author: HUBBART, Judge.

text:
    Robert Emmett LEE and Betty Jane Lee, Appellants, v. Stuart W. PATTON as Executor of the Estate of Winifred Stuart Lee, Deceased, Appellee.
    No. 76-362.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 1, 1977.
    A. M. Schwitalla and Jose M. Quignon, Jr., Miami, for appellants.
    Patton, Kanner, Nadeau, Segal, Zeller & LaPorte; Joseph M. Fitzgerald, Miami, for appellee.
    Before HAVÉRFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.,
   HUBBART, Judge.

This is an action to set aside certain inter vivos gifts on the ground of undue influence. Judgment was entered cancelling such gifts and the donees of the gifts appeal. The question presented is concerned with the burden imposed on the donee of an inter vivos gift to rebut a presumption of undue influence which may arise from such a gift.

Winifred Lee died leaving a will in which the plaintiff Stuart Patton was named as executor of the estate. The will was admitted to probate and letters testamentary issued to Stuart Patton. Mr. Patton thereafter discovered that the estate had no assets. Shortly before her death, Winifred Lee had executed a warranty deed and personal property assignment transferring all her real and personal property with joint rights of survivorship to herself, and to her stepson and his wife, Robert and Betty Lee, the defendants in this action. Winifred Lee predeceased Robert and Betty Lee, thereby vesting all of Winifred Lee’s real and personal property in the defendants, Robert and Betty Lee.

The executor Stuart Patton filed a complaint in the Circuit Court of Dade County to cancel and set aside the warranty deed and personal property assignment executed by Winifred Lee on the ground that they were procured by the defendant Robert Lee through undue influence. The defendants, Robert and Betty Lee, filed an answer denying all allegations of undue influence.

The lower court sitting without a jury took extensive testimony which was greatly conflicting on the issue of undue influence. At the conclusion thereof, the lower court entered a final decree setting aside the real and personal property transfers on the ground that the defendant Robert Lee procured these transfers through undue influence.

The lower court found that the gift transfers were the product of undue influence because the defendant-donees of these gifts, Robert and Betty Lee, had failed to properly rebut the presumption of undue influence which arose with respect to the gifts which were made without consideration while Robert Lee occupied a confidential relationship with Winifred Lee. The lower court articulated the burden of proof standards by which this case was decided as follows:

“Based upon the testimony, documentary evidence, pleadings on file, and the observation of the demeanor of the witnesses, it is the finding of the court that following the arrival of ROBERT EMMETT LEE in the decedent’s household on March 21, 1974, a fiduciary or confidential relationship with the decedent existed, the said ROBERT EMMETT LEE being not only her step-son but an attorney at law from whom she sought counsel and guidance to relieve her anxiety about her financial affairs. A presumption that these gift transactions, made without any consideration, were obtained by undue influence or other improper means thereupon arose. The burden was then upon the donees to rebut this presumption by coming forth with a reasonable explanation of Mr. Lee’s active role in the decedent’s affairs to the extent that such explanation would show that such gifts were freely and voluntarily made, with the full understanding of the import and effect thereof, and that the same constituted the wish and desire of the donor rather than the sole accomplishments of the do-nees.” [Emphasis added].

The defendant-donees, Robert and Betty Lee appeal the judgment below and contend that the lower court erred in applying an improperly heavy burden of proof on them to rebut the presumption of undue influence. We agree and reverse.

The narrow issue for review is whether the donee of an inter vivos gift upon which a presumption of undue influence arises must rebut that presumption by coming forward with a reasonable explanation as to his active role in the donor’s affairs to the extent that such explanation would show that the gift was freely and voluntarily made with full understanding of the import and the effect thereof, and that the same constituted the wish and desire of the donor rather than the sole accomplishments of the donee.

The leading case in Florida on undue influence as a ground to contest a will is In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), the principles of which are also applicable to inter vivos gift transfers where undue influence is asserted as a ground to set aside the gift. Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975); Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1972). The Supreme Court in Carpenter states in detail the controlling law:

“We acknowledge that undue influence is rarely susceptible of direct proof, primarily because of the secret nature of the dealings between the beneficiary and the testator, and because of the death of one of the principals to the transaction, the testator.
Nevertheless, we do not think that these considerations require that the burden of proof of risk of nonpersuasion be shifted onto the beneficiary. Because it is frequently as difficult to disprove undue influence as to prove it, the practical effect of shifting the burden of proof is to raise the presumption virtually to conclusive status and require a finding of undue influence, as happened in the case sub judice. Thereby, much of the discretion of the trial judge to evaluate and weigh the evidence before him is lost, and with it one of the most valuable services we call on trial judges to perform in non-jury cases. We are unable to agree with any theory which vests great discretion in the trier of fact in other kinds of cases but ties his hands in will contest cases.
The better rule, enunciated by this Court in Leonetti v. Boone, supra, [Leonetti v. Boone, 74 So.2d 551 (Fla.1954)] shifts to the beneficiary only the burden of coming forward with a reasonable explanation for his or her active role in the decedent’s affairs, and specifically, in the preparation of the will, and we so hold. [Emphasis added]. * * *
What will a rule shifting to the proponent only the burden of coming forward with the evidence mean in practice? First, the burden will be satisfied when the beneficiary comes forward with a reasonable explanation for his or her active role in the decedent’s affairs. The precise nature of the explanation will vary depending on the facts giving rise to the presumption, and the sufficiency of the explanation to rebut the presumption will be for the county judge to determine subject to review by an appellate court. Second, when the burden is satisfied the presumption will vanish from the case and the county judge will be empowered to decide the ease in accord with the greater weight of the evidence [see Rigot v. Bucci, 245 So.2d 51 (Fla.1971)], without regard to the presumption. Third, since the facts giving rise to the presumption are themselves evidence of undue influence, those facts will remain in the case and will support a permissible inference of undue influence, depending on the credibility and weight, assigned by the trial judge to the rebuttal testimony.” 253 So.2d at 703-704.

It is clear under the Carpenter principles that once a presumption of undue influence arises in an inter vivos gift transfer, the donee need only come forward with “a reasonable explanation for his or her active role in the (donor’s) affairs, and specifically in the preparation of the (gift transfer) . . . .” In re Estate of Carpenter, 253 So.2d at 704. The donee is not required to show, as the defendant-donees were in the instant ease, that the gift was freely and voluntarily made, that the donor made the gift with full understanding of the import and effect of such gift, and that the gift constituted the wish and desire of the donor rather than the sole accomplishments of the donee.

To require such a showing from the donee would in effect shift the burden of proof or risk of non-persuasion on the undue influence issue to the donee. Carpenter expressly disapproves this result since it would raise the presumption of undue influence “virtually to conclusive status and require a finding of undue influence . . .” In re Estate of Carpenter, 253 So.2d at 704. Since the court below required precisely such a showing from the defendant-donees in the instant case, it is clear that an erroneous burden of proof was employed in deciding this case.

