author: OVERTON, Chief Justice.

text:
    The DEPARTMENT OF REVENUE of the State of Florida, and the Tax Assessor of Hillsborough County, Florida, Appellants, v. MORGANWOODS GREENTREE, INC., et al., Appellees.
    No. 46785.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Rehearing Denied Feb. 14, 1977.

      Robert L. Shevin, Atty. Gen., David M. Hudson, Asst. Atty. Gen., and Brooks P. Hoyt, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Joseph W. Castello, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for ap-pellees.
   OVERTON, Chief Justice.

This cause is before us on interlocutory appeal from a partial summary judgment of the circuit court in an ad valorem tax case. The judgment construed and applied Article VII, Section 4, of the Florida Constitution, and we have jurisdiction.

The appellee, Tampa Villas South, Inc., is the only party in interest in this appeal.

This case concerns the propriety of ad valorem taxes imposed by the tax assessor in 1973 on the “common areas” of a housing project that consists of 200 platted resident lots and two identified common areas. The improvements constructed upon the platted resident lots are customarily known as “row housing.” Each resident lot has a two-story, two- or three-bedroom town house which shares at least one party wall with an adjacent residence. The lot lines coincide with the exterior of the improvements. The individual property owners receive a fee simple title to their lot and the town house thereon. These resident lots were assessed to the record holders as separate taxable parcels by the tax assessor.

The “common areas” consist of the landscaping adjacent to the improvements, sidewalks, parking areas, swimming pool, tennis courts, and a playground area. The appel-lee, Tampa Villas South, Inc., holds the fee simple title to these common areas subject to the declaration which grants to each resident lot owner express easements for recreation, ingress and egress, lateral support, and vehicular parking. The declaration also regulates the use of the common areas and the residential lots, and requires appellee, Tampa Villas South, Inc., to maintain the exteriors of the individual properties and the common areas, said maintenance costs being assessed to the owner of each lot. The assessment is secured by a continuing lien against each resident lot in favor of the appellee, Tampa Villas South. Each of the 205 dwelling units are presently subject to an assessment of $300 per unit, which amounts to $61,500 for the total units annually.

On the assumption that each owner held an undivided interest in the common areas, the tax assessor initially taxed the common areas by charging each individual property owner a lump sum assessment. Advised that this was error, the assessor added the common areas separately to the tax roll and, using the cost method, assessed the 1973 ad valorem taxes against the legal titleholder, Tampa Villas South, valuing said property at $450,160. It is not clear from this record to what extent the beneficial use of and easements in the common areas available to each of the dwelling unit owners were included in the assessed value of those dwelling units.

The trial court awarded Tampa Villas South, Inc., a partial summary judgment, expressly holding that Section 193.011, Florida Statutes, and Article VII, Section 4, Florida Constitution, required the assessor to consider the lot owners’ restrictive encumbrances in the common areas when valuing it for ad valorem taxation. The court noted that the assessor had failed to consider the restrictive encumbrances and directed him to reevaluate the property for taxation.

We agree that there must be a reevaluation of the property. We reaffirm the general rule that in the levy of property tax the assessed value of the land must represent all the interests in the land. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla.1970); McNayr v. Claughton, 198 So.2d 366 (Fla.3d DCA 1967). This means that despite the mortgage, lease, or sublease of the property, the landowner will still be taxed as though he possessed the property in fee simple. The general property tax ignores fragmenting of ownership and seeks payment from only one “owner.” See 1 Bonbright, Valuation of Property, 495-96 (1st ed. 1937). An encumbrance or restriction such as an easement will not per se reduce the assessment value of land simply because the owner has been divested of some proprietary interest. This does not mean, however, that an assessment may be made without regard to the effect of an encumbrance on the value of the land. The encumbrance becomes one factor among many the assessor must consider in determining the just value of the property to be taxed.

In valuing the subject residential improvements and the common areas for ad valorem tax purposes, the total assessed value of the entire property should equal its just full value taken as a whole. How the taxes are to be individually assessed and computed is the issue in this cause. Regardless of the method, the construction and implementing statutes must be interpreted so as to achieve an assessment at just full value; no construction or tax assessment may be allowed that would allow either the property owner an unjustified tax break or the government to collect more taxes that it is entitled.

It is inconclusive from this record whether a proper assessment has been made, that is, whether the assessed value of the individual units and the assessed value of the common areas equal the total just value of the lands and improvements comprising the total project.

It is uncontroverted that the residential units are not usable without the common areas. They are entwined with each other. An analogous situation appears in Homer v. Dadeland Shopping Center, Inc., supra. The Dadeland case involved the assessment of shopping center property. The owner corporation did no business in the shopping center, but rented space to various tenants whose rights included customer use of the parking area. The assessor valued the parking lot and improved areas equally. This Court, while noting that the lot was impressed with restrictive covenants, upheld their disregard in valuing the lot because “the land used for the parking area is an integral part of the shopping center and just as important to its development as the land upon which the buildings are erected.” The common areas of Tampa Villas South are also an integral part of the residential units, and the same treatment must be afforded in the instant case.

A realistic assessment approach must be made. The contention of Tampa Villas South that the properties should be nominally valued might give the property owners a tax break to which they are not entitled. On the other hand, the contention of the tax assessor might result in overta-xation. Under the circumstances of this case we find it is proper to assess the value of the common areas separately with an adjustment being made in the value of each residential unit. This leaves to the appel-lee, Tampa Villas South, the responsibility of collecting the taxes through the assessment authority of its declaration. The ultimate test is that the total valuation of the entire project must be just valuation, no more, no less.

The record reflects that the assessor considered the effect of the easements and common areas in valuing the residential units but did not adjust his valuation accordingly on the servient common areas. To this extent the assessor’s exercise of his authority was invalid. We affirm the action of the trial judge, and direct that the subject properties be reassessed in accordance with the views expressed in this opinion.

It is so ordered.

ROBERTS, ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., and FERRIS, Circuit Court Judge, concur.

      . Art. V, § 3(b)(1), Fla. Const.

      . “193.011 Factors to consider in deriving just valuation. — In arriving at just valuation as required under s. 4, Art. VII of the state constitution, the [property appraiser] shall take into consideration the following factors:
      “(1) The present cash value of the property;
      “(2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
      “(3) The location of said property;
      “(4) The quantity or size of said property;
      “(5) The cost of said property and the present replacement value of any improvements thereon;
      “(6) The condition of said property;
      “(7) The income from said property; and
      “(8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing.”

      . “SECTION 4. Taxation — assessments.—By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, provided:
      “(a) Agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use.
      “(b) Pursuant to general law tangible personal property held for sale as stock in trade and livestock may be valued for taxation at a specified percentage of its value.”

      . Even at common law the general rule noted above was subject to the recognized exception that an outstanding, appurtenant easement interest must be considered in determining the property’s tax value. See, e. g., Tax Lien Co. v. Schultze, 213 N.Y. 9, 106 N.E. 751 (1914); People v. Tax Commission of City of New York, 17 A.D.2d 225, 233 N.Y.S.2d 501 (1963); 1 Bonbright, Valuation of Property 495-97 (1st ed. 1937); Lee and LeForestier, Review and Reduction of Real Property Assessments, § 7:08 (1960).


source: Caselaw Access Project

author: HATCHETT, Justice.

license: Public Domain

text:
    ESTATE of Eunice G. HAMPTON, Deceased, Appellant, v. FAIRCHILD-FLORIDA CONSTRUCTION COMPANY, a Florida Corporation, Appellee.
    No. 48755.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Rehearing Denied Feb. 16, 1977.

      Thomas F. Woods, of Woods & Johnston, Tallahassee, for appellant.
    Helen C. Ellis and Michael L. Granger, of Keen, O’Kelley & Spitz, Tallahassee, for appellee.
   HATCHETT, Justice.

The executor of the estate of Eunice G. Hampton brought suit against Fairchild-Florida Construction Co., appellee here, in connection with a parcel of real estate that had belonged to Eunice G. Hampton, and that adjoins real estate owned by the appel-lee. The executor sought to establish a statutory way of necessity, pursuant to Section 704.01(2), Florida Statutes (1975), to allow ingress and egress over appellee’s land. The trial court entered judgment for appellee, because the proof failed to establish that the real property belonging to the estate was “being used or [was] desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes.” Section 704.01(2), supra. No question as to the judgment on the merits has been raised here. The dispute centers on the trial court’s award of an attorney’s fee to appellee, the successful defendant below. In setting forth reasons for the award, the learned trial judge construed provisions of the Florida Constitution. Accordingly we have jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.

In general, attorneys’ fees are not recoverable unless a statute or a contract specifically authorizes their recovery, or unless equity allows attorneys’ fees from a fund or estate which has been benefitted by the rendering of legal services. Selby v. Bullock, 287 So.2d 18 (Fla.1973) (reh. den. 1974); Rivera v. Deauville Hotel, 277 So.2d 265 (Fla.1973); Stone v. Jeffres, 208 So.2d 827 (Fla.1968). In the words of Mr. Justice Drew:

It is an elemental principle of law in this State that attorney’s fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967) (on rehearing 1968) (citation omitted)

There is no contract here nor any equitable fund or estate, but appellee argues that Section 73.091, Florida Statutes (1975), authorizes the award of attorneys’ fees in proceedings to establish statutory ways of necessity. Section 73.091 directs the award of a reasonable attorney’s fee in eminent domain cases brought under the provisions of Chapter 73, Florida Statutes, but does not purport to authorize the award of attorneys’ fees in litigation brought under statutes in other chapters. The action in the present case was brought pursuant to Section 704.01, Florida Statutes (1975), which is silent as to attorneys’ fees.

