upholding the taxing act the Court stated:

Property owners are obliged to know that their property is liable for taxes. Property owners are afforded a method by law to appear before administrative officers and obtain a fair and just assessment of their property.
It is indispensable to government that taxes be assessed and collected. The legislature is charged with the duty of providing a uniform and equal rate of taxation. Section 1, Article IX, Florida Constitution. The legislature is necessarily vested with power to enact necessary laws to secure a prompt collection of the annual tax. In the exercise of such powers they must not invade the constitutional rights of the property owner. Provision is made here however, for the owner to make return of his property and value same for taxation. He has further remedy to petition the equalization board for appropriate relief. He is allowed a minimum of thirty days from the final act of the administrative officers to resort to the courts if he feels aggrieved by the administrative taxing authorities. While the time may appear relatively short, nevertheless it cannot be said that the time fixed by the Legislature is so unreasonable as to amount to depriving him of his property without due process.
The legislature perhaps realized that unless the assessment was made final within a relatively short period of time the collection would be impaired thereby resulting in further inequalities in the burdens of tax payers to sustain the cost of government.

151 Fla. at 285-86, 9 So.2d at 380-81. The Rudisill Court’s rationale clearly justifies the decision reached in that ease. However, these same concerns do not likewise justify the decision we perhaps too hastily arrived at in Coe. The issue in Coe was not identical to the question answered in Rudisill. The issue of whether this statutory provision is determined to be a non-claim statute or a statute of limitations obviously involves different concerns and consequences to the taxpayer and different interests on the part of the state than the determination of the validity of imposing any time limitation at all in the review process. We were wrong to base our decision in Coe on the hypothesis that the substance, purpose and rationale used in Rudisill had not changed and were also applicable to the question presented in Coe, and we recede from Coe.

The requirement in section 194.-032 that the board issue findings of fact and conclusions of law has been held to be a requirement of due process. Hollywood Jaycees v. Department of Revenue, 306 So.2d 109 (Fla.1974). The non-fulfillment of the procedural prerequisites in the taxing scheme would deny the taxpayer of his right to due process were we to hold that section 194.171(2) .is a non-claim statute. The taxpayer would be unable to raise any valid estoppel arguments to an assertion that he failed to file his action within sixty days of certification. Surely the legislature could not have intended such inequitable consequences. Persons have a right to due process when the protection and enforcement of their private rights are at issue. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Due process requires that section 194.171(2) be considered a statute of limitations. The board must be required to have performed its procedural prerequisites before the statute begins to run. The taxpayer has a right to expect timely notice that the running of a statutory limitation period has begun in this context. When the taxpayer has not been provided with a written decision of the board complying with section 194.032(2), as happened in Cape Cove and in the present case, he has not been put on record notice that the board may have certified the tax roll for collection.

Accordingly, we quash the decision of the district court and remand this cause with instructions to reverse the trial court’s order of dismissal and remand the cause to the trial court for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.

OVERTON, Judge,

dissenting.

I dissent. In 1978, in Coe v. ITT Community Development Corp., 362 So.2d 8, 9 (Fla.1978), this Court unanimously held:

We have consistently held that the 60-day time limitation expressed in Section 194.171(2), and in its predecessor statutes, is a jurisdictional statute of non-claim rather than a statute of limitations. Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942); Chatlos v. Overstreet, 124 So.2d 1 (Fla.1960). The Third District Court of Appeal has consistently followed our interpretation. Henry v. County of Dade, 149 So.2d 89 (Fla. 3d DCA), cert. denied, 155 So.2d 549 (Fla. 1963); Harvey W. Seeds Post No. 29 v. Dade County, 230 So.2d 696 (Fla. 3d DCA), cert. denied, 238 So.2d 420 (Fla. 1970); Chaves Construction Co. v. Metropolitan Dade County, 256 So.2d 545 (Fla. 3d DCA 1972); Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977).

I find that the statute is a jurisdictional statute of non-claim and that has been the clear rule of law in this state for over forty years. Consistency and stare decisis mandate an affirmance of the district court of appeal opinion. There is no justifiable reason to overrule the multiple decisions that have clearly established the rule of law on this issue.

McDONALD, J., concurs.


source: Caselaw Access Project

author: BOYD, Chief Justice.

license: Public Domain

text:
    John W. MIKOS, Property Appraiser of Sarasota County, Florida, et al., Petitioners, v. SARASOTA CATTLE COMPANY and Charles E. Early, Respondents.
    No. 63794.
    Supreme Court of Florida.
    July 12, 1984.

      John C. Dent, Jr. of Dent, Pflugner, Rosin & Hendricks, Sarasota, for petitioners.
    Charles E. Early of Early & Early, Sarasota, for respondents.
    Wilfred C. Varn, Chairman of the Civil Procedure Rules Committee of The Florida Bar, Tallahassee, for amicus curiae, The Civil Procedure Rules Committee.
   BOYD, Chief Justice.

We have for review a decision of a district court of appeal, Sarasota Cattle Co. v. Mikos, 431 So.2d 260 (Fla. 2d DCA 1983), which held that once a plaintiff has given notice that it is ready for trial, the trial judge must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action. Since the district court certified that its decision is in conflict with Brennan v. Ryter, 339 So.2d 661 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla.1977); Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977); and Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959), we have jurisdiction pursuant to article Y, section 3(b)(4) of the Florida Constitution. We agree fully with the decision below and therefore approve it.

In this case respondents Sarasota Cattle Company and Charles Early originally filed suit against John Mikos, property appraiser of Sarasota County, and other officials on January 29, 1975. After several years of extensive pretrial litigation, Mikos noticed the case for trial on November 16, 1979.

Respondents filed their own notice of readiness for trial on February 10, 1981. The trial court entered an order on February 18 disposing of two previously filed motions, but failed to enter an order setting a trial date. Neither party took any further action, nor did the court, until over a year later on August 11, 1982, when Mikos filed a motion to dismiss for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). The trial court granted the motion.

On appeal the district court reversed, holding that plaintiffs had no obligation to take any further action once they had filed a notice of trial pursuant to Florida Rule of Civil Procedure 1.440(b). The district court reasoned that since it is the trial court’s responsibility to enter an order fixing a date for trial under Rule 1.440(c) once notice for trial is given, the filing of the notice bars the trial court from dismissing the action for lack of prosecution, citing City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976). See also Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So.2d 973 (Fla. 2d DCA 1983); R & A Trucking, Inc. v. General Host Corp., 399 So.2d 1058 (Fla. 3d DCA 1981); Visuna v. Metroyolitan Transit Authority, 353 So.2d 183 (Fla. 3d DCA 1977).

We agree with the decision below in all respects. A trial judge has sole discretion in determining the order in which cases will be tried. Lawyers simply have no power nor duty to determine which cases will be tried at particular times. The rules contemplate that whenever a plaintiff is ready for trial his attorney must notify the court and ask the court to enter an order setting a trial date. It is inappropriate for a trial attorney to pressure a judge into setting a date. We would like to add, however, that if a plaintiff subsequently indicates that he is not ready for trial, then the filing of the notice of trial will not be a bar to a dismissal for lack of prosecution.

The decision of the district court of appeal is approved.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Irvin R. SHUPACK, Respondent.
    No. 64667.
    Supreme Court of Florida.
    July 12, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before us on the complaint of The Florida Bar and the report of the referee. Neither party has sought review of the referee’s report. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar charged respondent with violations of The Florida Bar Integration Rule and Disciplinary Rules of The Florida Bar Code of Professional Responsibility. The referee recommended that respondent be found guilty of one of two charges and concluded that respondent had violated Disciplinary Rule 1-102(A)(4). The referee recommended that respondent be suspended from the practice of law for a period of thirty days with automatic reinstatement at the end of the period of suspension.

We approve the referee’s findings of fact and recommendation of discipline. Respondent is suspended from the practice of law for a period of thirty days, effective thirty days from the date of this opinion, giving him time to protect the interests of his clients. Respondent shall be automatically reinstated at the end of the period of suspension. Costs of these proceedings in the amount of $1,110.66 shall be assessed against respondent.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDONALD, EHRLICH and SHAW, JJ.,


text:
    THE FLORIDA BAR. In re John V. BAUM.
    No. 64724.
    Supreme Court of Florida.
    July 12, 1984.
    Jerrold K. Phillips of Brooks, Callahan & Phillips, Tallahassee, for petitioner.
    David G. McGunegle, Branch Staff Counsel of The Fla. Bar, Orlando, for respondent.
   PER CURIAM.