The erroneous application of burden of proof rules involving undue influence in an inter vivos gift case has been held to be reversible error under the authority of the Carpenter case. The Second District Court of Appeal in Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975), reversed a judgment setting aside an inter vivos gift on the ground of undue influence because the lower court had improperly required the donees of the gift to establish that “the (gift) transfers were made in good faith and voluntary conduct of the donor” in order to rebut a properly raised presumption of undue influence. Majorana v. Constantine, 318 So.2d at 186. The Court specifically applied the Carpenter principles, reversed the judgment of the lower court and stated:

“Since the case was decided upon an erroneous conception of the burden raised by the presumption of undue influence, it is necessary for the case to be remanded for a determination according to the principles of Carpenter. In so doing, we do not purport to pass upon whether the defendant met the burden of coming forward with the evidence necessary to dispel the presumption.” Id. at 186.
Based on the Carpenter and Majora-na cases, we hold that the donee’s burden of rebutting a properly raised presumption of undue influence relating to an inter vivos gift is only such as to come forward with a reasonable explanation of the donee’s active role in the donor’s affairs, and specifically in the preparation of the gift transfer instrument. The donee is not required to show the gift was freely and voluntarily made with a full understanding of the import and effect thereof and that the gift represented the wish and desire of the donor rather than the sole accomplishments of the donee, as the lower court required of the defendant-donees in the instant case.
The failure to properly follow the Carpenter principles on undue influence in an inter vivos gift case has not only been held reversible error, Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975), but also fundamental error. Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1972). In view of these authorities, as well as the conflicting evidence on undue influence in this record, we cannot say that the error committed in this case was harmless. See Goldman v. Olsen, 159 Fla. 435, 31 So.2d 623 (1947).

Accordingly, the judgment below is reversed and the cause remanded to the lower court to apply the Carpenter burden of proof principles on the undue influence issue. A new trial will not be necessary. In so doing, we express no opinion as to whether undue influence has or has not been established by this record.

Reversed and remanded for proceedings consistent with this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lee LANIER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-528, 76-529.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 2, 1977.
    Manners & Amoon and Harold Mendelow, Thomas B. Duff, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Shifrin v. State, 210 So.2d 18 (Fla.3d DCA 1968); Navarro v. State, 262 So.2d 729 (Fla.3d DCA 1972); Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975); Ivey v. State, 308 So.2d 565 (Fla.2d DCA 1975); Russ v. State, 313 So.2d 758 (Fla.1975).


text:
    William John MASON, Appellant, v. Paul ANTONACCI et al., Appellees.
    No. 76-1322.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 9, 1977.
    William John Mason, in pro. per.
    Abner Solomon, Miami, and Thomas George, Atlanta, Ga., for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, William Mason, appeals an order dismissing his first amended cross-claim for an equitable lien against certain realty which is being foreclosed.

In 1968, as a result of his wife’s death, William I. Collins (not a party to this appeal) became the owner of a one-half undivided interest in the real property involved in this litigation. Collins being indebted to the appellant, William Mason, for legal services rendered, on September 19, 1968 wrote a letter acknowledging that he owes Mason $6,770, which sum is a lien upon his interest in the subject property, and promising to pay Mason when the property is sold. Mason had the letter recorded. Subsequently, in 1975 the Internal Revenue Service levied on Collins’ one-half interest to pay for delinquent taxes. Paul Antonacci, appellee, purchased this one-half interest at a tax sale and received a deed of real estate from the IRS. Thereafter, Community Federal Savings & Loan Association filed a complaint to foreclose a mortgage on the property and named as defendants, inter alia, William Collins, William Mason and Paul Antonacci. Mason then filed an answer and an amended cross-claim to foreclose his lien and alleged that his was superior to any interest of Antonacci. Antonac-ci filed a motion to dismiss the cross-claim for failure to state sufficient facts to entitle Mason to any type of lien on the property. After a hearing, the trial judge entered the appealed order dismissing with prejudice Mason's cross-claim.

The cross-claim fails to contain any allegation to the effect that the legal services were performed with respect to the subject property and, therefore, Mason is not entitled to an equitable or charging lien upon the property. See, e. g., Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1934); Billingham v. Thiele, 107 So.2d 238 (Fla. 2d DCA 1958), aff’d, 109 So.2d 763 (Fla.1959).

Nevertheless, as a result of the September 19,1968 letter, Mason has a claim to the extent of the amount of his legal services on one-half the sale proceeds to which the Collins’ ownership interest in the property may be entitled. See Guthrie v. Home Building & Loan Co., 116 Fla. 822, 156 So. 882 (1934). At this stage of the litigation it is not known whether there will be any proceeds due the Collins’ interest and, therefore, it is premature to eliminate Mason’s claim with respect thereto. We, therefore, reinstate Mason’s cross-claim with regards to the proceeds, if any, which may be due the Collins' one-half ownership interest pending the outcome of this foreclosure action.

Affirmed in part, reversed in part.


author: McCORD, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY and Travelers Indemnity Company, Appellants, v. Clem TAYLOR, Appellee.
    No. BB-360.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.

      A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Frederic G. Levin of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   McCORD, Judge.

This is an appeal by defendant insurance companies from a declaratory judgment. Appellee Taylor had his personal insurance with Government Employees Insurance Company. Included in his policy covering only one automobile was uninsured motorist coverage with limits of $10,000 for injury to one person in one accident. He was involved in a collision with a third party while driving a vehicle owned by Sammy Lee Jones who had his insurance with Travelers Indemnity Company. The policy issued by Travelers to Jones included uninsured motorist coverage with limits of $50,000 for injury to one person in one accident. The third party with whom Taylor had the collision had liability insurance with limits of $10,000 for injury to one person in one accident. Appellee contends that the $10,000 coverage in the policy issued to him by Government Employees should be added to the $50,000 coverage in the policy issued to Jones by Travelers which would mean that his uninsured motorist coverage would then exceed the liability coverage of the third party (which would not happen in relation to Government Employees policy if no stacking occurred since its $10,000 uninsured motorist coverage is not higher than the $10,000 insurance coverage of the tort feasor). By stacking the two, he contends that he is entitled to recover uninsured motorist benefits from both Government Employees and Travelers up to a maximum of $60,000. The trial court construed the applicable statute, § 627.727(2)(b), Fla.Stat.1975, to allow such stacking. We disagree and reverse.

§ 627.727(2)(b), Fla.Stat.1975, provides as follows:

“(2) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
it* * * * * *
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.”

The issue here hinges upon the meaning of the phrase in the above statute “the limits applicable to the injured person provided under his uninsured motorist’s coverage” (emphasis supplied). It appears clear that use of the words “his uninsured motorist’s coverage” refers to the coverage of the policy issued to the injured person and does not include uninsured motorist coverage of another person’s policy of which the injured person happens to be a beneficiary. Such other person’s policy is that person’s uninsured motorist coverage which that person, rather than the injured person, has purchased. The District Court of Appeal, Second District, in Travelers Ins. Co. v. Pac, 337 So.2d 397 (Fla. 2 DCA 1976), quoted as follows from Cunningham v. INA, 213 Va. 72, 189 S.E.2d 832 (1972), which we consider appropriate to construction of this statute.

“The purpose of uninsured motorist insurance is to provide compensation to the innocent victim of the uninsured motorist. The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, this argument and reasoning does not apply to a permissive user of a vehicle who pays no premium and does not receive the broader uninsured motorist coverage of a named insured.”

Our ruling on the foregoing point renders the second point on this appeal moot — whether or not the injured motorist can settle with the third party tort feasor’s insurance carrier for its full policy limits without obtaining the consent of his insurance carrier, Government Employees Insurance Company.

REVERSED AND REMANDED.

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


author: NATHAN, Judge.

text:
    John H. McGEARY, Jr., et al., Appellants, v. DADE COUNTY, Appellee.
    No. 75-1897.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.

      Batchelor, Brodnax, Guthrie & Primm and Richard R. McCormack, Miami, Ryan & Shahood, Dania, for appellants.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Defendant, John H. McGeary, Jr., appeals from an order granting plaintiff Dade County’s motion for judgment on the pleadings against McGeary and the Town of Pembroke Park, a codefendant.