Appellee argues that proceedings under Section 704.01 are in reality eminent domain proceedings, relying on dicta in Stein v. Darby, 126 So.2d 313 (Fla. 1st DCA 1961), cert. den. 134 So.2d 232 (Fla. 1961) to the effect that Chapter 704, Florida Statutes, was enacted “to [comjplement the common law rule with a statutory proceeding in eminent domain.” 126 So.2d at 317. With the question squarely posed, we conclude that proceedings to establish a statutory way of necessity do not stand on the same footing as condemnation actions by the State of Florida in its sovereign capacity. We now reject the view that a statute regulating rights as between the private owners of adjacent land implicates the sovereign power of eminent domain in the same way as the taking of land by the State. The mere fact that statutes alter rights and remedies known at common law obviously affords no basis for the award of attorneys’ fees in actions brought under them.

Accordingly, the judgment below is reversed insofar as it awards an attorney’s fee to appellee, Fairchild-Florida Construction Co. In every other respect, the judgment is affirmed.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND and SUND-BERG, JJ., concur.

      . Subsection 2 provides:

        Statutory way of necessity exclusive of common law right. — Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided, that such easement shall be used only in an orderly and proper manner.

      . In pertinent part, the order reads:
      Defendant has requested attorney fees. The 1968 Constitution of the State of Florida Article X, Section 6, (a) and (b) provides:
      “(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner
      “(b) Provision may be made by law for the taking of easements, by like proceedings, for the drainage of land of one person over or through the land of another.”
      Chapter 73.091, Florida Statutes (which is the Eminent Domain Statute) provides:
      “Petitioner shall pay all reasonable costs of the proceeding in Circuit Court, including a reasonable attorney’s fee to be assessed by the Court.”
      In Stein v. Darby, Fla., 126 So.2d 313, the Court specifically held that the result contemplated by Chapter 704.01(2), F.S., serves a “public purpose” in that it provides a lawful means by which to accomplish full utilization of the state’s natural resources, their development in the ordinary channels of commerce and industry. In further speaking of Chapter 704, the Court further stated (commencing with the last paragraph on page 320):
      “[4, 5] There is nothing in the Constitution of the United States prohibiting the state legislature from enacting statutes of the type under consideration, and there is nothing in the Florida Constitution restricting the legislature in that particular. It is elemental that all powers not specifically and exclusively delegated to the federal government or prohibited to the state are reserved to the people and may be exercised by their representatives in the legislature. No specific constitutional pronouncement is necessary to support the authority of the legislature to enact the act in question, and finding no constitutional prohibition against its enactment, it follows that it is the product of valid power vested in the legislature. Moreover, Article XVI, Section 29 [Article XVI, Section 29, of the 1885 Constitution is the present Article X, Section 6, of the Florida Constitution.] of the Florida Constitution clearly implies that an ‘individual’ may under authority of the legislature exercise the power of eminent domain for the purpose of acquiring a way of necessity to his landlocked property, conditioned on paying ‘full compensation’ therefor to the owner.”
      “Full compensation,” as contemplated by Article X, Section 6, guarantees the payment of attorney’s fees for the landowner’s attorney whose lands are being taken. See Brietbart v. S. R. D. of Fla. 116 So.2d 458 (1960). If this premise were not so, as applied to the instant case, the Plaintiff’s witness, John E. Stead, testified that full compensation for the easement to be acquired would only be $375.00. To require that Defendant, whose land is being taken to pay his attorney fee under such circumstances would be grossly unjust. Under our Constitution, and the laws enacted pursuant thereto, such will not be permitted.

      . Attorneys’ fees are awarded in eminent domain cases, regardless of whether the con-demnee’s land is actually taken, Dade County v. Oolite Rock Company, 311 So.2d 699 (Fla. 3d DCA 1975); City of Sunrise v. West Broward Utilities, Inc., 311 So.2d 175 (Fla. DCA 1975); City of Miami Beach v. Cummings, 239 So.2d 501 (Fla.3d DCA 1970).

      . The present situation differs from the delegation of the power of eminent domain to railroad, canal, telephone, and telegraph companies. See generally Sections 73.151 and 73.161, Florida Statutes (1975).


author: ENGLAND, Justice.

text:
    BROWARD COUNTY, Florida, Appellant, v. Constance D. COE et al., Appellees.
    No. 49049.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied Feb. 15, 1977.
    Betty Lynn Lee, Gen. Counsel, Edward J. Williams, Asst. Gen. Counsel, and Alexander Cocalis, Deputy Gen. Counsel, Fort Lauderdale, for appellant.
    Barry Scott Richard, of Snyder, Young, Stern, Barrett & Tannenbaum, North Miami Beach, for appellees.
   ENGLAND, Justice.

The constitutional challenge in this case with respect to Chapter 74-434, Laws of Florida, involves the same point of law as was raised and rejected in prior decisions of this Court. See Wilson v. Hillsborough County Aviation Auth., 138 So.2d 65 (Fla.1962). As to appellant’s other contentions, we adopt the views expressed by Judge Owen in the decision below, reported at 327 So.2d 69 (Fla. 4th DCA 1976).

The decision below is affirmed.

OVERTON, C. J., and SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.

ADKINS and BOYD, JJ., dissent.


author: PER CURIAM. ENGLAND, Justice

text:
    David Livingston FUNCHESS, Appellant, v. STATE of Florida, Appellee.
    No. 47828.
    Supreme Court of Florida.
    Dec. 9, 1976.
    Rehearing Denied Feb. 15, 1977.

      Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowksi, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

We here review on direct appeal the first degree murder convictions and consecutive sentences of death imposed upon appellant by the Circuit Court in and for Duval County, Florida. Article V, Section 3(b)(1), Constitution of Florida.

Appellant was indicted in a two count indictment for the stabbing death of Anna Waldrop and for the stabbing death of Clayton Ragan. He was convicted on both counts of murder in the first degree, and was sentenced to two consecutive sentences of death after recommendation by the jury that appellant be sentenced to death. Appellant’s motion to dismiss the indictment on the ground that the death penalty statute is unconstitutional was denied. Pursuant to Rule 3.210, Florida Criminal Procedure Rules, the trial judge granted appellant’s motion suggesting that he was insane and ordered a psychiatric examination. A sanity hearing was held and appellant was adjudged sane.

Three persons, two of whom died, were discovered seriously stabbed at Avondale Liquors in Jacksonville, Florida. At the time of the murders, appellant was in the act of committing robbery.

The trial judge carefully evaluated in detail each of the mitigating and each of the aggravating circumstances set out in Section 921.141, Florida Statutes, and stated, inter alia:

“The robbery and the murders committed by the Defendant were premeditated. The Defendant selected the place for a robbery and like a cobra, he carefully chose the time to strike while casually drinking a cup of coffee across the street from the scene of the crimes. The State has proven beyond a reasonable doubt that the robbery and the murders were premeditated. The objective of the Defendant was to obtain money and he was willing to take the lives of others in order to do so. By stabbing and cutting throats, he killed two people and pitifully mangled a third person who, at this writing, has not recovered consciousness and after seven months, remains in a coma hardly more than a vegetable. The victims were all practically twice the age of the Defendant and two of the victims were women, one of whom was left gasping for breath at the scene of the crimes.
“These are truly some of the most senseless, heinous and horrible murders that have ever taken place in the City of Jacksonville.”

We would agree that these were truly senseless, atrocious and heinous crimes.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded.

Upon considering all the mitigating and aggravating circumstances and careful review of the entire record in the cause, the trial court imposed the death penalty for the commission of the afore-described atrocious and heinous crimes.

Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

While I concur with the majority of the Court that David Funchess had a fair trial and was properly sentenced, one of the issues raised in his defense warrants discussion. Funchess asserts that certain photographs introduced into evidence by the state, which depict the scene of the crimes and the victims, served no legitimate evi-dentiary purpose, but rather were put before the jury solely to shock them by the horror of the victims’ deaths.

We have previously indicated that one who perpetrates a horrible crime is not privileged to have a completely antiseptic trial at which a jury of his peers is immunized from the gruesome details his acts produced. Henninger v. State, 251 So.2d 862, 865 (Fla.1971). We have also indicated that photographic evidence which is likely to inflame or shock a jury is inadmissible unless it is relevant to establish at least some aspect of the crime. Bauldree v. State, 284 So.2d 196 (Fla.1973); State v. Wright, 265 So.2d 361 (Fla.1972); Henninger, above; Young v. State, 234 So.2d 341 (Fla.1970). Our adoption of a “relevance” test, rather than a “necessary” test, creates troublesome distinctions which obviously will require a case-by-case analysis by trial and appellate judges. My separate discussion of this issue here is written with the hope that prosecutors in Florida will consider in each case the possibility of proving guilt with evidence which includes photographs well under the upper limit of judicial acceptability.

