text:
    THE FLORIDA BAR. In re Benjamin F. DuBOIS, III.
    No. 47858.
    Supreme Court of Florida.
    Oct. 8, 1975.

      Robert J. Pleus, Jr., Darryl M. Blood-worth, Orlando, and David G. McGunegle, Tallahassee, for The Florida Bar, complainant.
    Stuart G. Green, of Sam E. Murrell & Sons, Orlando, for respondent.
   PER CURIAM.

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

The Florida Bar served its Complaint on April 23, 1975 alleging as follows:

1. The Respondent, Benjamin F. Du-Bois, III, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of this Complaint, required by the Integration Rule, have been fulfilled.
3. From 1971 until the filing of this Complaint, the Respondent has unethically failed to preserve the identity and safeguard the assets of funds held in trust by him on behalf of clients. He has converted funds belonging to clients to his own use and has deceitfully avoided his responsibility to account for those funds to his clients and Circuit Judge Roger A. Barker of the Ninth Judicial Circuit.
4. During all times material to the events alleged in this Complaint, the Respondent was acting as the attorney for Rosemary Glover who had been appointed guardian for Darryl Jerrod Montgomery in what is now Ninth Judicial Circuit Probate Court Case No. PR 27,612 styled In re: Guardianship of Darryl Jerrod Montgomery, a minor.
5. On May 29, 1971, an order designating depository was entered by the Court in the guardianship of Darryl Jerrod Montgomery designating the Commercial Bank at Apopka, Florida, as the depository for approximately $16,000 cash. The order was prepared for the court’s signature by the Respondent who was acting as the attorney for the guardian, Rosemary Glover.
6. From May 28, 1971, until he was discharged as attorney for the guardian in December 1974 or January 1975 the Respondent failed to comply with the court’s order designating depository and, instead, converted the money to his own personal use.
7. From May 28, 1971, until December 3, 1974, the Respondent concealed his failure to comply with the court’s order and his conversion of the funds from his client, Rosemary Glover.
8. On or about December 3, 1974, the Respondent promised Circuit Judge Roger A. Barker and his client, Rosemary Glover, that he would replace the $16,000 he had converted from the guardianship of Darryl Jerrod Montgomery within three weeks. The Respondent then failed to comply with his own promise.
9. By reason of the foregoing, the Respondent has:
A. converted his clients’ funds to his own use and failed to account for, and turn over, trust funds in violation of Integration Rules 11.02(4) and 11.02(3) (a) and Disciplinary Rules 1-102(A)(4) and 9-102(B)(2), (3) and (4) of the Code of Professional Responsibility;
B. engaged in stealing amounting to grand larceny under Florida Statutes, Section 811.021 (1)(b), F.S.A. in violation of Integration Rule 11.02(3) (b) and Disciplinary Rule 1-102(A)(3) of the Code of Professional Responsibility.

The Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline is granted and Benjamin F. DuBois, III is hereby suspended for three years with any subsequent reinstatement to be conditioned upon prior proof of restitution for all defalcations or misappropriations, proof of rehabilitation in a regular reinstatement proceeding and satisfactory passage of a regular Bar examination after those proceedings.

Costs in the amount of One Hundred Ninety-Nine Dollars and Seventy Cents ($199.70) are hereby taxed against respondent.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR. In re Eugene J. ETHIER.
    No. 47906.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Joseph P. Metzger, West Palm Beach, and David G. McGunegle, Tallahassee, for The Florida Bar, complainant.
    Eugene J. Ethier, in pro. per.
   PER CURIAM.

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

The Florida Bar served its complaint on April 14, 1975 alleging as follows:

COUNT I
1. The Respondent, EUGENE J. ETHIER, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
3. During January 1972 Respondent agreed to represent Christopher Farrell, a vacationing resident of New Jersey, who had a claim for personal Injuries against Robert Ylitalo resulting from an accident on New Year’s Eve, 1971.
4. During December 1972 Respondent agreed to represent Robert Ylitalo who had been charged with criminally assaulting Sylvia Scott.
5. At the time Respondent agreed to represent Robert Ylitalo, he continued to represent Christopher Farrell.
6. Respondent represented Robert Yli-talo in the criminal matter without Christopher Farrell’s knowledge or consent.
7. During the interview at which Respondent agreed to represent Robert Ylitalo, Respondent advised him to meet with Christopher Farrell to attempt a settlement.
8. Robert Ylitalo met with Christopher Farrell at Respondent’s request, although Christopher Farrell was never informed by Respondent that he had suggested the meeting.
9. Although no settlement was reached, Respondent failed to file a civil action on behalf of Christopher Farrell against Robert Ylitalo.
10. Respondent’s failure to file an action on behalf of Christopher Farrell resulted in the apparent loss of his claim because of the statute of limitations.
11. Because Respondent consistently refused to advise his client of the case status, Christopher Farrell was forced to engage local counsel in New Jersey to reestablish contact and spur Respondent to act. The attorney’s considerable efforts from November 1973 to February 1974 met with total failure.
12. Respondent has repeatedly refused to communicate with Christopher Farrell and to adequately represent him.
13. By reason of the foregoing Respondent violated Disciplinary Rules 1-102(A)(6), 5-105(A), 5-105(B), 5-105(C), 6-101 (A) (3), 7-101 (A) (2) and 7-101 (A) (3) of the Code of Professional Responsibility.
COUNT II
1. Complainant realleges the facts contained in Count I, paragraphs 1 and 2.
2. During late 1969, Respondent agreed to represent Charles W. Gravelin, and his then minor son Daniel Grav-elin, who had a personal injury claim sustained when a plate glass door shattered at a Royal Castle Restaurant on Daniel Gravelin.
3. On or about October 6, 1969, Respondent took a voluntary dismissal of the action filed against Royal Castle System, Inc., with costs being assessed against the Gravelins. Respondent failed to inform the Gravel-ins that these costs were assessed against them.
4. Respondent failed to communicate a settlement offer for $5,000 from Royal Castle Systems, Inc., to Charles Gravelin or Daniel Gravelin.
5. Despite numerous attempts by the Gravelins to contact him, Respondent repeatedly refused to communicate with them or to adequately represent them.
6. Respondent’s failure to refile the Gravelins’ action resulted in the loss of the Gravelins’ claim because of the statute of limitations.
7.By reason of the foregoing, Respondent violated Disciplinary Rules 1-102(A)(6), 6-101 (A) (2), 6-101 (A) (3), 7-101 (A) (2) and 7-101 (A) (3) of the Code of Professional Responsibility.

The Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline is granted and respondent is hereby disciplined as follows:

a. Respondent is hereby suspended to and including December 29, 1975.
b. Probation for one year to begin upon termination of the suspension with supervision by a local attorney during that period and case status reports on a monthly basis to be sent to The Florida Bar.
c. Respondent is ordered to refer tort claims to counsel outside his office to institute procedures to preclude future conflicts of interest and to insure that the statutes of limitations are met.
d.Respondent is hereby taxed with' the costs of these proceedings in the amount of $900.81.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Irving E. MILLER, Respondent.
    No. 47872.
    Supreme Court of Florida.
    Oct. 2, 1975.

      Richard C. McFarlain and John A. Weiss, Tallahassee, for The Florida Bar, petitioner.
    Daniel S. Pearson of Pearson & Josef s-berg, and Mallory H. Horton, of Horton, Perse & Ginsberg, Miami, for respondent.
   PER CURIAM.

Respondent, a member of The Florida Bar, brought this matter before the Court seeking an order suspending enforcement of Rule 11.07(3) of Article XI of the Integration Rule of The Florida Bar, providing for automatic suspension of attorneys convicted of felonies.

The record reflects that Respondent is primarily a real estate broker and, although a member of The Florida Bar, he practices only on rare occasions. Respondent was involved with his partner, a former agent for the Internal Revenue Service, in various business enterprises; Respondent asserts that he signed income tax returns prepared by his partner without knowledge of the violations alleged by the Government. Respondent entered a plea of nolo contendere to one violation of filing a false income tax return, which constitutes a felony. Petitioner-Florida Bar originally recommended a suspension of indefinite term, but at oral argument on Respondent’s “Petition to Modify and Terminate Suspension” attorneys for both parties indicated that they were willing to stipulate for a ninety-day suspension with automatic reinstatement.

In view of the total circumstances and the unique nature of this case and in light of the above agreement of the parties, the Court considers the discipline to be adequate and approves the parties’ stipulation.

Respondent is hereby suspended from the practice of law in Florida for a period of ninety days, at the expiration of which time he shall be automatically reinstated. The effective date of this suspension shall be September 22, 1975, the date on which the parties signed the above-mentioned stipulation.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and HATCHETT, JJ., concur.


author: ENGLAND, Justice.

text:
    The SENTINEL STAR EXPRESS COMPANY d/b/a Jack Rabbit Express, Petitioner, v. The FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 46347.
    Supreme Court of Florida.
    Sept. 24, 1975.

      Gregory A. Presnell of Akerman, Sen-terfitt, Eidson & Wharton, Orlando, and Norman J. Bolinger of Schwartz, Bolinger & Peterson, Jacksonville, for petitioner.
    Prentice P. Pruitt, Norman H. Horton, Jr., Tallahassee, and Sol H. Proctor, Jacksonville, for respondent.
   ENGLAND, Justice.

By petition for a writ of certiorari, petitioner (“Sentinel”) asks us to review and reverse an order of the Public Service Commission granting ASI, Inc. (“ASI”) a certificate of public convenience and necessity to operate as a private contract carrier under Section 323.04, Florida Statutes (1973). We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

ASI applied to the Commission for permission to carry freight for Stanley Home Products (“Stanley”) between certain points in Florida, and Stanley supported the application. • The application was opposed by Sentinel, which holds a common carrier’s certificate for similar territory in the state, and another common carrier.

