author: PER CURIAM. BOARDMAN, Chief Judge,

text:
    STATE of Florida, Appellant, v. Sandra NEWSOME, Appellee.
    No. 76-1341.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Robert M. Focht, New Port Richey, for appellee.
   PER CURIAM.

The trial court granted Sandra New-some’s motion to dismiss an information charging her with perjury by contradictory statements in violation of Section 837.021, Florida Statutes (1975). The state appeals. We reverse.

On October 10,1975, Ms. Newsome voluntarily appeared at the state attorney’s office where she testified under oath before Assistant State Attorney Webb. She stated that on the previous day Daniel McKee-han had threatened her with a firearm and forced her to accompany him to various saloons. During the course of the investigation of these charges, another assistant state attorney interviewed a Ms. Kranczyn who stated that she had seen Ms. Newsome and McKeehan in one of the saloons on October 9, that she had not appeared distraught, and that she did not avail herself of opportunities to leave by herself. Appel-lee Newsome was subsequently subpoenaed to appear at the state attorney’s office on October 21. On that date, without advising her of her constitutional rights, she was placed under oath and asked by Assistant State Attorney Webb if she could explain the inconsistency between her previous testimony and Ms. Kranczyn’s statements. Ms. Newsome immediately replied, contrary to her previous testimony, that McKeehan had not pointed a gun at her on October 9. The state then filed an information charging appellee Newsome with perjury by contradictory statements. The information alleged that:

1. On the 10th day of October, 1975, the above-named defendant stated, “Daniel McKeehan threatened me with a firearm on October 9, 1975.”
2. On the 21st day of October, 1975, the above-named defendant stated, while referring to the same incident, “Daniel McKeehan did not threaten me with a firearm on October 9, 1975.”

Following a hearing on appellee New-some’s motion to dismiss, the trial judge determined that when Newsome was subpoenaed to testify on October 21 she was not the focus of the investigation, and therefore no transactional immunity was conferred upon her. However, the trial judge further determined that Ms. New-some was granted use immunity. Though we agree that Ms. Newsome did not receive transactional immunity when she made her sworn statement on October 21, it is our opinion that she did not receive use immunity either.

In order for a witness’ testimony to result in either transactional or use immunity under Section 914.04, Florida Statutes (1975), the witness must be compelled to testify. The fact that Ms. Newsome was subpoenaed to testify, standing alone, does not mean that her testimony was compelled. We so held in State ex rel. Foster v. Hall, 230 So.2d 722 (Fla.2d DCA 1970). See also Orosz v. State, 334 So.2d 26 (Flalst DCA 1976). Since she did not object to giving testimony, and the record does not reveal that she was coerced in any way, we conclude that her testimony was not compelled.

Further, since the trial judge concluded Ms. Newsome was not the target of any investigation when she testified on October 21, a conclusion amply supported by the record, the assistant state attorney was under no obligation to apprise her of her Miranda rights. See State ex rel. Foster v. Hall, supra.

Accordingly, the trial court’s order dismissing the information against appellee Newsome is reversed, and this cause is remanded for further proceedings consistent herewith.

GRIMES and SCHEB, JJ., concur.

BOARDMAN, C. J., dissents with opinion.

BOARDMAN, Chief Judge,

dissenting.

I respectfully dissent.

The first question presented by this appeal is whether statutory immunity attaches to testimony given by a witness testifying under subpoena where the witness has not invoked the fifth amendment privilege and the state has not specifically elicited the testimony.

A witness is required to give testimony otherwise protected by the fifth amendment only if the witness is afforded immunity from prosecution which is at a minimum coextensive with the protection from prosecution provided by the privilege against self-incrimination. See, e.g., State v. Chapman, 240 So.2d 491 (Fla.3d DCA 1970). Since statutory immunity is provided as compensation for deprivation of the constitutional privilege against self-incrimination, the parameters of immunity protection are best delineated by analogy to the parameters of fifth amendment protection.