The photographs introduced into this trial were extremely large (16" x 19"), and they were in some cases closeups of the victims and their wounds. I do not have serious doubts as to the propriety of admitting 12 of the 13 photographs introduced, in light of the circumstances of the crime and the testimony which surrounded, their introduction. As to state’s exhibit 13, however, I seriously question the state’s need to introduce the photograph in light of the extremely gruesome expression which was portrayed on the victim’s face in death.

This photograph was introduced after the only medical witness had testified as to the causes of death and the state had introduced during his testimony the photographs which he had taken of the victim and wounds. Those photographs were allowed into evidence without objection by the defense. The asserted justification for introducing state’s exhibit 13 after his testimony was concluded hinged on a short exchange between defense counsel and the medical examiner to the effect that lacerations on one of the victim’s arms were probably produced while she was defending herself against her assailant’s attack. Defense counsel timely objected to the introduction of this photograph on the ground that it was so gruesome in its entirety, showing in detail her facial expression in death, and that the arm wounds it depicted were inconsequential in comparison to the total impact it produced. It was also argued that her arm wounds were irrelevant to the cause of death.

State’s exhibit 13 does show lacerations to the victim’s arm, and the arm is positioned in a way which would suggest an attempt at self-defense. However, the medical testimony was uncontroverted that death occurred from multiple stab wounds to the victim’s chest. It seems rather apparent that the state introduced this photograph in an effort to emphasize the gruesome nature of this crime and to portray, more vividly than words could describe, the helpless horror this victim must have felt while attempting to defend herself from brutal assault. I can see no reason why this photograph was necessary in the guilt or innocence phase of this trial, and I am not persuaded by the assertion that defense counsel’s cross-examination of the medical examiner developed some discussion concerning an effort at self-defense. In my view, the state went to the limit of what would be permissible without tainting the entire trial.

Given the imprecise nature of our rule regarding relevant but inflammatory photographic evidence, and the fact we have recently upheld several convictions in which photograph evidence was to my mind as gruesome and unnecessary as this photograph, I find no basis to reverse the conviction in this case. I echo an earlier suggestion from this Court, however, that prosecutors in this state should be more circumspect in their endeavors and should remove from the courtrooms of this state, to the fullest extent possible, the elements of passion and emotion. We must all strive for a system in which juries convict alleged criminals solely on the basis of proof, without resort to the horror of particular crimes. Our Code of Professional Responsibility requires no less:

“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”

      . I reject any suggestion that errors of this type can be overcome when an appellate court finds ample other evidence in the entire record to demonstrate that a particular defendant has committed the crimes with which he or she was charged. That formula is too simple. If that were the rule of law, there would be no reason to limit the bounds of permissible evidence.

      . Young v. State, 234 So.2d 341, 348 (Fla.1970).

      . Fla.Bar Code Prof.Resp., E.C. 7-13.


author: PER CURIAM. BOYD, Justice,

text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 45450.
    Supreme Court of Florida.
    Dec. 16, 1976.
    Rehearing Denied Feb. 14, 1977.

      Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Chief Asst. Public Defender, and Lois J. Prankel and Craig S. Barnard, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin and George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This cause is before us on direct appeal from a first degree murder conviction and sentence of death imposed by the trial judge. The jury recommended the death sentence. We have jurisdiction.

On November 12, 1973, at approximately 10:30 a. m., the victim Edgar Brown was brutally beaten with a fire poker during the course of a robbery in his home. Brown was found shortly thereafter, fatally injured and incoherent. He died the next day.

Appellant James Adams was convicted for the murder of Edgar Brown. The evidence reflects that a witness saw Adams and Brown driving in their respective cars toward Brown’s home within a few minutes of each other just before the probable time of the crime. Other witnesses located appellant’s automobile at the victim’s home and driving away from it, with Adams at the wheel, immediately before the wounded Brown was found. Later that day Adams left his car, a brown Rambler, with Sammy Knight, to be painted a light green. When appellant was arrested, he possessed certain money stained with blood of a type matching that of the victim, but not of himself. The denominations of the currency corresponded to the denominations Brown was known to have carried before the attack on his person. A search of Adams’ car trunk upon his arrest produced jewelry taken from Brown’s home and clothing stained with blood of the victim’s type.

At trial Adams denied his presence at Brown’s house. Adams’ testimony notwithstanding, the jury found him guilty of murder in the first degree and recommended the death penalty. The trial court found that the aggravating circumstances far outweighed any mitigating ones, and on March 15, 1974, sentenced James Adams to death for the killing of Edgar Brown during the perpetration of a robbery.

The principal issue for determination concerns the trial court’s instruction on second degree murder. At the conference on instructions, it was noted that the definitions of murder had been revised by the 1972 Legislature. The murder provisions read as follows:

“782.04 Murder.—
“(l)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen years when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.-082.
“(b) In all cases under this section, the procedure set forth in § 921.141 shall be followed in order to determine sentence of death or life imprisonment.
“(2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.
“(3) When perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, it shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”

Specific instructions were not discussed at the conference. In actually charging the jury on second degree murder, the court used language contained in proposed instructions drafted by the Standard Jury Instructions Committee to comply with the new death penalty statute. These instructions had not been submitted to or approved by this Court. The instruction on second degree murder given by the trial judge was as follows:

“Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual, and not done in the perpetration of or in an attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb.” (Emphasis added)

After retiring to deliberate, the jury requested re-instruction on the degrees of murder. At this point, both the state and appellant moved that the instructions on second degree murder be modified to “more accurately track the statute.” The court denied the motions and re-read to the jury all of the original instructions.

Appellant contends that this instruction constitutes prejudicial error, asserting that the wording of the instructions on second and third degree murder bound the jury to a verdict of murder in the first degree if the jury found that Brown was killed as a part of a robbery. This limitation of the jury’s options is not error. On the contrary, that result is the very goal of the first degree felony murder provision specified in Section 782.04(l)(a), Florida Statutes (1973).

In its most basic form, the historic felony murder rule mechanically defines as murder any homicide committed while perpetrating or attempting a felony. It stands as an exception to the general rule that murder is homicide with the specific intent of malice aforethought. Under the felony murder rule, state of mind is immaterial. Even an accidental killing during a felony is murder. The malice aforethought is supplied by the felony, and in this manner the rule is regarded as a constructive malice device.

Florida has always had some form of the felony murder rule. In 1892, Florida’s felony murder rule was first enacted similar to its present form. First degree murder was defined to comprise not only killings done by premeditated design, but also those “committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary.” No significant change was made in the felony murder provision until the 1972 revision.

A homicide during one of the enumerated felonies under the 1972 revision is deemed first degree murder only when it is committed by,

“. . . a person engaged in the perpetration of, or in the attempt to perpetrate . . . ”

the felony. The second degree murder provision has been modified to include a felony murder provision. It includes the unlawful killing of a person,

“. . . when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1). . .

In State v. Dixon, 283 So.2d 1 (Fla.1973), this Court noted the difference between first degree and second degree felony murder:

“The obvious intention of the Legislature in making this change is to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second degree. ...” Id. at 11.

We pointed out in Dixon, supra, that liability for second degree felony murder occurs when the individual perpetrates the underlying felony as an accessory before the fact but does not personally engage in it. This limited scope of the second degree felony murder provision is dictated by the provision, “except as provided in subsection (1),” which refers to Section 782.04(1), Florida Statutes (1975).

We hold that under the 1972 homicide statute an individual who personally kills another during the perpetration or attempt to perpetrate one of the enumerated felonies is guilty of first degree murder. In such circumstances, the statutory scheme does not allow for a conviction of second degree murder. Moreover, the felon’s liability for first degree murder extends to all of his co-felons who are personally present. As perpetrators of the underlying felony, they are principals in the homicide. In Florida, as in the majority of jurisdictions, the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon. Only if the felon is an accessory before the fact and not personally present does liability attach under the second degree murder provision of the applicable statute in the instant case.

We conclude therefore that although the trial judge’s instructions on second degree murder did not track the statute, under the facts of this case it did not misstate the law. If the jury believed that James Adams fatally beat Edgar Brown in the course of robbing him, Section 782.04, Florida Statutes (1973), required it to return a verdict of murder in the first degree. We find no error in the charge. Subsequent to the trial in the instant case, this Court approved an appropriate standard jury instruction under the present statute and it should be the instruction used rather than the instruction found not erroneous in this cause.

Our final responsibility is to consider the appropriateness of the death sentence in order to determine independently whether the death penalty is warranted. State v. Dixon, supra.

The facts found by the trial judge support the following aggravating circumstances: (1) Adams committed the murder while under a sentence of imprisonment, specifically while an escapee from the State of Tennessee, where he had been convicted of rape and sentenced to ninety-nine years imprisonment; (2) Adams was previously convicted of a felony involving the use or threat of force to a victim; (3) Adams committed the murder during the course of a robbery; (4) The murder was especially heinous, atrocious, and cruel, the record reflecting that he murdered his victim by beating him past the point of submission and until his body was grossly mangled. None of the statutory mitigating circumstances were shown to exist. The sole mitigating factor offered at trial was that the appellant is a human being.