Public hearings were conducted before a hearing examiner, who denied ASI’s application. Exceptions to his report were filed and oral argument was held before the full Commission. The Commission reversed the examiner and granted ASI’s application on the ground that contract carriage under Section 323.04, Florida Statutes (1973), requires special services or equipment not generally provided by a common carrier, and that the record substantiates Stanley’s need for both special services and dedicated equipment. The Commission subsequently denied requests for reconsideration and for additional oral argument.

Sentinel complains that the Commission’s conclusion is the exact opposite of its hearing examiner’s although purportedly based on the same facts. The examiner’s report and the Commission’s order are identical in several respects, including the underlying facts as to Stanley’s product distribution system, its carriage needs, and Sentinel’s carriage capability. The report and order are also identical in the test they have applied to distinguish common from contract carriage. They differ, however, in their characterization of the nature of services which ASI proposes to perform for Stanley. The examiner concluded:

“Since ASI proposes to provide only those transportation services normally provided by parcel and general commodity carriers, this application must be denied.”

The Commission concluded:

“There is testimony in this instance that ASI intends to dedicate equipment to Stanley and utilize the same drivers to make weekly deliveries. . . . that ASI will place the orders where the dealers wish, will deliver at certain localities when the dealers are not home, will deliver after S :00 P.M. and will attempt to deliver on a time schedule.
In consideration of the foregoing, this Commission is of the opinion that a sufficient showing of public convenience and necessity has been made together with a showing that the carriage is of a specialized nature . . . . ”

By law only the Commission is empowered to issue a certificate of public convenience and necessity for private contract carriage. Section 323.04(3)(a), Florida Statutes (1973) , Sentinel has no vested right in the hearing examiner’s application of facts to arrive at a conclusion of law. The Commission’s conclusion is buttressed by substantial and competent facts, and the contrary conclusion of the examiner is of no legal significance. Under these circumstances the Commission’s decision may not be disturbed by this Court.

With respect to Sentinel’s suggestion that it has an absolute right to present oral argument on a petition for reconsideration where the recommendation of an examiner is rejected, we disagree. A petition for reconsideration is used to bring to an agency’s attention specific matters which do not appear to be reflected in its reasoning and decision. By this means the need for judicial review can. be obviated, and the expertise of the agency can be expressed within the framework of goals established by the Legislature. Where the petition only seeks a second hearing on the same contentions, these policies are not furthered. Without exception, the alleged errors in this case were major issues which were fully argued before the Commission on review of the examiner’s report. There was no error in refusing petitioner a second oral argument.

The petition for writ of certiorari is denied.

ADKINS, C. J., ROBERTS, J., and . HENSLEY and MELVIN, Circuit Judges, concur.

      . Section 323.04(3) (a) directs that a hearing “be held by the commission.” Sentinel does not complain, however, that the Commission was without authority to delegate this function to a hearing examiner.

      . Cf. Section 120.68(9)-(12) and (14), Fla. Stat. (Supp.1974).

      . See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315, 317 (Fla.1974).


text:
    William Clarence HURLEY, Appellant, v. STATE of Florida, Appellee.
    No. 46174.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Louis O. Frost, Jr., Public Defender, and K. V. Canipelli and Steven E. Rohan, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Surkowski, Asst. Atty. Gen., for appellee.
   ENGLAND, Justice.

This case is here on direct appeal from an order of the Duval County Court which denied appellant’s motion to dismiss two traffic offense charges. The county court expressly upheld the constitutionality of Section 316.018, Florida Statutes, thereby giving us jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution.

Appellant was arrested and charged with failing to drive in a single lane, and driving while intoxicated. Following the disposition of procedural matters not pertinent here, appellant moved to dismiss the charges lodged against him, which motion was denied. In the written order -of denial the court directly ruled on the validity of Section 316.018. Appellant then pled no contest to the charges against him and was appropriately sentenced by the county judge.

Appellant contends that the court lacked jurisdiction to prosecute him on the basis of a traffic ticket rather than an information, and in the alternative that Section 316.018 is unconstitutional. The gist of appellant’s first argument is that the statute which formerly allowed prosecution for traffic violations on the basis of uniform traffic tickets was repealed by a subsequent enactment of the same Legislature. Appellant couples this argument with the mandate of Florida Traffic Rule 6.07, promulgated by this Court, which requires prosecution for traffic violations by way of affidavit, information or indictment in the absence of statutory authority for prosecution by way of uniform traffic citation.

Rule 6.07 provides:

“All prosecutions for traffic violations by law enforcement officers shall be by uniform traffic complaint as prescribed for in Florida Statutes 316.018 or other applicable statutes, or by affidavit, information or indictment as provided for in the Florida Rules of Criminal Procedures.”

Appellant’s first contention is without merit. Rule 6.07 authorizes prosecution on the basis of a traffic ticket prepared by a police officer. It merely recognizes, however, that the Legislature may prescribe a uniform format for traffic tickets in Florida. The second statute to which appellant refers, read in conjunction with the first, does not eliminate the authorization for prosecution by traffic ticket. It merely eliminates a specific form set forth in the text of the prior statute in order to allow the Department of Highway Safety and Motor Vehicles to prescribe a new format. Appellant has no vested right under the Constitution of the laws of this State to require a state attorney or a grand jury to pass upon probable cause for the commission of a traffic offense.

Appellant argues in the alternative that Section 316.018 is an unconstitutional delegation of prosecutorial authority to a police official. This contention is also without merit. Sections 316.018(2) and (3) direct the deposit of all traffic offense tickets with the appropriate court, after which judicial proceedings commence. A state attorney or his assistant actually prosecutes these matters on behalf of the state. The issuing police official is not the prosecutor.

The order of the Duval County Court is affirmed.

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

      . Appellant filed a suggestion for writ of prohibition in this Court which was denied after hearing, without prejudice to his right to raise appropriate issues in the trial court. Hurley v. Olliff, Case No. 45,660. (July 2, 1974).

      . Chapter 71-135, Laws of Florida.

      . Chapter 71-321, Laws of Florida.

      . Tamiami Trail Tours, Inc. v. Tampa, 159 Fla. 287, 31 So.2d 468 (1947).

      . Art. I, § 15(a), Fla.Const. (1968).


text:
    Laura A. MAHLER, Petitioner, v. LAUDERDALE LAKES NATIONAL BANK et al., Respondents.
    No. 46602.
    Supreme Court of Florida.
    Sept. 24, 1975.

      K. P. Jones, of Jones & Montgomery, Fort Lauderdale, for petitioner.
    ■ Eugene N. Betts, Fort Lauderdale, for respondents.
   ENGLAND, Justice.

This cause comes before us on petition for a writ of certiorari to the Industrial Relations Commission. Petitioner contends that the Commission erred in reversing findings of the Judge of Industrial Claims (“the judge”) to the effect that petitioner’s on-the-job injury rendered her totally and permanently disabled. The case also presents a more encompassing issue, however, in terms of the scope of our review under Scholastic Systems, Inc. v. LeLoup. It poses the question of whether the Commission departs from the essential requirements of law when it overturns an order of a Judge of Industrial Claims in a case where both the Commission’s order and that of the judge appear to be based on substantial and competent evidence.

The relevant facts are not complicated. While working as a drive-in teller for respondent, petitioner suffered a compensable injury to her back which causes great discomfort and pain. The basic controversy between the parties concerns petitioner’s ability to secure and hold employment in the open labor market in light of her physical suffering. The judge found that petitioner sustained a 100% loss of wage earning capacity, based on evidence that:

(1) petitioner cannot perform a job involving continued standing and is unable to remain seated for more than about ten minutes;

(2) she is 48 years old and cannot perform her own housework;

(3) she states that she could not offer an employer regular hours of work and is unsure of her ability to arise regularly from bed in order to get to work;

(4) she sought and could not obtain employment with the City of Lauderhill, and she tried and could not continue her previous full-time employment as a bank teller;

(5) future surgery will be required if her condition worsens; and

(6) petitioner sat and stood alternately at the workmen’s compensation hearing, and at home she must lie on the floor with her legs elevated to relieve the tension in her back.

The Commission reversed and remanded the judge’s order based on evidence that:

(1) petitioner’s treating orthopedist testified that she could do light work which did not involve bending, stooping, continued standing, carrying, or lifting weights in excess of 25 pounds, if she was allowed to move about and sit in order to ease the tension on her back;

(2) petitioner failed to seek employment, except for an inquiry she directed to the mayor of the City of Lauderhill for a position in the utility company;

(3) respondent bank has available a position receiving and handling mail deposits, which does not involve bending or lifting and can be performed while sitting or standing; and

(4)respondent’s personnel officer would recommend the position for petitioner and give her preference in hiring for that position.

These findings persuaded a majority of the Commission that petitioner had not carried the burden of proving permanent disability, citing to and quoting from Clark v. Western Knapp Engineering Co., 190 So.2d 334 (Fla.1966).

The Clark decision reaffirms the principle in workmen’s compensation cases that pain and the inability to perform hard work do not necessarily indicate a loss of wage earning capacity. A claimant must also affirmatively demonstrate that some effort was made to obtain employment within the claimant’s physical limitations. Such a showing will then shift to the employer the burden of demonstrating that suitable work is in fact available, failing which compensation for total disability is awardable.

The record evidence of physical limitation, which the judge was in the better position to evaluate, was not the critical factor for a majority of the Commission, and it is not determinative for us. The Commission found the evidence inadequate to support a finding that petitioner had endeavored to obtain employment in the open labor market within her physical abilities. This was a conclusion derived by applying available facts to the legal standard for a total disability award. The Commission was better able to make this determination than the judge, since overt efforts to gam employment are not facts which derive any gloss from the trier-of-facts’ superior vantage point.

The petition for writ of certiorari is denied.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

      . Article V, Section 3(b)(3), Fla.Const. (1972).