McGeary is the owner of certain real property lying within the territorial limits of Dade County. Following a petition by McGeary, his property was annexed in 1974 by Pembroke Park, which is a municipal corporation located entirely within Broward County. The annexation was accomplished by Ordinance Number 74-9-2, in accordance with the provisions of former Section 171.16, Florida Statutes (1973).

Dade County subsequently brought an action to enjoin Pembroke Park from exercising jurisdiction or control over McGeary’s property. In addition, the County sought a declaration concerning the applicability of Section 171.16, supra, to territory within Dade County, and to determine the validity of Pembroke Park’s annexation ordinance.

In granting Dade County’s motion for judgment on the pleadings, the trial judge limited his inquiry to a single question— whether a municipality could validly annex contiguous unincorporated territory lying in another county. This question was answered in the negative.

As noted above, the McGeary property was annexed pursuant to statutory procedures provided in former Section 171.-16, Florida Statutes. In pertinent part, the statute read as follows;

“Supplemental procedure for annexation.—
(1) The owner or owners of real property in an unincorporated area of a county which is contiguous to a municipality may petition the governing body of said municipality that said property' be annexed to the municipality.
* * iff # sfc *
(4) The method of annexation provided by this section shall be supplemental to any procedure provided by general or special law. . . .”

As may be readily observed, the statute on its face does not prohibit annexation across county lines. However, as specified in subsection (4), the annexation procedures of Section 171.16 were supplemental to any other procedures provided by general or special law. As a supplemental law, this section was designed to add to existing procedures without changing them. See Swanson v. State, 132 Neb. 82, 271 N.W. 264 (1937).

According to former section 171.04, Florida Statutes (1973) — which was in force during the period of the annexation proceedings before us — incorporated cities or towns could only annex unincorporated lands which were “within the same county.” Section 171.04(1), Florida Statutes (1973) (Emphasis added.). This section provided the primary methods of municipal annexation.

Since Sections 171.16 and 171.04 both concerned municipal annexation of unincorporated territory, they must be considered as having been in pari materia. Sanders v. State, 46 So.2d 491 (Fla.1950). As such, they should be construed together and compared with each other in such a manner as to preserve the force of both without destroying their evident intent, assuming that a compatible construction is possible. Markham v. Blount, 175 So.2d 526 (Fla.1965). Therefore, since Section 171.-04(1) limited annexation to property lying within the same county, its restrictions should necessarily apply to Section 171.16 as well. Otherwise, a municipality would have been able to avoid the prohibitions against annexation of property in another county by simply seeking petitions from real property owners in the other county. This would be an unreasonable result, and thus we must construe the provisions of Section 171.16 as being limited by the restrictions of Section 171.04(1). State Dept. of Public Welfare v. Bland, 66 So.2d 59 (Fla.1953); Foley v. State, 50 So.2d 179 (Fla.1951).

This construction is particularly appropriate in light of the fact that municipalities may only annex unincorporated territory to the extent provided by general or special law. Article VIII, Section 2(c), Florida Constitution. The power to extend municipal boundaries must be exercised in strict accord with statutes conferring such power. Town of Mangonia Park v. Homan, 118 So.2d 585 (Fla.2d DCA 1960). We therefore feel that the power to annex property in another county should not be simply inferred from the fact that such actions were not expressly prohibited by the statute in question, especially where a prohibition to that effect was provided by another statute in force at the time. We note that a municipality lying wholly in one county generally may not extend its territorial limits into another county without express statutory authority: “[S]uch an extension is attended with such manifest and practical inconveniences growing out of the relation of the municipality and county governments, that an intention to authorize an extension of city boundaries across county boundaries should not be lightly inferred.” Town of Elsmere v. Tanner, 245 Ky. 376, 53 S.W.2d 522 (1932). This rule is especially appropriate here, given Dade County’s Home Rule status.

Finally, we note that Sections 171.16 and 171.04 were both repealed by the Municipal Annexation or Contraction Act, Ch. 74-190, § 1, Laws of Florida. According to the codified version of that Act (Chapter 171, Florida Statutes), annexation must take place within the boundaries of a single county. Section 171.045, Florida Statutes (1975). When this section is considered in conjunction with the legislative history of former Section 171.04, supra, a continuous long term legislative prohibition against annexation across county lines may be discerned.

We therefore find that the trial judge properly ruled as a matter of law that the provisions of former Section 171.16, Florida Statutes, did not authorize the Town of Pembroke Park to annex land within Dade County.

Affirmed.


text:
    Fernando TAVARES, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 76-114.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.

      Pelzner & Schwedock, Miami, for appellant.
    McCormick, Bedford & Backmeyer, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This case is an appeal from an order dismissing a petition for declaratory relief in which petitioner, Fernando Tavares, sought a declaration of rights concerning coverage in an insurance contract. The petitioner Tavares has appealed the dismissal of this petition against the defendant, Allstate Insurance Company.

The issue presented for review is whether a bona fide dispute over personal injury protection coverage in an insurance contract is a proper subject for entertaining a petition for declaratory judgment relief under Chapter 86, Florida Statutes (1975). We hold that it is and reverse.

In the instant case the petitioner Tavares filed an amended petition for declaratory judgment relief in the Circuit Court of Dade County under Chapter 86, Florida Statutes (1975), alleging that on a certain date he was injured in an automobile accident while driving an automobile owned by one Beatriz Padinha with her consent and insured by defendant Allstate Insurance Company. Petitioner Tavares further alleged that he had made a demand upon the defendant Allstate Insurance Company for personal injury protection benefits pursuant to the Florida Automobile Reparations Reform (No-Fault Insurance) Act, Section 627.730, 627.741, Florida Statutes (1975), and that Allstate had refused to pay such benefits. Tavares finally alleged that at the time of the accident he was the owner of an uninsured 1967 Lincoln Continental automobile, that the automobile was undergoing extensive repairs in a garage and was not in driveable condition mechanically, and that he was attempting to sell the automobile and did not intend to operate it. The petitioner Tavares demanded that the court declare the rights of the parties relative to the contract of insurance, plus judgment for costs and reasonable attorney’s fees.

The defendant Allstate filed a motion to dismiss the amended petition asserting as grounds inter alia that the petition failed to comply with the legal requirements of Chapter 86, Florida Statutes (1975). The lower court granted the motion solely on this narrow ground. The petitioner Ta-vares contends on appeal that the lower court erred in dismissing the petition for declaratory relief. We agree.

The Florida Supreme Court in the leading case of May v. Holley, 59 So.2d 636, 639 (Fla.1952), states the controlling law on the requirements necessary for entertaining a petition for declaratory judgment relief under Chapter 86, Florida Statutes (1975), as follows:

“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.”

Based on the above criteria, bona fide disputes over the coverage of an insurance policy have been traditionally considered a proper subject for declaratory judgment relief. Perez v. State Automobile Insurance Assn., 270 So.2d 377 (Fla. 3d DCA 1972); Jones v. Amsterdam Casualty Co., 213 So.2d 502 (Fla. 3d DCA 1968); Zeagler v. Commercial Union Insurance Co. of New York, 166 So.2d 616 (Fla. 3d DCA 1964); Cruger v. Allstate Insurance Co., 162 So.2d 690 (Fla. 3d DCA 1964). The fact that the declaration of rights requested may result in a judgment against the interest of the complaining party does not destroy the complainant’s right to such declaration. May v. Holley, 59 So.2d 636, 639 (Fla.1952). The test of the sufficiency of the complaint in a declaratory judgment proceeding is not whether the complaint shows that the petitioner will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445, 448 (Fla.1952).

