author: SUNDBERG, Justice.

text:
    STATE of Florida, Petitioner, v. Greg P. WILLIAMS, Respondent.
    No. 51493.
    Supreme Court of Florida.
    Sept. 15, 1977.

      Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for petitioner.
    Martin Errol Rice of Harris, Clark, Green, Piper & Davenport, St. Petersburg, for respondent.
   SUNDBERG, Justice.

Pursuant to Article V, Section 3(b)(3), Florida Constitution, we review a decision of the District Court of Appeal, Second District, reported at 344 So.2d 311. In the decision certified to us, the district court passed upon the effect of an interlocutory appeal by the State on Fla.R.Crim.P. 3.191, the speedy trial rule.

The facts of this case, as iterated by the district court, are not complex. On May 14, 1975, respondent, Greg P. Williams, was arrested for possession and sale of cocaine. Trial was initially set for August 28, 1975, but was continued until September 26,1975, on petitioner’s motion. On September 12, 1975, respondent filed a motion to exclude witnesses. On September 26,1975, an order was entered excluding two of the State’s witnesses from testifying at the trial. Petitioner immediately filed a notice of appeal from this order. At the same time, petitioner moved for an order staying the speedy trial time pending the appeal, and the motion was granted on September 26, 1975. By its motion, the State requested the trial court only

. to stay the Speedy Trial Rule, as set forth in Florida Rules of Criminal Procedure 3.191, for the period of time necessary to complete appellate procedures instituted in the above-styled cause. (Emphasis supplied)

The district court of appeal treated the appeal as a petition for certiorari and denied the petition. The district court’s mandate was filed in the trial court on July 14, 1976. A new trial date was set for September 30, 1976. Respondent then filed a motion for discharge pursuant to the speedy trial rule, which was granted on September 30, 1976. When the appeal was taken and the stay order entered, 135 days of the 180 days available under the speedy trial rule had already elapsed. Accordingly, the trial court reasoned that the State only had 45 days left after the appeal was adjudicated in which to bring the respondent to trial. Since trial did not commence within this 45-day period, the respondent was ordered discharged.

The essential issue resolved by the district court of appeal was whether the case was controlled by Fla.R.Crim.P. 3.191(g) which provides an automatic 90-day extension after receipt by the trial court of a mandate from the reviewing court, or by Fla.R.Crim.P. 3.191(d)(2), which provides that the trial court may extend the time periods established by the rule for a period of reasonable and necessary delay to accommodate certain specified events. Petitioner relies upon State v. Vinson, 294 So.2d 418 (Fla. 2d DCA 1974), in which the district court observed in dictum, that the automatic 90-day extension under Fla.R.Crim.P. 8.191(g) would apply to the reversal of an order dismissing an information. As explained in footnote 2, such an appeal, after July 1,1977, will be cognizable under Fla.R. Crim.P. 3.191(d)(2). In any event, the district court rejected the State’s assertion based upon Vinson and properly concluded that the speedy trial rule by subsection (d)(2) specifically contemplates the effect of an interlocutory appeal upon the rule’s time periods.

The district court determined that certio-rari proceedings raising questions bearing directly on the trial itself may properly be considered as interlocutory appeals for purposes of Fla.R.Crim.P. 3.191(d)(2). Furthermore, the district court quite correctly observed that the State availed itself of this very provision of the rule when it moved for a stay upon the filing of the notice of appeal. By their terms, the motion and order stayed the time under the rule only pending completion of the appellate proceedings. As noted by the district court, the motion and order themselves served to advise all concerned of the new time limits which were in effect. See Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla. 1974).

We concur, then, with the result reached by the District Court of Appeal, Second District, when it determined that this case is controlled by Fla.R.Crim.P. 3.191(d)(2), and, therefore, upon receipt of the mandate by the trial court which concluded the appellate proceedings, the speedy trial time recommenced to run. When the State failed to bring the case to trial within the 45 days which were left, respondent was entitled to discharge.

Accordingly, the petition for writ of cer-tiorari is granted and the result of the decision of the District Court of Appeal, Second District, is approved.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT and KARL, JJ., concur.

      . Fla.R.Crim.P. 3.191(g) reads as follows:
      “Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”

      . Fla.R.Crim.P. 3.191(d)(2) reads as follows:
      “When Time May be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.”
      It should be noted that effective July 1, 1977, this Rule has been amended to include under category (iv) the additional event, “for an appeal by the State from an order dismissing the case.” The Committee Note to the amended Rule explains the purpose of the additional phrase in the following terms:

        “An appeal by the State from an order dismissing the case constitutes an interlocutory appeal, and should be treated as such. The additional phrase removes any ambiguities in the existing Rule.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Harry T. PRYOR, Respondent.
    No. 52044.
    Supreme Court of Florida.
    Sept. 15, 1977.

      S. James Foxman, Bar Counsel, South Daytona, and David G. McGunegle and H. Glenn Boggs, Asst. Staff Counsels, Tallahassee, for The Florida Bar, complainant.
    No appearance, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On January 17,1977, counsel for the complainant filed the Complaint with The Florida Bar alleging:

“1. The Respondent, Harry T. Pryor is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
“3. Respondent was retained by Vincent J. Fioto to represent him in a lawsuit against Lamont J. Dunning d/b/a Mobile Marine Repair, a partnership.
“4. On August 17, 1976, in the Volusia County Court, a nonjury trial in the above case was scheduled.
“5. On August 17,1976, at Respondent’s request, Fioto picked Respondent up at his home approximately fifteen minutes before the hearing.
“6. At this time, Respondent appeared heavily intoxicated and needed help getting into Fioto’s car.
“7. On the way to the courthouse, Respondent mumbled incoherently and Fio-to smelled the odor of alcohol on Respondent’s breath. Upon arriving at the courthouse, Respondent was unable to get out of the car under his own power.
“8. In the courtroom, Respondent’s speech was slurred and he walked unsteadily.
“9. At this time, presiding Judge Norton Josephson dismissed Respondent from the courtroom.
“10. The judge then questioned the witnesses in the courtroom to determine their opinions as to Respondent’s physical condition.
“11. All the witnesses, except one, confirmed the fact that Respondent was under the influence of alcohol.
“12. By reason of the foregoing, Respondent has violated Disciplinary Rules 1~102(A)(5) and 1-102(A)(6) of the Code of Professional Responsibility and Rule 11.02(3)(a) of the Integration Rule of The Florida Bar.
“13. The complainant realleges the matters set forth in paragraphs 1-12 of Count I.
“14. At the time Respondent undertook the representation of Vincent J. Fioto, Respondent was under suspension for nonpayment of dues to The Florida Bar effective May 12, 1975.
“15. By undertaking the representation of Fioto, Respondent misrepresented to the public his status as a member in good standing of The Florida Bar.
“16. By reason of the foregoing, Respondent has violated Disciplinary Rules 1-102(A)(4) and 3-101(B) of the Code of Professional Responsibility.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Harry T. Pryor, is hereby disciplined as follows:

A. A public reprimand, including publication of this opinion in the Southern Reporter, and
B. Probation for three years upon the conditions contained in the conditional guilty plea for consent judgment.

Costs in the amount of $247.89 are hereby taxed against Respondent.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and KARL, JJ., concur.


author: PER CURIAM. BOYD, Justice, ENGLAND, Justice, HATCHETT, Justice,

text:
    John A. SPENKELINK a/k/a John A. Spenkellink a/k/a John A. Spinkellink, Appellant, v. STATE of Florida, Appellee.
    No. 52408.
    Supreme Court of Florida.
    Sept. 16, 1977.
    Certiorari Denied Nov. 14,1977.
    See 98 S.Ct. 492.
    Andrew A. Graham, Cocoa, Tobias Simon, Miami, Jack Greenberg, James M. Nabrit, III, David E. Kendall and Joel Berger, New York City, and Anthony G. Amsterdam, Stanford, Cal., for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Raymond L. Marky and Michael H. Davidson, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant John A. Spenkelink sought postconviction relief in the trial court under Florida Rule of Criminal Procedure 3.850. From a denial of relief by the trial court, he appeals that decision and requests a stay of execution pending a review by this Court.

This Court has afforded the appellant-defendant an opportunity to fully present the issues to this Court, including oral argument. The State has supplemented the record by furnishing this Court with a certified copy of the transcript of the voir dire examination of the jury.

We affirm the trial court’s denial of relief and accordingly deny the stay of execution.

The principal point raised by appellant-defendant Spenkelink concerns an assertion that certain jurors were improperly excluded from the jury panel from which the jury was selected. The examination of the jurors was recorded by a court reporter. Appellant Spenkelink has never previously requested that the juror examination be transcribed, and in fact his counsel expressly excluded it from being transcribed in his original appeal to this Court. It has now been transcribed and furnished to this Court at the instance of the State. We find the affirmative exclusion by the appellant, coupled with the failure to raise the issue of an alleged systematic exclusion of jurors at the time of the original appeal, waives the right to raise that claim at this stage in these proceedings. Richardson v. State, 247 So.2d 296 (Fla.1971); Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (Opinion filed June 23, 1977).

The confession issue is controlled by Wainwright v. Sykes, supra. The remaining issues were presented to the United States Supreme Court and rejected by it in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). They also were presented to the United States Supreme Court when this case was before that court and certiorari was denied on July 6, 1976. Spenkelink v. Florida, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976).

For the reasons expressed, the decision of the trial court is affirmed and the motion for stay of execution is denied. No petition for rehearing will be entertained.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNBERG, HATCHETT and KARL, JJ., concur.

BOYD, ENGLAND and HATCHETT, JJ., concur specially with opinions.