This cause is before us on the report of the referee concerning Baum’s petition for reinstatement as a member in good standing of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

Baum was temporarily suspended from the practice of law on February 10, 1978. The Florida Bar v. Baum, 355 So.2d 429 (Fla.1978). In a final disciplinary judgment, Baum was suspended for two years with reinstatement conditioned upon proof of rehabilitation. The Florida Bar v. Baum, 369 So.2d 585 (Fla.1979). He became eligible to apply for reinstatement in 1980. Baum submitted his petition for reinstatement on January 9, 1984.

The referee conducted a hearing and recommended that Baum be reinstated. The referee’s report and recommendation are not contested.

We accept the findings and recommendation of the referee. Baum is hereby reinstated as a member in good standing of The Florida Bar.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


author: OVERTON, Justice.

text:
    Joseph GARRON, Petitioner, v. Edward H. BERGSTROM, Jr., etc., Respondent.
    No. 64846.
    Supreme Court of Florida.
    July 12, 1984.
    Robert E. Jagger, Public Defender, and Floyd E. Ferguson and Robert S. McClure, Asst. Public Defenders, Sixth Judicial Circuit, New Port Richey, for petitioner.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
   OVERTON, Justice.

This cause is before us on a petition for writ of mandamus. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

Petitioner was charged with two counts of first-degree murder. He was adjudicated indigent and a public defender was appointed to represent him. The trial court, in response to petitioner’s motion pursuant to Florida Rule of Criminal Procedure 3.216(a), appointed a psychiatric expert to aid in the preparation of his defense.

The petitioner subsequently filed a motion for a court determination of competency to stand trial, pursuant to Florida Rule of Criminal Procedure 3.210, and a notice of intention to rely upon insanity as a defense. The trial court appointed two mental health professionals to examine petitioner for the court. Upon receiving their reports, the court found that petitioner was incompetent to stand trial and committed him to a treatment facility.

Subsequently, after re-evaluation, the court found that petitioner was competent to stand trial. Defense counsel then moved for the appointment of an expert to assist in the preparation of petitioner’s defense because the previously appointed expert had died in the interim. The trial court denied this motion, concluding that petitioner had already received the services of a court-appointed expert and was not entitled to the appointment of another expert.

Petitioner seeks a writ of mandamus requiring the respondent to appoint an expert to assist in the preparation of his defense. We grant the relief sought. In our recent decision in State v. Hamilton, 448 So.2d 1007 (Fla.1984), we held that

when counsel for an indigent defendant has “reason to believe” that his client “may be incompetent to stand trial or that he may have been insane at the time of the offense,” the defendant is entitled to have the court appoint one expert to assist in the preparation of his defense.

Id. at 1008. We determined in Hamilton that rule 3.216(a) gives the trial court no discretion in acting to appoint an expert to assist in the preparation of a defense. The fact that the petitioner in the instant case had an appointed expert who later died does not control.

Accordingly, respondent is hereby directed to appoint a psychiatric expert to assist petitioner. We withhold the formal issuance of the writ of mandamus, however, because we believe the respondent will comply with our directions in this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. John N. MAYO, Respondent.
    No. 65403.
    Supreme Court of Florida.
    July 19, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee and Paul A. Gross, Bar Counsel, Miami, for complainant.
    John N. Mayo, m pro. per.
   PER CURIAM.

Mayo has tendered a conditional plea of guilty to violating Disciplinary Rule 9-102(B)(3) by failing to maintain complete records of funds and by failing to render an accounting for funds to a client. We approve the petition for approval of conditional guilty plea for consent judgment and entry of final order of discipline, and we hereby reprimand John N. Mayo. The publication of this order in Southern Reporter shall serve as Mayo’s public reprimand.

Costs in the amount of $175.00 are hereby taxed against Mayo.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Clifford B. WENTWORTH, Respondent.
    No. 64279.
    Supreme Court of Florida.
    July 19, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    No Appearance, for respondent.
   PER CURIAM.

This attorney disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee. Neither party has sought review of the referee’s report. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar’s complaint charged respondent with the violation of Disciplinary Rule 6-101(A) of The Florida Bar Code of Professional Responsibility in that he had neglected a legal matter entrusted to him. The referee recommended that respondent be found guilty and that he be suspended from the practice of law in Florida for a period of two years.

Respondent is currently under indefinite suspension pursuant to The Florida Bar Integration Rule 11.07(3) for the conviction of a felony. The Florida Bar v. Wentworth, No. 64,233 (Fla. Sept. 26, 1983).

We approve the referee’s findings and recommended discipline. Accordingly, respondent is suspended from the practice of law for a period of two years, effective immediately. Costs of these proceedings in the amount of $405.95 are assessed against respondent.

It is so ordered.

ADKINS, Acting Chief Justice, and OV-ERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    Howard Cecil BOYNTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1850.
    District Court of Appeal of Florida, Second District.
    May 30, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Peri v. State, 426 So.2d 1021, 1026 n. 4, 1027 (Fla. 3d DCA 1983); Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1973).

SCHOONOVER, A.C.J., LEHAN, J., and HALL, VINCENT T., Associate Judge, concur.


author: PER CURIAM. SHARP, Judge,

text:
    In the Interest of N.L.K. and J.L.K. Mary and William KARNES, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 83-796.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    Rehearing Denied Aug. 1, 1984.
    Homero Leon, Jr., Greater Orlando Area Legal Services, Inc., Orlando, for appellants.
    Douglas E. Whitney, Dist. Counsel, Dept, of Health and Rehabilitative Services, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and COBB, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The sisters involved in this case were declared to be dependent and were placed in the custody of H.R.S. on April 20, 1981. The court entered an order of disposition requiring their father, Mr. Karnes, to maintain employment and not to remove the children from the county without application to the court or to H.R.S. In June 1982, H.R.S. filed a petition alleging the appellants (the parents) violated the prior court order. They entered into a performance agreement pursuant to section 409.-168, Florida Statutes (1981), and gave up custody of their children to H.R.S.

In January 1983, H.R.S. petitioned for termination of parental rights and permanent commitment for adoption. The court found that appellants failed to substantially comply with the performance agreement and that it was in the children’s best interest to terminate parental rights. § 409.-168, Fla.Stat. (1981). Its primary reason was appellants’ steadfast refusal to become employed:

The Court is of the opinion that Mr. and Mrs. Karnes have deliberately taken steps to avoid working and to make sure that their situation would not improve, and that therefore, they might maintain their existence living off of welfare benefits.

I agree that the evidence supports the court’s findings, but I do not think there was in this case clear and convincing proof of abuse or neglect or abandonment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, the termination of parental rights was improper. Hinkle v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983); Carlson v. State of Florida, Department of Health and Rehabilitative Services, 378 So.2d 868 (Fla. 2d DCA 1979).

      . Ch. 39, Fla.Stat. (1981).


author: PER CURIAM. ERVIN, Chief Judge,

text:
    Kenneth Leroy COFIELD, Appellant, v. STATE of Florida, Appellee.
    No. AT-157.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    As Corrected on Denial of Rehearing Aug. 2, 1984.
    Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

In this appeal from conviction for first degree murder and armed robbery which resulted in the imposition of two consecutive life sentences, appellant, Kenneth Leroy Cofield, contends the trial court erred in retaining jurisdiction over one-half of the two sentences imposed, first, because any retention over an immeasurable life sentence is improper, and second because application of the revised-retention statute allowing retention over one-half, as compared to one-third of his sentence, amounts to an ex post facto violation. For the following reasons we decline to reach the merits of Cofield’s claims and dismiss the appeal.