We hold the sentence of death is appropriate, and affirm.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

BOYD, Justice,

dissenting.

In my opinion, the majority’s attempt to distinguish first and second degree felony murder does not work for the simple reason that the distinction is not present in the statute itself. The statute provides that when death results in connection with a robbery a verdict of second degree murder may be returned. Murder “. . . committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree . . . .”

The trial court specifically instructed the jury that it could not find the defendant guilty of second degree murder if it found the crime to have been committed in the perpetration of a robbery. The instruction effectively foreclosed the jury’s right to find the defendant guilty of second degree murder, although it is well recognized that juries may find persons guilty of lesser included offenses in Florida under Brown v. State, 206 So.2d 377 (Fla.1968), and its progeny up to the recent case of State v. Terry, 336 So.2d 65 (Fla.1976). Furthermore, the jury was prohibited from giving a “jury pardon,” a concept often recognized by this Court, e. g., Bailey v. State, 224 So.2d 296 (Fla.1969).

In my opinion, the charge to the jury was fundamentally erroneous. No person should be executed based upon a record containing obvious reversible error, and it would certainly be improper to classify this error as harmless.

It is significant that five of the twelve jurors voted to recommend life imprisonment instead of death upon finding appellant guilty of first degree murder. Although convinced the murder occurred in the course of a robbery, they might have held out for a conviction of second degree murder had the opportunity to do so not been foreclosed by the trial court’s charge.

The gory and cruel nature of the crime should not justify what I conceive to be fundamental error. Human life is too precious to be extinguished by the State without a legally proper trial.

I would reverse the judgment of the trial court and order a new trial.

      . Art. V, § 3(b)(1), Fla.Const.

      . Model Penal Code, § 201.2, Comments at 39 (Tent.Draft No. 9, 1959).

      . See, e. g., Sloan v. State, 70 Fla. 163, 69 So. 871 (1915).

      . Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U.Pa.L.R. 49, 59 (1956).

      . See Fla.Laws 1822, § 1 at 53, § 24 at 145; Fla.Laws 1824, § 11 at 208; Fla.Laws 1832, Ch. 55, § 1 at 63; and Fla.Laws 1868, Ch. 1637, Subch. 3, § 1, 2 at 63.

      .Fla.Laws 1892, Ch. 2377-94 at 773-76.

      . Fla.Laws 1892, Ch. 2380 at 774.

      . Subsequent revision of second degree felony murder provision suggests also that perpetrator of a felony would be liable for second degree murder if during the felony there occurred a killing not committed by the felon or one of his co-felons. Thus if in resisting a felony, the victim kills an innocent bystander, the felon would be susceptible to a charge of second degree murder. See Section 782.04(3), Florida Statutes (1975).

      . See Pope v. State, 84 Fla. 428, 94 So. 865 (1922). See generally, Note, A Survey of Felony Murder, 28 Temple L.Q. 453 (1955).

      . For jury instructions on murder appropriate under the current statute, see Florida Standard Jury Instructions in Criminal Cases, Homicide (2d ed. 1975).


author: PER CURIAM.

text:
    Lester B. GREENBERG, D.D.S., Appellant, v. FLORIDA STATE BOARD OF DENTISTRY, Appellee.
    No. 49406.
    Supreme Court of Florida.
    Jan. 6, 1977.
    Paul J. Levine of Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald D. Conn, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Richardson v. Florida State Board of Dentistry, 326 So.2d 231 (Fla. 1st DCA 1976).

OVERTON, C. J., and SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.

ADKINS, J., dissents.


text:
    STATE of Florida, DEPARTMENT OF REVENUE, and Emory Bridges as Tax Assessor, Calhoun County, Appellants, v. S. Donnell WHITFIELD et al., Appellees.
    No. 47673.
    Supreme Court of Florida.
    Jan. 13, 1977.

      Robert L. Shevin, Atty. Gen., J. Kendrick Tucker and Harold F. X. Purnell, Asst. At-tys. Gen., and Robert M. Rhodes of Thompson, Wadsworth & Messer, Tallahassee, for appellants.
    Bill A. Corbin, Blountstown, for appel-lees.
    William J. Roberts and Wilson W. Wright, Tallahassee, for State Association of County Commissioners, amicus curiae.
   HATCHETT, Justice.

This is a direct appeal of an order of the Circuit Court of Calhoun County declaring Section 195.087(1), Florida Statutes (1975), unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution, and Fla.App. Rule 2.1 subd.a (5)(a).

Section 195.087(1), Florida Statutes (1975), does not unconstitutionally place in the hands of an administrative board unrestrained and unrestricted authority to establish county budgets nor does it deprive a board of county commissioners or a tax assessor of their constitutional responsibility of establishing the budget for the operation of the tax assessor’s office. See Orange County v. Allie, 238 So.2d 662 (Fla. 4th DCA 1970); Carlton v. Mathews, 103 Fla. 301, 137 So. 815, 832 (1939).

Accordingly, we hold the statute to be constitutional, reverse the judgment, and remand to the trial judge for actions consistent with this opinion.

OVERTON, C. J., and BOYD and ENGLAND, JJ., concur.

SUNDBERG, J., concurs in result only.

ADKINS and ROBERTS (Retired), JJ., dissent.


text:
    Vernell CARROLL, Petitioner, v. Glen A. CARROLL, Respondent.
    No. 48495.
    Supreme Court of Florida.
    Jan. 13, 1977.
    Wm. Howard LaPorte, Crestview, for petitioner.
    W. Paul Thompson of Thompson & Ad-kinson, Defuniak Springs, for respondent.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari seeking reversal of the decision of the First District Court of Appeal reported at 322 So.2d 53 (Fla. 1st DCA 1975). As acknowledged by the First District, that decision conflicts with Arnold v. Arnold, 273 So.2d 405 (Fla.2d DCA 1973). We have jurisdiction.

This case involves a dispute over venue in a dissolution of marriage proceeding. On April 8, 1972, respondent and petitioner travelled to Alabama to be united in marriage as husband and wife. They returned to Florida and lived in Holmes County for about eight months when petitioner left her husband and moved to Okaloosa County. She remained there for about a year but then rejoined her husband in Holmes County. This second and last attempt to cohabit as husband and wife endured no longer than the first, and petitioner returned to Okaloosa County in July of 1974.

According to petitioner, four days after she resumed residence in Okaloosa County she was visited by her husband who angrily demanded the keys to their automobile. Petitioner yielded, giving the keys to respondent. It was at this point, petitioner contends, that she realized their marriage was irretrievably broken and that she decided to seek its dissolution.

Three months later petitioner filed in Okaloosa County a petition for dissolution of their marriage. Respondent objected to petitioner’s choice of forum and filed a “plea of privilege,” which, as noted by the First District,

“ . . . was properly treated as a motion to dismiss for improper venue or to transfer. Rule 1.140 R.C.P.; Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955).” 322 So.2d at 54.

The trial judge denied respondent’s motion.

Respondent took an interlocutory appeal to the First District Court of Appeal, contending that venue was improper under Section 47.011, Florida Statutes. The issue before the First District was whether the cause of action in this dissolution proceeding arose in Okaloosa County because petitioner alleges that it was in that county their marriage became irretrievably broken. The First District answered in the negative, ruling as follows:

“To protect the beneficial purposes of both the marriage dissolution legislation and the venue statute, we are required to look, not for the county or the scattered counties where the breach may be said to have occurred, but to the single county where the marriage last existed. In that county the intact marriage was last evidenced by a continuing union of partners who intended ... to remain married, indefinitely if not permanently. Ordinarily the court will recognize that county naturally, as do the parties themselves, and the venue problem will be no more difficult than finding where the marriage partners called home. Courts have long asked that simple question when determining the domicile of succession. Smith v. Croom, 7 Fla. 81, 97-101, 154-59 (1857), reh. den. 7 Fla. 180. The harder cases inevitably arising in this day of atomic families and separate residence [Judd v. Schooley, 158 So.2d 514 (Fla.1963)] will respond to a test like that employed to resolve domiciliary controversies in other contexts. See Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927), invoking the Roman doctrine, and Perez v. Perez, 164 So.2d 561 (Fla.App.3rd, 1964). In what county were both partners last present with a common intention to remain married and in that place? There the marriage was broken, although recognition of the breach was postponed; there the cause of action for dissolution arose, within the meaning and application of § 47.011. ...” 322 So.2d at 57.

We agree with the reasoning of the First District Court of Appeal and adopt it as our own. The decision of the First District is approved and the petition for writ of certio-rari is denied.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.

      . Art. V, §'3(b)(3), Fla. Const.

      . “Where actions may be begun. — Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.” [Emphasis supplied.]


text:
    Michael SAUNDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 48958.
    Supreme Court of Florida.
    Jan. 13, 1977.
    Sheldon M. Schapiro, of Stone & Schapi-ro, Hollywood, for petitioner.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued. Upon further consideration of the matter and hearing argument, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and DREW (Retired), JJ., concur.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

BOYD, Justice,

dissenting.