BOYD, Justice,

concurring specially.

I authored the original opinion in this case imposing the death penalty and join in this denial of a stay of execution only to comply with requirements of law.

My experience on this Court for almost nine years has convinced me that capital punishment will do little or nothing to reduce crime. Only by returning to fundamentals of religion, ethics and morality can we prevent the destruction of society.

ENGLAND, Justice,

concurring.

On the premise that “death is different”, appellant’s counsel invited the trial court and now invites us to expand established judicial boundaries in order to accommodate appellant’s desire for an evidentiary hearing on a variety of matters. At oral argument before this Court, appellant’s counsel identified from among the ten grounds asserted in his motion for post-conviction relief the two major matters he would like considered at an evidentiary hearing — the composition of appellant’s jury, which he contends was selected in violation of the standards prescribed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and the imposition of the death penalty on appellant in light of data which would establish that Florida’s death penalty statute was in this case being applied unconstitutionally.

I readily concede appellant’s premise that death is different. Moreover, I cannot help but share many of counsel’s stated and unstated concerns regarding appellant’s impending execution. I cannot, however, for these reasons alone, accept appellant’s invitation to discard or set aside well-established principles of law.

Unfortunately, time is not available for the careful written analysis of appellant’s contentions which the gravity of the subject matter warrants. At the risk of expressing my views inartfully, I deem it important to mention briefly the major reasons for my rejection of what appellant has presented.

I have very little trouble with appellant’s multiple challenges to our death penalty statute, as applied to appellant in this proceeding. None of them is supported by factual allegations, and since this matter began as appellant’s first request for post-conviction relief under our Rule of Criminal Procedure 3.850, appellant was obliged to base his claims on specific facts rather than general conclusions. To overcome this inherent defect in his motion appellant frankly invites us to expand the scope of Rule 3.850 review in death penalty cases. For a number of reasons, such as the inadvisability of fragmenting legal challenges to a conviction or sentence, the prospect of unending challenges in each death penalty case as the law evolves, and the fact that some of these claims have already been considered and rejected by this Court on appellant’s original appeal or otherwise, I must decline appellant’s invitation. Although death is indeed different, I do not believe either the federal or the state constitution requires a different basis for according post-conviction relief in death penalty cases, and I see more harm than good in providing one.

Similarly, I have little difficulty rejecting appellant’s challenge to the use of his pretrial statements at trial, allegedly in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This issue, not raised at appellant’s trial or asserted on direct review of his conviction and sentence, is foreclosed in this collateral proceeding under our contemporaneous objection rule. State v. Matera, 266 So.2d 661 (Fla.1972); and see Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). To the assertion that a different rule should apply in death penalty cases, I would observe that we have already considered and rejected this contention. Gibson v. State, 351 So.2d 948 (Fla. opinion filed July 28, 1977) (pending on rehearing).

Appellant’s only other ground asserted for relief attacks the composition of the jury which imposed his death sentence as violating Witherspoon standards of objectivity. The first obstacle to be overcome in order to assert this challenge is appellant’s knowing waiver. If an alleged Wither-spoon infirmity can ever be waived, the state contends that it was waived here by trial counsel’s express directive that the court reporter not transcribe voir dire examination for the record on appeal and by his failure to assign the matter as error on direct appeal of appellant’s conviction and sentence. I have concluded, along with my colleagues, that an alleged Witherspoon infirmity can be waived, and that it was in fact waived in this case.

This Court has expressly held in Richardson v. State, 247 So.2d 296 (Fla.1971), that an alleged Witherspoon problem could be waived. Appellant suggests that waiver is nonetheless constitutionally improper on the basis of language in the Witherspoon opinion and recent decisions applying its principles. Appellant’s contention again hinges on the premise that death is different. Nonetheless, nothing in the constitution of the United States or Florida suggests that even the most fundamental rights cannot be knowingly waived during the course of a capital or other type of criminal proceeding. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

HATCHETT, Justice,

concurring specialty-

I join in the denial of the Motion for Stay and the denial of the Appellant’s Motion to Vacate and Set Aside or Correct Sentence only because I am bound by duty to uphold the law as defined by this Court and the United States Supreme Court. If I alone were determining the constitutionality of Section 921.141, Florida Statutes, I would find the statute unconstitutional on its face. But that question has been decided to the contrary by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) and by this Court in State v. Dixon, 283 So.2d 1 (Fla. 1973). Now that the question of the statute’s application is clearly presented, I would also find Section 921.141, Florida Statutes to be unconstitutional as applied. A review of the cases that have come before this Court indicate that the death sentence is imposed irregularly, unpredictably, and follows no discernable pattern. Swan v. State, 322 So.2d 485 (Fla.1975), (victim brutally beaten and tied in such a manner that struggling to free herself would choke her); Halliwell v. State, 323 So.2d 557 (1975) (victim beaten to death with an iron bar and corpse cut into pieces); Tedder v. State, 322 So.2d 908 (Fla.1975) victim shot, perpetrator refused to allow anyone the right to aid her as she bled to death). In all of these cases this Court reduced the death sentences to life imprisonment. It is apparent to me that the death penalty under the Florida statutory scheme is being administered in an arbitrary and capricious manner inconsistent with the premises underlying Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); State v. Dixon, supra, and Proffitt v. Florida, supra. But this issue was apparently foreclosed by the United States Supreme Court in its decision in Proffitt.

Although the Constitution provides in Article V, Section 3(b)(2) that the Supreme Court “shall hear appeals from final judgments and orders of trial courts imposing life imprisonment” the Legislature has never activated this provision. Consequently, the Florida Supreme Court only reviews cases in which the death penalty is imposed. This Court is without authority to review those cases where the trial judge imposes a sentence of life imprisonment, regardless of the jury’s recommendation of life or death. This situation deprives this Court of the opportunity to determine whether death is being imposed evenhandedly. Herein lies the breeding grounds for all of the horrors condemned by Furman.

Two men charged for the same first degree murder, tried in the same courtroom, at the same time, before the same judge and jury, could upon conviction, conceivably be sentenced, one to death, and the other to life, through the exercise of the unfettered discretion afforded the trial judge under our statute. The one receiving the life imprisonment sentence would have his case reviewed by a District Court of Appeal which is powerless to review the appropriateness of the sentence. Therefore, in that situation, the trial judge’s discretion as to sentence is never really reviewed. This statutory scheme insulates the discretion exercised by the trial court from review by any higher court, including the Supreme Court of Florida which is charged with the duty of insuring that the death penalty is imposed strictly in accordance with the dictates of Section 921.141, Florida Statutes, and that those convicted of murder receive equal treatment under the law.

      . Although not a basis for our decision, we note that a review of the transcript reflects no violation of the Witherspoon requirement. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

      . See Sullivan v. Askew, 348 So.2d 312, 317 (Fla.1977) (concurring opinion).

      . Appellant’s execution has been scheduled for 8:30 a. m. on September 19. This appeal and request for a stay were lodged in our Court on September 13. Briefs were ordered filed by 5:00 p. m. on September 14, and oral argument was conducted commencing at 5:30 p. m. on September 15.

      . Appellant’s Motion to Vacate, etc., at 7-20, paragraphs 5(c) — (j)-

      . E. g., State v. Weeks, 166 So.2d 892 (Fla. 1964).

      . E. g., Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1977); Mathis v. Alabama, 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed.2d 855 (1971); Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975). None of these cases addressed the issue of whether an alleged Witherspoon violation can be waived.

      . McCaskili, Williams v. State, 344 So.2d 1276 (Fla.1977).

        Burch v. State, 343 So.2d 831 (Fla.1977).

        Huckaby v. State, 343 So.2d 29 (Fla.1977).

        Chambers v. State, 339 So.2d 204 (Fla.1976).

        Jones v. State, 332 So.2d 615 (Fla.1976).

        Provence v. State, 337 So.2d 783 (Fla.1976).

        Thompson v. State, 328 So.2d 1 (Fla.1976).
      Obviously this Court has had great difficulty in applying the present statute. The aggravating and mitigating circumstances enumerated in Section 921.141(5), (6) .are so ill defined and vague as to escape reasonable and consistent application.


text:
    STATE of Florida, Appellant, v. Thomas Earl PUGH, Appellee.
    No. 76-2255.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Oct. 18, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and Laurie Sistrunk, Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal we are of the opinion that the trial court erred in granting defendant’s motion to dismiss the information.

Defendant was charged with unlawfully and fraudulently abandoning or refusing to redeliver a hired vehicle in contravention of Section 817.52(3), Florida Statutes. The defendant filed a motion to dismiss asserting that there were no disputed material facts and that the undisputed facts failed to establish a prima facie case of defendant’s guilt within the contemplation of said section 817.52(3). The state filed a traverse and demurrer setting forth additional facts reflecting that defendant was not granted permission or authority to keep the hired vehicle beyond a certain return date. Based upon the rationale set forth in State v. Glesy, 243 So.2d 635 (Fla. 4th DCA 1971) and Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974), it is our opinion that the information adequately charged a crime under section 817.52(3), and that defendant’s motion to dismiss did not demonstrate the legal insufficiency of the information or reflect such matters as would exonerate him. State v. Giesy, supra.

Accordingly, the order granting defendant’s motion to dismiss is reversed and set aside and the cause remanded for further proceedings consistent herewith.

MAGER, DOWNEY and ANSTEAD, JJ., concur.


text:
    In re the ESTATE of Philip SIEGEL, Deceased.
    No. 75-2277.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 19, 1977.

