author: OVERTON, Justice.

text:
    WELLS FARGO ARMORED SERVICE CORPORATION OF FLORIDA, Petitioner, v. William H. BEVIS et al., Respondents. BRINK’S, INCORPORATED OF FLORIDA, Petitioner, v. William H. BEVIS et al., Respondents.
    Nos. 45569, 45596.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Rehearing Denied Dec. 2, 1975.

      D. Fred McMullen and Lee L. Willis of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Wells Fargo Armored Service Corp.
    William Joe Sears, Sr. and David W. Carstetter of Kent, Sears, Durden & Kent, Jacksonville, for Brink’s Inc. of Florida, petitioners.
    Prentice P. Pruitt and Jerry M. Johns, Tallahassee, for the Florida Public Service Commission, respondents.
   OVERTON, Justice.

Petitioners in each of the above causes seek review by certiorari of Public Service Commission orders granting authority, with certain restrictions, to S & B Messenger Service for the transportation of valu-bles, jewelry, and money in Dade and Broward Counties. Each of the petitioners is an armored car service and holds a Certificate of Public Convenience and Necessity to transport moneys and negotiable and nonnegótiable securities over irregular routes. They appeared as protestants before the examiner and the Public Service Commission. The orders of the Commission were entered contrary to the recommendation of the examiner in this cause.

Petitioners contend that the orders of the Commission granting S & B’s application should be quashed on the grounds that: (1) evidence presented by S & B to establish proof of public convenience and necessity was derived from its unauthorized operations and therefore was inadmissible under Southern Armored Service, Inc. v. Mason, 167 So.2d 848 (Fla.1964); (2) the Commission failed to require S & B to file a schedule of rates, fares, and charges as required by Section 323.08, Florida Statutes; and (3) the granting of S & B’s application would have a detrimental effect on the existing service of Brink’s and Wells Fargo.

The record reflects the following facts. The applicant, S & B, at the time of its application was the holder of a Commission-issued for-hire permit which authorized it to transport valuables, jewelry, money, and other small parcels over irregular routes in portions of Dade and Bro-ward Counties. S & B uses a station wagon or van-type vehicle and protects its goods with a Doberman pinscher dog in the vehicle and a concealed weapon carried by the operator. The witnesses for the applicant, S & B, were its operator and four customers. The customer-witnesses testified that S & B provided a needed service on a regularly scheduled basis. It is clear from the testimony that S & B’s service was prompt, punctual, and reliable.

With reference to the first issue, the respondent-applicant and the Commission admit that the strong testimony of three of the customer-witnesses was based to a substantial degree upon operations of the applicant which were unauthorized under S & B’s for-hire permit. There is conflict between the petitioners and the respondents whether the fourth customer-witness’ testimony was based upon unauthorized operations of S & B. The applicant and the Commission take the position that regardless of the testimony of the other witnesses, the testimony of this one customer-witness is sufficient on which to base the grant of authority. With this we disagree. In our opinion, the one customer’s testimony in this specific case is not sufficient substantial competent evidence to show public convenience and necessity. Upholding the grant of the certificate upon that testimony would be paying only lip service to the illegal evidence rule set down by this Court in Southern Armored Service, Inc. v. Mason, supra.

On the second point we agree with the Commission that the requested operation by S & B constitutes an armored car service within the statute. The term “armored car service” does not technically require that the vehicle providing the service must be equipped with armored ■ plate. It does require that the operation provide transportation which “is more or less incidental to the protective services afforded.”

As to the final point raised by the petitioners, we agree with the Commission that the evidence in this cause fails to reveal any detrimental effect on the existing armored car services in the area.

The petition for writ of certiorari is granted. Orders No. 10959, 11387, and 11387-A of the Public Service Commission are quashed and this cause is remanded without prejudice for further hearings before the Commission for the purpose of allowing the applicant an opportunity to present additional competent evidence to sustain its application.

It is so ordered.

ADKINS, C. J., ROBERTS and BOYD, JJ,, and FERRIS, Circuit Judge, concur.


source: Caselaw Access Project

author: BOYD, Justice. ENGLAND, Justice

license: Public Domain

text:
    DOMINION LAND AND TITLE CORPORATION, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 46292.
    Supreme Court of Florida.
    Oct. 1, 1975.
    Rehearing Denied Dec. 4, 1975.

      S. Alan Stanley, Turner, Hendrick, Guil-ford, Goldstein & McDonald, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for ap-pellee.
    Thomas F. Woods, Woods & Johnston, Tallahassee, for Utica Mut. Ins. Co., ami-cus curiae.
    E. Jackson Boggs and Thomas W. Black, Tampa, for The Florida Bar (Tax Section), amicus curiae.
   BOYD, Justice.

We here consider a direct appeal from an order of the Circuit Court of Dade County holding constitutional Section 201.17(2),-Florida Statutes. That section requires payment of a penalty equal to the excise tax due upon recording of any document, instrument or paper, which penalty is in addition to payment of the taxes owed but not paid at the time of recording.

The facts of this case are as follows.

Appellant, plaintiff below, acted as the title insuring agent and the initial disbursing agent for Commonwealth Land and Title Insurance Company. Pursuant to this agency relationship, Appellant handled the recordation of a certain warranty deed conveying real property located in Dade County from Twenty-One Biscayne Corporation to Overseas Development, Inc. Under Chapter 201, Florida Statutes, documentary stamps and surtax stamps in the respective amounts of $17,700 and $3,530 were required to be affixed to the deed prior to recordation. At the time of closing Appellant did receive sufficient funds to cover all recording costs including the stamps; however, in preparing a listing of the appropriate fees and taxes due upon recordation of the various documents involved in this transaction, Appellant inadvertently omitted any amount for the purchase of the requisite tax stamps. Nevertheless, the deed was accepted for recordation by the Clerk of the Circuit Court of Dade County on July 2, 1973, -without any tax stamps affixed thereto.

Following a routine audit of the Court Clerk’s records by the Department of Revenue, Appellant was notified of the omission and thereafter re-recorded the deed on October 9, 1973, with the proper stamps appended. On October 26, 1973,. the Department of Revenue assessed a penalty, in the amount of $21,230 pursuant to the provisions of Section 201.17(2), Florida Statutes, as a result of Appellant’s failure to purchase the stamps at the initial recording of the deed; Appellant refused to pay the penalty. Suit was filed in the Circuit Court alleging estoppel and challenging the constitutionality of Section 201.17(2), Florida Statutes; that court denied the plaintiff’s estoppel argument, expressly upheld the constitutionality of the challenged statute and ordered payment of the penalty as assessed. This appeal followed.

There are two questions to resolve, i. e.:

(1) Whether Section 201.17(2), Florida Statutes, is unconstitutional in that it: [a] assesses such a harsh and unreasonable penalty as to constitute a denial of due process of law as guaranteed by the , Fourteenth Amendment to the Constitution of the United States and Article I, Section 9 of the Florida Constitution; and [b] assesses an excessive penalty which is prohibited by the Eighth Amendment to the Constitution of the United States and Article I, Section 17 of the Florida Constitution ?
(2) Whether the Appellee should be es-topped from attempting to enforce the payment of the penalty in question, since the Clerk of the Circuit Court of Dade County accepted the warranty deed for recording without the payment for any tax stamps whatsoever ?

Regarding the first question, we note that, while Appellant admits that the purpose to be served by the subject statute is a proper matter for legislative regulation, it argues that the penalty imposed by that statute is grossly excessive. To support its position it submits that two principles control any consideration as to the validity of a statute which imposes fines: i. e., (1) a fine will be held unconstitutional if it is so great as to shock the conscience of reasonable men; and (2) a fine will be held unconstitutional if it bears no rational relationship to the wrong sought to be prohibited by the fine. It is Appellant’s contention that the statute in question must be voided on both counts.

The purpose of Chapter 201, Florida Statutes, is to raise additional revenue for the State by placing a tax on certain types of documents commonly recorded in the public records of the various counties throughout Florida. As noted above, Appellant recognizes the authority of the Legislature to impose proper penalties upon those who do not comply with that chapter; nevertheless, the penalty must be reasonable. Appellant maintains that the only injury suffered by Appellee was not having the taxes available to it for its use from the time the deed was initially recorded until it was re-recorded with the appropriate stamps. It is asserted that the 100% penalty imposed bears no rational relationship to the injury suffered by Appel-lee under the instant facts and that, therefore, it should be declared unconstitutional.

On the other hand, Appellee contends that in the field of taxation the power of the Legislature is plenary and that the amount of penalties in a tax statute is a matter of legislative discretion. It argues that the penalty assessed by the statute is neither so harsh as to intimidate persons from asserting their rights to test the validity of the statute in the courts, nor is it patently harsh or oppressive as a penalty for the wrongs sought to be redressed. Appellee relies on foreign case authority upholding the state legislatures’ discretion in imposing penalties of up to 100% for failure to comply with a tax statute. Further, Appellee asserts that, due to the difficulties involved in collecting delinquent documentary stamp taxes, the penalty established in Section 201.17(2), Florida Statutes, is fully warranted. Appellee submits that the challenged statute is entitled to a presumption of validity and that any doubt as to its constitutionality must be resolved in favor of the statute. Appellee concludes that Appellant has not met the burden for invalidating the statute.