Petitioner requests certiorari review of the District Court of Appeal, Fourth District, affirmance of his conviction for assault with intent to commit third degree murder, reported at 325 So.2d 102.

In Tillman v. State, 81 Fla. 558, 88 So. 377 (Fla.1921), murder in the third degree was defined as the unlawful killing of a human being when perpetrated without design to effect death by a person engaged in the perpetration or attempt to perpetrate certain felonies, substantially the same definition of third degree murder now in our statutes, Section 782.04(4), Florida Statutes. The Tillman Court held there can be no such offense as “assault with intent to commit murder in the third degree” because the presence of an intent precludes the commission of third degree murder. The instant case conflicts with Tillman.

Apparently, the majority feels the conflict has been resolved by the Court’s decision in Bailey v. State, 224 So.2d 296 (Fla. 1969), where it was held that juries must be instructed on assault with intent to commit third degree murder when the defendant is charged with assault with intent to commit first degree murder. The Court considered Tillman, but stated that the Tillman Court recognized Grace v. State, 78 Fla. 486, 83 So. 271 (1919), in which it was held that convictions of assault with intent to commit third degree murder may be upheld if the evidence affords a legal basis for finding the defendant guilty of assault with intent to commit murder in the first or second degree. Bailey viewed the holding of Grace as consistent with the concept of “jury pardons,” condoned by this Court in Brown v. State, 206 So.2d 377 (Fla.1968), which requires that jury instructions on crimes divisible into degree include instructions on the lesser degrees regardless of whether the accusations and proof will support the existence of the lesser degree crimes.

Third degree murder is defined as follows under Section 782.04(4), Florida Statutes:

“The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.-082, § 775.083, or § 775.084.”

The absence of intent to commit murder is a necessary element in the crime of third degree murder. It is therefore illogical to conclude that anyone could be guilty of an assault with intent to commit third degree murder, since the absence of intent is a necessary ingredient of the major crime.

I think Tillman was correct in deciding that assault with intent to commit third degree murder is not a crime under Florida law. We should recede from the Bailey decision. Under the Constitutions of the United States and this State, no Florida court has the power to adjudicate anyone guilty of a crime which does not exist. Courts do not possess the power to create a crime regardless of benevolent intent, as expressed, for example, by the Bailey Court in its “jury pardon” rationale.

I must dissent from discharging the writ and would quash the decision of the District Court of Appeal, Fourth District, and require petitioner’s conviction to be vacated.


text:
    THE FLORIDA BAR. In re John A. REED.
    No. 50061.
    Supreme Court of Florida.
    Jan. 13, 1977.
    John A. Reed, in pro. per.
    Richard A. Whittington, Bar Counsel, In-dialantic, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, Respondent.
   PER CURIAM.

This cause is before us on petition for reinstatement to The Florida Bar by John A. Reed and report and recommendation of the referee. No timely petition for review has been filed with this Court by Reed pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.09.

On March 27, 1974, John A. Reed was suspended from the practice of law for one year and thereafter until he is able to demonstrate to the satisfaction of The Florida Bar that it can in all good faith recommend to this Court his reinstatement. Cf. The Florida Bar v. Reed, 299 So.2d 583 (Fla.1974).

Petitioner filed a petition seeking reinstatement as a member in good standing of The Florida Bar with The Florida Bar on September 2, 1975. Pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.11, the matter was referred to a referee appointed by the Board of Governors.

The referee summarized the evidence presented at the hearing on the petition for reinstatement, as follows:

“The Petitioner called no witnesses in his own behalf and offered no documentary evidence in his own behalf. The Petitioner was his sole witness.
“The Petitioner’s testimony can be summarized by saying he restated the information contained in his Petition filed with The Florida Bar and elaborated briefly on the matters set forth therein. The most that can be said for his presentation was that he offered personal assurances of good intentions for the future, which were uncorroborated. The main thrust of his plea was that he should be reinstated because he needed income and he had no other way to make a living.
“The evidence developed by The Florida Bar was as follows:
“1. Cross-examination of the Petitioner revealed that he had received a private reprimand from The Florida Bar for failure to properly represent his clients on July 12, 1968. He further admitted that he had been before the Grievance Committee of The Florida Bar on approximately six occasions for alleged misconduct.
“2. Attorney Mike Krasny of Melbourne testified that the Petitioner had actively represented a client in a divorce proceeding in opposition to Mr. Krasny as late as May 29, 1974, which was seven days after the motion for rehearing was denied on the suspension order. He further testified of an occasion when the Petitioner lied to him about a matter known to the Petitioner to be false. He further testified that the Petitioner’s reputation in the community for truthfulness and his reputation in the community and Bar for legal competence was bad.
“3. The Honorable Richard B. Mul-drew, Circuit Judge in the Eighteenth Judicial Circuit, testified that he had known the Petitioner for many years and that ‘he was constantly in trouble’. He further testified as to an occasion on which the Petitioner appeared in his Court during the period of the Petitioner’s suspension, at which time it was his impression the Petitioner intended to handle the divorce hearing but was prevented from doing so by the Judge himself.
“4. Peirce Wood, an attorney practicing in Brevard County, who was the referee in the proceedings wherein the Petitioner was suspended, testified that in his opinion the Petitioner had not been rehabilitated since he had not received any additional training or education since his suspension.
“5. William Potter, an attorney in Melbourne, Florida, testified that he had known the Petitioner for several years and that his reputation for truthfulness in the community and Bar was poor and that his reputation for legal competence in the community and Bar was poor.
“6. Mrs. Inez Smith Gant testified she employed the Petitioner in 1972 and 1973 to represent her in two matters, that the Petitioner told her he had filed the cases and that they would go to trial, that in fact the cases were never filed and one claim was lost by the running of the Statute of Limitations. She further testified that she filed suit for recovery of the retainer she had paid the Petitioner and received a judgment against him in the County Court of Brevard County (Exhibit # 3 of The Florida Bar).
“7. Exhibit was placed into evidence showing the Petitioner had filed a petition for adoption in 1973 for a client but neglected to complete the case. The Petitioner admitted he did not complete the case. (Exhibit # 4 of The Florida Bar)
“8. An exhibit was placed into evidence which shows a stipulation signed by the Petitioner dated March 29, 1974. This stipulation was executed by the Petitioner as an attorney seven days after the motion for rehearing was denied in the suspension order. (Exhibit # 7 of The Florida Bar)
“9. An exhibit was placed into evidence being an agreement which was admitted by the Petitioner to have been prepared by him during the course of his suspension in 1975. The Petitioner claimed he had not prepared it to be signed, but only as a draft for the other attorney to use. (Exhibit # 8 of The Florida Bar)”

After evaluation of the evidence, the referee concluded that the petitioner failed to present any evidence of his rehabilitation, of his unimpeachable character and moral standing in the community, of his good reputation for professional ability or any corroboration of his personal assurances of good intentions for the future, and that petitioner represented himself in an unprofessional manner and demonstrated an absence of basic legal skills in his own defense. The referee further concluded:

“The Petitioner’s own testimony, the sole substance of his presentation, especially on cross-examination, was distinguished by his inability to recall or remember pertinent matters. His direct testimony was refuted by the testimony of attorneys and exhibits in evidence. The Petitioner’s testimony regarding facts relating to his misconduct was for the most part unbelievable.
“On the other hand, The Florida Bar clearly established that the Petitioner had violated the suspension order by practicing law during the time of his suspension. It was further established that he had failed to properly handle the interest of other clients, other than those previously charged. The only evidence as to his reputation and professional ability was adverse to his Petition.
“In the Petition of Dawson, 131 So.2d 472 (Fla.1961), the Supreme Court enumerated factors to be considered in applications for reinstatement and held that the burden is on the Petitioner to establish he is entitled to resume the privilege of practicing law. The Petitioner has totally failed to meet that burden.”

The referee thereupon recommends that the petition for reinstatement be denied.

Having carefully reviewed the record before us, we hereby approve the findings and recommendation of the referee.

Accordingly, the petition for reinstatement is denied and costs of these proceedings in the amount of $122.79 are hereby assessed against petitioner.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.


author: GRIMES, Judge.

text:
    NEW HAMPSHIRE INSURANCE COMPANY and Lola Pittman, Relators, v. Judge James P. CALHOUN, and Maria Contino, Respondents.
    No. 76-1235.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.
    William M. Schneikart, of Miller & McKendree, Tampa, for relators.
    Mulholland, Kinney & Anderson, P.A. and Gordon & Maney, P.A., Tampa, for respondents.
   ON PETITION FOR REHEARING

GRIMES, Judge.

This is an original petition for mandamus directed to the Honorable James P. Calhoun, Judge of the Thirteenth Judicial Circuit of Florida.