      Lawrence J. Meyer of Meyer, Leben, Fix-el, Cantor & Engelberg, Hollywood, for appellant-Fay Siegel.
    Richard A. Daar of Shapiro, Fried, Weil & Scheer, Miami Beach, for appellee-admin-istrator ad litem.
   PER CURIAM.

This is an appeal from a final judgment rendered in favor of petitioner wherein it was decreed that a purchase money mortgage taken in the name of Philip Siegel and Fay Siegel, his wife, created a tenancy in common, with each spouse owning a one-half undivided interest in said purchase money mortgage; that upon the death of Philip Siegel, his interest in the purchase money mortgage passed to his estate to be disposed of as directed by his Will.

The undisputed facts presented in the case at bar reflect that Philip Siegel owned a residence in his own name in the State of New York. At the time of the sale of said residence in New York, Philip Siegel and Fay Siegel, who were then husband and wife, resided in the State of New York at the time of the conveyance of said residence, and as a portion of the purchase price, a promissory note and purchase money mortgage was granted to Philip Siegel and Fay Siegel, his wife. Shortly after the closing of the transaction, Mr. and Mrs. Siegel moved from the State of New York to the State of Florida, where they thereafter resided and became domiciled. Philip Siegel, while a resident of the State of Florida executed his Last Will and Testament in which he bequeathed the mortgage on the New York property to his sons. Upon the death of Philip Siegel, Fay Siegel, his surviving spouse claimed sole ownership of the promissory note and mortgage by operation of Florida law, and did not list the note and mortgage as an asset of the Estate of Philip Siegel, deceased. After the filing of the petition by the Administrator ad Litem, and at various stages of the proceeding, including the final hearing thereof, Fay Siegel moved to dismiss the petition on the ground that the Court lacked jurisdiction of the subject matter. The Court below entered judgment in favor of the Administrator ad Litem, and this appeal was thereafter timely filed. The principal issue for consideration is whether the ownership of a promissory note and purchase money mortgage held in an estate by the entireties by husband and wife residing and domiciled in Florida at the time of husband’s death is determined by the laws of the State of Florida, or by the law of the state in which said promissory note and purchase money mortgage were executed, and in which state the property money mortgage encumbers is situated.

At 16 Am.Jur.2d, Conflict of Laws, Section 29, it is stated:

“The dominion of a state over personal property within its borders is complete, and its right to regulate the transfer of such property and subject it to process and execution in its own way and by its own laws is unquestioned; .
“By ancient legal fiction generally recognized by comity, personal property was supposed to adhere to the person of the owner and was usually considered as having no situs other than his domicil. As it was expressed in the Roman law, ‘mobilia sequuntur personam.’ By force of this fiction personal property, no matter how ponderous or unwieldy, in legal contemplation changed location with every change of the owner’s domicil. The principle was well established that for most purposes personal property should be governed, no matter where situated, by the law of the domicile of the owner; and this law, of course, might change with each change of his domicil. “The maxim ‘mobilia sequuntur personam’ grew up in the Middle Ages when movable property consisted chiefly of gold and jewels easily secreted in spots known to him alone, and the rule has in modern times, because of the great increase in the amount and variety of personal property not immediately connected with the owner’s person, yielded more and more to the lex rei sitae, the law of the place where the personal property is generally or ordinarily that of the domicil of the owner, and the rule, broadly speaking, with respect to intangible personal property is that the situs follows the owner or is at his domicile.”

The State of New York, however, does not recognize estates by the entireties in personal property.

Involved herein is a conflict of the laws of the State of Florida and the State of New York, and in order to obtain the proper result, it is necessary to properly apply the applicable conflict of law rules.

The conflict of laws question to be determined is whether the promissory note and mortgage in issue is to be regarded as a “movable”, constituting personal property, following the owner to and governed by the state of his domicile; or as an “immovable”, governed by the laws of the state in which the property encumbered thereby is situated.

It would appear that the only circumstances under which the promissory note and mortgage could pass under the laws of the State of New York would be where the statutes or decision of that state considers such interest in creating an estate in land, and in such a situation, the note and mortgage would obviously be deemed realty and not personalty.

While it is obvious that the only relationship between the note and mortgage and the State of Florida is the fact that the holder died domiciled in this state, and that any litigation concerning construction of these interests would be pursuant to New York law, it is the opinion of this Court that the property is a “movable” and would pass under the law of the State of Florida.

For the reasons stated above, the Court Order of the Circuit Court is hereby reversed, and the cause remanded for further proceedings not inconsistent herewith, and is so ordered.

ALDERMAN, C. J., MAGER, J., and STOKES, ROBERT G., Associate Judge, concur.


text:
    Sydney M. NELSON and Donald C. Nelson, her husband, Appellants, v. WINTER PARK MEMORIAL HOSPITAL ASSOCIATION, INC., etc., et al., Appellees.
    Nos. 76-1627, 76-1628.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 19, 1977.

      Dan H. Honeywell and Thomas W. Gibson of Billings, Frederick, Wooten & Honeywell, P.A., Orlando, for appellants.
    Harry K. Anderson, Jr. and John A. Lek-lem of D’Aiuto, Anderson & Walker, Orlando, for appellee-Winter Park Memorial Hospital.
    J. Richard Caldwell, Jr. of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees Rozier and Shelby Mutual Ins. Co.
   PER CURIAM.

Upon due consideration of the briefs and record on appeal we are of the opinion that the cause of action giving rise to the entry of a summary judgment in favor of the defendants-appellees accrued prior to July 1, 1972, the effective date of the two-year statute of limitations (Section 95.11(6), Florida Statutes (1973)) governing malpractice actions. See Foley v. Morris, 339 So.2d 215 (FIa.1976); Reinhardt v. Schwab, 343 So.2d 837 (Fla.1977). The plaintiffs-appellants’ cause of action was governed by the four-year statute of limitations, (Section 95.11(4), Florida Statutes (1973)) which was effective until July 1, 1972. Foley v. Morris, supra.

Accordingly, summary final judgment is reversed and the cause remanded for further proceedings consistent herewith.

MAGER and LETTS, JJ., and MOUNTS, MARVIN U., Jr., Associate Judge, concur.

      . A review of the record reflects that the issue of the applicable statute of limitations was before the trial court, as reflected by the pleadings filed by the parties. (See transcript pp. 112, 133).

      . Since the reversal was predicated upon the applicability of the then existing four-year statute of limitations, it is unnecessary for the court to reach any of the other points presented by the parties in this appeal.


text:
    GRAY LINE SIGHTSEEING TOURS, INC., Appellant, v. AIRPORT TRANSPORTATION SERVICE, INC., Appellee.
    No. 76-2210.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 19, 1977.

      Richard B. Austin, Miami, for appellant.
    R. T. Shankweiler, Patterson, Maloney & Shankweiler, Fort Lauderdale, and John P. Bond, Bond & Woitesek, Miami, for appel-lee.
   PER CURIAM.

Upon consideration of the record on appeal and briefs of the respective parties, we determine the trial court erred in dismissing the complaint of appellant-plaintiff, Gray Line Sightseeing Tours, Inc., for failure to exhaust administrative remedies in an action to enjoin appellee-defendant, Airport Transportation Service, Inc., from carrying on the activities of a motor carrier for compensation without proper authorization of Florida Public Service Commission, as the complaint sufficiently alleged and stated a cause of action for relief, as authorized by § 323.24, Florida Statutes (1975).

Accordingly, the order dismissing the complaint is reversed and the cause remanded with directions to the trial court to reinstate the complaint and for further proceedings.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: ERVIN, Judge.

text:
    Clyde E. LOVE, Frank G. Harris, III, Charles E. Carpenter, C. S. McClelland, and Merchants National Bank of Mobile, Appellants, v. Mary V. Nowling ELLIOTT, Appellee.
    No. EE-53.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Rehearing Denied Oct. 17, 1977.

      John E. Venn, Jr. of Smith, Sauer & Venn, Pensacola, for appellants.
    Allen W. Lindsay, Jr. of Beall, Lindsay & Lindsay, Milton, for appellee.
   ERVIN, Judge.

Appellants appeal a final judgment rescinding a mineral deed on the ground of fraud. We reverse.

The appellee, Mrs. Elliott, was a totally illiterate 87 year old widow who owned 75 acres in Jay, Florida. In January she was approached by one B. G. Russell concerning a possible purchase by him of certain mineral interests owned by her. Mrs. Elliott agreed to sell to Mr. Russell two of the fifteen mineral acres which she owned for $3,300.00. Russell prepared the mineral deed and on January 31,1972 returned it to Mrs. Elliott, who placed her mark on the deed, which was on the same day recorded. Present at the time of the execution was her daughter, Derlie Nowling Coffey, who was able to read, although with some difficulty. Unknown to Mrs. Elliott, instead of the two mineral acres she had orally agreed to convey, Russell had inserted on the face of the deed a conveyance of a Vs interest in all the oil, gas and other minerals which might be produced from the 75 acres owned by Mrs. Elliott. The deed was duly witnessed by a notary public and her husband at the local tag office.

Several days later Russell contacted Mrs. Elliott by phone, stated he had made a mistake in the deed and offered to pay her $15,000.00 for the amount conveyed. Mrs. Elliott refused, repeating her unwillingness to convey more than two acres and contacted a local attorney for assistance. Meanwhile Russell, on February 11, 1972, conveyed by two separate deeds, 3.75 mineral acres and ten royalty acres to C. S. McClellan. The deeds were recorded the same day. On February 16,1972, Mr. Russell and his wife executed and delivered to Mrs. Elliott a mineral right and royalty transfer purporting to reconvey approximately 13 mineral acres. This transfer was recorded on February 16, 1972. After the reconveyance from Mr. and Mrs. Russell to Mrs. Elliott, on February 23, 1972, Mr. and Mrs. McClellan by two separate deeds conveyed to appellants Clyde Love, Frank G. Harris, III, and Charles Carpenter the same mineral interests previously conveyed to McClellan by Mr. and Mrs. Russell. Mrs. Elliott had no actual knowledge of the transactions between Russell and the appellants until October, 1973, over a year later while she was negotiating the sale of more of her property and discovered the fraud. Notwithstanding her discovery, her complaint for rescission was not filed until September 13, 1974. In May, 1974, oil was found on the property conveyed by her to Russell.

