author:
MILLS, Judge.
      BOYER, Judge,

text:
    Marvin E. BOUTWELL, as Chief of the Building and Zoning Inspection Division, Appellant, v. NICHOL’S ALLEY OF JACKSONVILLE, INC., a Florida Corporation, Appellee.
    No. JJ-278.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1978.
    Rehearing Denied Dec. 29, 1978.
    Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellant.

      Homer H. Humphries, Jr. and Peter J. Kellogg of Grissett, Humphries & Neder, Jacksonville, for appellee.
   MILLS, Judge.

CASE SUMMARY

This is an appeal from an amended final judgment issuing a peremptory writ of mandamus ordering the appellant, Bout-well, as Chief of the Building and Zoning Inspection Division of the City of Jacksonville, to execute a zoning certification to appellee, Nichol’s Alley. We reverse.

FACTS

In August 1975, in Goodbread v. City of Jacksonvill, Circuit Case No. 75-1313-CA, the Circuit Court of Duval County declared Section 708.906(c)(2) of the City of Jacksonville Ordinance Code, which established three alcoholic beverage zones governing the distance limitations from schools and churches for liquor licenses, arbitrarily discriminatory and void.

The City appealed the ruling and in April 1976 the First District Court of Appeal affirmed the ruling in City of Jacksonville v. Goodbread, 331 So.2d 850 (Fla. 1st DCA 1976).

In June 1976, the City petitioned for cer-tiorari to the Florida Supreme Court.

The petition was filed by the City 29 days after its motion for rehearing was denied.

In October 1976, Nichol’s Alley obtained a zoning exception for on-premises consumption of alcoholic beverages at its business premises, thus complying with all conditions precedent to Boutwell’s issuance of a zoning certification.

After obtaining the zoning exception, Nichol’s Alley requested Boutwell, by letter dated 9 November 1976, to execute the zoning certification.

Although Nichol’s Alley repeatedly demanded of Boutwell that he perform this act, Boutwell refused to execute the zoning certification, thus preventing Nichol’s Alley from filing with the Department of Beverage, the zoning certification in order to obtain an alcoholic beverage license.

By letter dated 29 December 1976, Bout-well advised Nichol’s attorney that the zoning certification was denied because on 28 December 1976 the Jacksonville City Council amended the Zoning Code by establishing uniform distances, and Nichol’s business premises did not meet those distance requirements.

The parties stipulated to the above facts.

In its final judgment, the trial court found that Florida Appellate Rule 5.12(1) was applicable to the facts of this case and denied Nichol’s petition for peremptory writ of mandamus. Upon Nichol’s motion for rehearing, the trial court entered an amended final judgment granting Nichol’s petition for peremptory writ of mandamus on the basis of this Court’s decision in Wait v. Florida Power & Light Co., 353 So.2d 1265 (Fla. 1st DCA 1978). The peremptory writ of mandamus was issued.

ISSUE

The issue here is whether Rule 5.12(1) was applicable to the final judgment in the Goodbread case so that the filing of the petition for certiorari by the City in the Supreme Court automatically stayed the judgment.

The parties stipulated in the trial court that this issue was' dispositive of this case and agreed that if Rule 5.12(1) was applicable, the issuance of the writ should be denied.

DECISION

Rule 5.12(1) provides:

“When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execution or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court.”

The filing by a public body of a petition for certiorari in the Supreme Court to review a decision of a District Court of Appeal operates to stay the execution or enforcement of the judgment being reviewed pursuant to Rule 5.12(1). Housing Authority of the City of Miami v. Macho, 184 So.2d 916 (Fla. 3d DCA 1966), cert. denied 188 So.2d 822 (Fla.1966).

Rule 5.12(1) was applicable to the petition for certiorari filed by the City, therefore, the execution of the judgment entered in that case was automatically stayed by the filing of the petition.

The trial court misconstrued our decision in the Wait case by basing its amended judgment on one paragraph in the decision. That paragraph was:

“It appears to us that Rule 5.12(1) was adopted to protect the public treasury from the payment of an appeal bond premium. We do not have a money judgment here nor would a bond be of any protection to the appellee. Thus, we conclude that the rule is not applicable here.”

It overlooked the main thrust of the case.