      . Two other issues presented to the Court relate to apportionment of benefits and attorneys’ fees. Since this case must be reconsidered below, and since attorneys’ fees are appropriately awarded only if petitioner is ultimately successful, both issues can be resolved by the Judge of Industrial Claims.

      . 307 So.2d 166 (Fla.1974).

      . Such a showing was made, for example, in Matera v. Gautier, 133 So.2d 732 (Fla.1961).

      . The Commission’s findings are in part directed toward the employer’s effort to meet this burden. These findings are unnecessary if the reference to Glarh is intended to mean that petitioner failed, as a preliminary matter, to meet her burden of seeking suitable employment.

      . Section 120.68(10), Fla.Stat. (Supp.1974).

      . Petitioner’s doubt as to her ability to perform the job then, available from respondent is no substitute for an actual attempt. Her testimony in this regard is not substantial or competent on the issue of effort.


text:
    John E. JAMESSON, d/b/a Stag & Doe Cocktail Lounge and Package Store and Abbess Enterprises, Inc., d/b/a the Lemon Tree Restaurant, Defendants-Appellants, v. DOWNTOWN DEVELOPMENT AUTHORITY OF the CITY OF FORT LAUDERDALE, a Public Corporation, Plaintiff-Appellee, and Reiss Realty Company, a Florida Corporation, et al., Defendants-Appellees.
    No. 45460.
    Supreme Court of Florida.
    Sept. 24, 1975.
    Carl V. Wisner, Jr., Fort Lauderdale, for John E. Jamesson, and Robert A. White, of Allsworth, Doumar, Schuler, Padula & Laystorm, Fort Lauderdale, for Abbess Enterprises, Inc., defendants-appellants.
    Donald H. Norman, of Ross, Norman & Cory, and Elliott B. Barnett, of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellee.
    Geoffrey B. Dobson and Winifred Sheridan Smallwood, Tallahassee, for the Department of Transportation, amicus curiae.
   ENGLAND, Justice.

This case is here on direct appeal from an order of the Broward County Circuit Court which initially and directly construed Article X, § 6 of the Florida Constitution (1968). We have jurisdiction to review that court’s decision pursuant to Article V, § 3(b)(1) of the Florida Constitution (1972).

Appellee initiated a condemnation proceeding in order to acquire certain parcels of real property in downtown Fort Lauder-dale. Appellants each held a leasehold interest in a building located in the affected area claiming that they derived a profit from the respective businesses which they operated in those leased facilities. Appellants moved the trial court for permission to submit evidence of “business damages” which would result from the condemnation. Their motion was denied. Subsequently, the trial court incorporated that denial into a final judgment which held that where there is a complete taking of real property and resulting payment to the owner, the business damages or loss of profits of lessees and sub-lessees are not elements of damage under the constitution or the Florida condemnation statutes.

The Florida Constitution (1968) provides that “No private property shall be taken except for a public purpose and with full compensation therefor . . . ,” Appellants argue that this provision of the constitution requires compensation for their business damages. We disagree.

The right to business damages is a matter of legislative grace, not constitutional imperative. Lost profits and business damages are intangibles which generally do not constitute “property” in the constitutional sense. Backus v. Fort Street Union Depot Co., 169 U.S. 557, 18 S.Ct. 445, 42 L.Ed. 853 (1898). The Florida legislature has chosen not to allow business damages in cases where all of the condemned property has been taken and the owner has been awarded full compensation. We adhere to the principle previously expressed on the same issue under the “just compensation” clause of the predecessor constitution.

The order of the trial court is affirmed.

ADKINS, C. J., ROBERTS, OVER-TON and DREW (Retired), JJ„ and HENSLEY and MELVIN, Circuit Judges, concur.

      . Fla.Const. art. X, § 6 (1968).

      . State Road Dep’t v. Abel Inv. Co., 165 So.2d 832 (2d Dist.Ct.App.Fla.), cert. denied, 169 So.2d 485 (Fla.1964). This is the predominant view in the United States. See 4, Nichols, Eminent Domain § 13.3.

      . Section 73.071(3) (b), Fla.Stat., provides that business damages are allowable when less than an entire property has been condemned, but only if the taking may damage or destroy a business more than five years old which is located on lands adjoining the property taken. Appellants claim that the present “full compensation” clause incorporates both the “full compensation” and the “just compensation” clauses of the 1885 Constitution (Section 29 of Article XVI and Section 12 of the Bill of Rights, respectively). The suggestion is made that Section 73.071, Fla.Stat., antedates the constitutional change, leaving an unreasonable classification in the statutes which is at odds with the 1968 Constitution. If the legislation is constitutionally infirm, however, we could only invalidate the allowance of those business damages now allowable by law, an action that would not benefit appellants since their claim is predicated on the constitutional meaning of “full” compensation rather than any statutory prescription.

        . State Road Dep’t v. Bramlett, 189 So.2d 481 (Fla.1966). See also Intercoastal Drydock, Inc. v. State Road Dep’t, 203 So.2d 19 (3d Dist.Ct.App.Fla.1967), cert. denied, 210 So.2d 223 (Fla.1968).


text:
    THE FLORIDA BAR. In re C. J. BUDZINSKI.
    No. 47153.
    Supreme Court of Florida.
    July 2, 1975.

      Michael A. Masin, Miami, for The Florida Bar, complainant.
    Jackson L. Peters, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment.

On June 25, 1974, The Florida Bar filed its Complaint alleging:

COUNT I
“1. The Respondent, C. J. Budzinski, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
“3. Prior to and during May of 1972 Respondent was employed as an attorney by Aleda Lopez and Alfonso Lopez, wife and husband, hereinafter referred to simply as his clients.
“4. Respondent continued to act as an attorney for his clients and was in control of legal documents of his clients through at least September 18, 1973.
“5. Respondent undertook the appeal of a $75,000.00 judgment against his clients (See Dade County Case No. 71-4235, Jenkins v. Lopez).
“6. However, the Respondent negligently and incompetently failed to prosecute the appeal beyond the filing of a notice of Appeal and two separate Motions for Extensions of Time, both motions being necessitated by Respondent’s neglect and incompetence.
“7. In explaining his own incompetence and neglect to his clients and to Eleventh Judicial Circuit Grievance Committee “H”, the Respondent displayed lack of knowledge of substantive and procedural law which was essential to the appeal of his clients.
“8. Moreover, in about November of 1972, Respondent undertook the filing of Petitions in Bankruptcy for his clients, but had not filed the Petitions by September of 1973. Respondent had “lost” the paperwork for the petitions in his own offices, but as of March of 1973, Respondent had not bothered to check with his clients or an office associate as to the whereabouts of the paperwork. '
“9. During the course of his representation of his clients, the Respondent incompetently and negligently filed Answers for Garnishee (and accepted and cashed two $10 fees from the Clerk of the Circuit Court) on behalf of his clients’ employers. At no time has Respondent been attorney for said employers, however, nor was he authorized to file said answers.
“10. For his incompetent and negligent employment respondent has accepted at least the following monies from his clients and damaged and prejudiced them to at least that extent:
a. $100 on about April 12, 1972 (Receipt # 302)
b. $300 on about April 20, 1972 (Receipt # 303)
c. $150 on about April 27, 1972 (Receipt # 304)
d. $250 on about May 19, 1972 (Receipt # 306)
e. $150 on about July 10, 1972 (Receipt # 313)
f. $108 on about November 6,1972
g. $100 on about November 15, 1972
h. $100 on about December 15, 1972 (Receipt # 307)
i. $100 on about January 17,1973
j. $100 on about February 16,1973
“11. Respondent has and continues to fail to account to his clients for the monies he has received from them and Respondent continues to maintain such inadequate office records and procedures (both work records, etc., and financial records and accounts) that it is doubtful he can ever account properly.
“12. By reason of the foregoing, Respondent has violated DR 1-102[A] (2) and (3), and DR 9-102(B)(3) of the Code of Professional Responsibility, as well as Rule 11.02(4) (a) and (b) of the Integration Tule (sic) of The Florida Bar.
COUNT II
“1. Complainant realleges the matters set forth in paragraphs 1 and 2 of Count I, above.
“2. Beginning about July of 1972, and continuing through approximately April of 1973, the Respondent was employed as attorney for Louis S. Burek.
“3. Respondent was employed to resolve a cloud on a title to real property in which Mr. Burek had in interest. With Respondent’s knowledge, an out-of-state law firm (McCabe and McCabe of Poughkeepsie, New York) was associated in the matter.
“4. The cloud in the title to Mr. Bur-ek’s property has not been lifted, because of Respondent’s failure to perform competent services in a timely manner.
“5. Despite Respondent’s failure to perform proper legal services for Mr. Bur-ek, Respondent has received and not returned over $1,500 in fees and/or loans from Mr. Burek. (See check no. 806 ($500), dated 2-12-72, and check no. 767 ($200) dated 7-3-72, from First National Bank of Red Hook, N.Y.; and receipt No. 3-003883 ($800) from Citizen Federal Savings and Loan Association of Miami, Florida; and check no. 109 ($59.-80), dated 3-5-73, from The Bank of Naples, Naples, FI.)
“6. Respondent has also failed to account properly for the funds referred to in paragraph 5 of this Count, despite Mr. Burek’s requests for an accounting.
“7. Respondent, during his representation of Mr. Burek, also had control of and has either converted, lost, and/or failed to account for a television set worth $473.15 and several social security checks, all belonging to Mr. Burek.
“8. By reason of the foregoing, Respondent has violated DR 1-102 (A) (4) and (6), DR 6-101 (A)(1), (2), and (3) and DR 9-102(B)(3) of the Code of Professional Responsibility, as well as Rules 11.02(3) (a) and (4) (a) and (b) of the Integration Rule of The Florida Bar.
COUNT III
“1. Complainant realleges the matters set forth in Counts I and II, above.
“2. During the periods in which the Respondent was attorney for Mr. and Mrs. Lopez and for Mr. Burek, Respondent was, and still is, an alcoholic.
“3. During the periods in which Respondent was attorney for Mr. and Mrs. Lopez and Mr. Burek, Respondent’s office was not sufficiently organized to account for monies, documents or files of his clients. Moreover, Respondent has had loose and disorganized office associations with various other persons, including another attorney.
“4. Despite his alcoholism and his own incompetence and neglect, and despite the availability of other attorneys with whom to consult, Respondent has failed to take any positive actions to voluntarily cease the practice of law pending recovery, and Respondent has failed to effectively associate himself with another attorney to protect the interests of clients who unsuspectingly retain him.
“5. By reason of the foregoing, Respondent has demonstrated incompetence violative of the public good, as contemplated by Rule 11.01(4) of the Integration Rule of The Florida Bar.