In the case at bar, the petition for declaratory judgment relief presents a bona fide dispute over coverage in an insurance contract which should have been entertained by the lower court on its merits. All of the criteria necessary for entertaining a petition for declaratory judgment relief as stated in May v. Holley, 59 So.2d 636, 639 (Fla.1952), are clearly satisfied by Tavares’ petition herein.

In so holding, we express no opinion as to whether the petitioner Tavares is entitled to personal injury protection benefits under the defendant Allstate’s insurance policy. The fact that the petition for declaratory judgment relief must be entertained by the court below does not necessarily mean that the petitioner Tavares is entitled to a judgment in his favor. Nor does it mean that the defendant Allstate is entitled to judgment in his favor. It only means that the lower court should entertain the petition for declaratory judgment on its merits and declare the rights of the respective parties by construing the insurance coverage question presented by the petition.

On remand, the court below should consider, but is not limited to, the following authorities in declaring the rights of the parties: Section 627.736(4)(d)4 a, Florida Statutes (Supp.1976); Section 320.02, Florida Statutes (1975); Williams v. Leatherby Insurance Company, 338 So.2d 70 (Fla. 3d DCA 1976); Staley v. Florida Farm Bureau Insurance Co., 328 So.2d 241 (Fla. 1st DCA 1976); Tapscott v. State Farm Mutual Insurance Co., 330 So.2d 475 (Fla. 1st DCA 1976); Kotich v. Criterion Insurance Company, 38 Fla.Supp. 199 (1st Cir.Ct. 1973).

The order dismissing the petition for declaratory judgment relief is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


text:
    Robert BERRY, Appellant, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Appellee.
    No. 76-136.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Jack R. Maro, Miami, for appellant.
    Frank A. Howard, Jr., and Phyllis 0. Douglas, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant, Robert Berry, sued appellee, Board of Public Instruction of Dade County, seeking damages for an alleged breach of an employment contract between the parties.

The Board answered appellant’s Amended Complaint. Among the numerous defenses alleged in the answer were waiver, estoppel, laches and failure to exhaust administrative remedies. Following the settlement of the issues, the Board filed a motion for summary judgment supported by affidavits and other exhibits.

Upon hearing, the trial court found that there was no genuine issue of material fact to be tried and the Board was entitled to a judgment as a matter of law. Thereupon the summary final judgment was entered. In this appeal appellant contends that the trial court erred in its application of the appropriate law and consequently erred in granting the Board’s motion for summary judgment.

A careful examination of the record on appeal conclusively establishes the absence of any genuine triable issue of material fact and that appellee was entitled to a judgment as a matter of law. The judgment appealed is accordingly affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    AMERICAN AGRONOMICS CORPORATION and the American International Food Corporation, Appellants, v. James A. SMITH and Joe Ann Smith, Appellees.
    No. 76-308.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 9, 1977.

      Paul & Thomson and Sanford L. Bohrer, Miami, for appellants.
    Thompson & Freyer, Jeanne Heyward, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

The defendants, American Agronomics Corporation and The American International Food Corporation, appeal a final judgment for the plaintiffs on their complaint for rescission upon the ground of fraud of a land sales contract. The plaintiffs, Joe Ann Smith and James A. Smith, her husband, entered into contracts with American Agro-nomics Corporation for the sale, maintenance and marketing of orange groves in Lee County, Florida. In February of 1974, the plaintiffs commenced this action seeking the rescission of these contracts based upon common law fraud and remedies prescribed in Section 478, et seq., Florida Statutes (1973). After the commencement of plaintiffs’ action, two actions previously commenced in the United States District Court for the Northern District of Ohio by the purchasers of similar contracts were consolidated into a class action, and the court defined the class as all persons purchasing orange groves or entering into contracts with American Agronomics Corporation since January, 1960, to the date of the suit. The plaintiffs Smith were named as included in this class. The defendants, American Agronomics Corporation and The American International Food Corporation, sought to have the Ohio court enjoin the continuance of the plaintiffs’ action in Florida. The United States District Court refused to enter an injunction. In February of 1974, the United States District Court caused a notice to be sent by certified mail to each member of the class. The plaintiffs Smith received this notice. The notice provided a simple method for class members to exclude themselves from the class by notifying the United States District Court that they did not care to be included. The Smiths took no action either to exclude themselves from the class or to participate in the case. In November of 1974, the United States District Court entered its final judgment approving a settlement between the members of the class and the defendants in that action.

The Smiths continued their Florida action and, after a trial in the circuit court, were awarded a judgment. The judgment held that the Smiths had selected their forum prior to any judgment in the Ohio action and that, therefore, they could not be bound by the class action in Ohio. The court held “that this action is not barred by the Ohio class suits, or by any orders or judgments entered therein or arising therefrom.”

The final judgment in the Ohio action, which was entered on November 29, 1974, prior to the entry of judgment in the Florida action, provided with regard to all the members of the class as follows:

“ . . . all claims which were made or could have been made against the Settling Defendants under . . . the common law and statutes of the States of Ohio, Florida, and any other State in which members of the class purchased orange groves from, or entered into contracts with, Agronomics, . . . are hereby dismissed without costs, with prejudice and on the merits, as to all members of the class, and each member of the class is forever barred from the prosecution against the Settling Defendants in the class actions of any and all settled claims.”

Thus, the question presented is whether, under Florida law, a final judgment in a United States District Court class action filed after a member of the class has begun an action in this state, but in which final judgment is entered prior to the rendition of the Florida judgment, is binding upon the plaintiffs in the Florida action. Stated another way, we must determine whether or not the plaintiffs Smith who were entitled to the benefits of the United States District Court judgment are thereby barred from the completion of their own action in the State of Florida. We hold that the plaintiffs, having failed to exclude themselves from the class action, have thereby assented to the inclusion of their claim as one of those that was settled and, thereupon, have elected the benefits of that judgment. Having elected the benefits of the United States District Court judgment in the class action suit, the plaintiffs are thereby estopped to proceed in violation of that judgment to the completion of their own state action. See Federated Dept. Stores, Inc. v. Pasco, 275 So.2d 46 (Fla. 3d DCA 1973); and Costin v. Hargraves, 283 So.2d 375 (Fla. 1st DCA 1973). See also Manhattan-Ward, Inc. v. Grinnell Corporation, 490 F.2d 1183 (2d Cir. 1974); In Re Four Seasons Securities Laws Litigation, 502 F.2d 834 (10th Cir. 1974); and Paulino v. Hardister, 306 So.2d 125 (Fla. 2d DCA 1974).

Reversed

HENDRY, C. J., dissents.


text:
    Mamie POLLOCK, Appellant, v. FRANKLIN FINANCE COMPANY, a corporation, Appellee.
    No. 76-332.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Matthews & Braynon, Miami, for appellant.
    Dan A. Hames and Robert Black, Miami, for appellee.
    Before PEARSON and BARKDULL, JJ,, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Hillman v. McCutchen, 166 So.2d 611 (Fla.3d DCA 1964).


text:
    Dorothy White WYNNE, Appellant, v. Jefferson WYNNE, Appellee.
    No. 76-333.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 4, 1977.
    Greene & Cooper, Goodhart & Rosner, Carr & Emory, Miami, for appellant.

      Arthur E. Huttoe, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and DREW E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage wherein the court awarded permanent alimony to the husband, and found that the husband has no special equity in the home of the wife. Appellant wife contends that the trial court erred in awarding permanent alimony to the husband. Appellee husband cross appeals and contends that the court erred in not awarding him a special equity in the home of the wife (which is and was owned by her prior to the marriage).