The record discloses that neither Co-field nor his court-appointed attorney objected when the trial court declined to follow the state’s recommendation that it impose the death penalty in this case but, instead, inflicted two life sentences, retaining jurisdiction over one-half of each. Nor was any objection made when the court gratuitously pronounced Section 947.16(3), Florida Statutes (Supp.1982) to be procedural, therefore allowing for retroactive application. When, in prior cases, the retroactive application of that same statute has been challenged, this court has held:

Ex post facto application of the retention statute is not fundamental error and objection must be made at the trial level to preserve the issue for appellate review.

Fredricks v. State, 440 So.2d 433, 434 (Fla. 1st DCA 1983). See also Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983); Mobley v. State, 447 So.2d 328 (Fla. 2d DCA, February 24, 1984). Likewise, where retention of jurisdiction over a portion of a life sentence has been challenged, but no objection to such retention was made before the trial court, the issue has been held to be not preserved for appellate review. Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982). We therefore conclude that Cofield’s failure to make any objection to the court’s retention of jurisdiction over one-half of his consecutive life sentences precludes him from challenging such retention by direct appeal.

In reaching this decision, we are not unaware of the recent Florida Supreme Court decision of State v. Rhoden, 448 So.2d 1013 (Fla., 1984) where, in dicta, it was stated that “[t]he purpose for the contemporaneous objection rule is not present in the sentencing process” as it is at trial. Id. at 1016. We decline, however, to adopt the broad interpretation of that decision advanced by appellant which would, in effect, eliminate the need for a contemporaneous objection to alleged sentencing errors in all cases. Rather, we find that decision to be limited to situations where the trial court, in sentencing a defendant, fails to comply with a mandatory duty imposed upon him by statute. For example, the trial judge in Rhoden failed to set out, in writing, his reasons for sentencing a juvenile as an adult as required by Section 39.111, Florida Statutes (1981). Here, however, the trial court fully complied with the requisites of section 947.15 by stating, with particularity, his justification for retention of jurisdiction. We therefore find Rhoden does not apply to the circumstances of this case but would, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), certify the following question to the Florida Supreme Court as being one of great public importance:

WHETHER, BY OPERATION OF THE CONTEMPORANEOUS OBJECTION RULE, A DEFENDANT IS PRECLUDED FROM CHALLENGING, ON DIRECT APPEAL, THE TRIAL COURT’S RETENTION OF JURISDICTION OVER ONE-HALF OF HIS LIFE SENTENCE WHEN NO OBJECTION TO SUCH RETENTION IS MADE AT THE TIME OF SENTENCING?

This appeal is sua sponte DISMISSED without prejudice to appellant’s right to raise this issue in conjunction with an allegation of ineffective assistance of counsel pursuant to Fla.R.Crim.P. 3.850.

BOOTH and WENTWORTH, JJ., concur.

ERVIN, C.J., dissents w/opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the appellant’s failure to object to the court’s retention of jurisdiction over one-half of his consecutive life sentences now precludes him from challenging the retention by direct appeal. Although the facts in State v. Rhoden, 448 So.2d 1013 (Fla.1984), are somewhat distinguishable, the language in the opinion is clearly broad enough to apply to the error involved in the instance case. Rhoden states as follows:

Further, with regard to the respondent’s failure to contemporaneously object to the trial judge’s failure to follow the statute in sentencing respondent, we agree with the reasoning of Judge Sharp in her dissent in Glenn v. State. Judge Sharp pointed out that it is difficult, if not impossible, for counsel to contemporaneously object to the absence of a written order at the sen tencing hearing “since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed.” 411 So.2d at 1368. The contemporaneous objection rule, which the state seeks to apply here to prevent respondent from seeking review of his sentence, was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. See Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, [459 U.S. 1156], 103 S.Ct. 801 [74 L.Ed.2d 1004] (1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). The rule prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a defendant with a second trial if the first trial decision is adverse to the defendant. The primary purpose of the contemporaneous objection rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. The purpose for the contemporaneous objection rule is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge. If the state’s argument is followed to its logical end, a defendant could be sentenced to a term of years greater than the legislature mandated and, if no objection was made at the time of sentencing, the defendant could not appeal the illegal sentence.

Id. at 1016 (e.s.).

I would therefore reject the state’s waiver argument and reach the merits of the case. On the merits, the court, having imposed a life sentence, had no right to retain jurisdiction of an immeasurable sentence. See Cordero-Pena v. State, 421 So.2d 661, 662 (Fla. 3d DCA 1982); accord Rodriguez v. State, 424 So.2d 892 (Fla. 3d DCA 1982).

I am moreover of the view that retroactive application of Section 947.16(3), Florida Statutes (Supp.1982), effective April 20, 1982, to an offense which occurred before the statute’s enactment, or March 19, 1981, is a violation of the constitutional prohibition against ex post facto laws. See Fla. Const., Art. I, Section 10, and State v. Williams, 397 So.2d 663 (Fla.1981); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983). Under the circumstances the sentence should be vacated and the cause remanded for the purpose of the lower court’s imposing a sentence consistent with the authorities cited.

      . We note that section 947.16 was again amended in 1983 and now allows retention over only one-third of sentences rather than one-half. See Ch. 83-131, § 9, Laws of Florida.


author: WENTWORTH, Judge. ERVIN, Chief Judge,

text:
    Harold S. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AW-387.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    Rehearing Denied July 5, 1984.

      Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant Johnson asserts that the trial court erred in denying his motion to reconsider two concurrent three-year sentences, and to permit his election of Fla.R.Crim.P. 3.701 sentencing guidelines to apply to the sentences imposed herein on November 22, 1983, upon charges of forgery and uttering to which appellant pled guilty on April 4,1983. We affirm because the state properly asserts waiver based on appellant’s failure at the time of sentencing, while represented by counsel, to elect application of the rule. Appellant responded at length, in mitigation, to the court’s request for statement of any cause precluding sentence by the court as provided by law, without reference by appellant or his counsel to the required election under the rule. Absent election, the sentences imposed for offenses committed prior to adoption of the rule were plainly not subject to the guidelines. To permit election after the court’s pronouncement of sentence would, in our opinion, permit a retrospective selection of options not contemplated by the rule.

The state’s waiver argument before the trial court, however, was based on other facts, i.e., appellant’s failure to appear for scheduled sentencing on May 16, 1983. We do not on the record before us find that failure to be sufficient to forfeit all rights under the rule in the later sentencing hearing. But the state’s alternative argument here adequately supports the ruling below, and we find no merit in appellant’s contention that estoppel should bar our determination of waiver on that ground. No detrimental reliance or other inequity is shown in these circumstances.

Affirmed.

BOOTH, J., concurs.

ERVIN, C.J., dissents w/opinion.

ERVIN, Chief Judge,

dissenting.

I would reverse the sentence and remand the cause for sentencing under the guidelines. Although defense counsel failed to make a contemporaneous objection at the precise time the sentence was imposed, it appears that shortly thereafter he orally moved to correct the two sentences, contending that the new guidelines should apply to the sentences prescribed. The majority now states that the appellant’s failure to make a timely election to sentencing under the guidelines waives his right to raise the alleged error on appeal. To this holding I dissent on the same ground previously stated in my dissent in Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984).

      . In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla.1983), the Florida Supreme Court stated that:
      The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.


author: LEHAN, Judge.

text:
    Mary WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1071.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.
    Rehearing Denied Aug. 1, 1984.
    Judge C. Luckey, Jr., Public Defender, and Gary G. Graham, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Dean C. Kow-alchyk, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   LEHAN, Judge.

Appellant appeals from an order denying her motion to vacate an order of involuntary placement for treatment of mental illness, entered under section 394.467, Florida Statutes (Supp.1982), and to schedule a hearing on the need for involuntary placement. We affirm the order denying the motion.

A petition for appellant’s involuntary placement to the Northeast Florida State Hospital was filed on March 22,1983, in the Circuit Court for Hillsborough County. Also filed was a document indicating that appellant had waived her right to a hearing on the petition. On March 23, 1983, without a hearing, the court ordered the involuntary placement of appellant.