In Wait we were concerned with the Public Records Act, Chapter 119, Florida Statutes (1975). We said:

“Chapter 119 provides that public records of this state and its political subdivisions shall be open to the public for examination, inspection and copying. When an action is filed to enforce the provisions of the chapter, the court must set an immediate hearing, giving the case priority over other pending cases. Section 119.-11(1). When the court orders an agency to open its records for inspection, the agency must comply within forty-eight hours unless otherwise specifically provided by the court or unless an appellate court issues a stay order within the forty-eight-hour period. Section 119.11(2). The filing of a notice of appeal shall not operate as an automatic stay. Section 119.11(2). A stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage. Section 119.11(3).
“In Clark v. Walton, 347 So.2d 670 (Fla. 4th DCA 1977), it was held that whether a public agency taking an appeal need obtain a stay order is procedural, therefore Rule 5.12(1) takes precedence over Section 119.11(2). The statement of the law in Clark is accurate but we do not reach the same conclusion.
“It appears to us that Rule 5.12(1) was adopted to protect the public treasury from the payment of an appeal bond premium. We do not have a money judgment here nor would a bond be of any protection to the appellee. Thus, we conclude that the rule is not applicable here. “To grant an automatic stay to a public agency under the circumstances present here would permit the agency to avoid its statutory mandatory duties. Duval County School Board v. Florida Public Employees Relations Commission, 346 So.2d 1087 (Fla. 1st DCA 1977). By the mere taking of an appeal, the agency could delay a person’s right to examine public records until through the sheer lapse of time, the need expired. This would defeat the purpose of the Public Records Act which we cannot permit. “In addition, appellants have not submitted evidence to us that significant damage will result to them by the opening of their records for inspection. In this situation, we have no authority to order a stay.”

In Wait, we held Rule 5.12(1) was not applicable to the facts presented to us because this would have defeated the specific purpose of the Public Records Act. This is not the case here.

JUDGMENT

We reverse the amended judgment appealed and set aside the peremptory writ of mandamus issued.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissents.

In his briefs and during oral argument before this Court appellant argued that Wait v. Florida Power & Light Co., 353 So.2d 1265 (Fla. 1st DCA 1978) and Duval County School Board v. PERC, 346 So.2d 1087 (Fla. 1st DCA 1977) are incorrect and that we should recede therefrom. I disagree that they are incorrect, but I agree that in order to hold here as urged by appellant we must recede from the holdings of those cases. In my view the learned trial judge properly construed and relied upon prior recent opinions of this court. In deference to the time honored rule of stare decisis I would affirm.


source: Caselaw Access Project

author: MOORE, Judge. CROSS, Judge,

license: Public Domain

text:
    STATE of Florida, Appellant, v. T. R. CARTER, Appellee.
    No. 77-2438.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Rehearing Denied Dec. 27, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Barry Krischer, Asst. State’s Atty., West Palm Beach, for appellant.
    David Roth and Michael A. Nugent of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.
   MOORE, Judge.

Appellee was charged with the crime of perjury under Section 837.02(1), Florida Statutes (1977) as the result of testimony given on deposition in a civil trial. Pursuant to Fla.R.Crim.P. 3.190(c)(4) the defendant filed a motion to dismiss the information on the basis that the defendant had recanted the alleged false statement. The trial court granted the motion to dismiss and the State appeals that order. We disagree with the trial court and reverse.

One Carrie Brunson was allegedly injured in an automobile accident on June 20, 1975. She was treated by the appellee, T. R. Carter, a chiropractic physician, for injuries allegedly sustained as a result of that accident. Brunson filed suit to recover for her alleged injuries and during the course of pre-trial discovery appellee’s deposition was taken by the defense. After being placed under oath Dr. Carter was asked, inter alia, whether or not he had ever seen Brunson prior to the accident of June 20, 1975. To this he responded in the negative. Subsequently, and upon prompting by the defense attorney who indicated he had reason to believe that the doctor had treated Brun-son on prior occasions, the doctor agreed to check his records for additional files. On the following day the doctor directed a letter to the attorney in which he stated, “Enclosed is copy of medical information on the above patient. If I may be of further assistance, please feel free to contact me at any time.” The medical information enclosed with that letter indicated 79 visits by Brunson to Dr. Carter’s office between June 6, 1974 and January 17, 1975. Based upon this information the state attorney formally accused appellee of the crime of perjury.

In dismissing the information for perjury, the trial court relied upon the doctrine of recantation as established in Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). In Brannen, the evidence established that the accused had been a witness in a criminal trial and voluntarily requested the court to allow him to resume the witness stand to correct his previous testimony regarding a material matter in the criminal trial. He did so before the State had offered any contradictory evidence and before he knew that the State had any such evidence. In reversing the perjury conviction the court quoted from People v. Gillette, 126 App.Div. 665, 111 N.Y.S. 133 as follows:

“ ‘A judicial investigation or trial has for its sole object the ascertainment of the truth, that justice may be done. It holds out every inducement to a witness to tell the truth by inflicting severe penalties upon those who do not. This inducement would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted for perjury.’ ”

We agree with this basic concept of the underlying reasons for establishment of the recantation doctrine. Our system of justice cannot endure perjurious testimony and individuals should be encouraged to voluntarily make corrective statements. Nevertheless, perjury is complete upon the willful false swearing to any material matter. Recantation is a defense to an allegation of perjury only where there is an ac-knowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth.