After reviewing the briefs, the record and the trial court’s findings of fact and conclusions of law, and considering the oral argument of counsel, we find that the trial court did not abuse its discretion in the award of permanent alimony to the husband, or in the denial of the husband’s claim of special equity. Baker v. Baker, 299 So.2d 138 (Fla.3d DCA 1974); Jacobs v. Jacobs, 309 So.2d 217 (Fla.3d DCA 1975); Olson v. Olson, 321 So.2d 462 (Fla.3d DCA 1975); Krasner v. Krasner, 339 So.2d 674 (Fla.3d DCA 1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed.


text:
    Carmelo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-474.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant was convicted under a three count information of robbery, carrying a concealed firearm and unlawful possession of a firearm while engaged in a criminal offense. The trial court imposed a sentence of life imprisonment on all three convictions.

Appellant contends on appeal that the trial court erred in imposing a general sentence upon the three convictions rather than separate sentences. We find appellant’s contention to be without merit. See Carter v. State, 330 So.2d 508 (Fla. 4th DCA 1976); Dorfman v. State, 333 So.2d 481 (Fla. 3d DCA 1976); and Bisono v. State, 333 So.2d 484 (Fla. 3d DCA 1976).

Affirmed.


text:
    Donald ROLLING, Appellant, v. The STATE of Florida, Appellee.
    No. 76-531.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

The appellant was charged with possession of a controlled substance, to-wit: cocaine. He pleaded not guilty. A motion to suppress certain evidence was made and denied, whereupon, after some plea bargaining, appellant changed his plea of not guilty to one of nolo contendere with a reservation of his right to appeal the court’s ruling denying his motion to suppress evidence. The court found appellant guilty of possession of cocaine, but withheld adjudication and placed appellant on reporting probation for a period of three years.

Appellant contends that the trial court erred in denying his motion to suppress evidence seized pursuant to a warrantless search of a motor vehicle.

We have carefully considered appellant’s points on appeal in the light of the record, briefs and arguments of counsel. It is our conclusion that no reversible error has been made to appear.

Affirmed.


text:
    AL LANDERS DUMP TRUCK, INC., Appellant, v. PEMAR INSURANCE AGENCY, INC., and California Union Insurance Company, Appellees.
    No. 76-535.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Sinclair, Louis, Siegel & Heath, Miami, and John L. Zavertnik, North Miami, for appellant.
    Marlow, Mitzel, Ortmayer & Shofi, Greene & Cooper, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Blum v. Sweet Insurance Agency, Inc., 157 So.2d 709 (Fla. 3d DCA 1963); Hettenbaugh v. Keyes-Ozon-Fincher Insurance, Inc., 147 So.2d 328 (Fla. 3d DCA 1962).


text:
    Mario A. CANO and Josefina Cano, Appellants, v. Ezequiel TRUJILLO et al., Appellees.
    No. 76-603.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 4, 1977.

      Joan A. Berk, Michael A. Lipsky, Miami, for appellants.
    Leland E. Stansell, Jr. and Robert A. Glassman, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Pagano v. Morrison’s Testiles, Inc., 149 So.2d 897 (Fla.3d DCA 1963).


text:
    CHEZ NEVA, INC., a Florida Corporation, Appellant, v. Sidney GILMOUR and Georgeanna E. Gilmour, his wife, Appellees.
    No. 76-619.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Dan A. Hames, for appellant.
    Clark & Livingstone, South Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Balding v. Fleisher, 279 So.2d 883 (Fla.3d DCA 1973), cert. den. 285 So.2d 20 (Fla.1973).


text:
    Frederick M. KERR, Appellant, v. Jill KERR, Appellee.
    No. 76-2077.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Taffer & Jacobs, Miami, for appellant.
    Heller & Kaplan and Robert Golden, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Ginsberg v. Ginsberg, 113 So.2d 565 (Fla.3d DCA 1959); Helsel v. Helsel, 138 So.2d 99 (Fla.3d DCA 1962); Cohen v. Cohen, 321 So.2d 97 (Fla.4th DCA 1975).


author: MILLS, Judge.

text:
    John D. HAGOOD et al., Appellants (Defendants), v. Martha WILLIS, Appellee (Plaintiff).
    No. Z-277.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1977.

      Leonard E. Ireland, Jr., Clayton, Duncan, Johnston, Clayton, Quineey, Ireland & Felder, Gainesville, for appellants.
    Ray D. Helpling and John F. Roscow, III, Scruggs, Carmichael, Long, Tomlinson, Ros-cow, Pridgeon, Langdon & Helpling, Gainesville, for appellee.
   MILLS, Judge.

This is an appeal by the Hagoods and the Rawls from a final judgment entered in favor of Willis following a nonjury trial in an ejectment suit brought by Willis against the Hagoods and the Rawls. Although the Hagoods and the Rawls raise four issues, it is necessary that we consider only one because it is determinative of this appeal. The issue is whether the trial court erred in allowing into evidence, over the objections of the Hagoods and the Rawls, the testimony of Perry C. McGriff, a registered land surveyor, and a survey received as Plaintiff’s Exhibit 1.

McGriff was the only witness who testified in support of the survey on which Willis’ case was based. He did not run the lines of the survey and was on the ground only one time during the running of the lines. The lines were run by a McGriff employee and by another registered land surveyor employed by McGriff to do the job for him. Neither the employee nor the surveyor was called to testify. Although McGriff had the field notes of the employee and the surveyor, he did not bring them to the trial with him.

A survey supported only by the testimony of a witness who did not run the lines of the survey, was not present when they were run and did not have available the field notes of the surveyor who did run the lines, is inadmissible because it is hearsay evidence. Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968). To permit such evidence would be to deny the right of cross examination of the witness who ran the lines. Evidence by a witness who knows from his experience, either by working with the survey crew or from lines shown to him by a registered surveyor and known and agreed to for years, is admissible. Cosson v. Thompson, 302 So.2d 425 (Fla. 1st DCA 1974). No such evidence was offered here.

The judgment is reversed and this ease is remanded for a new trial.

BOYER, C. J., and McCORD, J., concur.


author: MILLS, Judge. BOYER, Chief Judge, McCORD, Judge,

text:
    John Lee PURIFOY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. CC-73.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1977.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The jury found Purifoy guilty of possession of more than five grams of cannabis. The State’s proof showed that the cannabis weighed 7.05 grams which included a piece of a stem. Purifoy argues that the evidence adduced is insufficient to support the charge that Purifoy had more than five grams of cannabis.

The statutory definition of cannabis excludes certain parts of the plant, such as mature stalks. Section 893.02(2), Florida Statutes (1975). Purifoy contends that he was entitled to a judgment of acquittal or a new trial because the 7.05 grams of cannabis contained pieces of stems which were excluded by Section 893.02(2). The statute does not define mature stalks. Purifoy urges that stem is synonymous with stalk. The State’s expert witness considered a stem to be the little side branches of the plant and a stalk to be the major stalk of the plant. Although we are of the opinion that to give the words mature stalks their usual and ordinary meaning, we would agree with the expert’s definition, it is immaterial here. Section 893.10(1), Florida Statutes (1975), expressly provides that it is not necessary for the State to negate any exception at trial, the burden of proof being upon the person claiming the exception. In this case, Purifoy failed to carry his burden of showing that the 7.05 grams of cannabis, including a piece of a stem, did not weigh more than five grams after excluding the weight of the piece of stem.

The judgment and sentence are affirmed.

BOYER, C. J., and McCORD, J., concur specially.

BOYER, Chief Judge,

concurs specially.

I concur in affirmance.

McCORD, Judge,

concurring specially.