Self-incriminating statements made under a voluntary waiver of the fifth amendment are admissible at trial. It is not necessary, however, to advise every person interviewed during a criminal investigation of his constitutional rights to establish a voluntary waiver. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For example, on-the-scene interviews are generally investigatory in nature; they do not reach the accusatory stage, the questioning is not coercive, and statements made during the questioning are considered to have been given pursuant to a voluntary waiver. There is every reason to believe that the statements were given pursuant to a voluntary waiver of the fifth amendment. When an investigation has focused on a particular individual it becomes accusatory in nature and, in some circumstances, the questioning is coercive. There is reason to believe that incriminating statements elicited by law enforcement authorities may not have been given pursuant to a voluntary waiver of one’s constitutional rights. A suspect subjected to a coercive interrogation must be advised of and waive his constitutional rights or his statements are inadmissible at trial. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Miranda, supra; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758,12 L.Ed.2d 977 (1964). Interrogation of a suspect in custody is inherently coercive and statements made without advice and waiver of his rights are inadmissible. Miranda, supra. A noncustodial interrogation of a suspect may be coercive, but that is determined on a case-by-case basis, and failure to advise the suspect of the constitutional safeguards is only some evidence of absence of a knowing and voluntary waiver. Beck-with, supra.

Like statements made by an on-the-scene witness, the testimony of an individual under subpoena may be admissible without advice of the fifth amendment. The coer-civeness of this process and the admissibility of the testimony is determined on a case-by-case basis. The testimony of a witness who is the focus of a coercive interrogation who is not advised of his rights is inadmissible regardless of whether he expressly asserted his fifth amendment privilege.

I cannot agree with the majority that the trial judge in the case before us made a finding of fact that commission of perjury by appellee was not the focus of the questioning. In the order granting appellant’s motion to dismiss the judge stated:

If, on October 21, 1975, the Assistant State Attorney was questioning the defendant on the subject of possible perjury as distinguished from an attempt to ascertain if a plausible explanation existed for what might be considered to be an apparent inconsistency between defendant’s version of the incident and the version of another witness, then transactional immunity would attach; however, the Court is persuaded that the interrogating attorney’s motives were to further investigate the apparent possible inconsistency only pursuant to the investigation of the reported criminal conduct of Daniel McKeehan. In any event, that question need not be pursued further or decided for the reasons hereinafter stated.

The trial judge expressly stated that he was not deciding whether the questions posed to appellee pertained to investigation of her perjury or to further the investigation of McKeehan. The judge’s comments about the state’s motives are inconclusive since the purpose of the interrogation is not necessarily “determinative of the true subject matter of the inquiry or investigation.” State ex rel. Lurie v. Rosier, 226 So.2d 825, 827 (Fla.4th DCA 1969). Assistant State Attorney Webb stated at the hearing on the motion to dismiss that he did have reservations as to appellee’s truthfulness, and I believe his direction to explain the inconsistencies very well could have been a challenge to appellee’s veracity on October 10. There is nothing in this order which could imply that appellee’s testimony on October 21 was given pursuant to a voluntary waiver of her fifth amendment rights.

In view of its holding, the majority in. this case was not required to address the second question presented by this cause, that is, whether immunity attaches to a compelled statement which is truthful but inconsistent with a statement made at a previous time. I believe that it does.

The fifth amendment does not protect a witness from prosecution for perjury for a false statement, and thereby prosecution for a perjured statement made under a grant of immunity is permissible. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); McDonald v. State, 321 So.2d 453 (Fla.4th DCA 1975); State v. Chapman, supra. In perjury by false statement the falsity of the statement is an essential element of the crime. In perjury by contradictory statement it is not necessary to prove which of the statements is false. Sections 837.02, .021, Florida Statutes (1975). Where the second of two statements is truthful use of that statement in prosecution for perjury by contradictory statements is barred by the immunity statute as is prosecution for any other criminal offense except perjury by false statement. See generally McDonald, supra. To hold otherwise would defeat the purpose of the immunity statute and violate the fifth amendment. If a witness could be compelled to testify without immunity in this situation he would be forced to incriminate himself on a charge of perjury by inconsistent statements, commit perjury by repeating the false statement to avoid prosecution for perjury by inconsistent statements, or commit contempt of court by refusing to testify. See Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), citing Murphy v. Waterfront Commission of New York, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

Since the state has not demonstrated that the ruling of the trial court was erroneous I would be inclined to affirm. In this ease, however, because the admissibility of appel-lee’s statement is contingent on the focus of the interrogation and the voluntariness of appellee’s waiver of her constitutional rights, I would suggest that justice would best be served by remanding this cause to the trial court for an evidentiary hearing to determine whether the interrogation focused on the truthfulness of appellee’s October 10 testimony or on McKeehan’s actions on October 9 and whether she voluntarily waived her fifth amendment privilege.

      . Sec. 914.04, Fla.Stat. (1975), provides that a witness may not be prosecuted for any transaction concerning which he is required to testify and required testimony is inadmissible in the prosecution of that witness for any crime.