In the instant case the appellee testified that he had not seen the patient on any prior occasion. This testimony was given under oath and was directed to a material matter in litigation. Under the facts of this case we feel that whether or not there was an acknowledgement of the falsity and a voluntary retraction before the falsity had been exposed were questions of fact for the jury. These facts are more akin to those in Sherman v. State, 135 Fla. 243, 184 So. 843 (1938) where the defendant’s conviction for perjury was affirmed. There, after giving false testimony the defendant did not retract until the truth had become known and the false testimony would no longer serve his purpose.

It is our opinion that the State properly charged the appellee with perjury and the order granting the motion to dismiss the information was in error. The order dismissing the information is therefore reversed and this cause remanded for reinstatement of the information and further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The majority misconstrues the law with regard to the crime of perjury as it now exists in the State of Florida. Since the case of Brannen v. State, 94 Fla. 656, 114 So. 429 (1927), Florida has been counted among those jurisdictions which recognize that if a witness recants within an appropriate time and under satisfactory circumstances, and makes known the truth before any prejudicial effects have accrued, then the offense of perjury has not been committed. See 25 Fla.Jur., Perjury § 44, at 40; 60 Am.Jur.2d, Perjury § 47, n.7; 64 A.L. R.2d, Recantation as Defense in Perjury Prosecutions, § 4. In the instant case, the trial court in a lengthy and carefully considered order entered on a stipulated statement of facts, determined that the appellee had properly recanted the incorrect testimony in essentially the same proceeding and had fully and completely apprised opposing counsel of the sought-after information.

In my view, no error was made to appear. I would, therefore, affirm the trial court’s dismissal of the information.


author: PER CURIAM.

text:
    Mitchell BROWN, Appellant, v. STATE of Florida, Appellee.
    No. II-371.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    Rehearing Denied Dec. 29, 1978.
    Michael J. Minerva, Public Defender, Margaret Good and Charles J. Kahn, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have carefully examined the record-on-appeal and the briefs filed by able counsel. Although the evidence giving rise to entry of the judgment and sentence here appealed was in conflict those conflicts were resolved by the trier of the fact for whose judgment we may not substitute ours. We find no error of law as applied to those facts. Further, the briefs and oral arguments of the parties reveal that each point here presented has been heretofore determined by decisions of this Court and of the Supreme Court of Florida. Nothing would be added to the jurisprudence of this State by again discussing those points here.

Appellant having failed to demonstrate prejudicial error, the judgment and sentence appealed are

AFFIRMED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


author: MILLS, Judge. SMITH, Judge,

text:
    Max H. INGRAM, Appellant, v. Margaret W. INGRAM, Appellee.
    No. JJ-286.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1978.
    Rehearing Denied Dec. 29, 1978.

      Donald F. Perrin of Schneider & Dunay, P.A., Jacksonville, for appellant.
    David R. Lewis of Lewis, Paul, Issac & Castillo, P.A., Jacksonville, for appellee.
   MILLS, Judge.

Max H. Ingram appeals from a final judgment of dissolution of marriage on the grounds that he should have been granted a special equity in the marital home. We agree and reverse.

The wife, Margaret W. Ingram, purchased the home approximately ten months prior to the marriage and title was and is solely in her name. During the eight years of marriage, Ingram contributed to a joint account out of which the mortgage payments were made and he paid for or stood jointly responsible for improvements on the home.

We think that under the rationale of Giachetti v. Giachetti, 157 Fla. 259, 25 So.2d 658 (1946); Windham v. Windham, 144 Fla. 563, 198 So. 202 (1940); and Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974), the evidence demonstrated a special equity in the house for Max Ingram in an amount undetermined and we remand the case to the trial court to set the amount.

Appellee’s request for appellate attorney’s fees is denied.

REVERSED and REMANDED.

BOYER, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The wife bought the house and lot on Lakeview Road before the marriage. It is not clear that her purpose was to provide a marital home. The appellant husband’s claim of entitlement to a “special equity” is predicated on his monetary contributions during the marriage toward mortgage payments, improvements including rewiring, central heat and air conditioning, a new roof, and a new room. During the marriage the wife also contributed financially to household expenses, including the mortgage payment. The house was the marital home for the period of the marriage, from September 1969 until the parties separated in August 1977. The husband’s two daughters by a prior marriage also occupied the house from July 1972 and July 1973, respectively. The wife pleaded a claim for alimony but waived it.