It is our view, and we so hold, that Section 201.17(2), Florida Statutes, is constitutional. The Legislature’s power in the field of taxation is plenary; such legislative power to tax necessarily carries with it the power to fix reasonable penalties to insure the collection of such taxes. As observed by the trial court, the common method for insuring and protecting the collection of excise taxes enacted pursuant to such taxing power is through the imposition of a mandatory penalty upon the performance of the act being taxed without payment of the excise. Survival of state government requires strong measures to assure collection of taxes; other states have considered cases involving statutes providing for a 100% penalty and have not found them unduly harsh. Furthermore, being mindful of the difficulties involved in collecting delinquent documentary stamp taxes, we do not feel that the penalty assessed by Section 201.17(2), Florida Statutes, is so harsh or oppressive as to warrant judicial intrusion into the Legislature’s determination of what constitutes a reasonable penalty in this field.

We now turn our attention to the second issue. Appellant notes that pursuant to Section -201.12, Florida Statutes, the Clerk of the Circuit'Court is required to ascertain that the requisite documentary stamps have been affixed on all documents subject to such taxation prior to recordation. It is Appellant’s position that the Clerk is acting as’Appellee’s agent in collecting the stamp taxes; and, since the Clerk in this case failed to properly check the instrument prior to recording, Appellant asserts that Appellee should be es-topped from attempting to enforce the payment of the penalty. According to Appellant, it would be manifestly unjust to allow Appellee to collect a 100% penalty as a result of the Clerk’s failure to comply with the applicable statute

Appellee answers that, under the facts of this case, the doctrine of estoppel does not foreclose the .recovery of the penalty, since estoppel applies against a state only in certain limited circumstances. Appellee argues that it was Appellant’s unauthorized act, not that of the Clerk that led to the assessment of the penalty.

The question of procedural safeguards has been properly raised and considered. Obviously, the Appellee-Department of Revenue alone can not determine the amount of the tax or penalty without judicial review; if after such review the court finds that under the law a modified penalty is due, by strict construction the court has its equitable power to reduce it.

Unfairness alone does not render a law unconstitutional. In each instance the circumstances will be different, and courts have no magic yardstick by which to reduce the penalty based upon intentions and attitudes of taxpayers. Although we recognize the severity of the penalty herein, we do not find the law unconstitutional. If the law is too harsh, it should be changed by the Legislature and not by this Court.

We hold the provisions of Section 201.-17(2), Florida Statutes, to be constitutional. The decision of the Circuit Court so holding is accordingly affirmed.

It is so ordered.

ADKINS, C. J., OVERTON, J., and MUSZYNSKI, Circuit Judge, concur.

ENGLAND, J., concurs specially with an opinion.

ROBERTS, J., dissents.

ENGLAND, Justice

(concurring specially).

Prior to oral argument in this case, I filed of record and with each of the parties a Notice stating that I had served as special tax counsel to the Florida House of Representatives when the penalty tax statute was formulated by the House Finance and Tax Committee. By formal notice filed with the Court prior to oral argument, appellant’s counsel requested that I disqualify myself because of my position as tax counsel to the House when that body passed the statute. I carefully considered but rejected counsel’s request, and I so announced from the bench immediately before argument. Ás I then indicated and now reiterate, neither the letter nor the spirit of the Code of Judicial Conduct suggests that my prior affiliation with the Florida House of Representatives requires disqualification in this case.

      . Article V, Section 3(b)(1), Florida Constitution.

      . “201.17 Penalties for failure to pay tax required.—
      * * * * *
      “(2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument or paper to:
      (a) Purchase of the stamps not affixed; and
      (b) Payment of penalty to the department of revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to and not in lieu of any other penalty imposed by law.”

      . Amos v. Gunn, 84 Fla. 285, 94 So. 615 (1922).

      . Gaulden v. Kirk, 47 So.2d 567 (Fla.1950) ; McLin v. Florida Automobile Owner’s Protective Association, 105 Fla. 169, 141 So. 147 (1932).

      . Amos v. Gunn, supra, Note 3 at p. 641.

      . Bennett v. Jones, 107 Miss. 880, 66 So. 277 (1914) ; Brittain & Henry v. Robertson, 120 Miss. 684, 83 So. 4 (1919) ; State ex rel. Hardy v. State Board of Equalization, 133 Mont. 43, 319 P.2d 1061 (3958) ; Davis v. Becker, 309 Ky. 775, 219 S.W.2d 6 (1949).

      . Faircloth v. Mr. Boston Distiller Corp., 245 So.2d 240, 249 (Fla.1970) ; Gray v. Central Florida Lumber Co., 104 Fla. 446, 140 So. 320, 323 (1932).

      . Gaulden v. Kirk, supra, Note 4.

      . Tampa Gas Company v. Sparkman, 153 Fla. 177, 14 So.2d 196 (1943).

      . McLin, supra, Note 4.

      . Supra, Note 6.

      . Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775 (Fla.1956).

      . Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla.App.1971) ; Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207 (Fla.App.1972), cert. den. (Fla.), 277 So.2d 536.

      . Williams v. Newton, 236 So.2d 98, 102 (Fla.1970).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Frederick O. LEOPOLD, Respondent.
    No. 47650.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Wilson J. Foster, Jr., Tallahassee, and Richard G. Gordon, Fort Lauderdale, for The Forida Bar, Complainant.
    Thomas A. Thomas, Hollywood, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Frederick O. Leopold is before us on complaint of The Forida Bar and report of the referee. Pursuant to Rule 11.06(9) (b) of the Integration Rule of The Forida Bar, the referee’s report and record of the proceedings were duly filed with this Court. No petition for review pursuant to Rule 11.09, Integration Rule, has been filed by respondent Leopold.

The Forida Bar filed a complaint against respondent in October, 1973, charging that respondent failed to file a claim with the Florida Industrial Commission on behalf of Mrs. Angerami; or if said claim was filed, he failed to diligently prosecute the claim to final hearing within the prescribed statutory period. The complaint further charged that respondent attempted to limit his liability to Mrs. Angerami. Hearings were held on February 26, 1975 and May 2, 1975, before the referee, who after considering the pleadings, exhibits and evidence, found, as follows:

“1. In August of 1968, respondent undertook representation of Mrs. Joan Angerami regarding the filing of a workman’s [sic] compensation claim.
2. The record is clear that the respondent did, in fact, timely file the claim letter after undertaking representation of Mrs. Angerami.
3. The question left to be answered is whether the respondent failed to diligently prosecute his client’s claim.
4. Mrs. Angerami left for New Jersey shortly after contacting respondent to handle this matter for her. It appears that Mrs. Angerami’s father, John Bishop, resided in Broward County, Florida, and acted as liaison between his daughter and the respondent regarding this case.
5. According to respondent’s testimony, his client’s claim would have had to be heard or scheduled for hearing prior to August 19, 1971, or two years from the date of the last authorized medical treatment rendered to his client which was August 19, 1969.
6. It appears that the respondent and' Mrs. Angerami maintained a fairly good attorney/client relationship from August of 1968 until March of 1970, which is the date that the respondent wrote to Mrs. Angerami.
7. As best as can be determined from the evidence, the attorney/client relationship broke down between March, 1970, and September, 1970, because in the month of September, Mrs. Angerami wrote to the respondent (Bar’s Exhibit 3), advising him that he was ‘released of all matters pertaining to my case.’
8. According to the testimony of Mrs. Angerami, she did speak with the respondent subsequent to writing to him in September of 1970, the net effect of her conversation with the respondent was to leave her with the impression that he was still representing her, notwithstanding her letter to him in September of 1970. On December 14, 1970, Mrs. An-gerami wrote to respondent enclosing to him the medical report of a chiropractor by whom she had been treated. On February 24, 1971, John Bishop wrote to respondent for a status report and respondent did not reply. On July 24, 1971, John Bishop wrote requesting a status report and respondent still did not reply. On January 21, 1972, Mrs. Angerami wrote respondent requesting a status report in the matter, again with no status report forthcoming. On August 11, 1972, Mr. Bishop wrote respondent for a status report, requesting as well a release, however, respondent still did not respond.
9. The respondent’s testimony indicates that he did speak with Mrs. Anger-ami on or about the time of her letter to him of September, 1970, however, it is unclear as to whether this conversation took place prior to receiving the letter or after receiving the letter. The respondent indicated he would turn the file over to another attorney if requested, and further testified that he had been contacted by another attorney regarding this matter.
10. The evidence shows that Mrs. Angerami and her father continued to correspond with the respondent as indicated in paragraph 8 hereunder, and considered respondent to be their counselor.
11. After receiving the letter of September, 1970, from Mrs. Angerami, the respondent retained the file and remained the attorney of record. He did not file any motion to withdraw, nor did he notify the Industrial Commission, nor the insurance carrier, that he was no longer representing Mrs. Angerami. The respondent received bills from Mrs. Angerami and request for status reports subsequent to the letter of September, 1970. Although respondent’s testimony that he retained the file and remained the attorney of record because he did not want to leave Mrs. Angerami ‘stranded’ is commendable, the Statute of Limitations expired and he should have realized that by retaining the case he was fully responsible for the case and the conduct thereof.”