The Petition for Approval of Conditional Guilty Plea for Consent Judgment is granted and Respondent is hereby disciplined as follows:

“1. A public reprimand. (The publication of this opinion shall serve as the public reprimand to Respondent.)
“2. Restitution by the Respondent to Mr. and Mrs. Alfonso Lopez in the amount of $1,478 and to Mr. Lewis S. Burek in the amount of $1,973.15. The restitution shall be paid within 270 days of the Florida Supreme Court’s approval of this plea.
“3. Probation for three (3) years with the following conditions:

A.The Respondent will not commit any crimes or violate the Integration Rule or Code of Professional Responsibility.

B. The Respondent will not consume any alcoholic beverage unless prescribed by a physician.

C. The Respondent will file quarterly reports directly with the Clerk of the Florida Supreme Court with a copy to Staff Counsel for The Florida Bar. In preparing such reports, Respondent shall include the following minimum information: 1) A report from his personal physician indicating his progress in treating his alcoholism. 2) A caseload report listing every matter which has been pending in the Respondent’s office during the preceding quarter. The name of every client and brief description of the subject matter shall be included along with a statement about whether the case is not current, current, or disposed of. If the case is pending before a court, the court and case number shall be included in the report.

D. During the period of probation, the Respondent consents, with one working day’s notice, to an inspection of his case files and trust account records by a member of The Florida Bar designated by the Staff Counsel for The Florida Bar. The confidentiality of those files shall be maintained.

E. BREACH OF PROBATION AND REVIEW BY THE FLORIDA SUPREME COURT. The Respondent agrees that his breach of the conditions of his probation may be determined by the filing with the Supreme Court of a grievance committee report approved by the Board of Governors, finding probable cause of the breach. The Board of Governors may make a recommendation of discipline when such a report is filed.

Should the Florida Supreme Court approve a committee’s probable cause report finding that the Respondent has breached his probation by consuming alcoholic beverages, the Respondent consents to being disbarred for three years with the requirement of proof of rehabilitation before any reinstatement. Upon the filing of such a probable cause finding with the Supreme Court, the Respondent will be entitled to file a response contesting only the report’s factual conclusions. However, the Board of Governors may recommend a discipline other than disbarment.

Should a probable cause finding that the Respondent has breached any other condition of his probation be filed with the Supreme Court, the Respondent will be entitled to file a response contesting the report’s factual conclusions and any discipline recommended by the Board of Governors.

“4. Costs incurred in these proceedings shall be taxed against the Respondent and paid to The Florida Bar within thirty (30) days after the approval of this plea by the Florida Supreme Court unless such time is extended by The Florida Bar for good cause.”

It is so ordered.

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


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Glenwood PERRY, Respondent.
    No. 46942.
    Supreme Court of Florida.
    Sept. 3, 1975.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    Richard W. Ervin, III, Public Defender, for respondent.
   OVERTON, Justice.

This cause is before us on petition for - writ of certiorari to review the decision of the First District Court of Appeal reported at 308 So.2d 173. The decision sought to be reviewed conflicts, as expressed in the opinion, with Lyles v. State, 299 So.2d 146 (Fla.App. 1st 1974) and Estes v. State, 294 So.2d 122 (Fla.App. 1st 1974). At issue is the trial court’s failure to determine a factual basis for a guilty plea, as prescribed in Rule of Criminal Procedure 3.170 (j). The First District certified the case to this Court in view of the aforementioned conflict.

We reverse upon the authority of Williams v. State, 316 So.2d 267 (Fla.1975), and Estes v. State, 316 So.2d 276 (Fla.1975) and remand for proceedings not inconsistent therewith.

It is so ordered.

ADKINS, C. J., ROBERTS and ENGLAND, JJ., and CARLISLE, Circuit Judge, concur.


author: ROBERTS, Justice. OVERTON, Justice ENGLAND, Justice

text:
    STATE of Florida, Petitioner, v. John Joseph EMBRY, Respondent.
    No. 46218.
    Supreme Court of Florida.
    Sept. 3, 1975.

      Robert L. Shevin, Atty. Gen. and Frank B. Kessler, Asst. Atty. Gen., for petitioner.
    Donald J. Beuttenmuller, Jr., of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for respondent.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, in Embry v. State, 300 So.2d 24 (Fla.App. 4, 1974), which purportedly conflicts with Turner v. State, 272 So.2d 129 (Fla.1973), and State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971).

Respondent was charged by information filed August 3, 1973, with possession of marijuana in excess of five grams. On this same date he filed a demand for speedy trial pursuant to Rule 3.191(a)(2), F.R.Cr.P. On August 10, 1973, respondent deposed one of the State’s witnesses which deposition was not filed for record with the trial court until October 2, 1973. Respondent, on August 14, 1973, filed a motion to suppress evidence in the trial court. On August 15, 1973, the trial judge entered an order striking respondent’s demand for speedy trial as spurious, re-setting the cause for trial by jury to the week of October 9, 1973, and setting the motion to suppress evidence for hearing on September 13, 1973. In said order, the trial court stated:

“This cause came on ex parte upon the filing of a motion to suppress evidence in this cause. It appears to the Court that on August 3, 1973 the defendant filed a demand for speedy trial and that subsequent thereto on August 14, 1973, the defendant has filed a Motion to Suppress Evidence, thereby showing that the Demand for Speedy Trial was spurious. See Turner v. State, 272 So.2d 129.”

On October 4, 1973, respondent filed a motion to discharge alleging that he did not receive a trial within sixty days after having made demand for the same which motion was denied by the trial court on October 9, 1973. Respondent, on October 9, 1973, withdrew his previous plea of not guilty and entered a plea of no contest to possession of marijuana of less than 5 grams, a lesser included offense as contained in the information.

Upon appeal, the District Court of Appeal, Fourth District, held that the trial court erred in striking the defendant’s demand for speedy trial and erred thereafter in failing to accord defendant a speedy trial. Accordingly, the District Court reversed the trial court and determined that defendant was entitled to be discharged.

The State urges that the District Court erred in holding that respondent was entitled to have his judgment and sentence reversed based upon denial of respondent’s right to a speedy trial. Petitioner argues that respondent’s actions in taking a deposition of a State witness seven days after the filing of the speedy trial demand which was not filed with the trial court until two months after filing demand for speedy trial and the filing of a motion to suppress evidence seven days after filing demand for speedy trial demonstrate that respondent had not met the prerequisite for filing a speedy trial demand as set forth in State ex rel. Hanks v. Goodman, supra, and Turner v. State, supra.

In Turner v. State, supra, defendant, two days after filing his motion for speedy trial, moved to compel disclosure of all evidence favorable to him and several days later he moved to compel certain witnesses to give depositions. Reversing the District Court’s decision to discharge the defendant, this Court explained:

“Hanks, supra, [253 So.2d 129] enunciates two basic requirements which must be met by one seeking to perfect his rights under Rule 3.191, Cr.P.R., 33 F.S. A. First, the motion for speedy trial must be made subsequent to the date of the filing of an indictment, information or trial affidavit against the defendant. Second, the defendant must be or will be prepared for trial at the time he makes his motion for speedy trial. Otherwise, the motion will be considered spurious and may be striken.
“Notwithstanding the state’s conduct surrounding pre-trial discovery, respondent’s energetic interventions through motions constitute the antithesis of ‘a bona fide desire to obtain trial’. They certainly are not suggestive of the wondrous thought that respondent ‘is available for trial, has diligently investigated his case, and that he is prepared’, or even that he ‘will be prepared for trial.’ ”

This Court in State ex rel. Hanks v. Goodman, supra, opined:

“After a demand for speedy trial has been filed, the court should not summarily dismiss a defendant at the expiration of the 60-day period provided in the rule. It is not only appropriate, but necessary, to ascertain whether or not the accused had a ‘bona fide desire’ to obtain the speedy trial and to determine whether or not the accused or his attorney ‘has diligently investigated his case, and that he is prepared’ for trial. If these prerequisites to the filing of the demand were not met, the demand for speedy trial should be stricken as being null and void.”

We agree with the District Court that there is no indication that the defendant at the time of his demand did not have a bona fide desire to obtain trial and agree with the following excerpt from its decision :

“We notice that the time for filing motions to suppress under Rule 3.190(h)(4), F.R.Cr.P., is as follows:
“ ‘(4) Time for Filing. The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.’
“In the manner of common sense and trial experience, it will be rare indeed for an accused in the normal sequence of things to file a motion to suppress more than sixty days prior to trial. And yet under the trial court decision this would be required of those who seek to obtain a speedy trial. Repeating, we are convinced that the mere filing of a motion to suppress is not tantamount to a finding of law that the speedy trial demand-er does not have a bona fide desire to obtain trial, that he is not prepared and will not be prepared for trial.”

However, we must point out that Rule 3.191(a)(2), F.R.Cr.P., provides in part:

“Except as otherwise provided, and subject to the limitations imposed under section (c) hereof, every person charged with a crime by indictment or information shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days, . . ..” (emphasis supplied),

and Rule 3.191(d)(2), F.R.Cr.P., provides in pertinent part:

“When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . (iv) a period of reasonable and necessary delay resulting from proceedings for hearings on pre-trial motions, . . ..”