Judge Calhoun presided at a trial in which Maria Contino brought suit against Lola Pittman and her insurance carrier for personal injuries suffered in an automobile accident. The jury returned the following verdict:

“We, the jury, on the claims herein, find as follows:
1. (a) The Defendant, LOLA PITTMAN, was not negligent.
(b) The Third Party Defendant, ALEJANDRA AMADOR, was negligent.
2. Plaintiff MARIA CONTINO did not sustain a permanent injury within reasonable medical probability as a result of the accident of December 26, 1972.
3. Plaintiff MARIA CONTINO did not incur reasonable and necessary medical expenses in excess of $1,000.00, as a result of the accident on December 26, 1972.
So, say we all.
Dated this 26th day of May, A.D., 1976.
/s/ James Arrington
Foreman”

Thereupon, the judge concluded that the court was without jurisdiction in the case by reason of the second and third findings of the jury and dismissed the cause without prejudice. The relators ask this court to require the entry of a judgment in their favor.

We originally denied the petition because we were of the view that mandamus was not an appropriate remedy. However, upon rehearing and reflection, we have concluded that mandamus is a proper procedure to test the correctness of a determination of no jurisdiction by a court of lesser jurisdiction. State v. Pearson, 154 So.2d 833 (Fla.1963); Linning v. Duncan, 169 So.2d 862 (Fla. 1st DCA 1964). Therefore, we must reach the merits of the controversy.

Judge Calhoun’s order was premised on certain cases of the Third District Court of Appeal in which that court held that where the personal injury threshold prescribed by Section 627.737, Florida Statutes (1975) has not been reached, an order dismissing the cause without prejudice should be entered for want of jurisdiction. Wooten v. Collins, 327 So.2d 795 (Fla.3d DCA 1976); Marquez v. Mederos, 307 So.2d 873 (Fla.3d DCA 1975). We doubt that these opinions were using the word “jurisdiction” in its traditional sense, because the trial courts in those cases clearly had jurisdiction to determine whether or not the threshold was reached. There is nothing in the Florida Automobile Reparations Reform Act which suggests that a court has no jurisdiction where a plaintiff fails to meet the threshold. Section 627.-737, Florida Statutes (1975) simply provides that a plaintiff may recover damages only when one of the threshold requirements is met. In any event, the cases relied upon for the entry of the order are different from the instant case in one material respect; that is, there was no finding that the defendant was not negligent.

Here, the jury determined in its first finding that Lola Pittman was not guilty of negligence. Under these circumstances, the plaintiff would not have been entitled to recover even if she had reached the personal injury threshold. The parties were before the court in a personal injury action where the defendant’s negligence was a primary issue. When the jury determined this issue adverse to the plaintiff, the court did not lose jurisdiction by virtue of a further finding that the plaintiff had not met the threshold. The judge should have entered judgment for the relators subject, of course, to his right to order a new trial should the circumstances so dictate under the principles generally applicable to the entry of new trial orders.

Our previous order denying the petition is vacated, and a peremptory writ of mandamus is hereby issued whereby the Honorable James P. Calhoun, Circuit Judge of the Thirteenth Judicial Circuit, is directed to exercise his jurisdiction in accordance with this opinion within thirty (30) days from the date hereof.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . Had the jury specifically determined that Ms. Contino had incurred' medical expenses of a specific amount which was less than the $1,000 threshold, the determination of this figure would have res judicata effect in a later suit alleging that additional expenses had been incurred sufficient to pass the threshold. Cf. Tucker v. Walker, 335 So.2d 636 (Fla.2d DCA 1976).

      . While not necessary to our conclusion, we believe that if the jury had found that Ms. Pittman was negligent, she and her carrier would have been bound by that determination under principles of collateral estoppel in a subsequent action by Ms. Contino claiming that she had now reached the threshold.


author: ALDERMAN, Judge.

text:
    John Patrick GILMORE and Margaret Gilmore, Individually and as husband and wife, Appellants, v. Thomas Sidney MORRISON et al., Appellees.
    No. 75-2205.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Rehearing Denied Feb. 16, 1977.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean and Edward W. Starr, West Palm Beach, for appellants.
    Timoleon Anagnost, Coral Gables, and Glen P. Falk of Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellees.
   ALDERMAN, Judge.

Mrs. Gilmore, a passenger in an automobile driven by her husband, was injured when the vehicle in which she was riding was involved in a collision with a Greyhound bus. She sued the bus driver, Greyhound Lines, Inc., and its liability insurance carrier. Trial was held and the jury’s verdict determined Mrs. Gilmore’s damages to be $225,000. However the jury also found the percentage of negligence of her husband and the bus driver to be fifty percent each. The trial court reduced the amount awarded to Mrs. Gilmore by fifty percent and entered judgment in her favor for $112,500.

On a prior appeal from the original judgment we held that the trial court had erred in reducing the non-negligent wife’s recovery by the proportion of her husband-driver’s negligence. Gilmore v. Morrison, 314 So.2d 5 (Fla. 4th DCA 1975). We held that “. . . the jury verdict entered in favor of the plaintiff-wife is reinstated and the final judgment modified to the extent therewith; in all other respects the final judgment is affirmed.”

Upon receipt of the mandate from the first appeal, the trial court entered another judgment in favor of Mrs. Gilmore in the amount of $225,000. However the trial court refused to award interest on the full $225,000 from the date of the original final judgment. Instead interest was allowed only on $112,500 from March 21, 1974, the original date of the final judgment, until September 18, 1975, the date on which the trial court entered judgment for $225,000. Thereafter interest was allowed on the full amount.

Mrs. Gilmore contends that she is entitled to receive interest on $225,000 from the date of her original judgment. We agree. Courts in Florida have long recognized that where the judgment of a trial court is modified upon appeal and not reversed, the modification stands as of the date of the original judgment, and interest accrues on the judgment as modified. Atlantic Coast Line R. Co. v. Watkins, 99 Fla. 395, 126 So. 489 (1930); Smith v. Goodpasture, 189 So.2d 265 (Fla. 4th DCA 1966); Novack v. Novack, 210 So.2d 215 (Fla.1968). We recognize that the above cited decisions are factually distinguishable from the present case because they involve a remitti-tur, rather than a reinstatement of the jury’s verdict resulting in an increase in the original judgment. In our opinion the distinction is not significant. In either event the effect is the same — that is, there has been a modification by the appellate court of the original judgment.

We find that the original judgment in this case was modified by the mandate of this court in the first appeal. We hold that where a money judgment has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, interest on the judgment as modified runs from the date of the original judgment. This is true regardless of whether the appellate court reduces the original judgment, as in the remittitur decisions cited above, or increases the original judgment as in the present case. Although there is a contrary minority view, our holding is consistent with most cases from other jurisdictions. See Annotation in 4 A.L.R.3rd 1221.

REVERSED and REMANDED with instructions that interest be allowed on the full amount of the modified judgment from the date of the original judgment.

CROSS, J., and COBB, WARREN H., Associate Judge, concur.


author: NATHAN, Judge.

text:
    William BRISKIN a/k/a William Bennett, Appellant, v. The STATE of Florida, Appellee.
    No. 76-188.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Feb. 7, 1977.

      Arthur Massey, Thomas F. Almon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   NATHAN, Judge.

William Briskin, defendant below, was convicted after a jury trial of one count of possession of a stolen motor vehicle, a felony, and five counts of temporary and unauthorized use of a motor vehicle, which is a misdemeanor. He had originally been charged with six counts of possession of stolen automobiles.

Defendant bases his appeal on numerous grounds: an allegedly improper jury instruction; the trial court’s failure to instruct the jury as to several elements of the crimes charged; improper remarks by the prosecution during closing argument; the trial court’s failure to grant a new trial where the jury’s findings were inconsistent; the trial court’s failure to grant defendant’s motion for acquittal where the evidence was insufficient to sustain the felony conviction; and, finally, the trial court’s failure to allow defense counsel to look at police files which the defendant claims were pertinent to his defense.

Since we believe that the latter alleged error constitutes grounds for reversal, it will be considered first. During defendant’s trial, the state presented evidence showing that the six automobiles named in the information had been stolen from dealerships in Maryland and Florida. All were later recovered in Dade County. Five were in the possession of individuals who testified that they had purchased the cars through the defendant. The sixth automobile was found in the defendant’s possession.

The defendant admitted that he had found purchasers for the cars, but he denied that he knew that they were stolen. He testified that all of the automobiles were procured through one William Becker, who was purportedly in the automobile business in Maryland. According to the defendant, Becker took care of all the necessary arrangements concerning the automobiles, including the preparation of registration papers and bills of sale.

One of the State’s witnesses, a sergeant with the Dade County Public Safety Department, disclosed during his testimony that charges had been filed against Becker which were similar to those filed against the defendant herein. Later during the trial, another detective with the Public Safety Department, Detective Dazevedo, was questioned by defendant’s counsel with respect to certain files which the officer was using to refresh his recollection. One of the files contained information on Becker, but Detective Dazevedo stated that the file on Becker had nothing to do with the case against the defendant Briskin.

Defendant’s counsel demanded discovery of the information contained in the files for the benefit of his client, but the trial court denied his request, apparently because the file on Becker did not directly relate to any of the stolen automobiles involved in the defendant’s trial.