Relative to the charge of respondent’s attempting to limit his liability, the referee found:

“1. On Friday, April 20, 1973, the respondent received a Notice to Appear before the grievance committee which was investigating Mrs. Angerami’s complaint against him. The grievance committee meting was scheduled for April 25, 1973.
2.Respondent contacted the investigator for the committee and asked if there would be any prohibition against contacting the complainant regarding her charge and was advised there was no prohibition against his contacting Mrs. Angerami.
3. The respondent met with the complainant on February 24, 1973, at which time he advised her that her claim was barred by the Statute of Limitations.
4. The respondent testified that Mrs. Angerami wanted her claim paid and that he wanted to avoid a lawsuit being filed against him and his insurance carrier.
5. In order to avoid this claim, the respondent calculated the damage the complainant received, assuming all facts were decided in her favor. He thereafter drew a check payable to Mrs. Angerami in the amount of $4,000.00 which said check was dated March 24,1973.
6. On or about April 25, 1973, the respondent reduced to writing the agreement of the parties and said agreement was executed by the respondent and Mrs. Angerami.
7. It does not appear that the respondent in any' manner coerced Mrs. Anger-ami to execute the agreement and it affirmatively appears that she had independent legal counsel prior to executing the agreement. Her independent legal counsel advised her that it was alright for Mrs. Angerami to sign. It further appears from the record that the respondent and Mrs. Angerami’s independent counsel did not communicate with each other regarding the agreement.
8. The agreement that was executed by the parties does not contain wording which in any way appears to limit respondent’s liability to Mrs. Angerami. There is no provision for a release of liability of each to the other from the beginning of time to the date of the agreement.
9. The respondent on April 26, 1973, wrote to Mrs. Angerami advising her that he would be responsible for ‘all future medical bills’ arising out of the accident and not included in the agreement, thereby expanding the agreement.
10. It is to be noted that this agreement was exhibited at the grievance committee hearing on April 25, 1973. It is obvious that the respondent was totally unaware of the prohibition of DR 6-102(A).
11. Notwithstanding the foregoing, the purpose of the agreement was to limit the liability of the respondent.”

The referee recommends that respondent be found guilty as charged in the com- ■ plaint of violating his oath as an attorney, Article XI, Rule 11.02(2), and specifically Disciplinary Rules 6-101(A)(3), 7-101(A) (3), and 6-102(A) of the Code of Professional Responsibility, and recommends that a public reprimand be administered to respondent.

The findings and recommendations of the referee are approved and this opinion shall constitute a public reprimand of respondent.

Execution is hereby directed to issue for costs against respondent in the amount of $962.30.

It is so ordered.

ADKINS, C. }., and ROBERTS, OVERTON, ENGLAND and HATCH-ETT, JJ., concur.

BOYD, J., dissents.


author: CROSS, Judge. MAGER, Judge

text:
    Robert Allen WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1381.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    John F. Law, Jr., North Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Robert Allen Willis, appeals a judgment of conviction and imposition of sentence for unlawful possession of barbiturates. We reverse.

Appellant-defendant, Robert Allen Willis, was charged by information with unlawful possession of barbiturates in violation of § 893.13(1)(e), Florida Statutes 1973. Trial was by jury. At the close of the state’s evidence and again at the close of all the evidence in the cause, defendant moved for a judgment of acquittal on the ground that the state had failed to present evidence sufficient to demonstrate that the defendant knew of the presence of the barbiturates in his apartment. These motions were denied by the trial court. The jury found the defendant guilty of the offense charged in the information. Defendant was adjudged guilty and sentenced to five years in prison. It is from this judgment and sentence that defendant appeals.

The state presented its case basically through the use of two witnesses, who testified to the presence of drugs at the apartment rented by defendant and defendant’s wife in Lake Worth, Florida, and an expert witness who identified the drugs as phenobarbitol, a barbiturate. State’s witness, William F. Tremer, an undercover agent for the Palm Beach County Sheriff’s Department, testified that during the early morning hours of August 21, 1973 he and a number of other police officers arrived at the defendant’s apartment to execute a search warrant. Tremer and Agents Pierce and Wiles, after knocking on the door and identifying themselves and their purpose, were admitted into the apartment by the defendant’s wife. The officers found the defendant in the bedroom jointly utilized by the defendant and his wife apparently resting in bed. • After the defendant was roused from bed, Tremer read the search warrant to the defendant and the defendant’s wife. A systematic search of the apartment was then conducted. The search revealed several small tinfoil packets containing capsules hidden under the bed in which the defendant had been found resting, and vials containing capsules concealed in a dresser in the bedroom.

State’s witness, Larry C. Pierce, was also employed as an undercover agent by the Palm Beach County Sheriff’s Department. Agent Pierce concurred in the testimony given by Agent Tremer concerning the search of the defendant’s apartment. Pierce further testified that he had sur-veilled the apartment in question on numerous occasions before the night of the search and had often observed several people other than the defendant enter and leave the apartment, and also that he knew that the defendant had been out of town for a period of time immediately prior to the date the search was conducted.

The state’s chemist identified the contents of a number of the capsules found in the tinfoil packets and in the vials as phe-nobarbitol, a barbiturate.

The defendant took the stand in his own behalf and generally denied all knowledge of the presence of the phenobarbitol in the apartment.

The sole question presented for our determination in this appeal is whether the trial court erred in denying the defendant’s motions for a judgment of acquittal.

Section 893.13(1) (e), Florida Statutes 1973, provides:

“It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice . . . .”

Phenobarbitol is a controlled substance. Section 893.02(3) and Section 893.03(4), Florida Statutes 1973.

For the purposes of § 893.-13(1) (e), actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession. Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance, See Medlin v. State, 279 So.2d 41 (Fla.App.1973); Griffin v. State, 276 So.2d 191 (Fla.App.1973).

If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused’s ability to maintain control over it, may be inferred. If the premises on which the controlled substance is found is not in the exclusive but only in the joint possession of the accused, knowledge of the presence of said controlled substance on the premises and the accused’s ability to maintain control over it will not be inferred but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the controlled substance on the premises, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the controlled substance on the premises. Smith v. State, 279 So.2d 27 (Fla.1973); Frank v. State, 199 So.2d 117 (Fla.App.1967).

Turning to the instant case, it is apparent that defendant’s conviction must rest on constructive possession in view of the fact that defendant was not physically possessed of the phenobarbitol. The state’s evidence shows that the defendant was not in exclusive possession or control of the apartment in which the phenobarbitol was found either at the time of the search or at any time prior thereto. The issue therefore becomes whether or not the state’s evidence was sufficient to present a jury issue on the question of the defendant’s knowledge of the presence of the pheno-barbitol in the apartment. The state relies on the following circumstantial evidence as proof that the defendant knew of the presence of the phenobarbitol: only the defendant and his wife lived in the apartment; the phenobarbitol was discovered under the bed and in a dresser located in the bedroom utilized by the defendant; at the time of the search, the defendant’s wife was pregnant and in such condition would have found it difficult to gain access to the drugs under the bed. Evidence also indicates, however, that for a period of time immediately preceding the search the defendant was out of town and during that period several people other than defendant had been in defendant’s apartment. Thus arises the question as to whether someone other than defendant could have placed the phenobarbitol under the bed and in the dresser without defendant’s knowledge. From the foregoing we are of the opinion that the evidence presented by the state is not sufficient to present a jury issue on the question of the defendant’s knowledge of the presence of the pheno-barbitol in the apartment.

We determine that the state failed to make out a prima facie case under § 893.-13(1) (e), Florida Statutes, and that the trial court erred in denying defendant’s motions for a judgment of acquittal.

Accordingly, the judgment is reversed, the sentence is vacated and set aside, and the cause remanded with instructions to discharge the defendant.

Reversed and remanded, with instructions.

WALDEN, C. J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

I must respectfully dissent because in my opinion the evidence was of a sufficient nature so as to enable the jury to lawfully infer knowledge by the accused of the presence of the drugs in his apartment.

The facts in the instant case are readily distinguishable from Medlin v. State, supra, and Griffin v. State, supra. A review of the facts in this case in their totality particularly the circumstances surrounding the issuance of the search warrant clearly demonstrates the existence of a jury question on the issue of defendant’s scienter or knowledge which question the jury resolved adversely to the defendant in the short span of six minutes and which determination ought not to be set aside. I would therefore affirm.


text:
    Charles C. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1710.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Richard L. Jorandby, Public Defender, and Maureen L. McGill, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal we are of the opinion that the evidence clearly demonstrates a reasonable doubt as to the sanity of the defendant at the time of the offense so as to overcome the presumption of sanity. Byrd v. State, Fla.1974, 297 So.2d 22; Farrell v. State, Fla. 1958, 101 So.2d 130. A reasonable doubt having been raised and the state having failed to overcome it, the judgment is reversed and the cause remanded for a new trial. Cf. Powell v. Genung, Fla.1974, 306 So.2d 113.

Reversed and remanded.

CROSS, MAGER and DOWNEY, JJ„ concur.


author: DOWNEY, Judge.

text:
    Amadeo Henry COLANGELO, Appellant, v. STATE of Florida, Appellee.
    No. 74-1402.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.

      Joe L. McClung of John B. Gregory, Jr., & Associates, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of grand larceny as a result of an information charging essentially that he unlawfully took from the possession of the true owner money in excess of $100 belonging to Gerry Weeks, in that appellant obtained such property by fraudulent representation and with intent to permanently • deprive Gerry Weeks of her property contrary to § 811.021(1) (a).