Apparently considering all the equities in the case, including that which the husband characterizes as “special,” the chancellor decided that the wife’s title to the house and lot, contributed to and enjoyed by both parties and by the husband’s daughters during the marriage, should remain in status quo upon its dissolution. I do not doubt that Giachetti, Windham, and Long can in a proper case be extended to recognize a husband’s “special equity” in the wife’s property purchased prior to marriage, though those decisions did not so hold; but I do not think this is such a case, or that this court should here initiate such a remedy. The “special equity” formula is to be applied to achieve equity, not simply to trace monetary contributions for real estate, as distinguished from groceries, to their point of expenditure. The majority implies as much by declining to specify the amount of the husband’s “special equity,” though his expenditures are readily calculable. Whatever equities the husband accumulated by his contributions, I cannot agree that they supervene the wife’s competing, if less “special,” equities. I find no fault with the chancellor’s conclusion that, by whatever doctrine is necessary to the result, the wife should come out of the marriage with the house she brought into it. I would affirm.


text:
    Charles R. SPRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1437.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, C. J., and HOBSON and SCHEB, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Brenda HECTOR, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY and Ernest Heath, Appellees. Brenda HECTOR, Appellant, v. STONEWALL INSURANCE COMPANY and Henry Williams, Appellees.
    Nos. 78-296, 78-301.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.

      I. W. Williams of Williams & Milton, St. Petersburg, for appellant.
    James C. Hadaway of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellees Florida Farm Bureau and Ernest Heath.
    Thomas Saieva of Woodworth & Saieva, P. A., St. Petersburg, for appellees Stonewall and Williams.
   HOBSON, Acting Chief Judge.

Brenda Hector, plaintiff in the court below, appeals from a final judgment entered in favor of Ernest O. Heath and his insurer, Florida Farm Bureau Mutual Insurance Co., and a final judgment for $1,000 entered in her favor against Henry Williams and his insurer, Stonewall Insurance Co. These two cases have been consolidated for purposes of this appeal.

Appellant argues that the judgment in favor of Heath and his insurer is against the manifest weight of the evidence and that the $1,000 judgment award in her favor is inadequate. We decline to disturb the jury's decision on the question of liability, but we agree with appellant that the award from Williams and his insurer is inadequate.

Appellant sustained injuries as a result of an automobile accident involving the Williams vehicle, in which she was a passenger, and a vehicle driven by Ernest Heath. Both drivers contested the issue of liability.

Three physicians testified as to appellant’s injuries. The first physician stated that he treated appellant in his office for approximately two months and subsequently recommended hospitalization for more intensive therapy. At discharge, appellant appeared to be completely recovered. The second physician testified that he treated appellant for approximately ten months after her discharge from the hospital. In his opinion, appellant suffered permanent injury to her back, neck and leg. A third physician testified that he examined appellant on one occasion approximately a year after the accident and found no objective problems although there were remaining subjective complaints.

Evidence revealed that appellant’s medical bills were in excess of $2,400. Further, appellant testified that she lost wages as a result of her injuries in the amount of $2,500.

The accepted test for determining the adequacy of a jury verdict is whether a jury of reasonable persons could have returned the verdict. Griffis v. Hill, 230 So.2d 143 (Fla.1970). We view the following facts as determinative of the question of adequacy:

1) Appellant was in no way negligent in the accident;
2) The jury determined that appellee Williams was negligent in causing the accident;
3) Uncontradicted testimony disclosed that appellant suffered injuries as a result of the accident;
4) Uncontradicted testimony revealed that appellant’s damages far exceeded the $1,000 award.

While we are always reluctant to supplant a jury verdict, it is clear that in this case the verdict was inadequate and legally inconsistent with the proofs. See Rodriquez v. Allgreen Corporation, 242 So.2d 741 (Fla. 4th DCA 1971).

Since the issue discussed above is disposi-tive of this appeal, we do not address ourselves to appellant’s other point. We affirm the judgment entered in favor of Ernest 0. Heath and his insurer, reverse the judgment entered against Henry Williams and his insurer, and remand the case for a new trial on the issue of damages only.

SCHEB and OTT, JJ., concur.


author: RYDER, Judge.

text:
    Joann ALFORD, Appellant, v. George E. ALFORD, Appellee.
    No. 78-337.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.
    Gene H. Auvil of McGee & Auvil, P. A., Brooksville, for appellant.
   RYDER, Judge.

This is an appeal from portions of the order dissolving the marriage between the parties. The wife contends that the amount of child support awarded is insufficient and that the trial court should have awarded her possession of the marital home. We agree on both points, and we reverse.