In April 1983, the public defender filed in the Circuit Court for Hillsborough County the motion to vacate the order for involuntary placement and to schedule a hearing on involuntary placement. Grounds alleged were that section 394.467(2)(a), Florida Statutes (Supp.1982) (identical to the corresponding provision in the 1983 statutes), which allows a waiver of a hearing by a person subject to involuntary placement, is unconstitutional. Appellant argues that the criteria for involuntary placement under section 394.467(l)(b) are inconsistent with the ability to give a knowing and informed waiver of a hearing.

We decline to address the constitutional argument presented by appellant because we find that there was available to appellant another remedy by which to get a hearing on her need for placement. See Singletary v. State, 322 So.2d 551, 552 (Fla.1975). Section 394.467(2)(b) provides that a person who has waived a hearing, or his guardian or representative, may apply for a hearing on the need for involuntary placement at any time within six months of the date of the involuntary placement certificate. The petition is to be filed in the county in which the person is involuntarily placed.

Thus, by filing a petition pursuant to section 394.467(2)(b) in the proper county, appellant could have had the hearing she requested. Appellant did not do so, and we affirm the denial of appellant’s motion.

We also note that under section 394.-467(4) a patient may request a hearing at six-month intervals if continued placement is requested by the administrator of the hospital facility. For this additional reason appellant has had the opportunity to have a hearing on the need for her involuntary placement.

AFFIRMED.

OTT, C.J., and SCHOONOVER, J., concur.


author: FERGUSON, Judge.

text:
    Herman E. SIEGEL, on behalf of himself and other unit owners of the Towers of Quayside No. 2 Condominium, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION; and Towers of Quayside Homeowners’ Association, Inc., Appellee.
    No. 83-2113.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    Becker, Poliakoff & Streitfeld and Mark B. Schorr, Fort Lauderdale, for appellant.
    Rubin, Baum, Levin, Constant, Friedman & Bilzin and Richard L. Allen, Miami, David M. Maloney, Tallahassee, for Department of Business Regulation, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON  and FERGUSON, JL

       Judge Pearson did not hear oral argument.

   FERGUSON, Judge.

Appellant, on behalf of himself and other unit owners of Towers of Quayside No. 2 Condominium, sought a declaration that the unit owners are entitled by law, pursuant to Section 718.301, Florida Statutes (1983), to elect no less than one-third of the members of the board of directors of the Towers of Quayside Homeowners’ Association, Inc. on grounds that (1) they own more than fifteen percent of the condominium units, and (2) the Homeowners’ Association is an “association,” as that term is used in the statute, because it operates condominium property. This appeal is from a declaratory statement issued by the Division of Florida Land Sales and Condominiums, Department of Business Regulation which finds that the Homeowners’ Association is not an association subject to the Condominium Act because “it is not the entity responsible for the operation of any condominium property.” [e.s.] We disagree and reverse.

The Towers of Quayside is a community consisting exclusively of luxury condominiums. The Towers of Quayside No. 2 Condominium, now completed, is an 18-story complex which consists of 216 units. When all the proposed units are constructed the entire community will consist of 984 units. Each condominium building is governed by a separate condominium association. A Homeowners’ Association is also created by independent Articles of Incorporation.

Each building has “common elements” which are operated and maintained by the condominium association. These elements include parking lots, terraces, recreational amenities located on the plaza deck, a swimming pool, balconies, and air conditioning units. The Homeowners’ Association operates other “common properties” which include a health spa, marina, restaurant, and tennis courts, all of which it contends are not condominium property. Nonetheless the Homeowners’ Association performs certain functions with respect to condominium property. First, Article V(g) of the Declaration of Covenants, Restrictions, and Easements for the Towers of Quayside provides that the Homeowners’ Association has the power and duty to:

(g) Install and maintain security devices, detectors and communication facilities, and employ or contract for employment of security services, guards and watchmen for the Common Properties and the Condominium Properties in the Towers of Quayside, [e.s.]

Second, the Homeowners’ Association, through the Architectural Committee, has the authority to require architectural conformity throughout the Quayside community. Third, Article IX, Section 1 of the Declaration of Covenants provides:

In the event that any Condominium shall permit any improvement which is the responsibility of such condominium to maintain, to fall into disrepair or not be maintained so as to create a dangerous, unsafe, unsightly or unattractive condition, or to otherwise violate this declaration, the Architectural Committee or the Association [Homeowners’ Association] shall have the right, but not the duty, upon fifteen (15) days’ prior written notice to the Condominium Association, to correct such condition and to enter upon such Condominium Property to make such repairs or to perform such maintenance, and the cost thereof shall be charged to the Condominium, [e.s.]

The right to access to a condominium unit for the purpose of maintaining or repairing common elements or for making emergency repairs necessary to prevent damage to the common elements or to another unit or units is granted to condominium associations pursuant to Section 718.111(5).

Article 21 of the Declaration of Condominium requires that each unit owner shall become a member of the Homeowners’ Association, and shall have a right to enjoy the common properties but that the right to use those properties is non-exclusive. The Declaration of Covenants, which is expressly incorporated into the Declaration of Condominium, assures that each unit owner has

a right and easement of ingress and egress and of enjoyment in, to and over the Common Properties which shall be appurtenant to and shall pass with title to every Dwelling Unit....

Article I, Section 10 of the Declaration of Covenants, which defines common properties, states that said properties are for the common use and enjoyment of the unit owners. The Declaration of Covenants further provides that each condominium unit owner shall pay an assessment to the Homeowners’ Association to cover the costs of operating the common properties.

Appellant is aggrieved by the scheme designed by the developer which he claims prevents the unit owners from exercising their statutory right to elect at least one-third of the board. Voting rights on the board of directors of the Homeowners’ Association are heavily weighted in favor of the developer. Article IV of the Declaration of Covenants provides that owners of units subject to assessment (other than the developer) are allowed one vote per unit in the decision-making of the Homeowners’ Association. The developer gets six votes for each completed unit, plus six votes per unbuilt but planned unit, based on a total of 984 planned units. The unbuilt units are not subject to assessment. Appellant has determined that more than 148 of the 984 planned units have been sold to unit owners, which amounts to more than 15% of the planned units within the Quayside community. Under Section 718.301(1), the unit owners allegedly are entitled to elect no less than one-third of the members of the board of directors of the Homeowners’ Association.

Concededly we are exploring an area where the law is in early stages of development and without clearly defined landmarks. We pose three questions for purposes of the examination: (1) does the Homeowners’ Association operate condominium property generally; (2) are the common properties in fact condominium property; and (3) does the Homeowners’ Association exist solely for the purpose of serving condominium unit owners. Appel-lees contend that several factors require a negative answer to each question. First, there is a potential for use of the common properties by other than condominium unit owners; second, the Homeowners’ Association lacks primary responsibility for operation of the condominiums; third, the Association’s powers derive from Articles of Incorporation and a Declaration of Covenants, separate and apart from the Declaration of Condominium.

Appellant contends that whether any master association is in fact a statutorily controlled condominium association is determined by examining the Homeowners’ Association’s constituency, relying on the Division’s declaratory statements in Number One Condominium Association-Palm Greens at Villa Del Rey, Inc. v. Division of Florida Land Sales and Condominiums, filed June 25,1980, aff'd mem., Palm Greens Limited v. Division of Florida Land Sales and Condominiums, 402 So.2d 618 (Fla. 1st DCA 1981) and in Hirshorn v. Division of Florida Land Sales and Condominiums, filed October 29, 1981, and further relying on Palm Beach Leisureville Community Association, Inc. v. Raines, 398 So.2d 471 (Fla. 4th DCA 1981), approved, 413 So.2d 30 (Fla.1982). Since the Association’s membership is comprised of only condominium unit owners, and only condominium unit owners have rights in the property administered by the Association, appellant asserts that the only logical answer is that this Association is governed by the Condominium Act.

In Palm Greens the Division held that a master association created pursuant to a Declaration of Condominium, in a community comprised solely of condominiums, for the purpose of coordinating and operating all sub-associations and maintaining recreational lands and facilities, was an association as that term is defined by Section 718.103(2), Florida Statutes (1983). Although the declaration provided for the existence of both sub-associations and a master association, it is significant, argues appellant, that the Division did not restrict the applicability of Chapter 718 to only sub-associations, i.e. individual condominium associations. In Hirshorn, the Division ruled that the individual condominium area associations had the responsibility for safeguarding the rights of the individual unit owners, which responsibility had been delegated to the master association. It found that for that reason the authority of the master association had to be “exercised pursuant to the constraints and requirements of Chapter 718.”