The proof at trial showed that Gerry Weeks had, pursuant to a contract, paid appellant $1,000 to perform certain work on her home. After cashing Weeks’s check appellant never did any work nor was Weeks able to even contact appellant for a long period of time. However, the record is devoid of any proof of a false representation of a past or existing fact. Accordingly, our decision in Waterman v. State, Fla.App., 317 So.2d 469, opinion filed August 15, 1975, is completely dispositive of this case.

Since the evidence did not support the allegations of the information, the trial court erred in denying appellant’s motion for a judgment of acquittal. Thus, it is unnecessary for us to treat the other suggested appellate points. However, in passing we would once again call attention to the lack of propriety in some of the prosecutor’s comments in his closing argument. In this regard see Thompson v. State, Fla. App.1970, 235 So.2d 354.

Reversed and remanded with directions to discharge appellant.

CROSS and MAGER, JJ., concur.


author: WALDEN, Chief Judge.

text:
    Larry Wayne JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-471.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.

      Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert B. Breisblatt and Harry Hipler, Asst. Attys. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

We affirm the conviction of defendant, as his points.on appeal are unmeritorious.

The state cross appeals from the action of the trial court in entering a revised judgment of conviction and imposition of sentence on February 14, 1975, when the original sentence was entered on August 12, 1974. Fla.R.Cr.P. 3.800 states:

“(b) A court may reduce a legal sentence imposed by it at the same term of court at which it has been imposed, or if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.” (Emphasis supplied.)

The revision was neither made in the same term as the original sentence, nor within 60 days of the imposition, and therefore we reverse the order revising the original sentence with respectful directions that the original judgment and sentence be reinstated. Sayer v. State, 267 So.2d 42 (4th DCA Fla.1972); State v. Evans, 225 So.2d 548 (3d DCA Fla.1969).

Reversed and remanded, with directions.

CROSS and MAGER, JJ., concur.

      . See Fla.Stat. § 26.363 (1973) for the divisions of the Brevard County court terms.


text:
    Michael Guy ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-441.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.

      Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., and Carl Schwait, Legal Intern, Miami, for appellee.
   PER CURIAM.

Defendant appeals his sentence and conviction on the grounds that the prosecutor improperly noted to the jury that defense did not call a certain person as a witness. This is error, and sometimes reversible error. Kirk v. State, 227 So.2d 40 (4th DCA Fla.1969). However, in this case, the defense counsel in opening argument made several heavy and pointed references to that certain person, with the clear inference that such person was the true malefactor. We find the prosecutor’s remarks in response were not reversible error, and follow our decision in Dixon v. State, 206 So.2d 55 (4th DCA Fla.1968):

“The argument by the prosecuting attorney was invited by the argument made by the defendant’s attorney and was not prejudicial to a fair trial.” Id. at 58.

We find defendant’s remaining point on aPPea^ a^so without merit,

Affirmed,

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


text:
    U. S. HOME CORPORATION, Appellant, v. Robert J. GRANGER, Appellee.
    No. 75-1047.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.

      John R. Bush, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Howard R. Hirsch, Miami Beach, and Crary, Buchanan & McGinniss, Stuart, for appellee.
   PER CURIAM.

This .is an interlocutory appeal addressed to an interlocutory decision in an action for money damages. Appellant in its brief asks us to treat the matter as a Petition for common law. certiorari. We decline as appellant has a full, adequate and complete remedy via appeal after final judgment. Finding that the appeal is not authorized by Rule 4.2 F.A.R., the appeal is ■

Dismissed.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


text:
    In the Interest of D. L. M., and D. M., children.
    No. 75-440.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Robert W. Lee, Orlando, for appellant.
    No appearance for appellee.
   PER CURIAM.

In a proceeding pending in the Juvenile Division of the Circuit Court of Orange County, Florida, the court entered an order on January 27, 1975, awarding custody of two minor children to their father. On March 7, 1975, the mother of said children filed a notice of appeal to review said order.

The record reflects an order entered February 25, 1975, filed in the office of the clerk of the circuit court on March 7, 1975, purporting to extend for a period of 20 days the time for taking an appeal from the order of January 25, 1975.

The trial court has no authority to. extend the time within which to perfect an appeal and an order purporting to do so is ineffectual. 2 Fla.Jur., Appeals, § 95.

Accordingly, the notice of appeal filed herein was untimely, requiring dismissal of the appeal.

Appeal dismissed.

CROSS, OWEN and DOWNEY, JJ., concur.


text:
    CITY OF POMPANO BEACH, Appellant, v. BROWARD COUNTY FIRE CONTROL COMMISSION, Appellee.
    No. 75-769.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Donald C. Roberge and S. Charles Adams, Pompano Beach, for appellant.
    Howard L. Conklin of Tripp & Niles, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee Broward County Fire Control Commission is a taxing district established outside of any municipality in Broward County for the purpose of furnishing fire protection to residents of the fire district. In order to effectuate its purpose the district is authorized to levy and collect taxes.

Pursuant to petitions for annexation filed by property owners appellant annexed to the City of Pompano Beach portions of the land comprising the aforementioned taxing district. This suit involves a complaint for injunction and declaratory relief wherein appellee seeks to have the annexation ordinances declared invalid and to recover tax monies paid to appellant.

Should appellee be successful in its attack upon the various annexation ordinances in question, the boundaries of the City of Pompano Beach will be altered. We held in City of Orlando v. Orange County, Fla.App.1975, 309 So.2d 16, that quo warranto was the only form of action available in Florida to change municipal boundaries. Therefore the trial court erred in denying appellant’s motion to dismiss the amended complaint.

The case of R-C-B-S Corporation v. City of Atlantic Beach, Fla.App.1965, 178 So.2d 906, is distinguishable from this case. The plaintiffs there were not seeking an ouster of their property from the city and thus an alteration of the city’s boundaries. Instead they were seeking to preclude the collection of taxes on their property until they received municipal services justifying taxation.

Accordingly, the order appealed from is reversed, and the cause is remanded with directions to dismiss the appellee’s amended complaint without prejudice.

CROSS and MAGER, JJ., concur.


author: GRIMES, Judge.

text:
    Roy E. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-106, 75-107.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
    James A. Gardner, Public Defender, Sarasota, Steven H. Denman, Asst. Public Defender, Bradenton, and Nevin A. Wei-ner, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Once again we are faced with the problem of one being convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent. Beginning with Skov v. State, Fla.App.2d, 1974, 292 So.2d 64, and followed in O’Neal v. State, Fla.App.2d, 1975, 308 So.2d 569, we held that such a conviction cannot stand. See also Pettigrew v. State, Fla.App.2d, 1975, 316 So.2d 69. We now find it necessary to revisit these decisions.

The accusatory pleading in the case sub judice charged appellant with breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. The jury returned a verdict of entering without breaking with intent to commit petit larceny. Clearly the jury’s verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading. The information charged three elements, to wit: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the. accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards, entering without breaking seems to meet the definition of a category (3) necessarily included offense to breaking and entering under Brown v. State, Fla.1968, 206 So.2d 377.

The problem seems to stem from the fact that both of these “offenses” are proscribed in the disjunctive in the same section. Thus, Fla.Stat. § 810.05(1) (1973), reads as follows:

“810.05 Breaking and entering with intent to commit a misdemeanor.—
(1) Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

Hence, it is not a matter of greater vis-a-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is' included within the offense defined as greater. See Isaac v. State, Fla.App.2d, 1961, 134 So.2d 38, overruled in part by Skov. We are concerned here with the same offense which may be committed in two ways. But does this mean that one who is charged with the first alternative under the statute cannot be convicted of committing the crime in the manner described in the second alternative?

The case upon which Skov was grounded is Long v. State, Fla.1957, 92 So.2d 259. The defendant in that case was charged with unlawfully and feloniously conveying into the jail a 2 x 4 piece of wood which was a thing useful to aid a prisoner in making her escape. The statute under which the information was drawn read as follows:

“Whoever conveys into a jail or other like place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or, by any means whatever, aids or assists such prisoner in his endeavors to escape therefrom, whether such escape is effected or attempted or not; . , .”

The court observed that there may have been sufficient evidence to sustain a conviction of aiding or assisting the prisoner to escape, but reversed because of insufficient evidence upon which to find the defendant guilty of conveying the 2x4 into the jail.

The pertinent statutes in both Long and Skov describe two ways in which the same offense can be committed. But there is a distinction between these statutes. Under the Skov statute every element necessary to convict under the second alternative is also among the same elements necessary to convict under the first; whereas, under the Long statute the elements of either one of the alternatives is not necessarily included among the elements required to convict under the other. There are circumstances under which a person might be convicted under the first alternative under the Long statute but not be guilty under the second, and there are circumstances where a person might be convicted under the second alternative of the Long statute but not be guilty under the first. While there are circumstances where a person could be convicted under the second alternative of the Skov statute and not be guilty under the first, there is no way that a person can be convicted of breaking and entering with intent to commit a misdemeanor and not also be guilty of entering without breaking with intent to commit a misdemeanor. The unlawful entry is the gravamen of the offense and that element is present in each alternative.