      . The record in this appeal indicates that the second statement was truthful.


source: Caselaw Access Project

author: BOARDMAN, Chief Judge.

license: Public Domain

text:
    In the Interest of BABY BOY S., a child. Robert Merle STANFILL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1882.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.

      T. H. “Ted” Brousseau, Jr., Naples, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant, Robert Merle Stanfill, filed this timely appeal from an order permanently committing Baby Boy S. to Catholic Service Bureau, Inc., a licensed child-placement agency, for the purpose of adoption. For the reason hereinafter set forth, we reverse.

Appellant is the putative father of Baby Boy S. The child’s natural mother and her husband, the child’s legal father, surrendered the child at birth to Catholic Service Bureau for the purpose of adoption. The mother, legal father, and appellant agree that appellant is the natural father of Baby Boy S.

Catholic Service Bureau filed a petition in the Collier County circuit court alleging that Baby Boy S. was a dependent child within the meaning of Chapter 39, Florida Statutes (1975), and seeking the permanent commitment of the child to the bureau for the purpose of subsequent adoption. Appellant appeared at the hearing on the petition and sought custody of his son. At the conclusion of this hearing, the court deferred ruling on the petition for six months and ordered that appellant be given weekly visitation rights during the interim period.

A final hearing was held approximately six months later on November 11, 1976, at which testimony was taken from appellant and from witnesses on behalf of Catholic Service Bureau. A written report prepared by employees of Catholic Service Bureau assessing appellant’s fitness as a parent was also filed with the court a few days prior to the November 11 hearing. Neither appellant nor his counsel was aware of the existence of this report until after this appeal had been filed. On November 15, 1976, the court, “having in mind as its sole polestar, the best interest and ultimate welfare of the child,” issued its order permanently committing Baby Boy S. to Catholic Service Bureau for the purpose of adoption.

Appellant’s argument that the trial court had no authority to permanently commit the child to Catholic Service Bureau for adoption absent a finding that he, the putative father, is unfit, by reason of a condition or conduct seriously detrimental to the child’s welfare, is without merit. A finding that it would be in the best interest of the child that he be permanently committed to a licensed child-placement agency, if supported by substantial, competent evidence, is all that is required. In re Baby Boy H., 281 So.2d 589 (Fla. 2d DCA 1973).

However, reversal is required for another reason. Appellant was entitled to an opportunity to review the report filed by Catholic Service Bureau and to introduce evidence in rebuttal. The failure of the trial court to apprise him of the existence of this document and of its contents, prior to the hearing, constituted a denial of fundamental due process. Kern v. Kern, 333 So.2d 17 (Fla. 1976); McGuire v. McGuire, 140 So.2d 354 (Fla. 2d DCA 1962). This court held in Department of Health & Rehabilitative Services v. Herzog, 317 So.2d 865 (Fla. 2d DCA 1975) that the dictates of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Rothstein v. Lutheran Social Services of Wisconsin & Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786 (1972) require that where the natural father of a child has exhibited any affirmative indication of interest in the child he must be given notice and a hearing before his parental rights can be validly taken from him. Appellant, having shown an interest in his child, has standing to contest the adoption proceedings and is a proper party to these proceedings and, as such, is entitled to the same procedural due process as is a party to any other type of legal proceeding.

This case is therefore reversed and remanded for an adversary hearing at which the court shall receive evidence by or on behalf of appellant in rebuttal to any statements in Catholic Service Bureau’s report. The evidence taken at this hearing need not be limited to rebuttal testimony, but may include any additional pertinent evidence which the trial court may deem helpful in deciding to whom custody of the child should be awarded.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SCHEB and OTT, JJ., concur.


author: SCHEB, Judge.

text:
    Paul T. PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 77-157.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.
    Rehearing Denied Sept. 21, 1977.

      Jack 0. Johnson, Public Defender, and A. J. Melkus, Special Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Perkins was tried by jury and found guilty of robbery. The court adjudged him guilty and sentenced him to ten years in prison with credit for time served. On appeal he contends the trial court should have granted a mistrial because certain comments by the state’s witnesses were improper and prejudicial. We hold the cumulative effect of the objectionable testimony was so prejudicial as to deny appellant the right to a fair trial. We reverse.