After filing a demand for speedy trial on April 1, 1971, defendant, in State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973), filed a motion to dismiss alleging that the information under which he was charged was so vague that he could not prepare an adequate defense. Trial was set for July 6, 1971, beyond the 60-day period. On June 9, 1971, he moved for discharge which motion was denied by the trial court. The District Court denied his request for prohibition and upon petition for writ of certiorari, this Court found that by filing the motion to dismiss alleging insufficient information for preparation of a defense, defendant admitted that his demand for speedy trial was spurious because the demand indicated he would be prepared for trial. Therein, this Court noted that the time for speedy trial may be extended for hearings on pretrial motions.

Although we find that the trial court erred in striking the demand as spurious, we find that this order striking the demand and setting a hearing date for the motion to suppress, wherein the trial court re-set the trial by jury to the week of October 9, 1973, had the practical effect of extending the time for speedy trial as permitted by Rule 3.191(d) (2), F.R.Cr.P.

Accordingly, we find that the trial court did not err in denying the respondent’s motion to discharge. The decision of the District Court is quashed and the cause is remanded for further proceedings consistent herewith and for disposition of any other questions which were brought to that court for review.

It is so ordered.

ADKINS, C. J., BOYD, J., and WELLS, Circuit Judge, concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

ENGLAND, J., dissents with an opinion.

OVERTON, Justice

(concurring in part, dissenting in part).

I do not agree that we have conflict jurisdiction of this cause. If this case were properly before this Court, I would agree with the opinion of the majority on the merits.

ENGLAND, Justice

(dissenting).

Certiorari in this case was tentatively granted to consider whether the district court’s decision below is in “direct conflict” with our decisions in State ex rel. Hanks v. Goodman and Turner v. State ex rel. Pellerin. After hearing oral argument and reviewing the record and briefs, I have concluded that there is no conflict and the writ of certiorari should be discharged.

In Hanks the Court said that the expiration of 60 days from the filing of a motion for speedy trial does not entitle the defendant to an automatic dismissal of the charge against him. It was there indicated that before dismissal the trial court must be satisfied that, at the time of filing the motion, the defendant had a bona fide desire to obtain a speedy trial, that he had investigated his case, and that he was prepared for trial. These elements were characterized as “prerequisites to the filing of the demand.”

In Turner, the Court applied Hanks and found that the defendant could not have had a bona fide desire to obtain a speedy trial in light of the extensive discovery efforts he made subsequent to the filing of his motion.

In this case the district court held that the trial judge erred in striking a demand for speedy trial twelve days after the motion was filed, where the only basis for the action of the judge was defendant’s post-filing request that certain evidence be suppressed. By holding that the mere filing of a subsequent motion to suppress is not, as a matter of law, inconsistent with a prior, bona fide desire to obtain a speedy trial, the district court correctly applied the law which this Court had announced in Hanks.

Without constitutional jurisdiction to consider the merits, we should deny the writ of certiorari. A responsible exercise of our limited constitutional role requires that we refrain from a review of district court decisions which, on their face, either harmonize with or apply existing precedent. The district court’s opinion in this case does precisely that.

It is ironic that, in glossing over the jurisdictional issue to reach the merits, the majority here supports its result on the merits with State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973). Nothing could more dramatically show the mischief that can be created by a judicial expansion of rather narrow constitutional limitations. The Ranalli opinion opens and closes with a declaration that there is no jurisdiction to consider the merits of the case. Between these declarations, however, are sandwiched the Court’s declaration that “statements of the trial judge cannot be a basis for conflict jurisdiction”, and the Court’s observation that the trial judge made reference to the Rule exception on which the majority now relies. Obviously the meat of the Ranalli sandwich is pure dicta (“Statements or comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.”). The majority has now, seemingly, given it precedential significance.

      . Art. V, Section 3(b)(3), Fla.Const. (1972).

      . 253 So.2d 129 (Fla.1971).

      . 272 So.2d 129 (Fla.1973).

      . Fla.R.Crim.P. 3.191(c), 33 Fla.Stat.Ann. 61 (Supp.1974).

      . 253 So.2d at 130. This case did not discuss or consider the “will be prepared for trial” portion of the speedy trial rule.

      . The decision below is completely consistent with Ilrnhs, by requiring a factual determination of intent and the extent of preparation at the time of filing. It is factually distinguishable from Turner, however, where there were requests to develop evidence in preparation for trial in contrast to the suppression of evidence already evaluated.

      . 277 So.2d at 25.

      . Black’s Law Dictionary 541 (4th Ed. 1968).


author: ENGLAND, Justice. OVERTON, Justice

text:
    CASTLEWOOD INTERNATIONAL CORPORATION, etc., et al., Petitioners, v. Dianne LaFLEUR and Edward LaFleur, Respondents.

    No. 45640.
    Supreme Court of Florida.
    Oct. 29, 1975.
    Rehearing Denied Jan. 22, 1976.

      Thomas E. Scott, Jr., of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for petitioners.
    Irma V. Hernandez, of Sepler & Suss-man, Hialeah, for respondents.

       Editor’s Note: The decision in Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Finnacial Corp., published in the advance sheets at this citation (322 So.2d 520) was withdrawn from the bound volume at the request of the Supreme Court and will be republished.

   ENGLAND, Justice.

By petition for a writ of certiorari brought under Fla.Const. art. V, § 3(b)(3), we are asked to review a decision of the Third District Court of Appeal, reported at 294 So.2d 21, which is allegedly in conflict with prior appellate decisions of Florida. The requisite conflict exists between the decision below and Cloud v. Fallís, 110 So.2d 669 (Fla.1959), and certiorari is granted.

On the merits, we find that the district court erroneously reversed the trial court’s order directing a new trial on the issue of punitive damages, by failing to apply the rule of law enunciated in Cloud. For that reason we vacate the decision below and direct the court to reinstate the: trial court’s order requiring a new trial on that issue.

This matter was tried on a complaint which alleged intentional assault and battery, negligence, and wanton and willful misconduct by the individual defendant, Holland, in the course of his employment for the corporate defendant Castlewood. The latter allegation would form the basis for imposing punitive damages if appropriate evidence were adduced, and there is no controversy between the parties as to the legality of having submitted that issue to the jury in this case. The basic facts giving rise to the controversy, which are set forth in the opinion below, are unnecessary for our determination. In this Court the sole controversy is whether the trial court was correct in granting a motion for new trial on the issue of punitive damages after the jury had awarded both compensatory and punitive damages against the defendants.

At the close of defendant’s case the trial judge charged the jury, in accordance with the requests of the parties, on the legal requirements for liability and for damages. In this there was admittedly no error. On his own, however, the trial judge also charged the jury as to the legal definition of “gross negligence”, although that issue was not an element of the case. The jury charges were presented in “standard” sequence, based on the numerical chronology of Standard Jury Instructions as adopted by this Court in 198 So.2d 319 (Fla.1967). The sequence of instructions was a definition of mere negligence, a definition of gross negligence, an explanation of the damages recoverable for negligence, a definition of willful and wanton negligence, and an explanation of the damages recoverable for that conduct.

After jury verdicts had been received, a hearing was held on defendants’ motion and the court ordered a new trial on the issue of punitive damages. The order states that harmful error was committed by giving two gross negligence charges to the jury, and that defendants did not have a fair trial on that issue. The Third District Court of Appeal disagreed and reversed the order, stating they did not believe the jury was confused. In that, the district court erred.

Since at least 1962, it has been the law of Florida that a trial court’s discretion to grant a new trial is “of such firmness that it would not be disturbed except on clear showing of abuse . . . .” Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959). A heavy burden rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record. See Hendricks v. Dailey, 208 So.2d 101, 103 (Fla.1968); Russo v. Clark, 147 So.2d 1, 3-4 (Fla.1962). The required showing is more difficult in this case because, unlike other cases, the prejudicial error which required a new trial was injected into the case by the judge himself. Under these circumstances his view of the need for corrective action should be accorded additional weight.

In this case there is no suggestion of abuse by the district court, and our independent review of the record discloses none. Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. The trial judge “was in a much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict.” Pyms v. Meranda, 98 So.2d 341, 343 (Fla.1957).

The opinion below is vacated, and the Third District Court of Appeal is directed to reinstate the trial court’s order for a new trial on the issue of punitive damages.

ADKINS, C. J., ROBERTS, J., and CHAPPELL and WILLIAMS, Circuit Judges, concur.

OVERTON, J., concurs with an opinion.

OVERTON, Justice

(concurring).

I strongly concur in the opinion by Mr. Justice England. The judicial discretion of a trial judge is necessary to ensure the effective operation of our court system and the fair administration of justice. Judicial discretion has been defined as: “The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.” 1 Bouvier’s Law Dictionary and Concise Encyclopedia (8th Edition).

The trial judge is given this discretionary power because it is impossible to have a strict rule of law for every conceivable situation that might occur in the course of a judicial proceeding. A trial judge, in carrying out this discretionary authority, has the responsibility to see that justice prevails. The application of this discretionary power involves certain standards and guidelines. It must be logically applied. This discretionary power was never intended to be exercised in accordance with the whim or caprice of a judge. Nor should the judicial action be inconsistent. In dealing with cases essentially alike, as in all law, when the facts are the same, the result must be the same. As to the standards by which a judge must exercise this discretionary power, the following quotation from Justice Cardozo is appropriate:

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, meth-odized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.”
Benjamin Cardozo, The Nature of the Judicial Process, Yale University Press (1921).

Recognizing that a strict rule is not possible in every conceivable situation, the trial judge is given the discretionary power because he is on the scene and can actually see, hear, and observe all the participants in the trial and therefore has a superior vantage point as compared to those of us on the appellate court who must look at a bare record. The authority is generally given in trial procedure, although there are substantive law areas such as child custody, bail, sentencing, and specific performance that depend upon the trial judge’s special on-the-scene insight. In addition, the trial court is given discretionary authority in the administrative operation of the courts.