The Division counters that although a constituency test may be employed, as it was in Raines, to defeat condominium association status, it does not confer such status. The litmus test, they argue, relying on Sections 718.103 and 718.111, is not a constituency test but a function test, i.e., whether the entity operates a condominium or has sufficient powers that constitute condominium operation.

But Raines is distinguishable on its particular facts. The planned community in Raines consisted of 1803 improved lots with single family homes and 502 condominium apartments. Each of the 21 apartment buildings had its own condominium association, while a community (master) association provided maintenance management for the entire community. The issue presented was whether the community association was an “association” within the meaning of Sections 718.103(2) and 718.-303(1) so as to be liable for attorney’s fees under the latter section. The fourth district held that the community association was not an “association” within the meaning of those statutes. The district court reasoned that since the community association derived its power from its Articles of Incorporation and from the Declarations of Restrictions which governed both the condominium apartments and the single family lots, and the Declarations of Restrictions applicable to the improved lot owners did not subject those lots to a condominium form of ownership, it would be unfair to require the improved lot owners to pay a pro rata share of the attorney’s fees assessed under a provision of the condominium statute. Raines, 398 So.2d at 474. The court further held that the only “associations” within the meaning of Section 718.103(2) were the twenty-one individual condominium associations which had the primary responsibility of operating the individual condominium buildings. The supreme court’s affirmance pivoted on the fact that the community association served both the single family homes and the condominium buildings, and the single family homes were not subject to condominium ownership. Raines, 413 So.2d at 32.

In the instant case, the Quayside community currently consists of only condominiums. Further, unlike the situation in Raines where the community association did not derive its powers, duties, and responsibilities from the Condominium Act, the Homeowners’ Association of Quayside is governed by a Declaration of Covenants which is expressly incorporated into the Declaration of Condominium.

With respect to Palm Greens and Hirs-korn, the Division first casts doubt on their continued vitality by noting that they preceded the supreme court decision in Raines. Second, the Division contends that the two declaratory statements do not either support the constituency test put forth by appellant nor detract from the statute’s function test. For the same reasons we have just distinguished Raines from this case, we also disagree that Raines has robbed Palm Greens and Hirs-horn of vitality. The two cases appear to have been correctly decided by the Division.

The Association’s main argument focuses on the functional dissimilarities between the communities of Palm Greens and Quayside as evidence that the court’s conclusion in Palm Greens, i.e., that the master association of that community is an association within the meaning of Chapter 718, does not compel the same conclusion here.

The Division arrived at its finding in Palm Greens by considering the following factors: (a) each sub-association (i.e. condominium association) became a member of the master association and elected representatives to it; (b) the master association was “the entity responsible for the coordination and operation of all sub-associations and for the maintenance of areas owned or controlled by said Master Association;” (c) the master association had the power to levy assessments against all member associations in order to defray the expenses of carrying out its functions, which assessments were declared to be common expenses of the condominium; (d) certain areas (common properties) were owned and controlled by the master association “for the use and enjoyment of the members of all Sub-Associations, i.e. condominium unit owners;” (e) the use and enjoyment of such areas were subject to rules and regulations promulgated by the master association, pursuant to Section 718.123(1); and (f) the condominium associations and the master association had entered into long-term leases for recreational facilities, which were for the enjoyment of the unit owners.

Similarly, in the Towers of Quayside Project we find that the Homeowners’ Association’s (master association’s) functions include: (a) maintenance, repair, and management of the common properties; (b) levy and collection of assessments against each condominium unit owner to cover the costs of operating the common properties; (c) management of the common properties “for the common use and enjoyment of the [unit] owners;” and (d) establishment of uniform rules and regulations pertaining to the use of the common properties. Additionally, although most of the functions of the Homeowners’ Association pertain to common properties, they do encompass some maintenance and control of condominium property in at least three areas, as previously discussed. The fact that the master association in Palm Greens is composed of condominium associations while the Homeowners’ Association in Quayside is composed of the unit owners themselves is, insignificantly, a difference of form, since the common properties of Palm Greens also existed expressly “for the use and enjoyment of the members of all Sub-Associations, i.e. condominium unit owners.” [e.s.] Declaratory Statement in Palm Greens, at 3.

Lastly, the Division and the Association argue that the common properties were not submitted to condominium ownership. On this point the broader question presented is whether the so-called common properties are actually condominium property, or more precisely whether the irrevocable rights and obligations of unit owners which flow from the Declaration of Condominium, to use and pay for the common properties, amount to condominium rights.

On this point we look first to the statute. Section 718.103(11) defines as condominium property:

lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and.all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.

Article 2.9 of the Declaration of Condominium contains the same language in its definition of condominium property:

[T]he land and personal property that are subject to condominium ownership under this Declaration, all improvements on the Land, and all easements and rights appurtenant thereto which are intended for use in connection with the Condominium.

The Declaration of Condominium provides further in its submission statement:

The Developer hereby submits the Land and Building (each as hereinafter defined), all other improvements erected thereon, and all other property, real, personal or mixed, intended for use in connection therewith (collectively called the “Property”) to condominium ownership pursuant to the Condominium Act of the State of Florida and, pursuant thereto, does hereby create a condominium to be known as The Towers of Quayside No. 2 Condominium (the “Condominium”), [e.s.]

The Declaration of Covenants in Article II, Section 1 states that:

Every owner shall have a right and easement of ingress and egress and of enjoyment in, to and over the Common Properties which shall be appurtenant to and shall pass with title to every Dwelling Unit_[e.s.]

A thing is “appurtenant” to something else when it is necessarily connected with its use and enjoyment, and is appurtenant to land when it is by right used with the land for its benefit. Black’s Law Dictionary 94 (5th ed. 1979); see also Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981).

The submission statement submits to condominium form of ownership the land, improvements and “all other property ... intended for use in connection therewith,” without qualification, which quite reasonably includes the common properties.

The Division’s holding that “since the Towers of Quayside Homeowners’ Association, Inc. is not the entity responsible for the operation of any condominium property, it is not an association within the meaning of the Condominium Act and specifically Section 718.301, Florida Statutes” is not supportable in fact or law. To the contrary, the evidence shows that the Homeowners’ Association does, to a meaningful extent, operate condominium property. Based on interpretations of the applicable statutes, and the documents which the developer is required to file before offering to sell condominium units, it is clear that the common properties were submitted to condominium ownership. Applying, appropriately, both the constituency test advanced by appellant, and the function test embraced by appellees, we conclude that the Homeowners’ Association is a condominium “association” within the meaning of Section 718.103(2), subject to ultimate control by unit owners in accordance with Section 718.301.

Reversed.

      . Section 718.301(1) provides in pertinent part:
      When unit owners other than the developer own 15 percent or more of the units in a condominium that will be operated ultimately by an association, the unit owners other than the developer shall be entitled to elect no less than one-third of the members of the board of administration of the association.

      . Article 21 of the Declaration of Condominium provides:
      All rights, privileges, benefits, liabilities and obligations set forth in said Declaration of Covenants, Restrictions and Easements are incorporated herein by reference and each Unit Owner shall be bound thereby in all respects.

      . A suggestion was made at oral argument that any profits made on operations of the common properties do not inure to the benefit of unit owners or the condominium association but exclusively to the Homeowners' Association.
      On this point, Article 25 of the Declaration of Condominium, is worthy of note. It provides:

        Conflict of Interests. No representative of the Developer serving on the Board of Directors of the Association shall be required to disqualify himself from voting upon any management contract, lease, or other matter between the Developer and a Management Company or the Association and a Management Company, where the Developer has a pecuniary interest in the Management Company. Developer, as a Unit Owner, shall not be required to disqualify itself from voting in any matter which may come before the membership of the Association in regard to a management contract, lease, or other matter where Developer may have a pecuniary or other interest, nor shall any conflict of interest be a cause of partial or total invalidity of the matter voted upon, whether or not such vote was necessary for the adoption, ratification or execution of the same.
      The potential therefore exists for the developer, as controller of the Homeowners’ Association, to contract with itself to manage the common properties on any term which meets its approval.