The victim of the robbery, Joan Cooper, testified against appellant at his trial. She said that appellant and another man came to her home at about 10:45 p.m. on April 29, 1976, visited with her for a short while, and then left. About midnight that same evening, both men returned. Once in the house, appellant pulled a gun and demanded money. The two men took $400, tied up Ms. Cooper and D. C., a friend who was visiting her at the time, and left again. After the men departed, Ms. Cooper and D. C. managed to untie themselves and call the police. Shortly after calling the police, Ms. Cooper called another friend to ask him to stay with her. Ms. Cooper testified that after she explained what had happened, her friend commented that “this wasn’t the first time that they had done it.” At this point in the trial, defense counsel objected and moved for a mistrial. The trial judge denied the motion, but did instruct the jury to disregard Cooper’s testimony as to what her friend had said as being hearsay.

A second motion for mistrial was made during the testimony of William Warden, a Dunedin detective who also testified on behalf of the state. Warden testified he had a telephone conference with a St. Peters-burg detective. Warden advised him that “we [Dunedin Police Department] had a mug-shot of Mr. Perkins.” Appellant objected on the ground that this comment raised the inference that appellant was a known criminal. The prosecutor countered that appellant’s counsel had designated his client as a dope dealer on voir dire, so there could be no prejudice. The motion for a mistrial was denied.

Appellant’s third motion for mistrial was made when Detective Rick Look of the St. Petersburg Police Department testified as follows:

I came across Detective Warden of the Dunedin Police Department, and he did have knowledge of two subjects fitting that description and also the method of operation used in this particular robbery.

This motion was also denied by the trial judge.

Appellant took the stand on his own behalf. He testified that he knew Ms. Cooper and had been to her house on the night of April 29, 1976. However, he denied returning later and robbing her. He explained that both he and Ms. Cooper were dealing in marijuana; that he owed her $400 for marijuana she had advanced him; and that he had gone to her house that night to explain why he did not have the money to pay her at that time. He testified that he and Ms. Cooper argued and that as he left, she said, “You son of a bitch, I’ll get you back for this.”

Although the second challenged comment raised the impermissible inference that appellant was a known criminal, Loftin v. State, 273 So.2d 70 (Fla.1973), we think in this instance it was harmless error because the jury had previously been told by defense counsel that appellant was a marijuana dealer. See State v. Woodson, 330 So.2d 152 (Fla.4th DCA 1976).

We view the first and third comments more critically. These remarks were not only hearsay, and inadmissible for that reason, but more significantly they constituted an attack on appellant’s character by establishing in the minds of the jurors that he had likely committed crimes similar to but independent of the offense charged in this case. It is fundamental that unless the defendant has first placed his character in issue, the state is not permitted to adduce evidence the only purpose of which is to attack the defendant’s character. Jordan v. State, 107 Fla. 333, 144 So. 669 (1932); Roti v. State, 334 So.2d 146 (Fla.2d DCA 1976). Evidence of previous offenses indicating a common modus operandi is admissible where relevant to identification of the defendant under the Williams Rule. Williams v. State, 110 So.2d 654 (Fla.1959); Duncan v. State, 291 So.2d 241 (Fla.2d DCA 1974). Here, however, the appellant had been clearly identified by Ms. Cooper. Her identification was corroborated by fingerprints from a drinking glass from her house, so identity was really not an issue. The testimony served to indicate only Perkins’ bad character or his propensity to commit a crime.

While either of these harmful comments, standing alone, may not be cause for reversal, we believe their cumulative effect substantially prejudiced appellant’s defense. Appellant was the sole witness in his behalf; therefore his credibility was crucial. These comments were a grossly unfair attack upon his credibility. While a defendant is not entitled to an error-free trial, he must not be subjected to a trial with error compounded upon error. See Carter v. State, 332 So.2d 120 (Fla.2d DCA 1976). We conclude that the appellant here was denied his constitutional right to a fair trial. Accordingly, we

REVERSE and REMAND for a new trial.

BOARDMAN, C. J., and OTT, J., concur.


text:
    Richard Donald PIFER, Appellant, v. Ann E. PIFER, Appellee.
    No. 77-498.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.

      Robert B. Bennett, Jr., Sarasota, for appellant.
    John M. Hathaway, Punta Gorda, for ap-pellee.
   BOARDMAN, Chief Judge.

Appellee, former wife, filed a petition for dissolution of marriage against appellant, former husband, and a final dissolution was entered on February 3,1972. Appellee was granted the custody and control of the five children born of the marriage. Appellant was ordered to pay the sum of $90 per week for the support of the children.