Following the filing of the husband’s petition for dissolution and the wife’s answer and counter-petition, custody of the minor child (age 14 at the time of filing the petition) and possession of the marital home were temporarily awarded to the wife, and the husband was ordered to pay $200.00 per month temporary child support. Both husband and wife sought custody of the child. The wife also sought either the husband’s interest in the home as lump sum alimony or possession of the home during the child’s minority.

Husband is totally disabled and draws a tax-free government disability pension of $722.00 per month. While he was disabled, he worked as a night shift security guard in Alaska twelve hours a night, seven days a week from March 1976 to August 1977 and earned approximately $57,000.00 during that period. However, he testified at the hearing that due to his lameness and general poor health, he could not handle a regular security job, nor could he pass the physical required for a job as a security guard. Wife works as an office nurse and nets $656.00 per month. In addition to the usual expenses of raising a teenager, the minor daughter has for some time owned a horse for which the cost of maintenance and veterinary care is $43.00 per month.

Final hearing was held before a different judge. After the final hearing, the successor judge granted dissolution, awarded custody of the child to the wife, found that $125.00 per month was a reasonable amount for complete support of the child, and ordered that husband to pay half that sum, $62.50 per month. The judge ruled that neither party should be awarded exclusive use and occupancy of or any type of posses-sory interest in the marital home.

The law gives the trial judge broad discretion in determining the amount of child support. Kahn v. Kahn, 78 So.2d 367 (Fla.1955). Nevertheless, an appellate court is justified in ordering an increase in support when it finds a clear abuse of discretion. McArthur v. McArthur, 95 So.2d 521 (Fla.1957); Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974). We find such an abuse of discretion here. The amount of child support is unrealistic — if the cost of maintaining the child’s horse, $43.00 per month, is deducted from the support need arrived at by the trial court, only $82.00 is left for food, clothing, medical and dental care, and other necessaries for the child. This is a clearly inadequate amount.

The trial judge additionally erred in refusing to award the wife possession of the marital home during the child’s minority. Unless there is a change in circumstances, such as the wife’s remarriage or a change in the child’s abode, the home should not be disturbed until the child reaches majority. McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977).

Accordingly, the portions of the dissolution order complained of are vacated and the cause remanded with instructions to award possession of the marital home to the wife during the child’s minority and to hold a new hearing for the purpose of determining an adequate amount of child support to be paid by the husband. In all other respects, the judgment of dissolution is affirmed.

OTT, Acting C. J., and DANAHY, J., concur.


text:
    Carolyn GRAY, f/k/a Carolyn Y. Smart, Appellant, v. LANDMARK UNION TRUST BANK OF ST. PETERSBURG, N. A., formerly Union Trust National Bank of St. Petersburg, Appellee.
    No. 78-823.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.

      Leonard S. Englander, St. Petersburg, for appellant.
    Martin Errol Rice of Harris, Green, Piper, Davenport, Nelson & Rice, St. Petersburg, for appellee.
   PER CURIAM.

Appellant Carolyn Gray appeals an order dismissing her complaint against appellee bank for failure to state a cause of action. After careful review, we have reached the conclusion that the trial court acted properly-

In her complaint appellant alleged that she and Eleanor M. Young opened a savings account with appellee and that ap-pellee issued only one passbook to the two of them. This passbook contained the following language:

2. The depositor must present this passbook together with a written order, to be entitled to withdraw funds.

Appellant further alleged that she had continuous possession of the passbook, but that on June 16, 1977, appellee wrongfully paid the entire balance of the account, which amounted to $5,145.48, to Miss Young, thereby depriving appellant of these funds.

In its order granting the motion to dismiss, the court ruled that Section 659.29, Florida Statutes (1977), relieved appellee of liability to appellant since it had paid the funds in the account to appellant’s co-depositor. We think the court was correct is so holding. A reading of Section 659.29 demonstrates that it is clearly designed to protect a bank from liability to a depositor in situations where, as here, it pays funds from a joint account to a co-depositor.

Appellant argues that the clause in the passbook requiring presentation of the passbook for withdrawal of funds expanded ap-pellee’s liability so as to make it answerable to her for the funds it gave to Miss Young. In support of this contention she cites Badders v. Peoples Trust Company, 236 Ind. 357, 140 N.E.2d 235 (1957).

We have read the Badders case, and we find that it does indeed hold that a clause requiring presentation of a passbook makes a bank liable to a depositor for payments made to a co-depositor who does not present the passbook even where there is a statute which otherwise relieves the bank of liability for payments to a co-depositor. We do not choose to follow Badders, however, because in our judgment passbook presentation clauses are for the purpose of preventing payment to one who is not a depositor and may be waived by the bank. The clauses are not meant to protect a depositor against withdrawals by a co-depositor. To hold otherwise would place a heavy burden on a bank to mediate between co-depositors, and this is one of the burdens which the legislature sought to remove by enacting Section 659.29.