When Russell, on January 31, 1972, presented the deed to Mrs. Elliott for her execution, he neither read nor explained its contents to her. He simply handed it to her. At Mrs. Elliott’s request, her daughter looked over the instrument. Neither Mrs. Elliott nor her daughter asked the witnesses to read or explain the instrument to them prior to its execution.

The question necessarily presented is whether rescission of an instrument on the ground of fraud can be claimed as against a bona fide purchaser for value. What is involved here is the validity of the deed insofar as it affects the rights of Russell’s grantees. McClellan was disclosed by the evidence to be acting as an agent for his undisclosed principals, Love, Harris and Carpenter. There is no showing in the record, however, that Russell was acting on behalf of anyone other than himself.

Whether the deed effectively passed title to appellants depends upon a determination as to whether the deed is void or voidable. A voidable deed is one which is simply capable of being avoided. A deed however which is void is invalid in law for any purpose and conveys title to no one. 23 Am.Jur.2d, Deeds, section 137 (1965). A forged deed under most circumstances is absolutely void and ineffectual to pass title even to a subsequent innocent purchaser from the grantee under such forged deed. Wright v. Blocker, 144 Fla. 428, 198 So. 88 (1940). If, however, the deed is voidable,

“ . . . the rule is that a bona fide purchaser for value without notice from a fraudulent grantee gets a good title. As against the debtor the fraudulent deed is effectual; and the fraudulent grantee has a title and right to alienate. The only infirmity in his title is its liability to be impeached by creditors. As to all others it is perfect, and when it has passed into the hands of a bona fide purchaser for value without notice even this infirmity is cured and the title becomes sound and indefeasible.” Neal v. Gregory, 19 Fla. 356, 367 (1882).

There is no evidence that appellants had any knowledge of Russell’s fraud. Their situation is not unlike that of those mortgagees whose interests in certain mortgages were sought to be cancelled by mortgagor-wives who alleged their husbands had fraudulently induced them to execute mortgages on their separate property. Smith v. Commercial Bank of Jasper, 77 Fla. 163, 81 So. 154 (1919); Hall v. Forman, 94 Fla. 682, 114 So. 560 (1927). In both instances the court held the actions would not lie where there was no showing that the mortgagees had assumed their interests in the property with notice of the fraud.

Mrs. Elliott cannot rescind the conveyance on the ground that Messrs. Love, Harris and Carpenter were on record notice of the reconveyance of 13 mineral acres to Mrs. Elliott on February 16, 1972, prior to the conveyance to them by McClellan on February 23,1972. The recording of an instrument not in record chain of title is not constructive notice to a person claiming under chain of title. Poladian v. Johnson, 85 So.2d 140 (Fla.1955). Thus the recording of the reconveyance by Russell to Mrs. Elliott of the 13 acres in which he no longer had any interest did not provide constructive notice to subsequent purchasers who purchased from one in chain of title. Pola-dian v. Johnson, supra.

Finally we note from the record that Mrs. Elliott, who was on constructive notice since February 11, 1972, of Russell’s conveyances of 13.75 mineral acres to McClellan, was also on actual notice as of October, 1973, of those conveyances. Yet she delayed until September, 1974, before filing her suit for rescission. During the interim period of time, from the date of the conveyances from McClellan to Love, Harris and Carpenter, the former two grantees had purchased Carpenter’s interest in the property, and in the summer of 1974, substantial sums of money were borrowed by them from Merchant’s National Bank of Mobile and a mortgage was given to the Bank as security for the debt. When a party desires to rescind a contract on the ground of fraud, deceit or trickery, the injured party must, upon discovery of the true facts, promptly announce his purpose to rescind and be guilty of no undue delay or a vacillation. Columbus Hotel Corporation v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934); Rood Company v. Board of Public Instruction of Dade County, 102 So.2d 139 (Fla.1958). A person seeking to deny the validity of an instrument must show upon discovery of the facts he, with reasonable promptness, denied that the instrument was binding upon him. If he remains silent he will be held to have waived his right to rescind. Rood Company v. Board of Public Instruction of Dade County, supra.

The final judgment rescinding and can-celling .appellants’ interest in the mineral and royalty deeds conveyed to them by Mr. and Mrs. Russell is reversed.

MILLS, Acting C. J., and SMITH, J., concur.

      . We are not presented with an issue as to whether rescission should be allowed as against Russell, the perpetrator of the fraud. There is a substantial body of law which would allow recovery as against such a person, 23 Am.Jur.2d Deeds, section 142 (1965); however this rule must be tempered by the exception that if the grantor was by his negligence responsible for the conveyance, rescission will not lie. See Thoroughgood’s Case, 2 Coke 9a, 76 Eng.Rep. 408; Wilcox v. American Tel. and Tel. Co., 176 N.Y. 115, 68 N.E. 153 (1903); Sutton v. Crane, 101 So.2d 823 (Fla.2nd DCA 1958).

      . An important exception to the above rule is that a bona fide purchaser will receive good title to land conveyed to him, even though a forged deed predated his root of title, through operation of the Marketable Record Title Act. Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla. 1970).


text:
    C. D. SEALE, Appellant, v. Lottie Jean SEALE, Appellee.
    No. EE-274.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Rehearing Denied Oct. 17, 1977.

      C. D. Seale, Tom R. Hayward, Tallahassee, for appellant.
    Alton 0. Paulk of Syfrett, Hutto & Paulk, Panama City, for appellee.
   ERVIN, Judge.

The former husband appeals a supplemental final judgment in which the court awarded the wife as lump sum alimony a one-half interest in the real property owned by the husband. We affirm.

The parties were married 22 years prior to the commencement of the dissolution of marriage proceedings; although the husband had moved from the marital home nearly three years before they were filed. The major assets of the parties are the marital home located upon two lots and four other contiguous lots. The properties were formerly held in the joint names of the parties, however when the parties separated the property was conveyed to the husband by the wife. The husband admitted he paid his wife nothing in cash or property in exchange for the deed. On September 3, 1976, the court entered final judgment of dissolution, dissolving the marriage between the parties. The court reserved jurisdiction to resolve the remaining issues of lump sum alimony, property division and child custody. Prior to the entry of the supplemental final judgment, the wife remarried. The supplemental final judgment, entered November 30, 1976, awarded permanent custody of two minor children, Carolyn Revonda Seale and Donald Robert Seale, to the wife. The husband, now permanently disabled, was awarded the temporary use and exclusive possession of the marital home for the duration of his disability and as long as he required the use of the home as a place of residence. Subject to the right of possession and occupancy awarded to the husband, the wife was awarded an undivided one-half interest in all the real property in the husband’s name as lump sum alimony.

Appellant’s main thrust on appeal is that the court erred in awarding lump sum alimony to the wife after she had remarried, arguing that alimony ceases to be an obligation of the former husband upon the former wife’s remarriage, citing Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924). Carlton, however, applies only to the award of periodic alimony. Lump sum alimony does not terminate upon remarriage. Keller v. Belcher, 256 So.2d 561 (Fla. 3rd DCA 1971), cert. denied 280 So.2d 682 (Fla.1972).

Here the wife had remarried and presumably her individual needs would be legally provided by the second spouse. The remarriage, however, did not terminate the former husband’s obligation to support the children born of the marriage. That obligation continued notwithstanding the wife’s remarriage, and there is no evidence before us of the later husband’s desire to adopt the children whom Mrs. Seale was granted permanent custody. Had Mr. Seale any income with which to support the children, the award of a one-half interest in the real property to the wife might well have been an abuse of the court’s discretion. Yet we are presented with a situation in which the husband is totally disabled, dependent on social security, with no other assets which can be used to care for the children’s needs, although they do receive social security benefits for their care as a result of the father’s disability.

The principal issues to be determined in the award of alimony, regardless of its characterization, are the need of the spouse seeking alimony and the ability of the other spouse to pay. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). The needs of the wife to care for her children are apparent and the only ability which the husband has to provide for those needs is by conveying to the wife as lump sum alimony the real estate owned by the husband in his sole name.

Finally we note that Section 61.-08(2), Florida Statutes (1975), provides:

“In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.”

Certainly the consideration by the court that it had granted custody of the minor children to the wife was a factor in its determining the proper award of alimony to her.

It cannot be seriously questioned that the trial judge in a marriage dissolution proceeding has the power to reserve jurisdiction for the purpose of settling property rights after entering the decree of dissolution. Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976); Hyman v. Hyman, 310 So.2d 378 (Fla. 2nd DCA 1975), cert. dis. 329 So.2d 299 (Fla.1976); Kipnes v. Kipnes, 330 So.2d 67 (Fla. 3rd DCA 1976); Becker v. King, 307 So.2d 855 (Fla. 4th DCA 1975), cert. dis. 317 So.2d 76 (Fla.1975). In Hyman v. Hyman, supra, the court stated that a trial court may enter an interlocutory order granting dissolution of marriage and at the same time reserve jurisdiction to later determine property rights. On petition for rehearing, the court made the following observation:

“We believe that when circumstances warrant the trial court may exercise its discretion in entering an interlocutory dissolution and reserving jurisdiction to later determine property rights. Doing so may create problems requiring further judicial determination, but this is no ground for holding that jurisdiction does not exist. We believe the good to be accomplished outweighs any uncertainty created.” 310 So.2d at 380.