In my view, the Legislature in excluding “the mature stalks of the plant” intended that such exclusion apply only to the main trunk of the plant and not to the stems from which the leaves grow. While the term “stem” is often used for the word “stalk,” it is logical that the Legislature intended by its exclusion of “mature stalks” to exclude only the mature main stem or trunk of the plant. I, therefore, concur in the judgment.


text:
    Frederick Kelly MACK, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-916 to 76-918.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Tampa, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The above appeals are from orders revoking previous orders of probation in three criminal cases and entering adjudications of guilt and consecutive sentences to the State Prison. We reverse.

The affidavit of the probation supervisor alleged that the Appellant had violated Condition (E) of the Orders of Probation, i. e., failure to “live honorably,” by trespassing on the property of Graybar Electric. At the revocation hearing the evidence presented was totally insufficient to establish the charged trespass, although ample evidence was presented that indicated the Appellant may have been guilty of other offenses. Indeed, the court orally recognized this and obviously revoked probation on the basis of the other offenses. We have held, nevertheless, that probation cannot be revoked for one reason when the affidavit of violation states another. Hooks v. State, 207 So.2d 459 (Fla. 2d DCA 1968); Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973).

Accordingly, the orders of revocation of probation entered herein are reversed and the judgments and sentences predicated thereon are vacated and set aside; and the causes are remanded for such additional proceedings as may be advised.

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


text:
    STATE of Florida DEPARTMENT OF REVENUE, Appellant, v. E. J. GIBBS, Jr., et al., Appellees.
    No. BB-432.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.

      Robert L. Shevin, Atty. Gen., Larry Levy, Asst. Atty. Gen., for appellant.
    Bert H. Lane, of Beggs & Lane, T. David Mann, Pensacola, Millard Guy Hilburn, for appellee.
   McCORD, Judge.

This is an appeal from a final judgment in favor of appellees (defendants below) entered on appellant’s (plaintiff below) motion for judgment on the pleadings. The complaint sought declaratory judgment and injunctive relief against appellees. The issue in the trial court and on this appeal is the interpretation of § 196.199(6) and (7)(a) and § 197.116(7), Fla.Stat.1975.

At the time the complaint was filed, ap-pellee E. J. Gibbs, Escambia County Tax Collector, was proceeding to effect collection of delinquent taxes on leasehold interests in governmentally owned property on Santa Rosa Island in Escambia County pursuant to § 197.116, Fla.Stat. Appellant State of Florida Department of Revenue contended in the trial court and contends here that the exclusive procedure for the collection of unpaid taxes on such leasehold interests is that provided in §§ 196.199(7) and 197.116(7). The trial court ruled otherwise. We disagree and reverse.

By stipulation in the trial court, a temporary restraining order was entered enjoining Gibbs from accepting applications for tax deeds from holders of tax sale certificates issued on property described therein (and which might be affected by this action) for unpaid ad valorem taxes due for the years 1972, 1973, and 1974; enjoining appellee the Escambia County Board of Commissioners from transferring any tax sales certificates issued on such described property for such tax year; and enjoining appellee Millard Guy Hilburn from transferring any tax sales certificates issued on property which certificates had been purchased by him prior to the commencement of the lawsuit. All other tax sales certificates which might be affected by this action had been struck off to the County.

As above stated, the taxes involved in this suit are taxes levied upon leasehold interests in governmentally owned property. § 196.001(2), Fla.Stat., provides:

“Unless expressly exempted from taxation, the following property shall be subject to taxation in the manner provided by law:
♦ * * * * *
(2) All leasehold interests in property of the United States, of the state, or any political subdivision, municipality, agency, authority or other public body corporate of the state.”

The leasehold interests on Santa Rosa Island which are subject to tax include both 99-year leases and leases for lesser terms of years. § 196.199 provides for certain exemptions of property owned by governmental units, and subsection (2)(a) thereof provides that,

“Leasehold interests in property of the United States, of the state or any of its several political subdivisions, or of municipalities, agencies, authorities and other public bodies corporate of the state shall be exempt from ad valorem taxation only when the lessee serves or performs a governmental, municipal, or public purpose or function, . .

The leases involved in this case are subject to taxation and do not fall within any exemption. The salient provisions of § 196.-199 which are involved in this suit are subsections (6) and (7)(a) which state as follows:

“(6) Property which is originally leased for 99 years or more, exclusive of renewal options, shall be deemed to be ‘owned’ for purposes of this section.
(7)(a) Any and all of the aforesaid taxes on any leasehold described in this section shall not become a lien on same or the property itself, but shall constitute a debt due and shall be recoverable by legal action or by the issuance of tax executions that shall become liens upon any other property in any county of this state .of the taxpayer who owes said tax.” (Emphasis supplied.)

Appellee tax collector contends (and the trial court agreed) that under the above quoted subsection (6) and subsection (7)(a), leases of 99 years or more are to be valued as though they were fee ownership and are to be treated like fee ownership in the collection process; that the taxes thereon are to be collected under § 197.116, Fla. Stat.1975, by sale of tax certificates on the leasehold interests just as tax certificates are sold for unpaid taxes on fee interests. It is his view that subsection (7)(a) above only applies to leasehold interests of less than 99 years duration.

The Supreme Court in Williams v. Jones, 326 So.2d 425 (Fla.1975), in upholding the constitutionality of this statute, clarified the meaning of subsection (6) in a way that we find controlling on the question presented here. There the court said:
“Our attention has not heretofore focused upon Subsection (6) of Section 196.199, Florida Statutes, which reads:
‘Property which is originally leased for 99 years or more, exclusive of renewal options, shall be deemed to be “owned” for purposes of this section.’ Since Subsection i(2)(a) of Section 196.199, Florida Statutes, effectively removes from the exemption afforded property owned and used by the designated governmental units all leasehold interests which do not serve or perform a governmental, municipal, or public purpose or function as defined in Section 196.012(5), regardless of the length of the lease, it must be concluded that Subsection (6) dealing with 99-year leases was intended by the Legislature to provide a standard for valuation. Leases for an initial term of less than 99 years are to be valued based on the economic value thereof taking into consideration, among other things, the duration of the unexpired term of the lease, while in the case of leases for an initial term of 99 years or more the lessee may be considered to be the owner ‘in fee simple’ and the property subject to the lease shall be valued for tax purposes as all other property owned in fee simple. Since a lease for a term of 99 years or more is tantamount to ownership of the fee, we do not construe this to be an unreasonable classification by the Legislature.” (Emphasis supplied.)
The Supreme Court has thus ruled that subsection (6) was intended by the Legislature to provide a standard for valuation. Although it did not specifically say that such is the only purpose of that subsection, it is our view that the only meaning and purpose of the subsection is to provide a standard of valuation. To construe it otherwise would directly conflict with the immediately following subsection (7)(a) which provides that, “Any and all of the aforesaid taxes on any leasehold described in this section shall not become a lien on same or the property itself, . . .” (Emphasis supplied.) The 99-year leases are leaseholds described in the section referred to in § 196.199. The legislative intent, as we here construe it, is also borne out by subsection (7) of § 197.116, Fla.Stat., (the statute dealing with sale of tax certificates for unpaid taxes) which states as follows:
“(7) No certificate shall be sold on, nor any lien created in, property owned by any governmental unit whose property has become subject to taxation due to its lease to a nongovernmental lessee. Such delinquent taxes shall be enforced and collected in the manner provided in s. 196.199(7).” (Emphasis supplied.)

When we consider the above statutes in pari materia, it is clear that the Legislature has established an exclusive procedure for collection of taxes levied on all private leaseholds of governmentally owned real property and that subsection (6) of § 196.-199 provides only the method of valuation of leases of 99 years or more.