Accordingly, we affirm the order of the trial court dismissing appellant’s complaint.

GRIMES, C. J., and HOBSON and SCHEB, JJ., concur.

      . Section 659.29 provides that,

        Deposits in Two or More Names. — Bank or trust company deposits, or any part thereof, or any interest therein made in the names of two or more persons, payable to either, or payable to either or the survivor, and deposits made to an account standing in the names of two or more persons payable as herein-above-mentioned, may be paid to, or pursuant to the order of, either or any of said persons or to, or pursuant to the order of, the guardian of the property of any such person who is incompetent, whether the other or others be living or not and whether the other or others be competent or not; and the check or other order for payment of any such person, or the receipt or acquittance of the person so paid, shall be a valid and sufficient release and discharge to the bank or trust company for any payment so made.


text:
    Franz P. BUCKREM, Appellant, v. STATE of Florida, Appellee.
    No. 78-864.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Franz P. Buckrem appeals his sentence for first degree murder and assault with intent to commit first degree murder. He contends that the single sentence imposed for these two offenses constitutes an illegal general sentence. We agree and reverse.

After appellant’s trial and conviction on both charges, the trial court sentenced him to death on the murder charge and to fifteen years in prison on the assault charge. The trial court entered two judgments and sentences. The first adjudicated appellant guilty and set forth sentences on both offenses. It further provided:

In the event the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court and the defendant herein is brought back before this Court and sentenced to life imprisonment as provided by Chapter 775, Florida Statutes, the fifteen-year sentence imposed herein for the offense of Assault With Intent to .Commit Murder In The First Degree shall be consecutive to any such sentence of life imprisonment.

The second judgment and sentence adjudicated appellant guilty of and sentenced him on only the assault charge.

On appeal the Florida Supreme Court affirmed both convictions and the fifteen-year sentence on the assault, but reversed the death sentence for the murder and remanded the case to the trial court for imposition of a sentence of life imprisonment. Buckrem v. State, 355 So.2d 111 (Fla.1978). On remand, the trial court entered an amended judgment and sentence, which again adjudicated appellant guilty of both charges and sentenced him to life in prison.

The judgment and sentence on the assault having previously been affirmed, the fifteen-year sentence originally imposed stands. However, the trial court erred in entering a new judgment and sentence on both offenses and imposing only a single sentence of life imprisonment upon appellant. This is, in effect, a general sentence, which is impermissible, Dorfman v. State, 351 So.2d 954 (Fla.1977), and must be corrected.

The amended judgment and sentence is therefore vacated and the cause remanded for entry of a new judgment and sentence on the first degree murder charge alone. The new sentence should specify whether the life sentence is to run concurrently with or consecutively to the fifteen-year sentence on the assault. Since the condition set forth originally which would have required that the sentences be consecutive was not met, it is unclear how the trial court would have wished the sentences to run under the present circumstances, and the court’s intent should be clarified.

REVERSED and REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and SCHEB and OTT, JJ., concur.


author: HUBBART, Judge.

text:
    STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant, v. Carolyn S. KRAVER, Appellee.
    No. 78-1518.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.

      Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Alldredge & Gray and James H. Gray, Jr., Miami, for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   HUBBART, Judge.

The sole issue involved in this appeal is whether the occupant of a motor vehicle which is, involved in an accident with a second motor vehicle is entitled to personal injury protection benefits from the insurer of the owner of the second- motor vehicle under Section 627.736(4)(d), Florida Statutes (Supp.1976) of the Florida Automobile Reparations Act. We hold that such a motor vehicle occupant may never recover personal injury protection benefits from the insurer of the owner of the second motor vehicle under the above statute. Accordingly, we reverse.

The facts pertaining to the above issue are undisputed. On January 14, 1977, the plaintiff Carolyn S. Kraver was involved in a two car automobile collision in Miami Beach, Florida. The plaintiff Kraver was driving a 1971 Cadillac at the time of the collision. This automobile was uninsured, had been purchased by the plaintiff Kraver, and was registered and titled under her father’s name, Joseph Guskowski. The second motor vehicle involved in the accident was driven by one Elaine Fructman and insured by State Farm Automobile Insurance Company.

Approximately a year after the subject accident, the plaintiff Kraver filed this action against State Farm Automobile Insurance Company under the Florida Automobile Reparations Reform Act in Circuit Court for the Eleventh Judicial Circuit of Florida. Based on the above undisputed facts, both parties moved for summary judgment. The trial court granted the motion for summary judgment as to the plaintiff Kraver. This appeal from such a nonfi-nal order follows. Fla.R.App.P. 9.130(a)(3) (C)(iv).