A trial court may also reserve jurisdiction over matters other than those pertaining to property rights. In Klarish v. Klarish, 296 So.2d 497 (Fla. 3rd DCA 1974), the court observed that it is proper for the trial court to enter a judgment dissolving marriage and to reserve jurisdiction to determine issues such as alimony, child custody and support pending further investigation.

We have examined the other points urged by appellant and found them to be without merit.

AFFIRMED.

MILLS, Acting C. J. and SMITH, J., concur.

      . If the court in the case below had awarded lump sum alimony payable in installments, as opposed to a specific sum to be paid in full, the result might be different. See Morris v. Morris, 272 So.2d 202 (Fla. 2nd DCA 1973).


author: PER CURIAM. BOYER, Judge,

text:
    NEW PLAN REALTY TRUST, Appellant/Petitioner, v. The TOWERS APARTMENTS, INC., etc., et al., Appellees/Respondents.
    Nos. DD-20 and DD-145.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 20, 1977.
    James W. Smith of Hoffman, Hendry, Parker & Smith, Daytona Beach, for appellant/petitioner.
    Louis Ossinsky of Ossinsky & Krol, Day-tona Beach, for appellees/respondents.
   PER CURIAM.

New Plan Realty Trust filed notice of interlocutory appeal in Case No. DD-20 from an order denying its motion to stay this proceeding pending the disposition of a suit in the State of New York covering the same subject matter and issues as are raised in this suit. Subsequently, the trial court entered an order modifying its previous order and granting the stay as to this Florida action except as to discovery proceedings. Appellant then filed a petition for common law writ of certiorari in Case No. DD-145 seeking review of the foregoing two orders of the trial court and simultaneously therewith filed a notice of voluntary dismissal as to Case No. DD-20. In the meantime, appellees had filed cross-assignments of error in Case No. DD-20 and objected to the notice of voluntary dismissal. Appellees also moved to consolidate the two cases and by this court’s order of September 7, 1976, the cases were consolidated. We treat the entire matter as common law cer-tiorari rather than interlocutory appeal.

The trial court properly exercised its discretion in granting the stay of this cause of action pending trial of the same issues in the New York suit but abused its discretion in excepting discovery proceedings from the stay. The whole purpose of the stay is to avoid duplicate proceedings in both New York and Florida, and we find no reasonable basis for allowing duplicate discovery proceedings.

Certiorari is granted and the cause is remanded with directions to vacate the exception to the stay which would allow discovery to proceed during the stay.

McCORD, C. J., and MILLS, J., concur.

BOYER, J., dissents in part and concurs in part.

BOYER, Judge,

concurring in part and dissenting in part.

I am of the view that the learned trial judge is allowed a broader discretion than that afforded by my brethren, and that he did not abuse that discretion in allowing discovery proceedings to continue. I would affirm.


text:
    Lex MIXON, Appellant, v. STATE of Florida, Appellee.
    No. 75-923.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 18, 1977.
    Richard L. Jorandby, Public Defender, and James R. Bean III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ALDERMAN, C. J., and DOWNEY and LETTS, JJ., concur.


text:
    PAID PRESCRIPTIONS, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, an agency of the State of Florida, Appellee.
    No. EE-292.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1977.
    Rehearing Denied Oct. 18, 1977.
    Fred W. Baggett of LaFace & Baggett, and William Vandercreek, Tallahassee, for appellant.
    M. Stephen Turner of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for appellee.
   PER CURIAM.

This interlocutory appeal was taken by appellant from an order denying appellant’s motion for an order directing the parties to proceed with arbitration and further temporarily enjoining appellant from proceeding with arbitration of the controversy between the parties.

The action below arises from a contract entered into between the parties by which appellant was to provide certain services and pay certain claims as an administrator/risk assumptor for Florida’s Title XIX Medicaid Pharmaceutical Benefits Program. The contract contained the following arbitration clause:

“F. If and when the State Agency and the Contractor should be unable to agree upon the construction or application of any of the terms of this contract, the disagreement shall be submitted to a board of arbitration established and functioning in the manner hereinafter provided. If, in accordance with the foregoing provision of this contract, it becomes necessary for the parties to refer any matter of disagreement to a Board of Arbitration, then the State Agency shall designate one member of such board, the Contractor shall designate one member, and these two shall designate a third. The disagreement shall be resolved by the arbitrators in accordance with the rules of the American Arbitration Association. Unless otherwise agreed, the arbitrators shall sit and decide the case at the capital city of the State. The decision of the arbitrators shall be final and binding on the parties who shall each pay one half of the fees and expenses of the arbitrators.”

A dispute arose between the parties in relation to the contract. The essence of the dispute was that appellant claimed that pursuant to the contract it was entitled to receive monthly premiums for the period beginning with the month in which an applicant’s eligibility for Medicaid began while appellee contended that premiums were to be paid not from the month in which eligibility of an applicant was determined, but from the month in which the applicant was certified and added to the “Master Medical File.” The court below, as the basis for its order enjoining arbitration found as follows:

“1. The state and its agencies cannot submit to binding arbitration unless specifically authorized to do so by a statute which the legislature constitutionally enacts.”

“2. No such statute has been enacted;” We are unable to agree with the above finding as the basis, for enjoining arbitration. As far as has been shown by this record, the legislature has constitutionally enacted the Florida Arbitration Code, Chapter 682, Florida Statutes (1975). § 682.02 thereof provides as follows:

“Arbitration agreements made valid, irrevocable, and enforceable; scope. — Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this act shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.”

Under the previous arbitration code as it existed prior to the enactment of Chapter 67-254, Laws of Florida, “parties” to a controversy could make a rule of court of any arbitration to which they might desire to submit the controversy. See Chapter 57, Florida Statutes (1957). Although under the previous arbitration code arbitration agreements for future disputes were not enforceable, the Supreme Court recognized that state agencies with power to contract could agree to arbitrate disputes. This recognition was made even though there were no specific references to state agencies in the arbitration code. See Treadway v. Ter rell, 117 Fla. 838, 158 So. 512 (1935); Merritt-Chapman & Scott Corp. v. State Road Dept., 98 So.2d 85 (Fla.1957). Subsequent to the present arbitration code, this Court has affirmed arbitration awards involving a state agency. See Deeb, Inc. v. Board of Public Instruction of Columbia County, 208 So.2d 460 (Fla. 1 DCA 1968); Edward M. Fleming Construction Co. v. Board of Regents, 265 So.2d 52 (Fla. 1 DCA 1972). Also under the present code our sister court of the Second District Court of Appeal in Bartke’s, Inc. v. Hillsborough County Aviation Authority, 217 So.2d 885 (Fla. 2 DCA 1969), directed that arbitration be compelled. Also in Dade County v. Dobbs Houses, Inc., 283 So.2d 886 (Fla. 3 DCA 1973), the court affirmed an arbitrator’s award against the county. § 409.055, Florida Statutes (1975), vests in appellee the power to contract and be contracted with. We hold that the power to contract implies the power to agree to settlement of disputes under the contract by arbitration. Compare City of Madison v. Frank Lloyd Wright Foundation, 20 Wis.2d 361, 122 N.W.2d 409 (1963); Dormitory Authority of State of New York v. Span Electric Corporation, 18 N.Y.2d 114, 271 N.Y.S.2d 983, 218 N.E.2d 693 (1966).

In addition to its contention that the foregoing conclusion of law of the trial court was a valid reason for enjoining arbitration, appellee contends that it and appellant, prior to submission of this case to arbitration, had reached an agreement by which they settled the question for which arbitration is now sought. Appellant denies that such agreement was reached. Ap-pellee contends that because of this agreement, there is nothing to arbitrate and in addition that such was a separate agreement which is not subject to the arbitration clause of the first agreement. It is our view that if such agreement were reached, it would amount to an amendment to the existing contract and would be covered by the arbitration clause of that contract.

We have considered the other points raised by appellee and find them to be without merit.

Reversed and remanded with directions to vacate the temporary injunction and to order the parties to proceed with arbitration.

McCORD, C. J., and RAWLS and SMITH, JJ., concur.


author: McCORD, Chief Judge.

text:
    Anna L. AUSTIN, Appellant, v. Carolina G. AUSTIN, a/k/a Mrs. T. E. Foster, and Department of Administration, Division of Retirement, Appellees.
    No. EE-320.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1977.
    Rehearing Denied Oct. 18, 1977.

      Leslie Telford and Richard E. Nelson of Nelson, Hesse, Cyril & Weber, Sarasota, for appellant.
    Stephen S. Mathues, Tallahassee, for ap-pellee Division, State of Fla. Employee.
    Thomas M. Gallen of Miller, Gallen, Ka-blis & Venable, Bradenton, for appellee Foster.
   McCORD, Chief Judge.

This is an appeal from a final judgment directing that state retirement benefits of Robert S. Austin, deceased, be paid jointly by appellee Department of Administration to the three beneficiaries designated by him — appellee Carolina G. Austin, a/k/a Mrs. T. E. Foster (his former wife) and her and decedent’s children, Robert S. Austin, Jr., and Christy Ann Austin. Appellant Anna L. Austin, who was decedent’s wife at the time of his death, contends that the trial court erred in not directing that decedent’s retirement benefits be paid to her as decedent’s widow. While we disagree in part with the trial court’s construction of the law in arriving at the final judgment, we agree with the judgment and therefore affirm.