Reversed and remanded for further proceedings consistent herewith.

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


text:
    Robert Clark WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. CC-108.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.
    Alan R. Parlapiano, Stephen N. Bernstein, Gainesville, for appellant.

      Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of involuntary sexual battery and sentenced to 30 years imprisonment with a proviso in his sentence that after serving 25 of the 30 year term with no allowance for gain time or good time and no parole, the remainder of such sentence shall be stayed and withheld and he shall be placed on probation for a period of five years under the supervision of the Florida Parole and Probation Commission. This appeal is from the judgment and sentence and appellant’s subsequent motion for correction and reduction of sentence. Appellant contends the trial court erred in imposing 25 years imprisonment without gain time or good time or consideration for parole.

The 30 year sentence is the maximum for involuntary sexual battery, a felony of the first degree, [§ 794.011(4) and 775.082, Fla.Stat.1975], The split sentence imposed (part imprisonment and part probation) is pursuant to § 948.01(4), Fla.Stat. 1975, which states as follows:

“(4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.”

Under the foregoing statute providing for a split sentence, it is permissible for the trial court to require that the initial imprisonment prior to release on probation be served without credit for gain time or good time provided there is sufficient time left in the sentence after the period of imprisonment to allow for the maximum gain time and good time that the defendant could acquire during the term of imprisonment. See Mackey v. State, 310 So.2d 312 (Fla. 1 DCA 1975). Here there is insufficient time left on appellant’s sentence after the period of imprisonment to allow for the maximum gain time he could acquire under § 944.27, Fla.Stat.1975, and the maximum extra good time he could acquire under § 944.29, Fla. Stat.1975.

As to parole, we find no authority and none has been furnished us that authorizes a restriction against consideration for parole in a sentence for a felony of the first degree. Authority relative to the giving or withholding of parole has been granted by the legislature to the Florida Parole and Probation Commission. See § 947.16, Fla. Stat.1975. It is that Commission’s prerogative under the statute to determine whether or not and under what conditions parole will be granted. We note that under the penalties section of the Florida Statutes (§ 775.082, Fla.Stat.1975), the legislature specifically provided that a person who has been convicted of a capital felony and who is not sentenced to death shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole. The penalty for a felony in the first degree, however, contains no similar restriction as to parole. The sentence of appellant is vacated and the cause is remanded for the imposition of a legal sentence.

Reversed and remanded.

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


author: GRIMES, Judge. McNULTY, Acting Chief Judge,

text:
    STATE of Florida, Appellant, v. Cornelius McGILLICUDDY, Jr., a/k/a Connie Mack, Jr., Appellee.
    No. 76-994.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Archie M. Odom, of Farr, Farr, Haymans, Mosely & Odom, Punta Gorda, and Robert L. Weinberg, of Williams, Connolly & Cali-fano, Washington, D. C., for appellee.
   GRIMES, Judge.

The state brings this appeal from the suppression of wiretap evidence on the ground that the application for the order which authorized the interception did not meet the requirements of the applicable federal statute.

The application for the interception of wire communications consisted of an affidavit of Ralph Cunningham, an investigator in the State Attorney’s office for the Twentieth Judicial Circuit. The application runs twenty-one pages and contains primarily an account by Cunningham of facts purporting to justify the issuance of the wiretap order. The application concludes with the words “authorized by” followed by the signature of the state attorney. When the application was presented to him, Judge Schoon-over, a circuit judge of the Twentieth Judicial Circuit, issued an order which authorized the interception of communications over a specific telephone in Lee County listed in the name of Glenn DeVore.

Thereafter, appellee filed a motion to suppress all evidence obtained from wiretapping his communications over the subject telephone. Following a suppression hearing, a different circuit judge entered an order prohibiting the state from using the contents of any intercepted communication obtained under Judge Schoonover’s wiretap order. The basis for the suppression was that the wiretap application failed to comply with 18 U.S.C. § 2516 et seq. which provides for authorization to intercept wire or oral communications.

The parties agree that Congress in the passage of Title III of the Omnibus Crime Control and Safe Streets Act preempted the field of the interception of wire communications under its power to regulate interstate communications. State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975). The states are also permitted to regulate wiretaps providing their standards are at least as strict as those set forth in the federal act. State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971). Thus, in order to reach our conclusion, it is necessary to first look at the applicable federal statutes.

18 U.S.C. § 2516 reads in pertinent part as follows:

“(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of—
******
“(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.”

The enabling state legislation on the subject is Section 934.07, Florida Statutes (1975) which reads:

“934.07 Authorization for interception of wire or oral communications. — The governor, the department of legal affairs, or any state attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with this chapter, an order authorizing or approving the interception of wire or oral communications by the department of [Criminal] law enforcement or any law enforcement agency of this state or any political subdivision thereof having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling (when the same is of an organized nature or carried on as a conspiracy in violation of the laws of this state), robbery, burglary, grand larceny, prostitution, criminal usury, abortion, bribery, extortion, dealing in narcotic drugs or other dangerous drugs, or any conspiracy to commit any violation of the laws of this state relating to the crimes specifically enumerated above.”

The trial court interpreted the federal statute to mean that one of the statutorily described officers had to physically appear before the judge as an applicant to obtain the wiretap order. Since Mr. Cunningham was not one of those officers, the court held the order and the resulting wiretap to be invalid. We do not believe that Congress intended for its legislation to be given such a narrow construction.

It is evident that the use of wiretaps infringes upon the individual’s right to privacy. Therefore, the federal statute establishes procedures which are designed reasonably to protect the right of privacy, while insuring that necessary wiretaps may be used for investigative purposes.

The purpose of the procedure set forth in 18 U.S.C. § 2516(2) is to place the responsibility for authorization in a specific and identifiable person who is answerable to the people. United States v. Lanza, 341 F.Supp. 405 (M.D.Fla.1972). Under the statute, it must be clear who has authorized and set into motion the application for wiretap. Florida has implemented the congressional intent by specifying that a state attorney may be an authorizing official.

In this case, there is no question that Cunningham was the affiant for the application, and he is referred to therein as the applicant. However, the application reflects that it was authorized by the state 'attorney, who is the principal prosecuting attorney of a political subdivision of the State of Florida as contemplated by 18 U.S.C. § 2516(2) and Section 934.07, Florida Statutes (1975). Mr. Cunningham’s sworn statement provided sufficient information upon which the state attorney could rely in exercising his judgment to authorize the application. By authorizing this application in writing, the state attorney has certified that in the performance of his duties he has determined that the contents of the application warrant his office in seeking to obtain a wiretap order. No purpose would have been served for the state attorney to swear to the application and the impracticalities of requiring him personally to appear to request the order are obvious.

It must be noted that 18 U.S.C. § 2516(2) provides that a state wiretap order should be granted in conformity with § 2518 of the chapter. 18 U.S.C. § 2518 reads in part as follows:

“(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . .
$ * $ * ‡ % )?

Thus, § 2518 contemplates that the applicant for the application will be an investigative or law enforcement officer, thereby effectively negating the appellee’s argument that subsection (2) of § 2516, unlike subsection (1), requires the specified prosecuting official to be the applicant.