This case is directly controlled by the plain language of Section 627.736(4)(d), Florida Statutes (Supp.1976) which is part of the Florida Automobile Reparations Reform Act. The statute in question provides as follows:

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.
2. Accidental bodily injury sustained outside this state but within the United States of America, its territories or possessions, or Canada by the owner while occupying the owner’s motor vehicle.
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subpara-graph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741.
4. Accidental bodily injury sustained in this state by any other person while occupying the owner's motor vehicle or, if a resident of this state, while not an occupant of a motor vehicle or motorcycle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself:
a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741, or
b. Entitled to personal injury benefits from the insurer of the owner of such a motor vehicle.” [Emphasis added]

All agree that Section 627.736(4)(d)l-3, Florida Statutes (Supp.1976) is inapplicable to this case. The plaintiff is neither the owner nor a relative of the owner of the insured motor vehicle herein. The dispute in this case centers on the applicability of Section 627.736(4)(d)4, Florida Statutes (Supp.1976).

In our view, the plaintiff does not come within the protection of Section 627.-736(4)(d)4, Florida Statutes (Supp.1976) because she fails to qualify either as (1) an occupant of the insured owner’s motor vehicle at the time of the accident, or (2) a non-occupant of a motor vehicle or motorcycle at the time of such accident. The presence of either such factor is an essential prerequisite under the above statute in order for the plaintiff to collect personal injury protection benefits from the insurer of the owner’s motor vehicle herein. Without dispute, the plaintiff was driving an uninsured 1971 Cadillac automobile at the time of the subject accident with the insured owner’s motor vehicle.

We have reviewed Farley v. Gateway Insurance Co., 302 So.2d 177 (Fla.2d DCA 1974), relied upon by the plaintiff Kraver and find it inapplicable to this case. Indeed, both parties agree that there are no decisions in this state directly controlling the issue facing the court. In our view, the plain and unambiguous language of the applicable statute herein puts this plaintiff outside the ambit of personal injury protection benefit recovery.

The order under review is reversed and the cause remanded for further proceedings consistent with this opinion.

      . This statute has since been amended but such amendment did not take effect until after the date of the subject accident. § 627.736(4)(d), Fla.Stat. (1977).

      . There are, of course, other requirements essential to the recovery of personal injury protection benefits under the statute which are not relevant here. § 627.736(4)(d)4a-b, Fla.Stat. (Supp.1976).


author: DAUKSCH, Judge.

text:
    ADVENTURA REALTY, LTD., et al., Appellants, v. Harry W. THEUERKAUF et al., Appellees.
    No. 78-1052.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Samuel R. Danziger, Miami, for appellants.
    Joseph A. Hubert of Watson, Hubert & Davis, Fort Lauderdale, for appellees Harry W. Theuerkauf and Roy W. Theuerkauf.
   DAUKSCH, Judge.

This is an appeal from a non-final order determining jurisdiction over the person of several defendants by denying a motion to dismiss for alleged lack of jurisdiction.

Appeal is authorized under Florida Rules of Appellate Procedure, Rule 9.130(a)(3)(C) (i). We affirm the order of the trial court.

This is also an appeal from a non-final order refusing to dismiss a complaint for failure to state a cause of action because an alleged exhibit was not attached to the complaint. This is not an appealable non-final order so we must decline to decide this issue now.

AFFIRMED.

CROSS and LETTS, JJ., concur.


text:
    STATE of Florida, ex rel. Michael James SCHIERES, Appellant, v. Ralph W. NIMMONS, Jr., Circuit Judge, Division T., Fourth Judicial Circuit of Florida, Appellee.
    No. LL-148.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.
    Louis 0. Frost, Jr., Public Defender, and William P. White, III, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This cause is before us on petition for writ of mandamus and response thereto. On consideration of the petition, response, reply and the transcript of the proceedings and record before us, the order to show cause is discharged for the reasons stated by the learned trial court in his response, in pertinent part as follows:

“On September 6, 1978, Petitioner tendered a plea of guilty to a charge of second degree murder and Respondent commenced an inquiry as to the voluntar-iness of said plea, although he had not yet made an inquiry into the factual basis for the plea .
The inquiry of Petitioner was interrupted by Assistant State Attorney, R. Baker King, who adivsed (sic) the Court that the plea was not acceptable to the State and that the case against Petitioner was scheduled to be taken before the Grand Jury on September 14, 1978. After a brief recess, he further advised Respondent that through inadvertance in the State Attorney’s Office, he was not aware that the case was on that day’s calendar and that it was intended that arraignment would be heard on the 18th of September, 1978, following the grand jury proceeding. He further informed Respondent that the relator had been advised by the New York authorities, after Petitioner had been arrested in that State, that Petitioner could not be held without bond on the New York charges and that due to the exigencies of the circumstances he directed that an information for murder in the second degree be filed so the New York authorities could hold Petitioner pending extradition to Florida.
Respondent continued the proceedings and ‘ . . . deferred ruling on whether to accept the plea of guilty tendered on behalf of the . . . [Petitioner] . . . until Monday, September 18th On the same day Petitioner filed a Motion for Expedited Order of Acceptance of Defendant’s Plea of Guilty to Murder in the Second Degree . . . requesting Respondent to accept the plea that was theretofore tendered and to prohibit the Office of the State Attorney from presenting evidence to the grand jury. Respondent entered his Order of September 6, 1978, for the reasons stated therein, to-wit: that the plea of guilty tendered by counsel for Petitioner was ‘ . a tactical maneauver (sic) designed to forestall the possibility of the Grand Jury’s returning an indictment for murder in the first degree Respondent was aware of Reyes v. Kelley, 224 So.2d 303 (Fla.1969), and found it not applicable to the instant case.
On September 14, 1978, the Grand Jury returned an indictment against Petitioner and one Marianne Diehl for murder in the first degree . . . and the State nol prossed the information and a not guilty plea was entered upon arraignment of the indictment . on September 18, 1978.
* * * * * *
Whether Reyes, supra, is still viable law, in light of the changes that have taken place since it [Fla.R.Crim.P. 3.172(a)] was decided, however, is of no consequences (sic), for in this case Respondent continued the hearing without inquiring into ‘the events out of which the homicide arose’ 224 So.2d at 305 and the plea was not accepted in law or in fact. Hence, jeopardy did not attach by the tendering of said plea and the pending prosecution is not a violation of the double jeopardy provision of the State or Federal Constitutions.”

We agree with appellee that under the holdings of the United States Supreme Court in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) and Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962) the rule is stated in the Santobello case:

“There is, of course, no absolute right to have a guilty plea accepted ... A court may reject a plea in exercise of sound judicial discretion.”

We further agree with appellee that the acceptance of a plea being a discretionary act, mandamus will not lie to force appellee to accept the guilty plea tendered.

Accordingly, order to show cause is DISCHARGED and the petition DISMISSED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


text:
    John James EGAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1295.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Sara Bresky, Legal Intern, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos and Mary Mars-den, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant Egan appeals his judgment of conviction for receiving stolen property knowing it to be stolen on which he was sentenced to five years’ imprisonment at hard labor. We have examined all points of appeal directed to the judgment of conviction and find them to be without merit. The sentence imposed, however, is erroneous insofar as it directs appellant’s imprisonment to be “at hard labor.” McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975); Martinez v. State, 360 So.2d 108 (Fla.3d DCA 1978). Accordingly, the cause is remanded with directions that the words “at hard labor” be stricken from appellant’s sentence. The judgment of conviction appealed from is otherwise affirmed.

AFFIRMED.

ANSTEAD and LETTS, JJ., and WETH-ERINGTON, GERALD T., Associate Judge, concur.


text:
    Francis J. KERBER, J. Gregory Bartels, and Emil Miles, Trustees, and Mary Jane Durbin, Appellants-Cross Appellees, v. CHADAN, INC., a Florida Corp., Farrell’s Holiday by the Sea, Inc., a Florida Corp., and K. R. G. Realty, Inc., a Florida Corp., Appellees-Cross Appellants.
    No. 78-382.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Patrick H. Weidenbenner of O’Connell & Cooper, P.A., West Palm Beach, for appellants.
    Ted P. Galatis, Fort Lauderdale, for ap-pellees.
   DAUKSCH, Judge.

In this mortgage foreclosure case the trial judge entered summary judgment for the mortgagors thereby sustaining their defense to the foreclosure.

The complaint sets out default by the mortgagors and otherwise alleges sufficient grounds for foreclosure. The defendants responded variously and ultimately set out a defense of equitable estoppel. There is a factual question to be resolved as to whether there was an equitable estoppel. For example, the defendants urge the plaintiffs, through one of the plaintiffs, agreed to an extension of time for payment of some ar-rearages. That plaintiff denies agreeing to the extension and the others say he was not speaking for them. Perhaps after trial the result will be the same but, as we have oft times said, if there are relevant factual issues remaining after full consideration of motions for summary judgment then the court cannot grant summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). See also Rinker Materials Corp. v. The Palmer First National Bank and Trust Company of Sarasota, 361 So.2d 156 (Fla.1978). The reversal of this summary judgment requires us to also reverse the cost judgment in favor of mortgagees.

REVERSED.

LETTS and BERANEK, JJ., concur.