The judicial determination on a motion for a new trial has historically been a discretionary function of the trial court. It places the full weight of the discretionary power on the trial judge. This discretionary power to grant or deny a new trial emanates from the common law principle that it is the duty of the trial judge to prevent what he considers to be a miscarriage of justice. The historical origin is set forth in Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th Cir. 1941). It is important to recognize that the discretionary au-thoity does not allow the trial judge to enter a judgment for one or the other litigant or to deny him a jury trial, but only allows him to grant another trial in order to correct the mistakes or to avoid the problem or problems he believes from his observation to have caused a miscarriage of justice.

Where a trial judge is applying a rule of law such as ruling on a motion for a directed verdict, this is not a discretionary act, and an appellate court may substitute its judgment for that of the trial judge. However, where the act of the trial judge is a true discretionary act, the test of re-viewability is entirely different. It is well illustrated by Mr. Justice England’s comment and quote from Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959), that “it has been the law of Florida that a trial court’s discretion to grant a new trial is ‘of such firmness that it would not be disturbed except on clear showing of abuse.

Courts in other jurisdictions have made similar statements. Numerous federal courts have adopted the rule that the granting or reviewing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal save in the most exceptional circumstances. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439 (1933); Barnes v. South Carolina Public Service Authority, 120 F.2d 439 (4th Cir. 1941).

A California court has said that it is a general rule that the judge’s conclusion “should not be disturbed unless, under all the circumstances appearing, it is plainly wrong.” Lafargue v. United Railroads, 183 Cal. 720, 724, 192 P. 538, 540 (1920). The Wisconsin Supreme Court has said, “ . . . discretion will not be reviewed unless there is an abuse of it; that is, unless it appears that it was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. That would be its abuse.” Murray v. Buell, 74 Wis. 14, 18, 41 N.W. 1010, 1011 (1889).

What is the test that an appellate court must apply to review a discretionary act of a trial judge? In an extended comment about the discretionary power, a federal court said: “Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Delno v. Market Street Railway Company, 124 F.2d 965, 967 (1942).

It is my opinion that in reviewing a true discretionary act of a trial judge, the appellate court must fully recognize the superior vantage point of the trial judge and apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court’s action was unreasonable and that it had abused its discretion.

In the instant case the trial judge had the responsibility to make sure that there was no miscarriage of justice. It was his opinion that the defendants did not have a fair trial on the issue of punitive damages. There is no showing in this record that his action was arbitrary, unreasonable, or untenable, and, therefore, his decision must be affirmed.

      . As a basis for our jurisdiction petitioner has alleged that the opinion below conflicts with established principles of Florida law which recognize three levels of negligent conduct, and which distinguish between second level “gross negligence” and third level “willful and wanton negligence”. E. g., Carraway v. Revell, 116 So.2d 16 (Fla.1959); Florida Southern Ry. v. Hirst, 30 Fla. 1, 11 So. 506 (1892). No conflict is present because the district court only ruled that the jury was not confused beyond understanding by the trial court’s charges on gross negligence.

      . Indeed, a stronger showing is required to upset an order granting a trial than is required for an order denying a new trial. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959).

      . This is equally true whether error arises during the conduct of the trial or out of the judge’s charges to the jury. Charges to a jury are the legal heartbeat of the case, being all that the jury has by which to assess the facts. Rodriguez v. Gonzalez, 157 So.2d 848, 851 (2d Dist.Ct.App.Fla.1963), cert. denied, 165 So.2d 463 (Fla.1964). It is virtually impossible for an appellate court to know whether a jury was misled or confused by an admixture of erroneous and proper jury charges. Cf., McCullum v. Florida Power & Light Co., 125 So.2d 754, 755 (3d Dist.Ct.App.Fla.1961), aff'd, 140 So.2d 569 (Fla.1962).

      . Most discretionary acts are found in this area of the law. The following are some examples: Control of the scope of voir dire examination, Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla.App.lst 1960); opening statements, Juhasz v. Barton, 146 Fla. 484, 1 So.2d 476 (1941); Woods v. State, 154 Fla. 203, 17 So.2d 112 (1944); evidentiary matters, such as scope of cross-examination, Dabney v. Yapa, 187 So.2d 381 (Fla.App.3d 1966); and, competency of witnesses, Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941); motion for mistrial, Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174 (1947); motion for new trial, Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

      . Grant v. Corbitt, 95 So.2d 25 (Fla.1957).

      . State v. Frear, 155 Fla. 479, 20 So.2d 481 (1945).

      . Wallace v. State, 41 Fla. 547, 26 So. 713 (1899).

      . Miller v. Gardner, 144 Fla. 339, 198 So. 21 (1940).

      . State ex rel. Evans v. Chappel, 308 So.2d 1 (Fla.1975). The foregoing are examples only and are not intended to be all inclusive.


text:
    Ervin EDWARDS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 47134.
    Supreme Court of Florida.
    Dec. 17, 1975.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for appellant.
    Robert L. Shevin, A tty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed.

See Johnson State, 314 So.2d 573 (Fla.1975).

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, TT„ concur.


author: ROBERTS, Justice. ENGLAND, Justice

text:
    STATE of Florida ex rel. FOUR-FIFTY TWO-THIRTY CORP., a Florida Corporation, Relator, v. Fred O. DICKINSON, Jr., as Comptroller of the State of Florida, et al., Respondents.
    No. 46200.
    Supreme Court of Florida.
    July 9, 1975.
    Rehearing Denied Dec. 16, 1975.
    Edward S. Jaffry, Tallahassee, for relator.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., and Larry Levy, Gen. Counsel, and William B. Corbett, Jr., Asst. Gen. Counsel, Tallahassee, for respondents.
   ROBERTS, Justice.

This cause is before us on petition for writ of mandamus by Relator, Four-Fifty Two-Thirty Corporation, seeking to compel Respondents, Comptroller and the Department of Revenue, to refund to it the sum of $73.63 with interest which Relator claims is due and owing him as intangible personal property taxes paid in error. The alternative writ was issued and return was filed by Respondents.

By this petition, Relator, a Florida corporation engaged in the business of selling real property by way of Agreements for Deed, seeks a ruling from this Court that the subject Agreements for Deed, which are taxable as intangible property under Chapter 199, Florida Statutes, be classified and taxed under the provisions of Section 199.032(2).

Pursuant to Chapter 199, Florida Statutes, the Department of Revenue required Relator to return for intangible taxation its Agreements for Deed at the annual rate of one mill under the provisions of Section 199.032(1), which provides:

“(1) An annual tax of one mill on the dollar of the just valuation of all intangible personal property except money as defined in § 199.023(1)(a), and except notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state

Relator in August, 1973, filed its amended Florida Intangible Personal Property Tax returns for 1972 and 1973 and paid a total of $73.63 on such Agreements for Deed pursuant to the requirements of Section 199.032(1). [1972 — $43,043, 1973 — $30,590, Total Amount — $73,633] Thereafter Relator filed its application for refund pursuant to Sections 199.252 and 215.26, Florida Statutes, and advised the Department of Revenue that the $73,633.00 of intangible personal property assessment was predicated on the Agreements for Deed and that, therefore, no tax was due and owing inasmuch as the same constituted intangible personal property pursuant to Section 199.-032(2), Florida Statutes, which provides:

“(2) A nonrecurring tax of two mills on the dollar of the just valuation of all notes, bonds, and other obligations for payment of money, which are secured by mortgage, deed of trust, or other lien upon real property situated in the state.”

and that no tax was due until said Agreements for Deed were recorded or sought to be enforced. See Section 199.042(2), Florida Statutes, providing:

“(2) All intangible taxes on notes, bonds and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state shall be due and payable when the instrument is recorded or sought to be enforced.”

Relator’s refund application was denied by the Department of Revenue on March 20, 1974, and by the Comptroller on April 22, 1974. The Department of Revenue advised Relator that said Agreements for Deed did constitute personal property subject to an annual tax of one mill pursuant to Section 199.032(1), Florida Statutes, rather than intangible personal property subject to nonrecurring tax of two mills pursuant to Section 199.032(2), Florida Statutes, payable pursuant to Section 199.042(2), Florida Statutes.

Thereafter, Relator filed the present petition for writ of mandamus wherein he argues that the Agreements for Deed fall within the provisions of Sections 199.-032(2) and 199.042(2), Florida Statutes, and requests that this Court require the Comptroller and Department of Revenue to refund the $73.63 and interest thereon. In opposition, the Department of Revenue and the Comptroller, urge that the Agreements for Deed at issue, sub judice, which provide that the buyers shall have no personal liability thereunder cannot constitute an obligation for the payment of money secured by a lien on Florida realty so as to fall within the taxing purview of Section 199.032(2) rather than Section 199.032(1), Florida Statutes.