On February 11, 1976, appellee filed an affidavit complaint alleging that appellant had feloniously and willfully withheld support from the minor children between September 15, 1975 until February 11, 1976 in violation of Section 856.04, Florida Statutes. Section 856.04 provides in pertinent part:

Any man who shall in this state desert his wife and children, or either of them, or his wife where there are no children or child, or who shall willfully withhold from them or either of them, the means of support, or any mother, who shall desert her child or children, or who shall willfully withhold from them the means of support, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. However, no husband shall be prosecuted under this section for the desertion of his wife, or for withholding from his wife the means of supporting, her where there is existing, at the time of such desertion or withholding, such cause or causes as are recognized as ground or grounds for dissolution of marriage, by statute, in this state, if such person shall have provided ■ for the support of his children, if there be any.

At the time that the affidavit was filed appellant was a nonresident of Florida living in North Carolina. Appellant was extradited to Florida under the Uniform Interstate Extradition Act, Chapter 941, Florida Statutes, and returned to the Charlotte County Jail. On January 19, 1977, he was served in jail with a writ of ne exeat, and bond was fixed in the amount of $20,000. Appellant, through his counsel, filed a motion to quash the service of the writ upon him on the grounds that:

3. Respondent was brought into this state by extradition from the State of North Carolina based on criminal charges arising out of the same facts upon which the Petition for Writ of Ne Exeat is grounded.
4. The criminal charges are still pending against Respondent and he has been neither convicted nor acquitted.
5. Service of the Writ of Ne Exeat is premature and improper under Chapter 941, Section 941.25, F.S.A.

After a hearing the Honorable Charles T. Carlton, the same judge who rendered the order of final dissolution of the marriage of these parties, entered an order denying the motion to quash the writ of ne exeat finding:

1. That this Court has previously acquired personal jurisdiction of respondent, Richard Donald Pifer, in this cause by virtue of his appearance in the proceedings for dissolution of the marriage of the parties to this cause.
2. That because this Court previously acquired personal jurisdiction of respondent as aforesaid, Section 941.25, F.S.A. is not applicable to proscribe the issuance of the Writ of Ne Exeat by this Court on January 18, 1977.

Appellant timely appeals from that order.

This appears to be a case of first impression. Neither the briefs of counsel for the respective parties nor our independent research has disclosed a decision precisely on point. The sole issue raised on appeal is whether appellant, after extradition to this state, is immune from service of the writ of ne exeat under Section 941.25, Florida Statutes. Section 941.25, entitled “Immunity from service of process in certain civil actions,” provides that:

A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceedings to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

We hold that appellant is not immune and that the trial court’s ruling was correct and proper.

A writ of ne exeat is an ancillary writ, the purpose of which is:

one of restraint to maintain the presence of the defendant within the state, for the purpose of securing the practical application of legal process.

Pan American Surety Co. v. Walterson, 44 So.2d 94, 96 (Fla.1950). A court does not acquire personal jurisdiction by service of the writ, rather it must have jurisdiction prior to issuance of the writ. See 23 Fla. Jur. Ne Exeat § 4 (1959).

In the case before us appellant was personally served with a summons and copy of the complaint filed by appellee in the dissolution of marriage action. The circuit court had continuing jurisdiction over the person of appellant to enforce the subsequent dissolution of marriage decree. Sikes v. Sikes, 286 So.2d 210 (Fla. 1st DCA 1973). The writ of ne exeat was ancillary to the final judgment of dissolution.

We agree with the trial judge that Section 941.25 is not applicable to the factual situation presented here. In our judgment it was not the intent of the legislature to immunize a person who was subject to the jurisdiction of a Florida court in a civil action prior to the time he was extradited to this state for an alleged criminal violation.

AFFIRMED.

SCHEB and OTT, JJ., concur.


author: McCORD, Chief Judge.

text:
    Marlin CONNER and Otelia Conner, his wife, Farmers and Dealers Bank of Lake Butler, Appellants, v. F. R. COGGINS, Appellee.
    No. DD-471.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.

      Wayne M. Carroll, Gainesville, for appellant.
    John F. Roscow, III, and Ray D. Helpling of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellee.
   McCORD, Chief Judge.

This is an appeal from final judgment of foreclosure of a mortgage. Appellant contends the action is barred by the statute of limitations. We disagree and affirm.

The final judgment contains the following finding:

“That the defense of the running of the Statute of Limitations is not available to the Defendants in this case because Florida Statutes § 95.11(2)(c) setting forth a five (5) year period must be read in pari materia with Florida Statutes § 95.281(3) which provides: ‘If the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall run from the maturity date of the final installment.’ The Court finds that the Mortgage is of record. The Court finds that the maturity date of the final installment is ascertainable from the recorded Mortgage.”