      . The Homeowners' Association's argument that there is a potential for use of the common properties by other than condominium unit owners is based on Article I, Section 14 of the Declaration of Covenants which provides that a dwelling unit includes, without limitation, a condominium unit. Based on this definition, the Homeowners' Association asserts that although the developer has proposed to build condominiums on the two remaining undeveloped sites, other non-condominium development would be possible. We reject this argument since we are dealing only with the present form of residential development which is limited to condominium units.

      .Section 718.103(2), (9), and (11) contain the following pertinent definitions:
      (2) "Association” means the corporate entity responsible for the operation of a condominium.
      (9) "Condominium” means that form, of ownership of real property which is created pursuant to the provisions of this chapter and which is comprised of units that may be owned by one or more persons, and there is, appurtenant to each unit, an undivided share in common elements.
      (11) "Condominium property” means the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.

      . Section 718.111, which defines the powers and duties of a condominium association, states in pertinent part:
      (1) The operation of the condominium shall be by the association, which must be a corporation for profit or a corporation not for profit.... An association may operate more than one condominium.
      (2) The association may contract, sue, or be sued with respect to the exercise or nonexer-cise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the condominium property.

      . Operation of a condominium is defined without limitation in Section 718.103(15) as "the administration and management of the condominium property.” [e.s.]

      . The Homeowners’ Association adopts the Division's contention that the constituency test can defeat but not confer condominium association status, then extends the argument by suggesting that the fact that planned but unconstructed units could be rented rather than sold as condominium units is sufficient to defeat condominium status. That argument is not persuasive because all that is reflected by the record before us is a planned condominium community which is partially complete.


author: WIGGINTON, Judge.

text:
    CONE BROTHERS CONTRACTING and Whiting National Services, Appellants, v. James L. GORDON, Appellee.
    No. AV-235.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Rehearing Denied July 26, 1984.

      Valerie A. Marshall, of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellants.
    Bill McCabe, of Shepherd, McCabe & Cooley, and J. David Parrish, of Hurt & Parrish, P.A., Orlando, for appellee.
   WIGGINTON, Judge.

The employer/carrier appeal a workers’ compensation order wherein the deputy ordered the E/C to pay to claimant a lump sum advance of all future permanent total disability benefits commuted to a present value of $106,984.33. The E/C raise three points for our review: (1) whether section 440.20(10), Florida Statutes (Supp.1978), as applied, amounts to an unconstitutional taking of the E/C’s property without due process of law; (2) whether the lump sum award is in the best interests of the claimant and is reasonable under the circumstances, without resulting in material prejudice to the carrier; and (3) whether the award complies with the 1983 amendments to section 440.20, chapter 83-305, Laws of Florida. We affirm as to all three points.

Claimant, who was forty-five years old at the time of the hearing, married and having two minor children to support, was involved in an industrial accident on November 4, 1978. He was ultimately declared to be permanently and totally disabled and was awarded appropriate periodic benefits by order entered on November 25, 1980.

In May, 1983, claimant petitioned for a lump sum advance of all permanent total disability benefits pursuant to section 440.-20(10), Florida Statutes (Supp.1978), alleging that such an advance would be in his best interests, would not materially prejudice the rights of the employer and carrier, and would be reasonable under the circumstances. At the hearing on the petition claimant introduced a financial plan and called as a witness the financial consultant who had prepared the plan, as evidence that a lump sum advance would be advantageous. Claimant also testified that he would follow the plan, which would result in his having a net monthly increase in income from approximately $665 to approximately $824, as well as afford him and, incidentally, his dependents, greater financial security. Claimant testified that his wife did not work, as it was necessary for her to remain at home and take care of him because of his permanent disability. The amount requested by claimant was derived by the consultant through use of a formula utilizing claimant’s life expectancy, in accordance with the most recent United States Life Tables as required by section 440.20(10), the 4 percent discount factor, also mandated by the statute, and claimant’s compensation rate.

In ordering the payment of the $106,-984.33 lump sum, the deputy concluded that the E/C adduced no evidence that claimant’s physical condition would improve or that his life expectancy would decrease. The deputy therefore rejected the E/C’s argument that a lump sum advance would materially prejudice their rights by depriving them of the right to later challenge claimant’s status as permanently and totally disabled if he were to regain his earning capacity or suffer a premature death. The deputy also pointed out that the probability of the happening of any contingency other than the claimant’s life expectancy is to be disregarded under section 440.20(10).

Moreover, the deputy rejected the E/C’s argument that the statutory discount rate of 4 percent, alone, materially prejudices their rights. Relying on this Court’s decision in Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982), the deputy held that the fact the discount rate is less than investment market interest rates is an insufficient basis on which to deny a lump sum advance payment to an otherwise qualified claimant. He concluded that there was absolutely no evidence of material prejudice to the employer/carrier; the statutory 4 percent discount rate adequately protects the carrier’s security interest; and a lump sum advance payment of all future permanent total disability benefits would be in claimant’s best interests and reasonable under the circumstances.

Finally, the deputy held that the 1983 amendments to sections 440.20(10) and 440.20(1l)(d), increasing the discount rate to 8 percent and limiting the amount to be advanced to $7,500 in any 48-month period, were substantive amendments and prospective only. Consequently, the deputy would not apply them to the instant case.

We first address the employer/carrier’s third point, for should we agree with their position that the 1983 amendments are procedural, and therefore to be applied retroactively, we would then find it unnecessary to reach their constitutional argument made under Point I. However, we do not agree with the E/C on this point, and accordingly, affirm.

As claimant’s injury took place in November, 1978, the statute applicable to claimant generally, for substantive purposes, is the 1978 supplemental version. Section 440.20(10), Florida Statutes (Supp. 1978), provides that a lump sum award shall be computed at a 4 percent true discount.

In 1979, section 440.20(10) was renumbered as section 440.20(12) and was subdivided. See chapters 79-400 and 79-312, Laws of Florida. Section 440.20(12)(b), Florida Statutes (1979), continues to provide for a 4 percent discount rate.

However, in 1983, the legislature substantially amended section 440.20(12) and section 440.20(13) (formerly section 440.-20(11), Florida Statutes (Supp.1978)), providing for an 8 percent discount rate and limiting a claimant’s receipt of a lump sum advance payment in excess of $2,000, to $7,500 or twenty-six weeks of benefits in any 48-month period, whichever is greater. Chapter 83-305, Laws of Florida; section 440.20(12)(c) and (13)(d), Florida Statutes (1983). Although the effective date of these amendments was June 30, 1983, id, the E/C, nonetheless, would have us apply them to claimant’s case, arguing that they are procedural in nature, as dealing primarily with the “amount and timing” of a lump sum advance.

Once again, we emphasize the venerable rule of statutory construction that absent clear legislative expression to the contrary, a law is presumed to apply prospectively. See Special Disability Trust Fund, et al. v. Motor and Compressor Company, 446 So.2d 224, 227 (Fla. 1st DCA 1984), and cases cited therein. Nothing in chapter 83-305 suggests that the 1983 amendments to sections 440.20(12) and (13), Florida Statutes (1979), should operate in any way other than prospectively. Nor are we persuaded that the amendments with which we are concerned herein are anything but substantive in nature. Both the increase in the discount rate to 8 percent and the $7,500 cap placed on the lump sum payments work to substantially reduce a claimant’s award.

All parties had expectations, entitlements, and perceptions arising from the 1978 version of chapter 440. Specifically, sections 440.20(10) and 440.20(ll)(d), Florida Statutes (Supp.1978), set forth those rights and liabilities, in the form of the amount and kind of benefits to be paid and received, “to enable a disabled claimant to become a self-sustaining and productive member of society.” Herndon v. City of Miami, 224 So.2d 681, 682 (Fla.1969). We decline to ride roughshod over these rights and liabilities by accepting the E/C’s argument.