Although the trial court briefly examined Detective Dazevedo’s files before determining that they were not material to the defendant’s case, we feel that a more thorough inspection was warranted under the circumstances.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that a prosecutor’s suppression of material evidence which is favorable to an accused’s case violated due process. However, the State herein argues that the files used by Detective Dazevedo were not subject to Brady disclosure, citing Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). The Moore case stressed that the prosecution was not constitutionally required to make “a complete and detailed accounting, to the defense of all police investigatory work” on a particular case. Moore, supra, 408 U.S. at 795, 92 S.Ct. at 2568. Rather, the critical factors are the character of the evidence and its materiality to the defendant’s case.

The State somewhat casually dismisses the defendant’s request for the file on Becker as a fishing expedition, noting that defense counsel stated at trial that there might be something in the files which would be beneficial to his client. The State further attempts to support its contention that Brady disclosure was not applicable herein by citing the fact that the files did not contain any evidence relating to the particular vehicles involved at the trial or the defendant himself. This argument begs the Brady question.

The defendant continuously maintained that he had no knowledge that the automobiles had been stolen. Yet both of the crimes of which he was convicted require some degree of knowledge or intent. Under former Florida Statutes § 814.03(2), it is a crime for any person to have a motor vehicle in his possession “which he knows or has reason to believe has been stolen.” (Emphasis added.) Similarly, Florida Statutes § 812.041, involving temporary unauthorized use of a motor vehicle, is not applicable where the automobile is used with the presumed consent of the owner. Cf. Stewart v. State, 187 So.2d 358 (Fla. 1st DCA 1966). Under these circumstances, it can hardly be said that the State’s file on Becker was not material to the defendant’s case. The fact that a warrant had been issued for Becker’s arrest on charges which were similar to those filed against the defendant should have been sufficient to allow discovery in light of the defendant’s claim that he was “conned” along with all of the others who purchased automobiles from Becker. As the United State Supreme Court recently noted, “there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request.” United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The Agurs court cautioned that the omitted material should be examined in the context of the entire record to determine whether it reflected upon the defendant’s guilt. If there is no reasonable doubt as to the defendant’s guilt whether or not the additional evidence is considered, then no reversible error has been committed.

We are of the opinion that the defendant’s counsel should have been permitted to examine the police file on Becker to the extent that it had any bearing on the defendant’s claimed lack of knowledge that the automobiles in question had been stolen. This is not to say that the file should have merely been surrendered to the defense counsel. The trial court should have made a thorough inspection of the requested material; the ultimate determination as to its susceptibility to discovery by the defendant should have been based upon the test enumerated above, not the simple fact that the file did not directly relate to any of the cars involved at the trial or to the defendant himself.

Since the remainder of the defendant’s points on appeal concern issues which are directly related to the conduct of the trial, there is no need to consider them in light of our holding on the Brady issue.

Reversed.


author: SMITH, Judge.

text:
    Robert Q. MARSTON, as President of the University of Florida, and Byron G. Peterson as Chancellor, Honor Court, University of Florida, Appellants, v. GAINESVILLE SUN PUBLISHING CO., INC., et al., Appellees.
    No. AA-155.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1976.
    Rehearing Denied Feb. 16, 1977.
    Thomas S. Biggs, Jr. and Judith A. Bre-chner, Gainesville, for appellants.
    Larry G. Turner, of Goldin, Turner & Cates, Gainesville, for appellees.
   SMITH, Judge.

Marston and Peterson, respectively President of the University of Florida and student chancellor of the University’s Honor Court, appeal from a circuit court adjudication that student disciplinary hearings of the Honor Court are meetings of a board or commission of a State agency which are declared by § 286.011, F.S.1975, to be “public meetings open to the public at all times.” The circuit court, exercising jurisdiction committed to it by Article V, § 5(b), Florida Constitution, and § 286.011(2), F.S.1975, enjoined the Honor Court from further conducting closed hearings and declared void all Honor Court actions resulting from “deliberations, discussions or rulings” in closed hearings. Appellees prevailing in the circuit court are a University of Florida student, the publisher of the student newspaper and the publisher of a daily newspaper of general circulation in Gainesville, where the University is situated.

The chancellor’s thoughtful opinion reveals that the discipline of students at Florida’s universities, whether by reprimand, probation, suspension or expulsion, is a matter committed to the Board of Regents, a State agency, § 240.045, F.S.1975; that the Regents have by rules delegated to the President of each institution authority to establish procedures for regulating student conduct and discipline in a way not inconsistent with procedures of the Regents; and that by Department of Education rules and long years of custom, the President of the University of Florida has in turn delegated to the student Honor Court power to conduct hearings on infractions of the Honor Code pertaining to cheating and bad checks and to recommend appropriate penalties to the President. The record before the trial court demonstrated that, in the majority of cases, the penalty recommendations made by the Honor Court have been honored and enforced by the President. The trial court held that the Regents themselves would be subject to the open meeting requirement of § 286.011, were they to meet to conduct proceedings for the discipline of a student, and that the Regents’ delegation of that function to the University of Florida Honor Court subjects the Honor Court to the same statutory mandate. IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353 (Fla. 4th DCA 1973), affd., 296 So.2d 473 (Fla.1974). The chancellor held it of no consequence that a link in the chain of delegation, the President of the University of Florida, was not a “board or commission of any State agency” who is capable of “meeting” with himself publicly or otherwise.

We are moved to a different result by considerations not explicitly addressed by the trial court. Application of the public meetings Act to the student Honor Court cannot be considered in isolation from the effect on the Honor Court of the public records Act, § 119.07, F.S.1975, a companion measure which was passed in the same 1967 session of the legislature. Ch. 67-356, § 1, and Ch. 67-125, § 7, Fla.Laws. The public records Act mandates disclosure for inspection and copying of all public records with certain exemptions both generally and specifically stated in the Act. As subsequently amended, § 119.07 exempts from its operation public records identifying the victim of a sexual offense, § 794.03, F.S.1975; those of the Department of Revenue which reflect “the value of any estate or any particulars set forth or disclosed in any report or return required,” § 198.09, F.S.1975; similar records of the Department of Revenue pertaining to intangible personal property tax, § 199.222, F.S.1975; records of the Department of Banking and Finance which are “investigation reports, examination reports and related information,” which are confidential under § 658.10(l)(a), F.S.1975; the examination or investigation reports of the Department of Insurance, which may be withheld from public inspection pursuant to § 624.319, F.S.1975; and adoption records made confidential by chapter 63, F.S.1975, the “Florida Adoption Act.” The interplay between the public meetings Act and the public records Act is illustrated in § 63.-162, pertaining to adoption hearings and records, which draws together as an expression of a single legislative policy provisions for the confidentiality of adoption hearings and records:

“Notwithstanding any other law concerning public hearings and records:
(1) All hearings held in proceedings under this act shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, counsel, persons who have not consented to the adoption and are required to consent, and representatives of the agencies who are present to perform their official duties.
(2) All papers and records pertaining to the adoption, whether part of the permanent record of the court or of a file in the [department] or in an agency, are subject to inspection only upon order of the court.”

In 1973, the legislature enacted § 239.77, F.S.1975, which provides in relevant part:

“Regulations of the Board of Regents may prescribe the content and custody of limited access records which an institution in the State University System may maintain on its students. Such records shall be open to inspection only by the student, the parents or guardian of the student, and such members of the professional staff of the institution as have responsibility for working with the student. . . . ”

The Florida law respecting confidentiality of certain student records is consonant with the policy of the Family Educational and Privacy Rights Act of 1974, 20 U.S.C. § 1232g, which withholds federal funding from any educational institution which has a policy or practice of indiscriminately releasing education records pertaining to students.

In the exercise of its rule-making authority under § 239.77, F.S., the Board of Regents has promulgated a rule which forbids release of a student’s disciplinary records without permission of the student. Fla.Admin.Code Rule 6C-6.15. Records received or generated in the course of an Honor Court hearing on a matter of student discipline at the University of Florida are fairly embraced within the description of limited access records authorized by the legislature in § 239.77, F.S.1975, and implemented by Rule 6C-6.15.

The question is therefore whether the Honor Court, without consent of the affected student, must open to press and general public scrutiny Honor Court “meetings”, the written record and result of which are shielded from public eyes. To ask the question, we think, is to answer it. As in the case of proceedings for adoption, the beneficial policy promoted by the legislature in § 239.77 would be entirely subverted if the curious public, denied access to the record of the Honor Court’s consideration and recommended disposition of a disciplinary matter, should nevertheless have entry as of right to the meeting whose only purpose is formulation of that record. To put it another way, there is no benefit to the student of confidentiality in the documentary evidence and report of his infraction if the public may demand admittance to the meeting where that evidence is exhibited and the substance of that report discussed; and there is little purpose in preserving from public view a memorandum or transcript of a witness’ testimony before the Honor Court if the public is there to hear the spoken word.