Long is predicated upon the principle that where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged. In essence, it is a matter of due process. An accused is entitled to know what he has to defend against. But it must be put in its proper perspective depending upon the statute involved. Under the Long statute, for example, the first alternative is specific in its terms, i.e., the smuggling into a jail of a tool calculated to assist a prisoner in escaping; the second alternative is general, i.e., aiding, “by any means whatever . . . [a] . . . prisoner in his endeavors to escape.” A specific charge made under the first alternative, then, would preclude a conviction under the second, absent evidence of the specific tool allegedly smuggled in, because as to the second there was no notice to the defendant that he would be tried under the broad and general provisions thereof. If it were the other way around, however, that is, if the defendant were charged with the second alternative, viz., aiding in the escape endeavors, he could not be heard to complain if the evidence established that he smuggled in a tool used in the escape. Obviously, therefore, due process considerations come into play under .the Long statute depending upon which alternative is made out in the charge.

Under the Skov statute, however, while there are also two ways to commit the same offense, the essence of the charge, to wit: the unlawful entering with the requisite intent, is common to each alternative. Accordingly, no due process considerations come into play when the charge is made out under the first alternative and the evidence establishes the second.

Upon reflection, therefore, we have concluded that where, as in Skov and the case S'ub judice, one is charged with breaking and entering with intent to commit pet-it larceny, he is not deprived of due process by being convicted of entering without breaking with intent to commit petit larceny, because the charge totally encompasses the manner by which the jury has determined the offense was committed.

As pointed out in Skov, there has been nothing to prevent the state in a proper case from charging breaking and entering and entering without breaking in separate counts of the same information so as to avoid the issue. Having so stated, we had hoped that the problem raised by Skov would become moot. Obviously, this did not come about since we have had three more cases of the same type in less than a year and a half. In the instant case, the point was not raised at the trial. Yet, we held in O’Neal that the point was fundamental error. Consequently, it is necessary for us to directly pass on the Skov question once again. For the reasons set forth above, we now overrule Skov, O’Neal and Pettigrew.

We have reviewed the other points raised by appellant in his brief and find them without merit.

Affirmed.

McNULTY, C. J., and HOBSON, J., concur.


text:
    Gerald VANHORNE, Appellant, v. STATE of Florida, Appellee.
    No. 75-271.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.
    James A. Gardner, Public Defender, and Steven H. Denman, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, Fla.App.2d 1973, 277 So.2d 300, and Kelly v. State, Fla.App.1st, 1971, 254 So.2d 22.

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


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Roger NELSON, Appellee.
    No. 74-262.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 6, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    William C. Gregg, III, Clearwater, for appellee.
   BOARDMAN, Judge.

The state appeals a trial court order discharging appellee, Roger Nelson, because of a violation of the speedy trial rule. We reverse.

A search of Nelson’s residence pursuant to a warrant revealed marijuana and a water pipe. He was arrested on June 6, 1973, and immediately charged with misdemean- or possession of marijuana. That charge was later nolle prossed, and on June 27, Nelson was informed against for possession of paraphernalia. A capias was issued on that same day, but authorities were unable to serve it until November 2, 1973. Nelson’s arraignment was later scheduled for November 16. He did not appear on that date, but, on November 21, appeared with counsel before Circuit Court Judge Harry Fogle, and explained that he

had not been notified of the arraignment date. At that time, his attorney, in the presence of the appellee, agreed to a December 18, trial date — which was over 180 days from his initial arrest.

After filing a motion for discharge under RCrP 3.191(a)(1), his attorney was permitted by the trial court to withdraw from the case and the court appointed another attorney to represent appellee. Despite the state’s contentions that Nelson had been unavailable for trial and that the paraphernalia charge did not stem from the same episode as his June 6, arrest, Judge Walker granted the motion for discharge on February 19, 1974, and the state timely appealed.

Under our decision in Eastwood v. Hall, Fla.App.2d, 1972, 258 So.2d 269, the acceptance in open court of a trial date beyond the 180-day period would have waived Nelson’s rights under the speedy trial rule.

In all fairness, at the time the trial judge granted the motion to discharge the appellee, he was aware that the 180-day period had run under the Rule, supra. What was not brought to his attention, but as the record before us clearly shows, the appel-lee had, on November 21, waived his rights under the speedy trial rule. We point out that the setting of the trial date was agreed to by different attorneys and a different judge than attended the discharge hearing.

Under the factual circumstances of the instant case, the appellee is precluded from availing himself of any rights he may have had under the speedy trial rule because of a waiver by his counsel agreeing to a definite trial date beyond the 180 days.

Reversed and remanded.

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

      . The record contains the following colloquy on that date:
      MRS. CATES (defense counsel) : We’ll waive formal reading of that information. We would enter a plea of not guilty and request ten days for motion.
      THE COURT: Do you have any preference as for trial date?
      MRS. CATES : No, sir.
      THE COURT: I had an opening open up on December 11th. That too soon?
      MRS. CATES : I think so.
      THE COURT: How about December 18 ?
      MRS. CATES : Okay. We can set it for then.
      THE COURT: All right. We’ll set it then.

      . No demand for speedy trial was made. RCrP 3.191(a)(1).

      . Nelson appeared without counsel on December 18. The judge continued the case; tentatively appointed William Gregg as defense counsel. In order to allow his attorney to adequately prepare, Nelson agreed to waive the speedy trial rule except as to the merits of his pending motion for discharge.

      . Nelson’s consent would not be a prerequisite to waiver. See, State ex rel. Gutierrez v. Baker, Fla.1973, 276 So.2d 470; McArthur v. State, Fla.App.3d, 1974, 303 So.2d 359; State v. Williams, Fla.App.2d, 1973, 287 So.2d 415; State v. Earnest, Fla.App.1st, 1972, 265 So.2d 397.


author: PEARSON, Judge.

text:
    The CITY OF MIAMI, Florida, a Municipal Corporation, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, a national banking association, Trustee, Appelle.
    No. 75-268.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.

      John S. Lloyd, City Atty., and Michael E. Anderson, Asst. City Atty., for appellant.
    Sams, Anderson, Alper & Post, Sam Daniels, Barrett, Diliberto & Estrumsa, Miami, Stuart Simon, County Atty., Snyder, Young, Stern, Barrett & Tannenbaum, P. A., North Miami Beach, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The City of Miami appeals a judgment of the circuit court which dismissed the City’s petition for writ of certiorari. The petition in the circuit court sought to review a ruling of the Dade County Board of Rules and Appeals. The circuit court dismissed the petition upon motion of some of the appellees who were respondents to the petition, holding that it had no jurisdiction to review the ruling complained of because the petition was filed after an oral ruling by the Board but prior to the filing of the minutes of the Board. The minutes constituted the only written record of the order for which review was sought.

We reverse upon a holding that the City’s petition in the trial court presented to that court a situation which called for relief in the nature of a suggestion for writ of mandamus. It was error for the trial court to dismiss the petition because it presented a clear case where relief by an extraordinary writ was required. The court should have considered the petition as a suggestion for mandamus and required the filing of a written*order so that a review of the order could be had.

The petition for certiorari filed in the circuit court grew out of the following circumstances: Four building permits were issued to .Mr. Burton Goldberg, a developer for construction on a project variously known as Fair Isle and Sailboat Key. On March IS, 1974, the Director of the Building Department of the City of Miami notified Mr. Goldberg that the building permits had been revoked by the City upon the ground that, no action having been taken under the building permits, they had expired. Goldberg, Sailboat Key Corporation, Arkin Construction Company and City National Bank, as Trustee, filed an appeal to the Board of Rules and Appeals of Metropolitan Dade County on March 28, 1974. It is conceded by the City that this Metropolitan Board had authority to review the City’s action because the City has adopted the South Florida Building Code. The Board, at its regular meeting on May 13th, heard the appeal, overruled the building official of the City and ordered reinstatement of the building permits.

On May 17, 1974, the City filed its petition for writ of certiorari in the circuit court. At the same time, the City filed a motion for extension of time to file a certified copy of the record. This motion recited the situation with which the City was confronted, in that it wished review of the order of the Board which had not and might not for some time be reduced to writing. The court granted the motion for extension of time but took no further action. The Metropolitan Board failed to file the minutes of its May 13th meeting until June 10, 1974. Thereupon, after the filing of the minutes and after the time had passed for the filing of a petition for review of the written order contained in the minutes, the respondents to the petition for certiorari filed a motion to dismiss the petition upon the ground that the petitioner sought review of an oral order or decision of -the Board of Rules and Appeals of Dade County. The order dismissing the petition for certiorari granted this motion.

The Supreme Court of Florida has pointed out that a petition for certiorari may be treated as an appeal. See State v. Johnson, Fla.1974, 306 So.2d 102, and Whitlow v. State, Fla. 1975, 313 So.2d 748. We conclude from these cases that a court, in dealing with a petition for extraordinary relief, must not enter a dismissal upon the narrow ground that the relief ordinarily granted in the type of petition actually filed is not available in that particular case, if the subject petition, upon its face, shows circumstances calling for a different remedy.

In the present case, the City of Miami, in its petition, clearly showed that it was in a dilemma in that it wished the court to review an order which might not be reduced to writing for months. Under these circumstances, it was the duty of the •trial court to require the respondent Board to enter a written order within a limited time and then, upon the filing of such written order, to allow the City to file an amended petition addressed thereto. This holding is necessary because unless boards and commissions that act at their own pleasure are not required to render a written order providing a basis for review, the right of review and, therefore, of access to the courts will be denied citizens who are dependent on the rulings of such boards to avail of their rights. We recognize that this adaptation of the law, requiring mandamus in a situation where a public body has a clear legal duty to act but has not acted, is an extension and innovation in our practice. We regard it as a necessary one in order to meet a situation which has developed where long-established law has been applied but where that law no longer produces a just result.