By our holding that section 440.-20(10), Florida Statutes (Supp.1978) is applicable in the instant case, we must necessarily decide the issue raised under the E/C’s first point, whether that section, as applied, amounts to an unconstitutional taking of their property without due process of law. To support their position, the E/C argue that a lump sum advance payment unconstitutionally deprives the carrier of property in that the carrier is required to provide a claimant benefits to which he is not yet, or may never be, entitled, and also that the lump sum award could either cause a carrier to increase premiums substantially or to run the risk of being left without adequate funds to pay other claims as they arise, ultimately being forced out of business. In essence, the E/C argue that the “practical operation” of the statute renders it unconstitutional.

No evidence was presented at the hearing to support any of these allegations. The E/C have simply failed to show that the statute, as applied to them, is arbitrary and capricious, or oppressively prejudicial, other than by expounding on what is pure speculation. We therefore decline to hold that section 440.20(10) is unconstitutional.

Finally, we reach the E/C’s second point, under which they raise the issue whether the lump sum award is in claimant’s best interests and reasonable under the circumstances, without resulting in material prejudice to. the carrier. We answer in the affirmative and affirm the deputy’s award..

Although “[tjhere is no mandatory requirement in the workmen’s compensation law that the claimant produce expert testimony at a hearing to obtain an advance payment of compensation.” Herndon v. City of Miami, 224 So.2d at 682-683, in this case claimant did produce a financial consultant who testified to a comprehensive, interlocking financial plan structured around an annuity, which would assure that claimant would have savings, security, and income within a manageable cash flow. The E/C did not rebut the consultant’s testimony with any evidence suggesting the financial plan would not be properly utilized or would not meet claimant’s obligations.

As to their argument that claimant might die before the annuity is depleted, which contingency they argue is to them materially prejudicial, we note that claimant’s life expectancy was calculated at twenty-seven years, seven years beyond the life of the annuity. The E/C did not adduce evidence to the contrary.

Nor did the E/C adduce evidence of material prejudice, but only argued the 4 percent discount factor as effecting that result. The fact that the discount rate is less than investment market interest rates is not a sufficient basis upon which to deny a lump sum advance payment to a claimant who is otherwise entitled to an award. Sanford v. Alachua County School Board, 425 So.2d at 114. Nor do we feel that our opinion in Travelers Insurance Company v. Taylor, 444 So.2d 39 (Fla. 1st DCA 1983) should compel a different result. The circumstances in Taylor did not involve an advance payment of all future compensation benefits in exchange for the employer/carrier’s release, thereby calling into play the 4 percent discount factor of section 440.20(12)(b), Florida Statutes (1979). Rather, we held in Taylor that “as a matter of law” a carrier is materially prejudiced by an order requiring it to advance in lump sum, benefits sufficient for the claimant to pay his attorney’s fee, where the carrier would be repaid by deducting a sum certain without interest, over a 15-year period. There was also no consequent release from liability involved.

We also distinguish this ease from Court of Flags v. Outland, 382 So.2d 443 (Fla. 1st DCA 1980), wherein the claimant sought an advance solely for the benefit of someone other than himself. In the instant case, however, the financial plan produced by claimant would enable him to manage his life, which undeniably means providing for his family, an ability presently denied him by his crippling industrial injury and concomitant periodic receipt of disability benefits.

Accordingly, we affirm the deputy commissioner’s order directing payment of the lump sum advance of compensation, which payment, we emphasize, as did the deputy, is to be utilized in accordance with the investment plan and relevant testimony at the hearing.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.

      . Section 440.20(10), Florida Statutes (Supp. 1978) provides in part:
      Upon the application of any party in interest and after giving due consideration to the interests of all interested parties, if a judge of industrial claims finds that it is for the best interests of the person entitled to compensation, said judge of industrial claims may enter a compensation order requiring that the liability of the employer for compensation shall be discharged by the payment of a lump sum equal to the present value of all future payments of compensation, computed at 4 percent true discount compounded annually, or requiring that the employer make advance payment of a part of the compensation for which said employer is liable by the payment of a lump sum equal to the present value of such part of the compensation, computed at 4 percent true discount compounded annually....

      . We distinguish this case from Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980), in which we held section 25, chapter 78-300, amending the interest rate in section 440.20(7) from 6 percent to 12 percent, to be remedial in character and therefore applicable to currently accruing liability arising from an injury that occurred prior to its effective date, although the 6 percent figure still applied to the E/C's liability for compensation prior to the new statute’s effective date. In contrast, we are dealing with neither a remedial statute nor "currently accruing liability,” but, instead, a statutory right assertible with expectations and liabilities which became fixed at the time of the injury-


text:
    AMERICAN MUTUAL INSURANCE COMPANY, Carrier, Special Disability Trust Fund, and George Brown & Son, Employer, Appellants, v. Collins PATRICK, Jr., Appellee.
    Nos. AV-287, AV-288.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Rehearing Denied July 30, 1984.
    James M. Hess, of Driscoll, Langston & Kane, P.A., Orlando, for George Brown & Son and American Mut. Ins. Co.
    Thomas R. Criss, Tallahassee, for Special Disability Trust Fund.
    Deborah C. Edens, of Maher, Overchuck, Langa & Lobb, Orlando, for appellee.
   WIGGINTON, Judge.

The employer/carrier and the Special Disability Trust Fund appeal the deputy commissioner’s order directing them to pay to claimant a lump sum advance of all future compensation benefits commuted to a present value of $103,700. The E/C raise three points for our review: (1) whether the lump sum advance is in claimant’s best interest; (2) whether the $7,500 cap appearing in section 440.20(13)(d), Florida Statutes (1983), applies to the instant award; and (3) whether the 8 percent discount rate appearing in section 440.20(12)(c), Florida Statutes (1983), applies to the instant award. We affirm.

Points II and III were decided adversely to appellants’ position in our very recent decision in Cone Brothers Contracting v. Gordon, 453 So.2d 420 (Fla. 1st DCA 1984). The 1983 amendments to sections 440.20(12) and 440.20(13), Florida Statutes (1979) are substantive and are to be applied prospectively only.

Resolution of Point I is also controlled by the Gordon decision; although we note that on these facts, where the periodic payments left claimant in utter penury once daily living expenses were met, we feel even more compelled to affirm the lump sum award.

The financial plan introduced by claimant is sound and comprehensive, and would undeniably be in his best interests. However, we would amend the deputy’s order to add the proviso that the $103,700 lump sum received by claimant be utilized only for those purposes as set forth in the investment plan prepared by financial consultant Henry L. Turner, III, and in the testimony.

AFFIRMED, as amended.

MILLS and SHIVERS, JJ., concur.

      . We distinguish our holding in Gordon from that in Kissimmee Construction Company (GAC Corporation) v. Riley, 400 So.2d 313 (Fla. 1st DCA 1984). In Riley, section 440.20(12), Florida Statutes (1979) was applied in place of section 440.20(10), Florida Statutes (Supp.1978), since the claimant’s injury took place following the effective date of the 1979 amendments. That was not the case in this instance, as the date of claimant’s injury was June 1, (1979), prior to the August 1 effective date of the 1979 statutes.


author: COBB, Judge.

text:
    Leron Herbert REDFIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1340.
    District Court of Appeal of Florida, Fifth District.
    June 21, 1984.
    Rehearing Denied July 30, 1984.

      Joseph Morrell, Winter Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The defendant, Redfin, pleaded nolo con-tendere to second-degree grand theft, reserving his right to appeal the order denying his motion to suppress. The issue raised in this case, which is dispositive, is whether Redfin was illegally searched. Given the evidence adduced at the suppression hearing below, the answer is yes. That evidence showed the following facts:

Redfin was recognized by a security guard named Holley at the Winter Park Mall as a man she had previously chased on suspicion of shoplifting in the mall. She notified Detective Collins of the Winter Park Police Department, who happened to be in the mall at the time. Holley subsequently pointed out the suspect, who was coming out of “The Phone Store,” and Collins approached Redfin, showing him his badge and asking to speak to him. Collins asked Redfin if he had a gun, to which Redfin replied, “No.”