Similar circumstances were involved in two federal cases in which Florida wiretap orders had been obtained. In United States v. Lanza, supra, an agent of the Florida Department of Law Enforcement had applied for a wiretap order upon the authorization of the Governor of Florida. In a subsequent hearing on a motion to suppress evidence obtained from wiretaps under the order, the defendants questioned whether the Governor was a proper person under 18 U.S.C. § 2516 to authorize the application for the wiretap order. The court reasoned that the Governor as the chief executive of the state was superior to the Attorney General and the state attorneys and fulfilled to a greater degree than any other public officer the function of being a publicly responsible officer who is subject to the political process. While not discussing the point, it is implicit from the order denying suppression that the Governor had not personally applied for the wiretap order. In a subsequent case, the same procedure was approved in United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974).

Therefore, we hold that it was unnecessary for the state attorney to apply for the wiretap order. His written authorization for the application sufficed for purposes of the applicable federal and state statutes. Contra, State v. Farha, supra.

The appellee raised two additional grounds in his motion to suppress. The trial court specifically did not reach either of these two grounds in entering its order suppressing the wiretap evidence. Therefore, they are not before this court on appeal and will not be determined at this time.

REVERSED.

OTT, J., concurs.

McNULTY, Acting C. J., dissents with opinion.

McNULTY, Acting Chief Judge,

dissenting.

I respectfully dissent. In my view, subsection (2) of § 2516, 18 U.S.C., relating to state authorized wiretaps, requires that the “principal prosecuting attorney” of a “political subdivision” of the state must personally make application for an order authorizing a wiretap. The language of that subsection is clear and unambiguous, and if Congress intended otherwise it easily could have done so in language similar to subsection (1) of that section in which one other than either the Attorney General of the United States or a specially authorized assistant may make application for a federally authorized tap. Indeed, the breadth of subsection (1) as it relates to an echelon of authority to apply for federal wiretap authorization fully explains, I think, the apparent breadth of § 2518 of the act, cited by the majority as contemplating as applicants those other than the principal prosecuting attorney.

I am convinced that with respect to a state authorized wiretap (a grave invasion of privacy by whatever authority), Congress intended that the formalities of an application therefor be undertaken by the solemn, sworn-to, deliberative official act of the highest prosecuting authority of a given state political subdivision; and this for the same obvious reasons that our own constitution and statutes require that the same officer undertake to swear or affirm to the matters set forth in an information upon which he intends to prosecute an accused. The mere authorization to an “investigator” employed by that prosecuting officer to make such application falls far short of the solemnity in the premises as envisioned, I am sure, by Congress.

I would affirm the suppression of the wiretap evidence.

      . At the time the motion to suppress was filed, there was no indictment or information pending against appellee. However, an indictment previously returned against him which was predicated upon the fruits of the wiretap had been dismissed with leave to amend. Therefore, appellee had standing as an “aggrieved person” to complain that the wiretap evidence against him was illegally obtained. In re Grand Jury Investigation, 287 So.2d 43 (Fla. 1973).

      . In State v. Angel, 261 So.2d 198 (Fla.3d DCA 1972), our sister court held that an assistant state attorney could authorize an application for a wiretap under Sec. 934.07. However, it appears that the question of whether this would meet the standards of the underlying federal legislation was not argued.

      . In view of our disposition of this case, we also need not pass upon the propriety of the broad sweep of the order entered below insofar as it purports to suppress evidence obtained against those who were not parties to this proceeding or persons who may not have standing to complain. See State v. News-Press Publishing Company, 338 So.2d 1313 (Fla.2d DCA 1976).

      . The Omnibus Crime Control and Safe Streets Act of 1968, of which 18 U.S.C. §§ 2510, et seq. is a part.

      . See Art. I, § 15, Fla.Const., and § 27.181(3), Fla.Stat. (1975).


author: DENNIS, Justice.

text:
    STATE of Louisiana ex rel. Charles Donald BYRD a/k/a Charles Handcock, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57116.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Thomas A. Self, Many, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., Many, for defendant-respondent.
   DENNIS, Justice.

Relator applied for a writ of habeas corpus and other relief alleging that his incarceration resulted from an unlawful conviction obtained without affording him court appointed counsel. We ordered an eviden-tiary hearing to determine whether applicant was indigent at the time he was denied a court appointed lawyer. State ex rel. Byrd v. Henderson, Warden, 323 So.2d 470 (La.1975). In response, the district court conducted a hearing on January 30, 1976 and determined that relator was not indigent at the time he was refused counsel. We granted writs to review the correctness of this decision. 339 So.2d 359 (La.1976).

Relator was charged with having committed a simple robbery, La.R.S. 14:65, in De-Soto Parish. On September 27, 1974 counsel was appointed to represent him and he entered a plea of not guilty. Trial was set for November 4, 1974. Prior to trial, on motion of the court appointed attorney, a hearing was held to traverse relator’s declaration of indigency. The record provided for our review does not contain the evidence adduced at the hearing, but at its conclusion the court relieved the court appointed attorney of his assignment.

When the case was called for trial on November 4, 1974 relator appeared without counsel. Because of the trial court’s previous determination that relator was able to employ an attorney it ordered the trial to commence, forcing him unsuccessfully to undertake his own defense. Relator was convicted of simple robbery and sentenced to five years at hard labor.

At the evidentiary hearing, held on January 30, 1976 pursuant to our order, relator, represented by a public defender, introduced documentary evidence and the testimony of several witnesses. The State introduced no evidence. In our opinion the preponderance of the evidence favors the conclusion that relator was not able to employ an attorney to represent him at trial and, therefore, the State was required to provide him with legal assistance during his prosecution. Sixth Amendment, United States Constitution; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); La.Const.1921, art. I, § 9; cf. La. Const.1974, art. I, § 13.

Relator was unemployed. The only assets he owned were an undivided one-half interest in two parcels of immovable property he inherited from his mother. One was the family home in Shreveport valued at $5,000 within which his father resided. The other was a piece of rural property in Caddo Parish valued at $850. Both were burdened with a usufruct in favor of his father. The rural property was sold to a third party and the proceeds were expended before relator’s need of an attorney arose. For some reason which was never made clear during the hearing, relator had several months before his arrest signed and left with his father’s attorney an undated deed conveying his interest in the family home to his father. After his son’s arrest the father’s attorney visited relator in jail and obtained his consent to deliver the deed to the father. The father then mortgaged the family home and borrowed $3200 from a bank, $2500 of which he deposited with the sheriff, as bail for his son’s release, and the balance of which he used to pay attorney’s fees and expenses incurred in closing his late wife’s succession. After his son’s conviction and consequent imprisonment the bail money was returned to the father, and he promptly applied it against the mortgage indebtedness affecting his home.

The record does not reflect the actual value of relator’s interest in the property; he owned merely the naked interest of an undivided one-half of the property. The age of the father who held the usufruct does not appear in evidence, so the relative values of the usufruct and the naked interest cannot be calculated. Nor do we know to what extent the bank relied upon the father’s credit in making the loan in addition to the property as security. However, the record is clear that the relator had no practical means of liquidating his interest in the property without his father’s cooperation, and once the deed was delivered the father then had complete dominion over the property. It is equally clear that the father never gave any of the loan proceeds to relator, or offered or agreed to use them to employ an attorney for him. In reality, relator owned no assets which were available to him for purposes of employing counsel. Instead, he owned claims to assets, perhaps difficult to enforce, having an undetermined value, probably insufficient, even if successfully enforced and liquidated, to purchase the services of a competent attorney for a felony jury trial.

Under these circumstances the trial court was in error in determining that relator was not entitled to court appointed counsel and deprived him of a constitutional right by forcing him to undergo criminal prosecution without the assistance of counsel for his defense. In accordance with Louisiana Code of Criminal Procedure Article 921, we reverse relator’s conviction and sentence and remand his case to the district court with instructions to grant a new trial and provide an attorney to assist in his defense.

SUMMERS, J., dissents.