On February 16, 1947, decedent became an employee of the State of Florida and continued as a state employee until his death on August 9, 1974. When decedent became a state employee, he automatically became a member of the State and County Officers and Employees Retirement System under Chapter 112, Florida Statutes. On August 11, 1947, he executed a beneficiary form designating his then wife Carolina (now Mrs. T. E. Foster) as his beneficiary. Subsequently on February 2, 1955, he executed a new beneficiary form and designated in sequence “as beneficiary to receive all amount of money as provided under the retirement system laws,” Carolina and their two children, Robert S. Austin, Jr., and Christy Ann Austin. On October 16, 1963, decedent and Carolina were divorced, and he was awarded custody of the two minor children. On June 4, 1964, decedent married appellant Anna L. Austin. On December 1, 1970, he transferred from the State Officers and Employees Retirement System to the newly created Florida Retirement System under Chapter 121, Florida Statutes (1971) [now Chapter 121, Florida Statutes (1975)]. He died on August 9, 1974, and at no time prior to his death did he execute another designation of beneficiary form nor did he cancel or terminate the designation form executed on February 2, 1955. The final judgment directed that his total contributions to the retirement fund ($11,-918.98) be paid by the Department of Administration jointly to the three designated beneficiaries — Carolina and their two children.

Appellant contends that decedent’s transfer from the State Officers and Employees Retirement System to the subsequently created Florida Retirement System invalidated his previous designation of beneficiaries which he made while a member of the State Officers and Employees Retirement System; that because such designation is no longer valid, he died without designated beneficiaries and as his widow she is entitled to retirement benefits as provided in the Florida Retirement System. DOA contends, and the trial court ruled, that the February 2, 1955, designation of beneficiaries is not invalid and therefore appellant is not entitled to retirement benefits.

Chapter 121 allowed an officer or employee who was a member of an existing system to transfer to the new Florida Retirement System (§ 121.051) and directed that all persons electing to transfer to the new system “shall be transferred on July 1, 1972.” The new Florida Retirement System Act was silent as to redesignation of beneficiaries by those who had designated beneficiaries in the state system from which they transferred. It did affirmatively provide, however, that: “The rights of members of the retirement systems established by chapters 122,138, and 321 shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter . . ” [§ 121.011(3)(a)].

At the time the deadline for transfer from an old system to the Florida Retirement System arrived, over 180,000 members of other systems had transferred to the new system, and none of the members who transferred were required by the Division of Retirement to file new designations of beneficiaries. The Division was without authority to require any affirmative act of a transferee other than execution of a transfer ballot. See Steinhardt v. State, Dept, of Admin., Division of Retirement, 318 So.2d 562 (Fla. 2 DCA 1975). Since its enactment, the Division of Retirement has construed the new Florida Retirement System Act as not to require a new designation of beneficiary by the approximately 180,000 transferees and construed it as not invalidating previous designations. The law is well settled that long-standing statutory interpretations made by officials charged with the administration of the statutes are given great weight by the court. See Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788 (Fla.1952); Green v. Hood, 120 So.2d 223 (Fla. 2 DCA 1960); State ex rel. Volusia Jai-Alai, Inc. v. Ring, 122 So.2d 4 (Fla.1960); Warnock v. Florida Hotel and Restaurant Commission, 178 So.2d 917 (Fla. 3 DCA 1965); Kirk v. Western Contracting Corporation, 216 So.2d 503 (Fla. 1 DCA 1969); Metropolitan Dade County v. Maddox, 242 So.2d 165 (Fla. 3 DCA 1971); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla. 1973). The trial judge correctly ruled that the previous designation of beneficiaries by decedent remained valid until his death. The divorce of decedent and Carolina had no effect on his previous designation of her as a beneficiary and any subsequent expressions of intent- contrary to such designation is irrelevant. See Rogers v. Rogers, 152 So.2d 183 (Fla. 1 DCA 1963).

On January 20, 1972, the Division of Retirement issued a pamphlet entitled “Special Interest Features of the Florida Retirement System, Chapter 121, Florida Statutes.” It was an explanation by the Division of the features of the new Florida Retirement System. A copy of this pamphlet was found in decedent’s personal effects after his death, and a statement therein under the heading “Other Death Benefits” was underlined. The underlined sentence followed a statement that if the member were eligible to retire on the date of death, the surviving spouse would have a choice of lump sum refund of contributions or a lifetime monthly benefit. The underlined sentence stated that the surviving spouse would receive benefits “even if the surviving spouse is not the designated beneficiary.” Although this was an erroneous statement of the law, appellant contends that the Division is bound by the statement; that the trial court erred in not requiring the Division to pay retirement benefits to appellant in accordance with the statement; that the Division is estopped to deny retirement benefits to appellant. There is no evidence, however, that decedent changed his position in any way in reliance upon the statement nor is there any evidence as to who marked the pamphlet. Administrative officers of the state cannot estop the state through mistaken statements of the law. See Greenhut Construction Co., Inc. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1 DCA 1971); Hughes v. Illinois Public Aid Commission, 2 Ill.2d 374, 118 N.E.2d 14 (1954); Brown v. Richardson, 395 F.Supp. 185 (D.C.W.Pa.1975).

By cross-assignment of error, DOR contends that the trial court erred in ruling that Carolina and her two children would share equally under decedent’s designation of the three as beneficiaries. § 121.091(8), Florida Statutes (1975), provides in part:

“Each member may . . . designate a choice of one or more beneficiaries, named in sequence, to receive the benefits, if any, which may be payable in the event of his death pursuant to the provisions of this chapter. (Emphasis supplied.)

Decedent designated the beneficiaries in question as follows:

“I hereby designate (1) Carolina G. Austin (2) Robert S. Austin, Jr. (3) Christy Ann Austin as beneficiary to receive all amount of money as provided under the state retirement system law.”

The trial court, while recognizing that the statute regarding designation of beneficiaries as quoted above reads “named in sequence” ordered that all three named beneficiaries would share equally in the lump sum of decedent’s retirement contributions. Appellee DOR has uniformly interpreted the phrase “named in sequence” to mean that the first-named beneficiary, if living, is entitled to all of the proceeds; that if that beneficiary predeceases the member or waives the benefit, the second named beneficiary would then become eligible, and so forth. We agree with appellee DOR that this is the correct interpretation of the statute. The definition of “sequence” as found in The American Heritage Dictionary (1973) is as follows:

“1. A following of one thing after another; succession. 2. an order of succession . . . ”

Webster’s New Collegiate Dictionary (1975) also defines the term as “order of succession.”

While the interpretation of the trial court is not of great significance in this case since only a lump sum payment is involved, it would create a difficult if not impossible problem where a monthly annuity is to be paid. The options provided in the statute specifically provide for annuities to be paid based on the joint life expectancies of two people [§ 121.091(6)] but does not provide for paying annuities based on more than two lives. It would be a mathematical nightmare to attempt to calculate benefits based on the life expectancies of three or more persons and the legislature undoubtedly had this problem in mind when it provided for designation of beneficiaries in sequence. We therefore construe the phrase “named in sequence” to mean that the first-named beneficiary, if living shall receive all of the proceeds and if that beneficiary predeceases the member, or waives the benefit, the second-named beneficiary would then become eligible, and so forth. In the case sub judice, however, Carolina agreed that the lump sum payment be divided equally between her, Robert S. Austin, Jr., and Christy Ann Austin. We find no error in the trial judge requiring the Division of Retirement to divide the lump sum payment between the three of them.

The judgment is affirmed.

RAWLS and SMITH, JJ., concur.


text:
    Ralford Collins DISMUCKE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. CC-482.
    District Court of Appeal of Florida, First District.
    Sept. 16, 1977.
    Rehearing Denied Oct. 17, 1977.
    Geoffry C. Fleck and Max B. Kogen of Kogen & Kogan, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having considered the records, briefs and arguments of the parties we conclude that no reversible error occurred. Moreover we deem that if error occurred by the admission into evidence of telephone company records as to certain calls made by state witness Beal, the error was only harmless. See Pickrell v. State, 301 So.2d 473 (Fla. 2nd DCA 1974), cert. denied, Fla., 314 So.2d 585.

AFFIRMED.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: SCHEB, Judge.

text:
    FLORIDA POWER CORPORATION, Appellant, v. Gilbert D. SCUDDER, L. M. Folsom and Pauline Folsom, his wife, Appellees. L. M. FOLSOM and Pauline Folsom, his wife, Appellants, v. Gilbert D. SCUDDER, et al., Appellees.
    Nos. 76-1005 and 76-1036.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Rehearing Denied Oct. 21, 1977.

      C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, Winter Park, for Florida Power Corp.
    Jack B. Nichols and R. Wayne Evans of Nichols & Tatich, Orlando, for Gilbert D. Scudder.
    John H. Rhodes, Jr., Winter Garden, for L. M. Folsom and Pauline Folsom.
   SCHEB, Judge.

The principal issue in these consolidated appeals is whether the trial court erred in awarding compensatory and punitive damages against a utility company, Florida Power Corporation (FPC), for placing its electric poles and lines across privately owned lands without permission of the owners. Additionally, we address challenges to the compensation awarded the servient owners for a statutory way of necessity, as well as the court’s rejection of claims to a common law easement or prescriptive right by the landowners served by the utility lines.