Neither the mortgage nor the installment contract were made a part of the record on this appeal. It is incumbent upon the appellant to bring to this court such parts of the record as are necessary to support his contentions on appeal. Howell v. State, 337 So.2d 823 (Fla. 1 DCA 1976); Chipola Nurseries, Inc. v. Division of Adm. Dept. of Tr., 294 So.2d 357 (Fla. 1 DCA 1974).

Appellant not having included the mortgage in the record, we must conclude that the facts contained in the above finding are correct.

From the briefs, it does not appear that there is any dispute that this suit was filed more than five years from the date of the mortgage and more than five years from the date of default, but within five years of the maturity date of the final installment; and that the instruments did not contain an acceleration clause in the event of default. We must assume from the above quoted findings of the trial court (which are undisputed by the record before us) that the maturity date of the final installment is ascertainable from the recorded mortgage.

§ 95.11, Florida Statutes (1975), provides that an action to foreclose a mortgage shall be commenced within five years. § 95.281, Florida Statutes (1975), provides that if the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, the lien of the mortgage encumbering real property shall terminate five years after the date of maturity. That statute also provides that if the record of the mortgage shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the time shall run from the maturity date of the final installment. When we consider the foregoing statutes in pari materia, it is apparent that this suit was filed within the five years allowed by the statute of limitations in that it was filed within five years from the maturity date of the final installment.

Since the mortgage and the installment contract for which it was security did not contain an acceleration clause, the contract did not fully mature until there was a default in payment of the final installment. Appellee at his option could have foreclosed earlier upon a previous default, but had he done so, he would have lost the security for subsequent unmatured payments. This was a continuing contract which did not fully mature until default in payment of the final installment.

Affirmed.

BOYER and MILLS, JJ., concur.


author: PER CURIAM.

text:
    Russell E. HURD, Appellant, v. Mary F. HURD, Appellee.
    No. EE-13.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.
    John L. Myrick of Myrick & McKenzie, Pensacola, for appellant.
    Nancy T. Gilliam, Pensacola, for appellee.
   PER CURIAM.

Without holding that appellee is forever entitled to continue receiving alimony from appellant, we do find and determine from the record in this case that the learned trial judge did not abuse his discretion when he failed to further reduce or eliminate alimony based upon a totality of the circumstances revealed by the evidence as of the date of the hearing which gave rise to the order here appealed.

Appellee’s motion for attorney’s fees incident to this appeal is denied and the order here appealed is

AFFIRMED.

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


author: YAWN, THERON A., Jr., Associate Judge. MILLS, Judge,

text:
    Clifton BROCK, husband, Appellant, v. Mary Alice BROCK, wife, Appellee.
    No. EE-158.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.
    Rehearing Denied Oct. 4, 1977.

      John E. Norris of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellant.
    David E. Bembry of Davis, Browning & Hardee, Madison, Mary Alice Brock, pro se, for appellee.
   YAWN, THERON A., Jr., Associate Judge.

Appellant seeks review of the trial court’s order denying his post judgment demand that his former wife be ousted of custody of their minor daughter and her custody awarded to him. He does not rely so much upon his claim of superior fitness as he does upon the fact that the child’s mother cohabited with a man to whom she was not married and who testified falsely concerning their relationship, his own marital status and other collateral matters.

After listening to fourteen witnesses present 237 pages of testimony the trial court concluded that:

“■ . .to remove the child from her present environment would serve only as a punishment to the mother for her one indiscretion rather than as a change for the best interests of the child.”

We neither condone nor sanction the conduct of the mother or that of the man with whom she lived. Had we sat as trier of the facts and heard all the conflicting testimony we might have reached a conclusion different from that of the trial judge. We are not at liberty, however, to substitute our judgment for his absent a demonstrated abuse of discretion. The decision of our Supreme Court in Dinkel v. Dinkel, Fla., 322 So.2d 22, and that of this Court in Miller v. Miller, Fla.App., 342 So.2d 85 require that the judgment appealed from be affirmed.

However, in doing so we do not ignore Appellant’s contention that:

“There is only one issue before this Court and that is to decide whether perjury and fraud are to be rewarded, condoned and sanctioned and to deny a man, whose character is not questioned, and who can furnish his child with a wholesome environment, the custody of the child he loves.”