Thereupon, the order dismissing the City’s petition is reversed and this cause is remanded with directions to permit the City to file an amended petition in the circuit court directed to a review of the written order which has now been entered by the Board of Rules and Appeals of Metropolitan Dade County.

Reversed and remanded.

      . See Mancini v. State, Fla.1973, 273 So.2d 371, quoting Justice Terrell in Kelley v. Gottschalk, 1940, 143 Fla. 371, 196 So. 844:
      “ ‘The administration of justice is the most precious function a democracy is called on to perform and no rule of procedure was ever intended to defeat it. Courts must have rules to guide them in the performance of this function, but it has never been considered improper to toss right and common sense in these scales and weigh them with the evidence to reach a just result. Rules of procedure are as essential to administer justice as they are to conduct a baseball game, but they should never be permitted to become so technical, fossilized, and antiquated that they obscure the justice of the cause and lead to results that bring its administration into disrepute.’ ”
      See also Irvin v. State, Fla.1953, 66 So.2d 288, 296.

      . See the rule in State ex rel. Knott v. Haskell, 1916, 72 Fla. 176, 244, 72 So. 651, 659.


author: OWEN, Judge.

text:
    Alvin POSEY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1629.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Nov. 17, 1975.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

. Appellant was convicted of robbery. We conclude that the evidence was insufficient to sustain the conviction and that his motion for judgment of acquittal at the close of the State’s case should have been granted.

Two men robbed the manager of a convenience store in Broward County, and fled the scene with the stolen money. A short time later, in the vicinity of the robbery, a vehicle driven by appellant and occupied by two other men was stopped by the police for a traffic violation. At that time the police had been alerted to the robbery and when the occupants of the stopped car got out the police noted that one of them matched the description given of the robbers. The victim was brought to the scene and identified one of the passengers as one of the robbers. A search of the car revealed a gun and money under the driver’s seat. Appellant’s statement to the officers after his arrest was to the effect that he and the other two had been driving around and that he had let them off at the convenience store and when they returned to the car it was the first time that he realized that his companions were involved in a robbery. Both of the occupants of the car had given statements admitting their own participation in the robbery but neither one was inculpatory of appellant.

For reasons which we explained in Lockett v. State, 262 So.2d 253 (4th DCA Fla. 1972), the State cannot convict Posey of robbery on no more evidence than this. He should have been charged, if at all, as an accessory after the fact under Fla.Stat. § 776.03 (1973).

The judgment and sentence is reversed and this cause remanded with directions that appellant be discharged.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.


text:
    Goldie Ette NEALE, as Executrix for the Estate of Nazzareno Iovanna, Appellant, v. The REDINS CORPORATION, a Florida Corporation, Appellee.
    No. 75-209.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Nov. 17, 1975.
    Joseph E. Neduchal, of Robert D. Melton & Associates, Orlando, for appellant.
    Jed Berman, of Felder & Berman, Winter Park, for appellee.
   DOWNEY, Judge.

This is an interlocutory appeal from an order of the trial court in an action formerly cognizable at law denying appellant’s motion to dismiss.

Appellee sued appellant as personal representative of the Estate of Nazzareno lo-vanna to recover monies due pursuant to a lease. A motion to dismiss was directed to the complaint upon the ground that although appellee had filed a claim against the decedent’s estate and objection had been filed thereto, appellee had not commenced this suit within the time required by § 733.18(2), F.S. 1973. The trial court denied said motion and this appeal ensued.

Upon consideration of the briefs and record we are of the opinion that the order in question cannot be made the subject of an interlocutory appeal. The complaint involves subject matter formerly cognizable at law and the order denying the appellant’s motion to dismiss is neither a final judgment, nor an order relating to venue or jurisdiction over the person, nor an order granting partial summary judgment on liability.

We are cognizant of two cases from the Third District Court of Appeal wherein that court entertained interlocutory appeals in cases which appear to be factually similar to this one sub judice. Grayson v. Maeder, Fla.App.1971, 247 So.2d 774; Poncier v. State, Dept. of Health & Rehab. Serv., etc., Fla.App. 1973, 284 So.2d 463. However, we are unaware of the basis upon which that court determined it had jurisdiction in those cases.

Believing as we do that this court does not have jurisdiction to consider the matter in its present posture, we dismiss this appeal.

Appeal dismissed.

CROSS and MAGER, JJ., concur.


author: McNULTY, Chief Judge.

text:
    BARRINGTON HOMES OF FLORIDA, INC. and Robert Briscoe, d/b/a Bill Briscoe Mobile Homes, Appellants, v. James E. KELLEY and Norma J. Kelley, his wife, Appellees.
    Nos. 74-1171, 74-1181.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.

      James L. Livingston, Sebring, for appellant Barrington Homes.
    Mervin Rehrer, Avon Park, for appellant Briscoe.
    No appearance by appellees.
   McNULTY, Chief Judge.

Appellants appeal from a final judgment which sustained appellees’ claimed right under the Uniform Commercial Code to revoke their acceptance of a purchased mobile home later found to be defective. We reverse.

Appellees purchased the mobile home in question pursuant to an installment contract with appellants at a purchase price of $16,600. Shortly after taking possession various defects in workmanship, assembly and appliance operations were discovered. Although appellees notified both appellants and received assurances of prompt repair, such repairs were not satisfactorily completed.

After delivering a “Notice of Revocation of Acceptance” to appellants, appellees moved out and filed this action to recover the purchase price paid plus interest. Judgment was entered allowing them to revoke acceptance of the mobile home and damages were awarded in the sum of $5,226.66. This appeal ensued.

Section 672.608, F.S.1973, the applicable provision of the Uniform Commercial Code, provides as follows:

“Revocation of acceptance in whole or in part.-—
(1)The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity- if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.” (Italics ours.)

Clearly, and assuming arguendo that the defects complained of herein are “non-conforming” within the meaning of § 672.106, F.S.1973 (the applicable “definitions” section relating to sales), appellees may revoke their acceptance of the mobile home herein under the quoted section upon a showing that such non-conformity “substantially impairs its value” as to them. With respect thereto, the trial judge concluded in the final judgment appealed from as follows:

“In determining the question of nonconformity and substantial impairment as contained in the above cited section of Florida Statutes, the Court is of the opinion that it is necessary not only to take into consideration the impairment in value, but also take into consideration the financial ability of the plaintiffs to correct the defects.
“From the testimony presented it was suggested the repair of the defects would cost between $200.00 and $300.00, but this did not include the amount to close the opening in the floor, the rear opening or the relocation of an air conditioning duct, all of which could cost an additional $200.00 to $300.00 or more.
“Counsel argued that the costs of repairs were not ‘substantial’ when compared with the cost of the mobile home; however, the Court finds that the cost of repair was very ‘substantial’ when compared with the plaintiffs’.financial ability.
“Based upon the testimony as presented, it is the finding of the Court that there were defects in the mobile home which substantially impairs its value to the plaintiffs; that upon notice to the defendants of non-conformity some defects were cured but some defects were not cured, notwithstanding promises on the part of the defendants and each of them to cure said defects; that the remaining defects substantially impaired the value of the mobile home to the plaintiffs.”

We are of the view that the court erred in considering as a viable test of “substantial impairment” the financial ability of the purchasers. Concededly, the impairment spoken of is that suffered by the purchaser himself which, of course, must be subjectively measured from the standpoint of the purchaser. But it has nothing to do with the purchaser’s financial ability or inability. As we see it, the “value” to the purchaser, with which the statute is concerned, is to be measured by the essential purpose to be served by the buyer’s purchase of the goods in the first place. If such purpose is substantially frustrated or interfered with by “non-conformities,” then, we think the “value” of the goods has been “substantially impaired” as to him within the contemplation of § 672.608, supra.

Here, the trial court made no subjective analysis of the buyers’ purposes to be served by the purchase, which may be self-evident in the case of a mobile home, nor did he consider the extent to which these purposes would be impaired or frustrated by the specific defects or “non-con-formities” complained of. Obviously, he considered the complained of defects per se to be the equivalent of the required impairment, and he measured the substantiality thereof by the financial ability of the buyers to cure them. We think he was wrong.

In view whereof, the judgment appealed from should be, and the same is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and BOARDMAN, JJ., concur.

      . See paragraph 2., Comment to § 672.2-608, as set forth in Vol. 19A, F.S.A. at p. 412.


text:
    Joe HUMPHRIES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1235.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Nov. 12, 1975.

      Richard L. Jorandby, Public Defender, and Leon St. John, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

In an opinion filed August 22, 1975, we reversed the judgment of conviction and sentence entered by the trial court for failure to instruct the jury that to be guilty of the felony charged in the information (possession of a stolen motor vehicle in violation of § 814.03(2), F.S.1973), the defendant must have intended to permanently deprive the owner of the vehicle. We now perceive that to be an incorrect statement of the law, making it necessary for the mandate to be recalled and set aside; the opinion of this court published August 22, 1975 be vacated, and a rehearing be granted by this court of its own motion. Jerry v. State, Fla.App.1965, 174 So.2d 772.