We are cautioned that courts are not to be concerned with the wisdom of giving the public meetings Act its full intended play. Jones v. Tanzler, 238 So.2d 91, 93 (Fla.1970) (concurring opinion); Times Publishing Co. v. Williams, 222 So.2d 470 (Fla.2d DCA 1969). That is true. Neither are we to be concerned with the wisdom of the stated legislative policy, implemented by the Board of Regents, respecting the confidentiality of student discipline records. Both Acts embody laudable policies, neither of which is engraved in the Constitution; and it is for the legislature and its electorate to choose between them at the point where they intersect. Our duty is to regard each Act as embodying a solemn legislative purpose, to permit both full reach and, when conflicting policy makes that impossible, to give effect to the later, more specific expression of the legislative will. Mann v. Goodyear Tire and Rubber Co., 300 So.2d 666 (Fla.1974). That being our duty, we are obliged to maintain the confidentiality of disciplinary records of University of Florida students who do not consent to their revelation, and of the Honor Court proceedings which are so recorded. To do so does not destroy § 286.011; to fail to do so would destroy § 239.77. We express no view of whether disciplinary sessions of the Honor Court would otherwise constitute “meetings of [a] board or commission of [a] state agency or authority.” Sec. 286.011(1), F.S.1975.

REVERSED.

BOYER, C. J., and MILLS, J., concur.

      . “The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizens of this state.”

      . Sec. 119.07(2)(b), F.S.1975, refers to § 63.181 as the source of confidentiality for adoption records. In fact, Florida Statutes 1975 contains no § 63.181, that section having been repealed and replaced by the 1973 Florida Adoption Act, ch. 73-159, § 24, Fla.Laws, which provides for confidentiality of adoption records in § 63.162(2), F.S.1975.


text:
    WESLEY CONSTRUCTION COMPANY, a Florida Corporation, Appellant, v. BISCAYNE CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 76-794.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Feb. 2, 1977.
    Edward C. Vining, Jr., Miami, for appellant.
    Goethel & Garcia-Vidal, Coral Gables, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal from an order of the Circuit Court of Dade County entered upon the motion of appellees, directing the Port Authority of Dade County to distrain funds which it owed to appellant in connection with construction work.

The order complained of on appeal is as follows:

“ORDER GRANTING MOTION TO DIRECT COUNTY TO DISTRAIN FUNDS
“THIS CAUSE COMING ON TO BE HEARD BEFORE ME, the undersigned Judge of the above-entitled Court, upon the Motion of the Plaintiff, BISCAYNE CONSTRUCTION, INC., to Direct County to Distrain
Funds due the Defendant, WESLEY CONSTRUCTION COMPANY, and the Court having reviewed said Motion, having noted a Final Judgment was entered on November 7, 1975, in favor of the Plaintiff and against the Defendant in the amount of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10), having heard argument of counsel for the respective parties and being otherwise fully advised in the premises it is, upon consideration
“ORDERED AND ADJUDGED:
“1. That the Motion filed by the Plaintiff, BISCAYNE CONSTRUCTION, to direct the Port Authority of Dade County, State of Florida, to dis-train funds due the Defendant, WESLEY CONSTRUCTION COMPANY in the sum of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10) pursuant to contract # 5135-75 entitled Temporary Improvements Phase Five be and the same is hereby granted.
“2. That the Port Authority of Dade County, State of Florida, be and it is hereby directed to distrain funds by acting as constructive trustee of the sum of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10) for the use and benefit of the Plaintiff, BISCAYNE CONSTRUCTION, INC., pending further Order of this Court, said sum being due the Defendant, WESLEY CONSTRUCTION COMPANY, pursuant to a contract with the Port Authority of Dade County, State of Florida, bearing contract # 513-C5 for ‘temporary improvements — phase five.’ ”

Appellant has assigned numerous errors which it contends entitles it to a reversal of the order appealed. We, however, find no useful purpose in discussing all of the alleged errors in that the following is disposi-tive of this appeal.

It is the contention of appellant that the trial court erred in entering the above order in that it amounts to a garnishment order against Dade County, and as such, is not permitted by law.

We find merit in appellant’s contention and reverse on the authority of Michigan Lumber and Mfg. Co. v. Duval County, 45 Fla. 472, 34 So. 245 (1903); Board of County Commissioners of Okaloosa County v. Gulf Pipeline Company, 168 So.2d 757 (Fla.1st DCA 1964) and Op. Att’y Gen. 069-12 “Sovereign Immunity,” all to the effect that a county is immune from garnishment proceedings filed pursuant to Chapter 77, Florida Statutes (1975).

Reversed.


author: HAVERFIELD, Judge. NATHAN, Judge,

text:
    EXCHANGE NATIONAL BANK OF CHICAGO et al., Appellants, v. ROTOCAST PLASTICS PRODUCTS, INC., et al., Appellees.
    No. 75-1495.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Rehearing Denied Feb. 16, 1977.

      Horton, Perse & Ginsberg, Broad & Cas-sel, Bay Harbor Island, for appellants.
    Pettigrew & Bailey and Bruce W. Greer, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

By way of this interlocutory appeal, defendants seek re.view of an order denying their motions to dismiss in this action for usury, breach of contract and fraud.

The instant litigation arises out of an agreement for an accounts receivable financing loan between plaintiff Rotocast Products, Inc. and one of the defendants Exchange National Bank of Chicago. The loan was guaranteed by the individual plaintiffs Robert and Carolyn Grossman. An eight count complaint seeking compensatory and punitive damages was filed against Exchange Bank, Lincolnshire Financial Services, Inc., Edward Sax and Steven Bronson. In their complaint, plaintiffs alleged in pertinent part that (1) Exchange Bank has full time officers and employees who work out of the same offices as its subsidiary Lincolnshire, a Florida corporation; (2) some of these Exchange Bank employees at times purport to be employees of Lincolnshire; (3) Exchange Bank conducts its business from the Miami office of Lincolnshire under the guise of operating Lincolnshire’s business; (4) Edward Sax is a citizen and resident of Dade County and a vice president of Exchange Bank; (5) Steven Bronson is a citizen and resident of Chicago and a vice president of Exchange Bank.

Appellant Exchange Bank moved to dismiss for lack of jurisdiction over its person and improper venue in that being a national banking corporation with its office and principal place of business in Illinois, an action against it may be brought only in the district in which it is located as set out by § 94 of Title 12 U.S.C.A., which provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Appellant Lincolnshire moved to dismiss for failure to join an indispensable party, Exchange Bank, since the complaint alleges that the acts committed by Lincolnshire were done as agent for or on behalf of Exchange Bank. Therefore, if Exchange Bank is not found subject to the court’s jurisdiction, then Lincolnshire should be dismissed.

Appellant Edward Sax moved to dismiss and quash service of process for insufficiency of service of process alleging that (1) his usual place of abode is Mexico, (2) service had been attempted upon him by serving his brother, George, and (3) proof of service did not show that the Dade County address given was his usual place of abode.

Defendant Steven Bronson (not a party to this appeal) moved to dismiss for lack of personal jurisdiction and insufficiency of service of process.

The trial judge denied all the motions to dismiss except that of Bronson. Exchange Bank, Lincolnshire and Sax appeal the denial of their respective motions to dismiss.

Appellants first contend that the court erred in failing to dismiss Exchange Bank on the ground of improper venue. We find this point well taken.

The federal statute prescribing venue in the district or county in which the bank is located is mandatory unless waived. National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976); Exchange National Bank of Chicago v. Rock, Fla.App.1967, 197 So.2d 52. Further the commission of a tort or the entering into a contractual arrangement in a foreign district is an insufficient basis for inferring a waiver of the venue privilege. National Bank of North America, supra; Northside Iron & Metal Co., Inc. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973); Exchange National Bank, supra. Exchange Bank not having waived the prescribed venue privilege, we conclude the court erred in the denial of the motion to dismiss for improper venue.

With respect to appellants’ second contention that the court erred in denying the motion of Edward Sax to dismiss for insufficiency of process and insufficiency of service of process, we find that the requirements of § 48.031, Fla.Stat., F.S.A. were not complied with in that, inter alia, the proof of service did not state that service was made on Edward Sax, nor did it show that service was made on Sax at his usual place of abode or copies left there with some person of the family over the age of 15 years.

We also considered the final point on appeal with respect to the denial of Lincoln-shire’s motion to dismiss and find it is without merit.

For the reasons stated, this cause is remanded to the trial court with directions to grant the motions to dismiss of appellants Exchange Bank and Edward Sax.

NATHAN, Judge,

concurring specially.

I must concur based on the authority of National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed. 92, (1976). I also am of the view that we must recede from our opinion in Vann v. First National Bank in Little Rock, 324 So.2d 94 (Fla. 3rd DCA 1975), which held that when a bank “locates” itself in another jurisdiction for the limited transaction of business and commits tortious acts, by and through its agent, the bank has waived its privilege to the extent of being sued on the local transaction or activity involving the alleged tortious acts. Compare Buffum v. Chase Nat. Bank of City of New York, 192 F.2d 58 (7th Cir. 1951). In Buffum, it was held that venue was waived where the bank applied for and obtained leave to transact business in the state of Illinois for a limited purpose; the bank had consented to be sued there as to transactions growing out of that purpose.

      . “48.031 Service of process generally

      “Service of original process is made by delivering a copy thereof to the person to be served with a copy of the complaint, petition or other initial pleading or paper or by leaving such copies at his usual place of abode with some person of the family over fifteen years of age and informing such person of their contents. Minors who are or have been married shall be served as provided in this section.”

      . Edward’s brother, George, being a visitor and not a member of the household.