This argument overlooks the ancient and widely respected principle that the paramount issue in child custody cases is the welfare and best interests of the child itself to which all other considerations, including the wishes, the emotions, and the interests of the disputing parents are, and must remain, subordinate. Judgments in child custody proceedings are instruments for the protection of the child’s interests. They are not intended as a reward for the conduct of one parent nor as a punishment for the misconduct of the other.

No abuse of discretion having been shown, the order appealed from is

AFFIRMED.

McCORD, C. J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. I would reverse and award custody of the child to the father.

I cannot agree with the trial court and the majority here that the welfare and best interests of the child would be served by granting custody to a mother who cohabits with a man to whom she is not married, a man who testified falsely in this case on several occasions. Are we looking out for the welfare and best interests of a child when subjecting her to such a home? I say no. Aren’t we obligated to do our best to insure that this child is taught good morals? I say yes. The best way to teach good morals is by example. What an example we have here!

It is appropriate to be forgiving and understanding of the conduct of this mother. I join with my brethren in this, however, our duty is to the child. We must do our utmost to assure that this child is reared in a home which teaches by words and actions, good morals and truthfulness. To do otherwise, we completely disregard the welfare and best interests of the child. This I will not do. This child is entitled to every chance possible to mature into a law abiding citizen of our society.


author:
PER CURIAM.
      BOYER, Judge,

text:
    PALATKA HOUSING AUTHORITY, Appellant, v. Queen BETTS, Individually and as the Administratrix of the Estates of Carole Ann Sutton, Deceased, Oscar T. Offord, Jr., Deceased, and Tony O. Offord, Deceased, Appellee.
    No. EE-321.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.
    William A. Parsons of Gosney, Cameron & Parsons, Daytona Beach, for appellant.
    Joe C. Miller, II, Palatka, for appellee.
   PER CURIAM.

Reversed on authority of Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959). Also, see Brennan v. Ryter, 339 So.2d 661 (Fla. 1st DCA 1976). We are aware of the conflict between the Allen case and City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975), but adhere to the Allen case. Remanded for entry of an order granting the defendant’s motion to dismiss for lack of prosecution.

McCORD, C. J., and MILLS, J., concur.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

Appellant, defendant in the trial court, seeks reversal of an order of the trial judge denying his motion to dismiss for failure to prosecute. (Fla.R.Civ.P. 1.420(e)).

A Notice of Trial was filed and served on June 11, 1975 pursuant to Fla.R.Civ.P. 1.440(b). A year elapsed, the case was not set for trial as required by Fla.R.Civ.P. 1.440(c), so there having been no other record nor non-record activity therein, defendant filed a motion to dismiss. It was from the denial of that motion that this appeal was taken.

Appellant relies upon Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959). However since rendition of that decision, as pointed out by our sister court of the Third District in City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975), the applicable rule has been substantially changed. The rule at that time did not require that an order be entered by a trial court fixing a date for trial. In its present form the rule uses the mandatory “shall”. As stated by our sister court in the last-above cited opinion:

“From the reading of Rule 1.440(c), we hold that it is the duty of, and the trial court is required, to enter an order setting the cause for trial after notice is given that the cause is ready for trial, ■and if, in fact, it is ready for trial. * *
******
“We agree that the primary purpose of the rule governing dismissals for failure to prosecute is to expedite the course of litigation and require litigants to keep the court dockets as nearly current as possible. We also take the view that it is incumbent on the courts to do likewise and we so interpret the language and intent of Rule 1.440(c).” (321 So.2d at page 142)
Although Fla.R.Civ.P. 1.440 refers to a “Notice for Trial” a reading of the entire rule leads to the conclusion that the notice is essentially in the nature of a motion which requires an order of the trial judge.

There is no more reason to require a party at his or her peril to urge a trial judge to promptly respond to a notice for trial than to any other motion that may be pending before him. Although it is certainly desirable for a court to permit no business to languish before it for a period in excess of a year the failure to handle the business of the court with dispatch should not be visited upon a party. Certainly a trial judge should not be reversed for failing to dismiss a case for want of prosecution during the lapse of a period of time awaiting his own action.

In a recent opinion of this court, Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977), we said:

“A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion. Eli Einbinder, Inc. v. Miami Crystal Ice Company, 317 So.2d 126 (Fla. 3d DCA 1975). Just as there is a strong presumption of correctness in favor of an order of a trial court relative to a motion to set aside a default (Brown v. Vasiliades, 344 So.2d 1325 (Fla. 1st DCA 1977)) there is a similar presumption of correctness applicable to the granting or denial of a motion to dismiss for lack of prosecution.”