The essential facts are these: In April 1973 L. M. and Pauline Folsom acquired an eighty-acre tract of land in Lake County. Since the tract was landlocked, the Folsoms proceeded to construct a clay road from their property across land owned by Gilbert D. and Irene J. Scudder to an existing county road. While building the road the Folsoms requested FPC to install electric services to their new premises. A customer service representative of FPC, familiar with the area, visited the Folsoms who were in the process of having a road graded across the Scudders’ property. Piles of clay were along the road and Mr. Folsom told FPC’s representative that he was putting in the road and that it was his clay, and even mentioned how much it was all costing him. Based on these facts, the FPC representative mistakenly assumed the Folsoms owned or at least had legal right to use the property. Mr. Folsom never told the FPC representative that he did not own the property, nor did he disclose that he had no legal right to place the roadway across it. Acting upon Folsom’s request and representations, and without making any independent determination of the ownership of the lands, FPC’s employees erected poles and distribution lines to serve the Folsoms’ needs. No surveys were made, permits obtained, or land records checked by FPC before its installation was accomplished.

Upon learning the Folsoms were building the road, in October 1973 the Scudders (who lived in New York) contacted the Folsoms advising them the road was in violation of their property rights. The Scudders also had a fence erected and signs posted to protect their property. Nevertheless, the Folsoms disregarded these warnings and in November 1973 permitted FPC to install their lines.

The Scudders sued FPC in one action and the Folsoms in another. In the former action they charged that FPC wrongfully placed its utility poles and distribution lines on their lands; in the latter they contended the Folsoms trespassed by constructing and using a road on their lands. In the latter suit the Scudders alternatively prayed that should the Folsoms be entitled to a statutory way of necessity, that the court establish the same and award them reasonable compensation and attorney’s fees. Scudders sought compensatory and punitive damages in both actions.

FPC and the Folsoms answered and counterclaimed, asserting a right-of-way over the Scudders’ property on theories of: (1) prescriptive right; (2) implied common law right-of-way; or (3) statutory way of necessity. Prior to trial, FPC filed a cross-claim against the Folsoms, demanding indemnity for any damages that it might be required to pay to the Scudders.

As the causes proceeded to trial they were consolidated. Unfortunately Mrs. Scudder died in the interim, but Mr. Scud-der continued the actions.

The trial court first heard evidence on the Folsoms’ affirmative claims. After rejecting their claims of prescriptive right and implied common law right-of-way, the court concluded the Folsoms were entitled to a statutory way of necessity thirty feet in width across Scudders’ lands as “reasonably necessary for ingress and egress by persons, vehicles, stock and electricity and telephone services thereon.”

Thereafter, by agreement of the parties the court in a nonjury trial considered the remaining issues and awarded the Scudders $7,400 compensation for the statutory way of necessity. FPC was held liable to them for $500 compensatory and $25,000 punitive damages for its trespass. The court determined that two of the utility poles were placed nine and twelve feet, respectively, outside the area designated by the court. FPC was ordered to relocate the poles and lines within the confines of the way of necessity. The trial court denied FPC’s cross-claim for indemnity against the Fol-soms.

The trial court correctly determined Folsoms did not acquire any common law easement. There was no evidence that any common source of title between the dominant and servient estates had caused the Folsoms’ property to be landlocked. See Hanna v. Means, 319 So.2d 61 (Fla.2d DCA 1975); Stein v. Darby, 126 So.2d 313 (Fla. 1st DCA 1961).

Moreover, the trial court did not err in its ruling that the Folsoms failed to establish a prescriptive right. To do so a claimant must show an identifiable parcel of land has been used openly, notoriously, continuously, and uninterruptedly for a period of twenty years. Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925). The Fol-soms had only recently commenced their use and the trial judge properly concluded that the uses of the Scudders’ land by Fol-soms’ predecessors had been permissive rather than adverse. This defeats the claim by prescription. See Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974); Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926).

The trial judge correctly awarded the Folsoms a statutory way of necessity under Section 704.01(2), Florida Statutes (1975). The award of $7,400 challenged by Scudder as inadequate and by the Folsoms as excessive, is sustained by competent and substantial evidence. Further, the trial court was correct in not awarding counsel fees to the Scudders as there is no right to an award of attorney’s fees to a servient landowner where a way of necessity is established. Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1977).

The trial judge could just as logically have awarded a way of necessity wide enough to include the existing utility lines. He did not, and we cannot say he erred as a matter of law in failing to do so. Rather, we think that determination of the statutory way of necessity under Section 704.01(1) is a matter where the trial judge enjoys considerable discretion. An abuse of that discretion has not been shown.

We agree that FPC committed a trespass when it placed its poles and lines on the Scudders’ lands. The trial court erred in awarding punitive damages against FPC.

The trial court found:
The evidence thus reveals a policy of the Defendant FLORIDA POWER CORPORATION that was so careless and unconcerned with the rights of property owners that it would proceed to establish a distribution line in the face of a series of facts that no right of way in fact existed for the placement of the distribution poles.

Concluding that FPC had willfully abused the rights of the Scudders, the court awarded them $25,000 punitive damages.

Evidence was introduced to show FPC followed the customary practice of utility companies in Lake County by requesting the Folsoms to relate any disputed boundaries or ownership problems. While FPC concedes a mistake occurred, it claims it was misled by Folsom who did not disclose his lack of ownership of the lands. Moreover FPC points out that Folsom, who observed the installation of electric power lines across the Scudders’ property did not even notify FPC of the protest letters he had received from the Scudders’ attorneys.

A public utility should at least check the public records to determine the legal ownership of the lands on which it contemplates installing its lines. Prudence certainly dictates that a utility must obtain necessary easements or other legal sanctions from those whose property rights are to be affected before its poles and lines are installed.

Although mistaken and even careless about determining the ownership of the lands where it installed its poles and lines, Florida Power’s conduct was not of a wanton character and was certainly not the type of outrageous wrong which warrants imposition of punitive damages. FPC’s motivation was to bring utility service to a customer as it is obligated to do under its franchise. Its poles were located near an existing roadway over which its customer exercised apparent control. Its customers, the Folsoms, were ultimately found to be entitled to substantially the same area by way of necessity. Finally, the installation did not result in any damage to any structures or crops.

In Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222-23 (1936), the classic case on punitive damages, the Florida Supreme Court said:

Punitive or exemplary damages are allowable, however, solely as punishment or “smart money” to be inflicted for the malicious or wanton state of mind with which the defendant violated plaintiff’s legal right, and can only be imposed in cases where either by direct or circumstantial evidence some reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence, or utter disregard of law on defendant’s part may be legitimately drawn by the jury trying the case.

While the Scudders protested actions by the Folsoms, the record does not disclose such protest was communicated to FPC either by the Scudders or the Folsoms. Although we do not approve FPC’s methods which resulted in a trespass on the lands owned by the Scudders, it would be unfair to impose what amounts to a civil fine against it. As we stated in Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla.2d DCA 1968), even gross negligence, by itself, will not support punitive damages.

One final problem: The Folsoms and FPC apparently agreed that if FPC would leave the distribution line and poles in place, the Folsoms would assume liability for its doing so. At trial the Folsoms stipulated that they would be responsible for compensatory damages levied against FPC for any continuing trespass during the pendency of the litigation. The Folsoms did not, however, assume liability for the initial trespass. As noted previously, the installation of the line and poles did not result in any damage to structures or crops. We feel it logical, therefore, to assume the $500 compensatory damages were levied against FPC for the continuing nature of the trespass rather than the initial trespass. This being the case, we view the stipulation as shifting liability for the $500 compensatory damages to the Folsoms.

Accordingly, the awards of compensatory and punitive damages against Florida Power Corporation are vacated and the trial court shall enter judgment in favor of the Scudders and against the Folsoms for $500. In all other respects the trial court’s judgment is affirmed.

Affirmed in part, reversed in part, and remanded for entry of a judgment consistent with this opinion.

BOARDMAN, C. J., and McNULTY, J., concur.


text:
    Oliver DICKENS, Appellant, v. STATE of Florida, Appellee.
    No. EE-318.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1977.
    Rehearing Denied Oct. 18, 1977.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant appeals from a judgment and sentence imposed upon him based on a jury verdict finding him guilty of the crimes of burglary of a dwelling and grand larceny.

Only one issue is urged for reversal. Appellant urges that the trial court erred in permitting the owner of the stolen property to testify as to her opinion as to the fair market value of the stolen property as of the date of theft. The trial court’s ruling was correct. Vickers v. State, 303 So.2d 700 (Fla. 1st DCA 1974), cert. den. 315 So.2d 187 (Fla.1975).

AFFIRMED.

MILLS, Acting C. J., and SMITH and MELVIN, JJ., concur.


text:
    Larry E. ALLEN, Personal Representative of the Estate of James E. Allen, Deceased, Appellant, v. Edward WRIGHT, Jr., and Obie D. Graham and Integrity Insurance Company, Appellees.
    No. GG-1.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1977.
    Rehearing Denied Oct. 17, 1977.

      John F. Sproull, Jr. of Harriett & Sproull, Palatka, for appellant.
    Robert R. Perry of Miller, Perry & Miller, Palatka, Raymond Ehrlich, Jacksonville, for appellees.
   ERVIN, Judge.

This interlocutory appeal was filed from an order granting appellee Graham’s motion to set aside default. We reverse.

Decedent’s personal representative brought a wrongful death action and served appellee Graham with copy of the complaint on October 19,1976. Graham was the owner of the truck involved in the accident. Service was also made on Integrity Insurance Company as Graham’s liability insurance carrier. On November 9,1976, default was entered as to Graham. On the same day Integrity Insurance Company’s motion to dismiss was granted on the ground that Section 627.7262(1), Florida Statutes (Supp. 1976) prohibits a motor vehicle liability insurer from being joined as a party defendant. On March 21, 1977, Graham moved to set aside the default, stating he believed he was afforded liability insurance coverage by Integrity; he believed he would be represented by Integrity; when he learned of the default in February he moved with all possible dispatch to obtain a lawyer to represent him, and finally, he has a meritorious defense.