Upon further consideration it is our opinion that the judgment and sentence appealed from are proper and that no error has been demonstrated.

Accordingly, the mandate issued September 11, 1975 is recalled and the mandate and the opinion filed August 22, 1975 are vacated, and the judgment and sentence appealed from are affirmed.

WALDEN, C. J., and MAGER, J., concur.


text:
    Norman LEVINE and Margaret E. Levine, Appellants, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF HEALTH, Appellee.
    No. 74-1393.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.

      Michael R. N. McDonnell of Schryver & McDonnell, Naples, for appellants.
    Robert M. Eisenberg and J. E. Hodges, General Counsel of Div. of Health, Jacksonville, for appellee.
   McNULTY, Chief Judge.

After a lengthy administrative proceeding, the record of which consumed in excess of 2,100 pages in 13 volumes, the ap-pellee Department revoked appellants’ license to sell and fit hearing aids. Within 30 days appellants filed a petition in the circuit court for a writ of certiorari to review that revocation. The petition was not accompanied by the record or supporting briefs as prescribed by Rule 1.640, R. C.P. The trial judge determined that such omission was jurisdictional and dismissed the petition. We reverse.

From a brief relevant chronology of the proceedings below, it appears that the aforesaid petition for certiorari was timely filed on October 25, 1973. On the following day, appellants mailed directions to the appellee Department to prepare a record of the proceedings, the Department having custody of the records and files. On November 9, 1973, the circuit court granted appellants’ motion for an extension of time for filing the brief and a proper record, which was not indeed properly filed by ap-pellee Department until November 5, 1974, more than eleven months thereafter. Apparently concluding that he had previously erred in extending the time, the trial court entered the order appealed from, on the Department’s motion, on November 25, 1974.

Initially we point out that Rule 1.640, R. C.P., relating to certiorari in the circuit court, does not expressly provide that the court may extend the time within which the record and briefs shall be filed. It differs in this respect from the appellate rule on certiorari, Rule 4.5, F.A.R., the rule on which the trial court initially relied in granting the extension in the beginning.

This court held in State v. Williams that the failure to accompany the petition for certiorari with the record and/or briefs under this latter rule was not jurisdictional. While Rule 1.640, supra, is silent on the matter we know of no reason why the same rule ought not apply notwithstanding. The filing of an accompanying record and/or supporting brief is a matter of form, and the rules are clearly directory or procedural in either case. The jurisdiction of the proper court having been invoked by the initial pleading, i.e., the petition, the court had inherent power to further justice by extending the time to file additional documents as may be necessary reasonably to comply with the scope and purpose of the rules. After all, rules of procedure are calculated to expedite justice, not frustrate it.

Obviously, a 13 volume 2,100 page record cannot readily be obtained within 30 days by one aggrieved by an administrative ruling, particularly when the records and files are in the possession of the administrative agency itself. It cannot be said with reason, therefore, that the filing of such a

record is a prerequisite to certiorari jurisdiction to review the rulings of such administrative agency which, under the present state of our law, are peculiarly amenable to such method of review.

In view whereof, the order appealed from should be, and the same is hereby reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and BOARDMAN, JJ., concur.

      . At the times relevant herein part III of Ch. 468, F.S.1973, relating to the fitting and selling of hearing aids, provided that review of an order of revocation entered by the Division of Health, Department of Health and Rehabilitative Services, was by certiorari to the circuit court. See § 468.133, F.S.A.1973. Under the eases, and notwithstanding that the administrative procedure act in force at that time provided that certiorari review lay in the District Court of Appeal, such review lay in the circuit court when that specific mode was prescribed by statute. See, e. g., Charbonier v. Wynne (Fla.App.2d, 1973), 282 So.2d 171; Florida Cities Water Co. v. Board of County Commissioners (Fla.App.2d, 1973), 281 So.2d 580; Arvida Corp. v. City of Sarasota (Fla.App.2d, 1968), 213 So.2d 756. Effective January 1, 1975, however, all such review is by certiorari to the District Court of Appeal.

      . (Fla.App.2d, 1969), 227 So.2d 253.

      . Cf. National Dairy Products Corporation v. Odham (Fla.1958), 100 So.2d 394.

      . Nothing we say herein should be taken to suggest, of course, that the Department “sandbagged” appellants by waiting some eleven months properly to file the record and then moving to dismiss appellants’ petition for untimeliness thereof. We wonder, however, why we have to be concerned with this case in its present posture.


author: PER CURIAM. STURGIS, WALLACE E., Associate Judge

text:
    STATE of Florida DEPARTMENT OF POLLUTION CONTROL, Petitioner, v. STATE of Florida CAREER SERVICE COMMISSION, and Shane H. Hummel, dismissed employee, Respondents.
    No. W-282.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.
    Rehearing Denied Oct. 20, 1975.

      John C. Bottcher, Sp. Asst, Atty. Gen., for petitioner.
    Shane H. Hummel, and E. C. Deeno Kitchen, of Ervin, Varn, Jacobs & Odom, Tallahassee, for respondents.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Asst. Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for amicus curiae.
   PER CURIAM.

We here consider a dispute between two State agencies. The Attorney General has entered the fracas as amicus curiae, making a third.

By Petition for Writ of Certiorari the Petitioner challenges an order of the Respondent Career Service Commission reinstating Petitioner’s employee, one Hummel, with back pay.

In February of 1973 Hummel was transferred to the State of Florida Department of Pollution Control with permanent status in a position of Administrative Assistant I, located in the Department’s West Central Regional Office in Winter Haven. He was under the supervision of the Regional Administrator who, after May 30, 1973, was one Linne, aptly described as an iron-handed supervisor. When Linne arrived at the West Central Regional Office he found it in a state of confusion and turmoil. The Director of the Division of Operations of the Department had appointed Mr. Linne to the position of Regional Administrator with specific instructions to organize and straighten out the problems which existed there. Shortly after Linne arrived he became aware of Hummel’s shortcomings and discussed them with Hummel on June 20, preparing a memorandum setting forth specifically certain deficiencies in Hum-mel’s job performance. That performance did not improve and on December 20, 1973 Hummel was suspended for excessive absenteeism. That suspension was upheld by Respondent Commission. Following the suspension Hummel’s performance did not change and his excessive absenteeism continued. In February of 1974 Linne prepared a performance evaluation, explaining in detail the unsatisfactory performance of the employee and forwarded same through proper channels within the department, resulting in Mr. Baljet, the Executive Director of the Department, acting as agency head in personnel matters, dismissing Hummel for unsatisfactory job performance and for negligence, inefficiency, inability and unwillingness to perform assigned duties. Appeal was taken by Hum-mel to the Respondent Career Service Commission. The Commission found that the employee had been derelict in complying with his supervisor’s instructions and requests, and found that the three-day suspension for excessive absenteeism was proper. However it opined that the action of the agency dismissing the employee “was too harsh and severe” and that the action should be modified to a 30-day suspension and the employee reinstated with full back pay.

There does not appear to be any dispute between the agency parties as to the facts, therefore our prior decision in Board of Regents v. Budjan, Fla.App. 1st 1970, 242 So.2d 163 has no application.

The essential issue for our determination is whether the Career Service Commission may, on appeal, determine that there was just cause for the action taken by the employing agency but nevertheless modify that action.

The Florida Administrative Commission (the Cabinet) sitting as the rule making body for the Department of Administration has adopted rules and procedures for the suspension and dismissal of State employees. (Chapter 22A.7, Florida Administrative Code) Section 22A-7.10 G. 2. provides as follows:

“An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; insubordination; willful violation of these or agency rules and regulations; conduct unbecoming a public employee, misconduct, habitual drunkenness, or conviction of any crime involving moral turpitude.”

Section 22A-7Í10 F. 2. provides:

“An agency head may suspend any employee for any of the reasons listed in Section 22A-7.10 (G) (2), or any other just cause, for a period not to exceed 30 calendar days in any calendar year. Upon request of the agency head, the State Personnel Director may approve an extension of the suspension for a period not to exceed an additional 60 calendar days. If court action is pending the State Personnel Director may approve an additional extension of a suspension when requested by the agency head.”

Thus it appears that the grounds for suspension and for dismissal are identical in that either 'must be for just cause. The rules do not provide a criteria for distinguishing between when an agency must suspend an employee rather than dismiss the employee. It appears therefore that sole discretion to determine whether the employee is to be dismissed or suspended is vested in the agency, the only limitation being that the disciplinary action must be for just cause. The role of the Career Service Commission on appeal is to determine whether there existed competent substantial evidence to sustain the action taken by the agency and whether the facts establish “just cause”.

Sub judice it appears that the Career Service Commission agreed with Petitioner that just cause existed otherwise there would be no basis for the Respondent’s order of suspension. (Section 22A-7.10 F. 2) The Respondent Commission did in fact, as already stated, find the employee “derelict”. That word is defined by Webster’s Seventh New Collegiate Dictionary to mean lacking in a sense of duty; remiss, neglectful.

We hold, therefore, that under the facts of this case Petitioner was within its authority when it dismissed Hummel and that the Commission, finding no error of fact nor law in the actions of Petitioner, erred in ordering reinstatement with full back pay.

The taxpayers of Florida, upon whom the burden of all State salaries ultimately rests, are entitled to a day’s work for a day’s pay and to loyalty and fidelity of their employees. (Florida Department of Health and Rehabilitative Services, Division of Retardation v. Career Service Commission of State of Florida, Fla.App.1st 1975, 308 So.2d 597.)