Collins said Redfin was a suspect in another case he was working on, and when he came up to Redfin he “felt funny.” He said he recognized Redfin’s face, but didn’t know who it was and the “way he walked did not seem right.” He did not suspect that Redfin had taken anything from “The Phone Store.” Collins patted Redfin down, beginning with the back of his pants. The following colloquy occurred, during Collins’ testimony at the hearing:

Q Did you search because you didn’t believe him or—
A I just pat everyone down when I think something is wrong like that.
Q Okay.
A Patted down his pants and coat, and felt something real hard on the outside of the coat.
Q Did you know what that object was at that time?
A No, I did not.
Q Did you investigate further to find out what the object was?
A Yes, I did.
Q What did it turn out to be?
A It’s a square piece of a, I don’t know what they call the base set of it. You have to plug the phone into it.
Q Okay. When you saw that, immediately, what do you think had taken place? Did anything cross your mind?
A It was a phone shop. I thought he had taken it from the shop.
Q Did you think he had purchased it?
A No.
Q Did you make up in your mind at that time that you were going to arrest Mr. Redfin?
A Yes, I did.
Q Okay, and that would be for the offense of theft from that phone shop?
A Yes.
Collins further testified:
Q At that time, you detained Mr. Redfin and you indicated that his arm was stiff. What exactly did you do?
A Okay. When I started patting him down, I felt something outside. He was wearing a, I don’t know what you call, a corduroy — it’s a brown jacket. I opened the inside of the coat to see what was inside the coat.
Q Did you believe he had a firearm concealed?
A I did not believe it.
Q Okay. After you patted him down, what else did you do?
A I took the phone out when I saw it.
Q Okay. I mean, but how did you see the phone? Did he open his coat?
A I opened the coat.
Q What did you see as soon as you opened the coat?
A It was a large grey — large beige piece of machinery. I couldn’t tell exactly what it was.
Q It didn’t look like a gun?
A It did not.
‡ sjt # ⅜ ⅝ ⅜
BY MR. LEWIS (Assistant State Attorney):
Q Detective, when you first searched the man, .did you have any reason to believe at all that he might be carrying some weapon?
A No, not personally, no.
Q Okay. But it was your understanding that, based on the tip that you got from the security officer, that he committed at least one crime?
A One theft before, yes, sir.
Q Okay. Is it common practice among yourself and other police officers that when you make an arrest of an individual, or stop and detain an individual if he looks suspicious, as this gentleman did, that you would search him for weapons?
A Okay. I always have on anyone I stopped on any cases.
Q Okay.

Upon questioning by the court, Collins said that his intent was to have Redfin identified for the other shoplifting case so as to be able to file for a warrant. The following colloquy occurred between the court and Detective Collins:

THE COURT: Were you going to arrest him for the other case?
THE WITNESS: No, the other case was under a hundred dollars. The only thing I could do is get him identified by Holley and file for a warrant.
THE COURT: And so why did you pat him down?
THE WITNESS: Things didn’t seem right, the way he walked and came up to us. And I just patted him down to make sure he didn’t have any weapon.
THE COURT: So, you had a reasonable belief that he might have had or could have had?
THE WITNESS: Any time I stop anyone, I pat them down. I’m in investigations—
THE COURT: But why did you do that?
THE WITNESS: Just for my own safety. I found quite a few concealed weapons just doing that.
THE COURT: So, you do it then for the purpose of determining whether or not they have a weapon?
THE WITNESS: Yes, sir.

We find that Collins’ stop of Red-fin was proper. See State v. Webb, 398 So.2d 820 (Fla.1981). However, a valid stop does not necessarily justify a frisk. Webb at 822. Florida’s stop and frisk law, section 901.151, Florida Statutes (1981), requires probable cause to believe the detained person “is armed with a dangerous weapon” to justify a search. See also Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). That test clearly was not met under the facts presented by the above testimony. Collins did not suspect that Redfin had a weapon; the search here was prompted not by probable cause but rather by the routine Collins employed for all detainees.

REVERSED.

DAUKSCH and COWART, JJ., concur.

      . Section 901.151(5), Florida Statutes (1981), states:
      Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.


author: NIMMONS, Judge.

text:
    George W. BRANNEN, Appellant, v. STATE of Florida, Appellee.
    No. AU-469.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Brannen was charged with two counts of battery on a law enforcement officer and one count of resisting an officer with violence. He was convicted of the lesser offense of simple battery on each of the battery on law enforcement officer counts and the lesser offense of resisting an officer without violence on the other count. We affirm the two simple battery convictions but reverse the resisting conviction.

The offense of resisting an officer, either with or without violence, requires, as an essential element, that the officer be engaged “in the execution of legal process or in the lawful execution of any legal duty.” The information charged that the resisting occurred as the officer was engaged “in the lawful execution of a legal duty, to wit: making a lawful arrest of George W. Bran-nen for a misdemeanor, to wit: disorderly intoxication.”

Counsel for the defendant requested that the court define for the jury the offense of disorderly intoxication and submitted an instruction which set forth the elements of that misdemeanor. The defendant was seeking to defend on the basis that the state had failed to prove the above referred element which was essential to make a case of resisting. More particularly, the defendant’s position was that he had not committed the offense of disorderly intoxication in the presence of the officer and that, absent legal process, an arrest for such misdemeanor may be made only when it is committed in the presence of the officer.

The trial court denied the requested jury instruction. Such denial was error. In Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981), the court correctly noted:

An essential element of the offense under Count Three was that the arresting officers were engaged “in the execution of legal process or in the lawful execution of any legal duty.” See § 843.01, Fla.Stat. (1979). The lawful duty requirement was an essential element to be shown by the prosecution and subject to jury determination, applying the reasonable doubt criterion. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Lee v. State, 368 So.2d 395 (Fla. 3rd DCA 1979), cert. denied, 378 So.2d 349 (Fla.1979).

399 So.2d at 71.

The state, however, argues that the following portion of the standard jury instructions under Section 843.01 and 843.02 requires a contrary result:

The court further instructs you that (read duty being performed from charge) constitutes [execution of legal process] [lawful execution of a legal duty].

The state then points to the court’s following instruction:

The court further instructs you that the arresting of a person for the misdemean- or of [disorderly] intoxication constitutes a lawful execution of a legal duty.

The state says that the defendant was entitled to no more than the above instruction. We disagree and hold that the trial court erred in not affording the defendant the opportunity of having the jury determine the question of whether this particular arrest for disorderly intoxication was lawful. In order for the jury to make such determination, it must, of course, be informed of the definition of the offense, in this instance disorderly intoxication.

We have considered the other points raised by appellant and find them to be without merit. The judgments are affirmed with respect to the simple battery counts, but the judgment on the third count is reversed and the case is remanded for a new trial on the charge of resisting without violence.

BARFIELD, J., concurs.

THOMPSON, J., dissents without opinion.

      . Sections 843.01 and 843.02, Florida Statutes (1981).

      . Standard Jury Instructions in Criminal Cases (1981 Edition), pp. 195 and 196.


text:
    Doris FRANTZ, Appellant, v. Leonard FRANTZ, Appellee.
    No. 83-2871.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 10, 1984.

      Smith & Mandler and Jonathan A. Heller, Miami Beach, for appellant.
    Richard H.W. Maloy, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., HUBBART, J., and WINIFRED J. SHARP, Associate Judge.
   PER CURIAM.

The order denying the ex-wife an increase in alimony is affirmed on the ground that the record supports an application of the principle that

an increase in the husband’s ability would not itself justify an upward modification of alimony if the wife’s needs are already fully met either by the existing award or otherwise. See generally 10A Fla.Jur. Dissolution of Marriage § 53 (1973).

Powell v. Powell, 386 So.2d 1214, 1216, n. 6 (Fla. 3d DCA 1980).

Since both parties were unsuccessful in their respective motions for modification, we likewise find no merit in Ms. Frantz’ assertion of error in the denial of her claim for attorney’s fees. See Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981).

Affirmed.


text:
    George W. EAGER, Sr., Appellant, v. Norma S. EAGER, Appellee.
    No. 84-322.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 7, 1984.
    Tittle & Tittle, Tavernier, for appellant.
    Eleanor Levingston Schockett and Jennifer Armstrong West, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Duncan v. Duncan, 379 So.2d 949 (Fla.1980).