Initially, we remark that Mandamus is an appropriate remedy sub judice to seek a refund of the intangible taxes alleged by Relator to have been erroneously paid. In State ex rel. Seaboard Airline R. Co. v. Gay, 160 Fla. 445, 35 So.2d 403 (1948), this Court held that Mandamus was the appropriate remedy under the facts of that case to seek a refund for certain intangible taxes paid. Therein, this Court explicitly stated:

“The language of the statute is mandatory in its nature, particularly as regards the duty of the Comptroller to make tax refunds in cases involving bona fide controversies in which courts of competent jurisdiction have directed that tax refunds be made. Certainly, the present dispute between the parties has been bona fide since its inception. The taxes were paid by the relator under protest and with the avowed intention of seeking a refund. Before proceedings were instituted, demand was made on the Comptroller for the return of the money paid, on grounds going to the constitutional and statutory right of the Comptroller to exact the tax payments. The claim for refund was denied by the Comptroller on the ground that under the statutes relied on by relator, the taxes, as a matter of law, became due and payable as a condition precedent to the recordation of the mortgages. No questions of fact but only questions of law were, or are, involved in the ultimate determination of the controversy. Under the law as applied to the admitted facts of the case, the Class C intangible property tax is either payable in its entirety, is payable only as to bonds issuable to Florida residents, or is not payable at all; the liability or non-liability of the relator for the payment of the tax being entirely dependent upón the ultimate construction to be given the statutes by a court of competent jurisdiction. If under the statutes no authority exists for the imposition of the Class C intangible property tax, either in whole or in part, under the facts stated in the alternative writ of mandamus and admitted by the motion to quash, then a clear legal duty is imposed upon the Comptroller to ‘make such refund as the Court may direct,’ out of a fund expressly established by the legislature and appropriated for that purpose. In essence, therefore, the accuracy or legality of the disputed claim is fixed by law and not dependent upon facts requiring the exercise of a discretion or determination as to the truth or falsity of the claim asserted.
“Under modern practice the use of the writ of mandamus has been very generally expanded far beyond the ancient limitations of matters formerly thought to be justiciable in mandamus, and the writ has been frequently employed where, as here, the speedy determination of the purely legal questions involved will not only put the dispute between the parties at rest but also will furnish an authoritative guide for the conduct of the Comptroller in respect of like matters in the future. See 34 Am.Jur., Mandamus, Sec. 81, pp. 870, 871; Kittredge v. Boyd, State Treasurer, 136 Kan. 691, 18 P.2d 563, 93 A.L.R. 574. As a matter of fact, the writ has been frequently employed in this jurisdiction for such purpose; although we cannot say that in any of our cited decisions the right to the use of the remedy has been challenged by motion, as is the case in the proceeding at bar. However, be that as it may be, we are of opinion that mandamus is the appropriate remedy to settle the purely legal question existing between the parties, and that the motion to quash the alternative writ on the ground asserted must be denied.”

Sub judice, Relator and Respondents agree that the subject Agreements for Deed do constitute intangible personal property within the definition of Section 199.023, Florida Statutes. The primary issue before us is whether the subject Agreements come within the classification of Section 199.032(1) and are, therefore, subject to the recurring annual one mill tax or whether they constitute intangible personal property within Section 199.-032(2) and are subject to the nonrecurring two mill tax.

Relator contends that the instruments involved create an obligation secured by a lien regardless of the provision contained therein that the buyer is not personally liable upon default. Relator argues that the provision relative to personal liability does nothing more than express the intent of the parties to the effect that, in event of default by the buyer, the remedies available to seller are limited to recapture of the land and forfeiture of payments made by buyer. Relator asserts that the Agreement for Deed fixes a debt and purchase price of the lot and embodies the buyer’s promise to pay the debt and the effect of the agreement is to create a lien on the property to be deeded. We agree with Relator that the subject Agreements do constitute intangible property within the classification of Section 199.032(2). Cf. Nelson v. Watson, 114 Fla. 806, 155 So. 101 (1934); State of Florida ex rel. Collier Land Investment Corp. v. Dickinson, 188 So.2d 781 (Fla.1966); Gulf American Land Corp. v. Green, 149 So.2d 396 (Fla.App. 1, 1962); Jasper v. Orange Lake Homes, Inc., 151 So.2d 331 (Fla.App. 2, 1963), cert. den., 155 So.2d 694 (Fla.1963); H & L Land Co. v. Warner, 258 So.2d 293 (Fla.App. 2, 1972). The language of the Agreement for Deed clearly sets out an obligation on the part of the buyer to pay a specified purchase price and an obligation on part of the seller to convey clear legal title to the designated property to the buyer upon completion of the payments. One of the Agreements for Deed involved sub judice, attached to the petition, specifically provides:

“Buyer (s) hereby covenant and agree to pay to the Sellers the sum of $1395.00, with interest at the rate of 6% per an-num on the unpaid balance, to be paid as follows: $20.00 cash in hand, the receipt of which is hereby acknowledged, and $20.00 or more per month on or before the 21st day of each and every month, until paid in full beginning February 21, 1969 to be mailed to Seller’s agent.”

In Vance v. Roberts, 96 Fla. 379, 118 So. 205 (1928), the parties entered into an Agreement for Deed similar to the Agreements for Deed involved sub judice, wherein the sellers agreed that if the buyer should first make the payments and perform the covenants mentioned in the agreement to be performed by him, the sellers would convey such lands to the buyer clear of all incumbrances by good and sufficient deed. The agreement contained the provision that if the buyer failed to make any of the payments or any part thereof within thirty days after due date, the contract would be forfeited and terminated and the buyer would forfeit all payments made which payments would be retained by the sellers in full satisfaction and liquidation of all damages by them sus-tamed. Relative to the obligation of the buyer to pay despite the confinement of the seller’s remedy in the agreement to liquidated damages, this Court in Vance, supra, opined:

“The fact that the agreement in question confines the vendor’s remedy (if counsel for the appellees is correct and it does so) against the purchaser to the recovery of liquidated damages (and that is what the right to retain the $500 paid upon the purchase price amounts to) does not alter the fact that the contract is, on the owner's part, a promise to sell, and, on the purchaser’s part, a promise to purchase. An agreement in a contract, specifying and limiting the particular remedy available to a party to the contract upon the breach thereof by the other; does not change the respective mutual promises which constitute the substance of the contract. The complainant in the case at bar did not contract and pay for a mere privilege to purchase lands at a future time, but he agreed to purchase the lands and paid part of the purchase price. We are of the opinion that the contract is one for the sale of the lands, the parties being bound thereby as seller and purchaser, respectively, even though, as counsel for the appellees contends, the remedy of the seller, upon breach by the purchaser, may be confined to liquidated damages, (italics supplied)
“We do not think that there is any lack of mutuality of obligation, even if the legal effect of the terms of the agreement is as counsel for the appellees argues that it is, merely because of the fact that the purchaser may have satisfied all obligations of the contract upon his part by forfeiture of the amount paid upon the purchase price. His very obligation to forfeit this sum is a sufficient consideration to support the promise made by the appellee owner and his wife to convey. Clearly this is sufficient mutuality of obligation.”

Cf. Carman v. Gunn, 198 So.2d 76, at 81-82 (Fla.App.1967).

We further find, as Relator contends, that the non-recurring two mill intangible tax on the subject Agreements for Deed is due and payable when the instruments are recorded or sought to be enforced pursuant to Section 199.042(2), Florida Statutes. Cf. State ex rel. Collier Land Investment Corp. v. Dickinson, supra; McKeown v. Collins, 38 Fla. 276, 21 So. 103 (1896); Alabama-Florida Co. v. Mays et al, 111 Fla. 100, 149 So. 61 (Fla.1933). See also: State ex rel. Rogers et al. v. Sweat, 113 Fla. 797, 152 So. 432 (1934).

Respondents urge that a holding that the tax is due when the instrument is recorded or sought to be enforced may allow Relator to escape the intangible tax completely if, in fact, the instrument is not recorded nor sought to be enforced. However, in State of Florida ex rel. Collier Land Investment Co. v. Dickinson, supra, at 784, a similar position taken by Respondent Comptroller was found to be untenable by this Court.

Relator requests not only a refund of the intangible taxes in the amount of $73.63 since the subject Agreements for Deed have not been recorded nor sought to be enforced, but also interest on this amount. Respondents urge that interest is not due and payable to Relator in the absence of statutory authority permitting the same. Relator has not responded to this point. Relative to the recovery of interest due on a refund of a tax overpayment, this Court in Mailman v. Green, 111 So.2d 267 (Fla.1959), refused to allow interest and explicitly stated, inter alia:

“It should now be remembered that strictly speaking this was not an action against the state for recovery of money but one against the Comptroller predicated on the assertion that the petitioners had a clear legal right to coerce the performance by him of a duty, namely, the payment to them of the interest described. . . .
“ . . . Furthermore, we have not found authority in the statutes or decisions for the payment by the Comptroller of interest on the overpayment even had the amount been certain before entry of the judgment of the Federal Tax Court.
“The only section in Chapter 198, supra, that appears pertinent to the present case, Sec. 198.29, provides for refund of overpayment and overpayment of interest ‘thereon’ but it is silent about payment to the taxpayer by the Comptroller of interest on the tax.
“At the suggestion of the petitioners we have examined also Sec. 215.26, Florida Statutes 1943, and F.S.A., a part of the chapter dealing with ‘Financial Matters, Generally’ and here we have found no provision for payment of interest on refunded taxes.
“To repeat, the amount ultimately to be paid was throughout the litigation in doubt. Whether the Comptroller should refund any or all of it could not have been divined by that officer and that being the case, we have found no room for the play of equitable principles relative to unjust enrichment of the state at the expense of its citizens, or failure of the state to deal fairly with them.
“Within what appears on the face of it to have been a reasonable time after the Tax Court fixed the amount, 27 days, the Comptroller paid to petitioners the exact amount to which they were entitled. This, in our opinion, was all he was required to do and he could not have done it earlier. That being our conviction, we cannot accept the argument that the state should be required to pay for interest an amount computed from the day of the original payment.
“The money was not inequitably withheld by the state and used by it to the detriment of petitioners. -The matter was simply in suspense, pending settlement by a court of a dispute to which the state was not directly but only vicariously interested.”

See also: Hansen v. Port Everglades Steel Corp., 155 So.2d 387 (Fla.App.2, 1963). Neither Section 215.26 nor Section 199.252, Florida Statutes, pursuant to which relator seeks refund, provide for the payment of interest, and we find that Relator is not entitled to interest on the refund sought sub judice.

Accordingly, having determined that the subject Agreements for Deed constitute intangible property within the classification of Section 199.032(2) and is payable pursuant to Section 199.042(2), we grant a peremptory writ directing Respondent to draw his warrant for the return of the intangible tax paid in the amount of $73.63.

It is so ordered.