At the outset we must confess some confusion as to the status of Integrity’s responsibility to defend the suit on behalf of Graham. There is nothing in the record indicating that Integrity did not and does not afford liability insurance coverage to Graham, or that Integrity did not have a duty to defend. Indeed the motion to set aside the default represented that Graham believed and still believes that he was “afforded liability insurance coverage under a policy of insurance issued by the defendant, Integrity Insurance Company ... on the date of the service of the summons and complaint and . . . believes that such coverage extends to liability incurred as a result of an accident involving the truck owned by the defendant and involved in the accident.” Since Integrity’s motion to dismiss it as a party defendant was directed only to its joinder under Section 627.7262, there is no issue before us that coverage was not afforded to Mr. Graham at the time of the accident.

A motion to set aside a default judgment is of course addressed to the sound discretion of the trial court. Fla.R. Civ.P. 1.500(d), 1.540(b); Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964); Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976). Graham’s motion to set aside default alleges facts, which if proved, would constitute a meritorious defense. The problem, however, with his motion is that he must show both a meritorious defense and excusable neglect. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Burbank v. Southland Corporation, 345 So.2d 1108 (Fla. 1st DCA 1977). Upon the record presented to us there is simply no way we can draw the reasonable conclusion that Graham’s motion to set aside the default demonstrated excusable neglect. If there is no question of coverage or of Integrity’s duty to defend, surely Integrity was on notice of the suit since it had filed prior to the entry of default a motion to dismiss itself as party defendant. Why then it allowed a default to be entered against its insured is a matter left only to conjecture but is hardly supportive of any theory of excusable neglect.

If however, coverage was not available, Graham’s motion to set aside the default 153 days after complaint was personally served upon him can hardly be said to be excusable neglect. Graham’s motion to vacate the default states that he was unaware of the default and its consequences until February of 1977, at which time he moved with all possible dispatch to obtain counsel to represent him. We note however despite his alleged attempts to move with all possible dispatch, it was not until March 21,1977 that his motion to set aside the default was filed. We can only conclude on the basis of this record that the lower court abused its discretion in setting aside the default against Graham. The order setting aside the default is reversed.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    Hans G. TANZLER, Jr., et al., Appellants, v. Virginia Orias WANSLEY, Appellee.
    No. DD-109.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 17, 1977.
    Dawson A. McQuaig, William L. Coalson, Jacksonville, for appellants.
    William H. Folsom, Jr., of Folsom & Smith, Jacksonville, for appellee.
   PER CURIAM.

The trustees of the Jacksonville City Employees Pension Fund appeal a declaratory judgment giving Mrs. Wansley disability benefits. We reverse on the authority of State ex rel. Hackney v. Pierce, 157 Fla. 464, 26 So.2d 186 (1946).

Mrs. Wansley is a 49 year old widow, an employee of the City for about 16 years. From February to August, 1975, she made three requests for a physical disability pension. All three were denied. A medical review board of the City, composed of independent medical doctors, heard Mrs-. Wans-ley’s appeal from the denial and also denied her request. This declaratory action was then brought in Duval County Circuit Court. The trial judge initially ruled Mrs. Wansley was not “totally and permanently incapacitated from the performance of any further duties for the City”, as set out in the rules and regulations for the pension fund. Upon rehearing, the trial judge found the correct standard to be whether Mrs. Wansley was “incapacitated for the performance of her duties”, as set out in Ch. 18610, Laws of Florida (1937). Mrs. Wansley was found under that standard to be disabled and entitled to pension benefits.

In State ex rel. Hackney v. Pierce, supra, the employee’s petition for mandamus was granted. The Supreme Court reversed, holding the recommendation or the approval of the advisory committee to the pension fund trustees was essential before an employee would be eligible for disability benefits. In the absence of such approval, or the showing that the committee acted capriciously or arbitrarily, judicial relief should not be granted. Here Mrs. Wansley was examined by at least seven physicians. Six of the seven believed she could work in some capacity for the City. The determination by the medical review board was supported by competent substantial evidence and should not be subject to judicial disturbance.

Counsel for the City, during oral argument, advised us that should the judgment be reversed, the City would attempt to provide a position consistent with Mrs. Wans-ley’s physical capabilities. Being confident that this assertion was made in good faith, we assume the City will so provide.

The amended declaratory judgment is

REVERSED.

RAWLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    MacGregor Paul SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. DD-493.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 20, 1977.
    Aaron A. Green, and David LaCroix, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

“An incidental search should be, as the term implies, incidental to the arrest. The primary purpose should be to arrest and the search should be purely incidental to it. An exploratory search is one in which the search is primary and the arrest is used as a pretext to justify the search.”

A review of this record leads us to the inescapable conclusion that the search conducted subsequent to arresting Scott was primarily exploratory and not as an incident of the arrest.

On March 16,1976, Deputy Sheriff Markham was looking for Scott for the purpose of executing two capiases. Pursuant to information received from an informer, Markham, in the mid-morning, traveled to an apartment complex and, upon arrival at same, observed Scott and an unknown male at the rear of an apartment. Markham also observed a sliding glass door open in an apartment; a 1967 Pontiac backed up to same; and a television set being deposited in the trunk of the automobile. No explanation was offered by Markham as to why he did not serve Scott at this point in time. Markham then followed the Pontiac which proceeded westbound, during which period of time he maintained “a moving surveillance of the vehicle”. Again, no attempt was made to apprehend Scott, execute the capias and effectuate an arrest. Loss of visual observation of Scott in his motor vehicle occurred when Markham “changed his location”.

Markham then advised other officers that he felt that Scott was residing at the apartment complex. Investigator DeCase and other officers were seeking an unidentified man with a scorpion tatoo on his arm who reportedly was an associate of Scott’s. Wayne Mack, Criminal Warrants Investigator, testified that numerous persons “were involved in this thing”, and they asked his assistance in apprehending Scott for the purpose of arresting him on the outstanding felony capias. Around 4:30 in the afternoon, Mack and several other officers began a surveillance of Scott’s apartment. Mack testified that around 7:45 p. m. these officers observed the Pontiac in front of the apartment, at which time “we broke up— some deputies went to the back, I went to the front door with a couple”. Mack and his deputies gained entry into the living room, searched Scott and another male that was with him, and handcuffed Scott. In the meantime, the other deputies spread throughout the apartment with at least one officer in each room. A request to Scott for permission to search the apartment was refused by him. Some weapons (not admitted into evidence) were found in the singular bedroom. Approximately an hour and a half later, Deputy Markham arrived at the apartment solely “for the purpose of effectuating an arrest”. Upon being advised by others that weapons had previously been seized from the bedroom, Markham “traveled through the structure for the purpose of securing any additional weapons for my safety and my fellow officers’ safety”. He then looked into a closet that was open and seized shoulder weapons from the closet. These were located in a room adjacent to the living room area where the occupants of the apartment had been in custody for at least an hour. From the bedroom area, Markham traveled back out to the hall area where he found another closet door open and observed some C.B. radios which were the subject matter of this motion to suppress. Deputy Markham testified that he “felt that I was within my rights as functioning as a police officer in seizing these items for continuing my investigation.” Another officer testified that after the firearms and C.B. sets had been seized, he contacted an investigator of the state attorney’s office and inquired as to procuring a search warrant, and was advised that “I did not need a search warrant in order to seize any property in the apartment that — as long as it was in plain view.”

The sole reason given by this “raiding party” to search Scott’s apartment is that of effectuating the service of the capias for Scott’s arrest. As above related, ample opportunity for carrying out this mission was available to Deputy Markham during the morning hours of the subject date. The entrance to Scott’s residence and occupation of each room by the officers was carried out in a “search warrant” manner — not that of effectuating Scott’s arrest which was accomplished within a minute after entrance was gained. That Markham, arriving more than an hour later, in “traveling around the apartment”, found contraband in “plain view” is not surprising. The “plain view” doctrine is not a substitute for procuring a search warrant through the auspices of a detached magistrate. This court in Stanley v. State, 189 So.2d 898 (Fla. 1st DCA 1966), and our sister court in O’Neil v. State, 194 So.2d 40 (Fla. 3rd DCA 1967), have fully explored this subject and, pursuant to these authorities, we hold that the trial court erred in not granting Scott’s motion to suppress.

The judgment appealed is reversed with directions that a new trial be granted.

SMITH and ERVIN, JJ., concur.

      . Chapman v. State, 158 So.2d 578 (Fla. 3rd DCA 1963).

      . Appellee advises in its brief: “That his [Scott’s] closet was open, with contraband in plain view, was but a fortuitous and inadvertent result of the cursory search for other persons.”


text:
    Howard CRAFT, Mayor of the City of Lauderdale Lakes, Alfonso Gereffi, Jerome Cohan, Harry Kaufman, Louis Greenwald, Morris Klein and Lyman Allen as and constituting the City Commission of the City of Lauderdale Lakes, and Sam Kaplan, Milton Scheingarten, Jim Manes, John Communale and William Palladino, as and constituting the Planning and Zoning Board of the City of Lauderdale Lakes, Appellants, v. STATE of Florida ex rel. Richard S. KING and Patrici K. King, Appellees.
    No. 77-1665.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    James C. Brady, City Atty., Margate, for appellants.
    No appearance for appellees.
   PER CURIAM.

The appellees by motion having confessed error the order appealed from is reversed and the cause is remanded to the trial court for further proceedings.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.