The Petition for Writ of Certiorari is granted. The order of the State of Florida, Career Service Commission should be vacated and the order of Petitioner reinstated.

Having so decided it is unnecessary for us to consider the other points raised by Petitioner. However, the Petitioner, Respondent Commission and the Attorney General as amicus curiae .have all asked what we determine “once and for all” whether the deliberations of the Career Service Commission following hearings incident to appeals are subject to Chapter 286 Florida Statutes, commonly known as the Government in the Sunshine Law.

F.S. 110.061(2) (c) requires the Career Service Commission to issue its findings and decisions by written order, providing as follows:

“The commission shall, within thirty days after hearing such appeal, make its finding and decision, copies of which shall be transmitted to the employee, the employing agency concerned, and the department.”

The statutory provision is implemented by Rule 22A-10.07, Florida Administrative Code, which provides:

“After hearing an appeal, the Career Service Commission shall:
1. Within 30 calendar days, make its finding and decision and transmit copies of same to the employee, the employing agency concerned, and the Department of Administration.
2. Issue a written order which may sustain, reverse, or alter the decision of the employing agency . . . . ”

Thus, the Commission is allowed thirty calendar days within which to make its findings and decisions. The labors of the Commission during that period, following the hearing “in the sunshine” are not unlike those of a petit jury after a case has been submitted to it for its deliberation, or those of an appellate court during the period following oral argument “in the sunshine”. Those labors are, therefore, quasi-judicial and are not subject to Chapter 286 Florida Statutes.

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

STURGIS, WALLACE E., Associate Judge, dissents.

STURGIS, WALLACE E., Associate Judge

(dissenting).

I respectfully dissent from the majority opinion that would grant the petition for writ of certiorari and vacate the order of the Career Service Commission reinstating the order of Petitioner.

Petitioner’s primary contention on appeal is that Respondent’s order of reinstatement was without competent supporting evidence and, therefore, constituted an abuse of discretion.

The record in this case reveals that a long and detailed hearing was held by the Career Service Commission and that findings were made upon the employee’s grievances. The majority of this Court concludes that the judgment of the Commission does not follow the evidence, that is, does not meet with the essential requirements of law.

My review of the record and briefs reveals a great deal of dispute of the facts and the weight of the evidence; I therefore conclude that Board of Regents v. Budjan, 242 So.2d 163 (Fla.App 1st (1970)) is applicable. It is not the function of this Court to substitute its judgment for that of the trier of the fact. Neither should this Court substitute its form of punishment for that of the tribunal charged by law with that responsibility unless the punishment exceeds the authority. Clearly Section 110.061(4), F.S. 1973, limits the scope of review to those cases where a fair and equitable hearing was denied, the decision was contrary to facts, rules and regulations, or the evidence was not sufficient. While I would question the authority of the legislature to limit appellate review of this Court by statute, that is not an issue to be decided. It suffices that there is no error in the findings and conclusions of the Commission and I would deny the writ.

For what solace it may be to the majority, I would concur in the conclusion that the deliberations of the Career Service Commission are not subject to the provisions of Chapter 286, Florida Statutes.


text:
    BOARD OF REGENTS of the State of Florida, a body corporate, for and on Behalf of FLORIDA TECHNOLOGICAL UNIVERSITY, said Board of Regents being of the Division of Universities of the Department of Education of the State of Florida, Petitioner, v. Thomas H. MAHLER and Career Service Commission of the State of Florida, Department of Administration, Division of Personnel, Respondents.
    No. X-386.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.
    Rehearing Denied Nov. 4, 1975.
    John D. Mahaffey, Jr., Orlando, for petitioner.
    Marc L. Lubet, of Levine & Cohen, Orlando, Robert L. Shevin, Atty. Gen., Paul Lambert and Charles R. Ranson, Asst. Attys. Gen., and Dorothy Roberts, for respondents.
   PER CURIAM.

We here consider a Petition for Writ of Certiorari seeking review of an order of the Career Service Commission which reversed a dismissal.of respondent Thomas H. Mahler, an employee at Florida Technological University. The record, briefs, and oral arguments reveal that the respondent, Career Service Commission, was within its authority, as construed by this Court in Board of Regents of the State of Florida, etc. v. Videon and Career Service Commission, etc., Fla.App. 1st 1975, 313 So.2d 433, and Florida Dept. of Health & R.S. v. Career Serv. Com’n., Fla.App. 1st 1975, 308 So.2d 597, and State of Florida Department of Pollution Control v. State of Florida Career Service Commission et al., Fla. App., 320 So.2d 846, opinion filed August 27, 1975. Accordingly, the Petition for Writ of Certiorari is

Denied.

BOYER, C. J., MILLS, J., and TENCH, BENJAMIN M., Associate Judge, concur.


text:
    MERCY HOSPITAL, Petitioner, v. Willis E. RODGERS et al., Respondents.
    No. 75-159.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Brian C. Sanders, Sanders, McEwan, Mims & McDonald, Orlando, for petitioner.

      Michael C. Maher, Douglas Barfield and Ronald J. Langa, Maher & Overchuck, Orlando, for respondent-Rodgers.
    Harold I. Lovell, Jr. and Marón E. Lovell, Howell, Kirby, Montgomery, D’Aiuto & Dean, Orlando, for respondents-James E. Davis, M.D. and The St. Paul Fire and Marine Ins. Co.
   PER CURIAM.

Upon consideration of the briefs, the record and oral argument in this cause, we conclude that the trial court’s interlocutory order compelling discovery does not depart from the essential requirements of law, and hence the petition for writ of certiora-ri must be, and is hereby, denied.

Certiorari denied.

CROSS, OWEN and MAGER, JJ., concur.


text:
    Richard W. JOHNSON, Appellant, v. BARNETT BANK OF COCOA, N.A., a corporation, and the Cedars Condominium Apartments, Inc., a Florida Corporation, et al., Appellees.
    No. 75-329.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.

      James S. Theriac, III, and Joe T. Caruso, Wolfe, Kirschenbaum & Caruso, Merritt Island, for appellant.
    Robert T. Westman and Leon Stromire, Stromire, Westman, Lintz & Baugh, Cocoa, for appellee-Barnett Bank of Cocoa, N.A.
   WALDEN, Chief Judge.

Defendant appeals the dismissal with prejudice by the trial court of his affirmative defenses and crossclaim against plaintiff bank in a foreclosure action. We reverse the dismissal with directions that defendant’s affirmative defenses and cross-claims be reinstated.

Defendant sold all his stock in Cedars Condominium Apartments to NFC Mortgage Corporation. Defendant took back a mortgage from NFC. Plaintiff made a construction loan to Cedars Condominium Apartments and defendant personally guaranteed that construction loan. Plaintiff brought suit to foreclose the construction loan. Defendant denied any liability (presumably for an excess judgment), and crossclaimed for damages on the grounds that for consideration given by defendant:

(1) personally guaranteeing the loan to Cedars, and
(2) permitting his mortgage to NFC to be subordinated to the plaintiff’s mortgage to Cedars,

the plaintiff bank orally contracted to pay defendant on his mortgage (from NFC) out of construction draws to be disbursed to Cedars. The trial court dismissed the affirmative defenses and the crossclaim based on a finding the Statute of Frauds barred the claim. The statute bars enforcement of an oral agreement to pay the debts of a third party, Troup Bros., Inc. v. State, 135 So.2d 755 (Fla.App.2nd 1961); Baya v. Price, 222 So.2d 253 (Fla.App.3d 1969), unless the promisor is a primary obligor, Troup Bros., Inc. v. State, supra. Defendant claimed that he gave independent consideration to obtain the plaintiff’s promise to pay the mortgage debts of NFC to plaintiff (whether or not NFC paid) and that plaintiff was a primary (not a conditional) obligor. These claims are at least sufficient to withstand dismissal under the Statute of Frauds. See, Bruce Const. Corp. v. State Exchange Bank, 102 So.2d 288 (Fla.1958), in which a corporate official of a corporation building for V. A. promised that the corporation would cash the weekly payroll checks of a subcontractor in order to insure that the subcontractor would continue work. .The trial court directed a verdict based on the Statute of Frauds, the court reversed and held:

“We do not adopt the view of either the plaintiff or defendant, for in our opinion, although the testimony and the evidence is not conflicting, nevertheless it does permit different conclusions based on reasonable inferences drawn from the evidence. As we read the evidence á jury viewing it could as logically find that the promise was collateral or conditional, i. e., was an agreement to pay Flamingo’s payroll checks only if Flamingo’s Miami Beach bank did not do ■ so, as it could find that the promise was direct and unconditional.” Id. at 291.

See also 15 Fla.Jur., Statute of Frauds § 4 (1957):

“ . . . Where the promise to pay the debt of another is independent and unconditional, and is made for a valuable consideration, which is subsequently paid by the promisee and is of direct pecuniary value to the promisor, the transaction is not within the statute.”

We are careful to note that the reinstatement of defendant’s affirmative defenses and crossclaim in no way acts as a judgment on the merits, and plaintiff is free to pursue any theories and actions that it chooses. We simply hold that defendant’s contentions are sufficient to withstand dismissal.

Reversed and remanded, with directions.

CROSS and MAGER, JJ., concur.