ADKINS, C. J., BOYD, McCAIN and OVERTON, JJ., and KLEIN, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice

(dissenting).

I dissent. As a jurisdictional matter, I do not believe that we should entertain an original mandamus proceeding on this legal issue. The need for a “speedy determination of the purely legal questions” in this case is far overshadowed by the legal significance of our ruling and by the lack of notice to and opportunity to hear from the numerous other Florida land companies with, the same legal concern. In a case of substantial statewide concern such as this, I believe we could benefit from a more complete record and from the wisdom of lower courts we judicially know have already ruled on or are now considering the same question.

On the merits of this case, I am not persuaded by the majority’s analysis of the legal issues. The practical effect of the Court’s decision could be to exempt an entire class of intangible property — agreements for deed — from any imposition of the state’s intangible personal property tax. I do not believe that result is justified by the statutes or by the common law of this state. If the burden of this tax falls onerously on an industry which is pervasive in and economically important to Florida, the proper place to adjust that burden is in the legislative branch.

All parties concede that the documents in question (“the agreements”) are intangible personal property within the meaning of Section 199.023, Florida Statutes. Since neither party considers these documents to be money, stocks, shares, trust interests, notes or bonds, they are either “obligations for the payment of money” or they are unclassified “intangible personal property.” If the latter, they are taxed at an annual one mill rate prescribed by Section 199.-032(1), Florida Statutes. If obligations for money, they are taxed by one of two mutually exclusive provisions, depending upon whether they are “secured by . other lien upon real property situated in the state.” I believe they are not so secured so that, being unsecured obligations for money, they should be similarly taxed at an annual one mill rate prescribed in Section 199.032(1), Florida Statutes.

Unclassified Intangible Personal Property

In considering whether the agreements are obligations for money, the majority has wholly ignored State ex rel. Weinberg v. Green, 132 So.2d 761 (Fla.1961). That case required a construction of the phrase “obligation to pay money”, virtually the same statutory language we now have under review, for purposes of applying the documentary stamp tax laws to an agreement for deed identical to the one before us. In holding that the tax did not apply the Court there said:

“Under no circumstances could the agreement for deed be construed as an ‘obligation to pay money’, because Section 7 thereof, among other things, provides that it impose no personal liability ‘as against the buyer or any subsequent purchaser from the buyer, or any beneficiary for whom they may be acting, it being the understanding of the parties that the seller will look only to the land itself for payment of the balance of the purchase price.’ ”

While I do not agree that the absence of personal liability obviates the creation of a legally enforceable obligation to pay money, the Weinberg case would appear to require the imposition of an annual one mill levy on this unclassified intangible personal property. The only difference I detect between that case and this one is not in the reasoning, since both are tax statutes with identical verbiage applied to documents of identical legal effect, but in the result. In Weinberg the Court’s construction of the phrase resulted in an exemption from tax. In this case the same construction would result in imposition of tax. Either Weinberg should be overruled or deemed controlling.

Obligations Secured by Lien

If Weinberg does not require the taxation of these agreements as unclassified intangible personal property, then we must decide whether, as “obligations for the payment of money,” they are taxable based upon the absence or presence of an “other lien.” The authorities offered by the majority for finding the one-time two mill tax applicable, which necessitates a finding that the agreements create a lien, are, in my view, completely distinguishable. Gulf American Land held that an agreement for deed is a binding legal obligation, but it did not pass upon the absence or presence of a lien for any purpose. In the Nelson, Jasper and H. & L. Land Co. cases cited by the majority, a buyer was entitled to possession while making installment payments. Equitable conversion was present to create a true vendor’s lien by which the seller could recover the property from the buyer. That is not the situation now before us. Possession of relator’s lands has never been relinquished, and no artificial legal mechanism (“lien”) is required to assure its recovery. The last case cited by the majority, Collier Land, merely quoted from Jasper for the purpose of discussing liens. In that case there was no indication whether possession was given to Collier’s customers, and there was no comment on the fact that possessory rights were conferred in Jasper.

Absent any guidance in the cited decisions as to presence or absence of a lien where possession is not relinquished, it is necessary to define the term “lien” and apply the definition to the facts before us. A lien is defined variously for various purposes, but in real property transactions the term invariably' means a creditor’s charge or claim on property possessed by another.

In the agreements we have under review, relator retains possession until full payment is made. A buyer does not physically acquire the subject property, and it is problematic whether he even holds an enforceable right to acquire it. At most, a buyer acquires something akin to a forfeit-able option.

I conclude, therefore, that while relator has legal remedies and rights arising from a binding legal obligation, its own possession of the property, its retention of legal title, and the features of its contract relative to personal liability, assignability and the buyer’s right of enforcement, all combine to preclude the creation of a “lien”. There being no lien the obligation is taxable at annual one mill rate under Section 199.-032(1), Florida Statutes.

      . Section 199.023(1) provides:
      “ ‘Intangible personal property’ means all personal property which is not in itself intrinsically valuable, but which derives its chief value from that which it represents, including, but not limited to, the following:
      (a) Money, including, without limitation, United States legal tender, certificates of deposit, cashier’s and certified checks, bills of exchange, drafts, and similar instruments:
      1. Held by a taxpayer; or
      2. Deposited in or with banks or other corporations, institutions, or persons doing a similar type of business; or
      3. Placed with, deposited with, or entrusted as a shareholder to building and loan associations, savings associations, credit unions and similar institutions; or
      4. Deposited with or held by any person;
      (b)All stocks or shares of incorporated or unincorporated companies, business trusts, and mutual funds;
      (c) All beneficial interests of residents in trusts; and
      (d) All notes, bonds, and other obligations for the payment of money.”

      . Other of such agreements for deed in the same form, except for the names of purchasers, legal descriptions, purchase price and dates, were executed by Relator for a total value of $73,633.00, of which the agreement for deed set forth below is a part.

      . Fla.Const. art. V, § 3(b)(6) says that the Supreme Court “may” issue writs of mandamus.

      . State ex rel. Seaboard Airline R. R. v. Gay, 160 Fla. 445, 35 So.2d 403, 407 (1948).

      . General Development Corp. v. Dep’t of Revenue, Case No. 74-12465 (11th Cir.Ct.Fla. 1974), appeal pending in the Third District Court of Appeal (Docket No. 74-1350). Agreements for deed are not uniform documents. Although most land sales companies structure their agreements to exempt buyers from personal liability beyond a forfeiture of paid installments, they vary the time of granting possession. The Court’s ruling in this case was developed against a record having only one form of contract, yet the broad language of the opinion offers no basis for distinguishing other factual patterns.

      . It is commonly known that agreements for deed are neither recorded nor enforced (in the usual sense of foreclosing on property or commencing legal action in court). In light of the Court’s determination that this form of intangible personal property is secured by a form of “lien”, however, it would appear consistent to reason that a buyer’s default triggers one or more of the remedies available to the seller to enforce that lien. If that is a valid analysis of the legal rights of the parties it would follow that a retention of the buyer’s prior payments — the favorite (if not exclusive) remedy available to land companies — constitutes “enforcement” of the agreement. As such, payment of the tax would be due at the time of forfeiture, under Section 199.042(2), Fla.Stat.

      . The problem of escaping or postponing the tax would not exist if the legislature had used comparable language for “liens” in Sections 199.042(2) and 199.052(7) (a), Fla.Stat. The difference in wording in those sections must be assumed to be purposeful, however, and there is simply no “written specific lien in the nature of a mortgage” in these agreements to allow the imposition of tax at the time of execution. See Section 697.02, Fla. Stat., directing that a mortgage shall be a “specific lien” on property.

      . Section 199.023(1), Fla.Stat. No one contends the agreements are secured by a mortgage or deed of trust, and all of the agreements are secured, if at all, by real property situated in Florida.

      . Sections 199.032(1) and (2), Fla.Stat.

      . 132 So.2d at 762.

      . The Weinberg decision was distinguished to allow imposition of the documentary stamp tax on agreements for deed in Gulf American Land Corp. v. Green, 149 So.2d 396 (1st Dist.Ct.App.Fla.1962), cert. denied, 157 So.2d 70 (Fla.1963). The district court’s basis for distinction was a provision in Gulf American’s contract extending the benefits of the contract to buyer’s heirs, personal representa-fives, successors and assigns. In the case now under review that distinguishing feature is not present. Relator’s agreements for deed not only lack a comparable provision but they expressly negate assignability without relator’s written consent.

      . The sample agreement for deed made a part of the record here states that “buyers shall have possession of property after all payments are made.”

      . See, for example, 25 Words and Phrases 359-66 (Perm.Ed.1961) ; Black’s Law Dictionary 1072-73 (Rev. 4th Ed.1968).

      . A lien either assures recovery of possession or enforcement of the debt. Since relator by contract (1) retained title to the land and all paid installments, and (2) relinquished any contractual right to a default judgment, an enforcement type lien is obviously not involved. In his text on Florida real estate law, Chief Justice Adkins has categorized real property liens as mortgages, mechanics’ liens, equitable liens or judgment liens. 4 Adkins, Florida Real Property Law and Procedure, Part XIV (1960). Under each category, it it indicated that possession remains with or is conveyed to the debtor during the pendency of the lien. Id. at pp. 2055 (mortgage), 2103-04 (mechanics’ lien), 2157 (equitable lien), 2164 (judgment lien).

      . The agreement provides that if seller cannot convey good and sufficient title by warranty deed after all payments are made, seller can return the payments and be “released from all obligations” under the contract. Apparently the buyer is not even entitled to receive interest on the moneys he allowed the seller to hold while his installments were current.

      . If there exists a lien in any sense, it inheres in relator’s right to retain the buyer’s installment payments. This possessory lien, however, attaches to money already received, and not to future sums the buyer is obliged by contract to pay. Since this lien secures cash and not the buyer’s “obligation for payment of money”, it affords relator no benefit under Section 199.032(2) Fla.Stat.