In my view the learned trial judge properly applied the Rules of Civil Procedure in their present form and properly relied upon City of Miami v. Dade County, supra. The judge, when he denied appellant’s motion for dismissal for failure to prosecute, was fully aware that there had been pending for more than a year a notice of trial, awaiting his order fixing a date for trial. He did not therefore, in my view, abuse his discretion in denying the motion to dismiss.

I would affirm.


text:
    Marjorie D. Lippert HARVEY, Appellant, v. Elmer L. LIPPERT and Linda L. Lippert, Appellees.
    No. 76-908.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1977.
    Rehearing Denied Sept. 28, 1977.
    Gale K. Greene, Sarasota, for appellant.
    R. Justin Marshall, Palmetto, for appel-lees.
   BOARDMAN, Chief Judge.

This controversy has been vigorously contested by appellant. The file is voluminous and, to say the least, the pleadings are confusing.

On May 1, 1970, appellee, former husband, filed suit against appellant, former wife, for divorce. After a hearing, final judgment of divorce was entered by the circuit court judge on May 27, 1970. A separation agreement entered into between the parties was incorporated by reference into the final judgment. On May 20, 1971, appellee filed a motion for relief from judgment pursuant to Fla.R.Civ.P. 1.540. By that motion she sought release from the separation agreement as to disposition of the marital home and enforcement of appel-lee’s agreement to pay the outstanding debts of the marriage incurred up to April 25, 1970. That motion was dismissed for failure to prosecute on April 8, 1974.

On April 2,1974, appellant filed a petition for declaratory judgment seeking, in the final analysis, enforcement of certain provisions of the separation agreement. That petition was amended at various times by appellant, and on January 20, 1976 all of the amendments to that date and the original petition were dismissed by the trial court with leave to file amended pleadings within 20 days. The cause came on for final hearing on her reconstructed petition without objection from opposing counsel and with the consent of the trial court. She specifically alleged that according to the terms and provisions of the agreement she was to receive one half of the appraised value of the marital home, that she was entitled to be reimbursed for monies she expended for the period of time that two of their children were in her custody, and that she was entitled to reimbursement by ap-pellee for all outstanding indebtedness of the marriage up to April 25,1970, which she had paid. After trial before the court, the judge “[a]djudged . . . [appellant] take nothing by this action. . . .’’It is from this order that appellant has appealed.

Appellant contends that according to the terms of the separation agreement, as modified during the final hearing in the divorce action, she was entitled to one half of the appraised value of the marital home. We have read the agreement and the testimony of the parties and do not agree with appellant’s position on this point. As we read the agreement, appellant was to receive one half of the equity that the parties had in the home at the time of the final hearing on the divorce action. As of May 20,1971, the home had an appraisal value of $12,000. There is no dispute that the balance of the outstanding mortgage as of May 27, 1970, the date of the final judgment of divorce, was $6,615.60. At the time of the divorce, the equity in the home was $5,384.40. Appellant executed a quit claim deed to the home on May 28,1970, to appel-lee. On February 25, 1972, appellant received the sum of $3,000 from appellee, which she contends was only a partial payment and that she was to receive the balance when the home was sold. The trial court found otherwise, and the record shows sufficient, competent evidence to support that finding. We affirm on this point.

The separation agreement clearly provided that should any of their children live or visit with appellant that appellee shall remain responsible and liable for his share of their support, maintenance, and education. According to the allegations contained in appellant’s petition, their two sons, Robert and Ronald, did reside with her for considerable periods of time during the years following the divorce. She sought reimbursement for their expenses as provided in the agreement. During the final hearing on this claim, appellant’s counsel attempted to elicit testimony from appellant as to the amount of expenses incurred by her in behalf of the children. Counsel for appellee objected to this line of questioning on the ground of res ad judicata, and the objection was sustained by the trial court. We have searched the record and, being unable to find a legal basis for such ruling, we hold that the trial court erred and reverse on this point.

At trial the only mention of res adjudica-ta relevant to this issue was:.

Q (By Mr. Greene) In paragraph four of the agreement between you and A1 at the time of your divorce as the date was previously described, it provided in there that should any of the children live or visit with Harvey that Lippert shall be responsible and liable for their support, maintenance and et cetera.
Now I ask you whether or nor, with reference to that paragraph, any of the children lived with you for any period of time after the dissolution of the marriage which occurred, I believe it was in May of 1970?
MR. MARSHALL: Objected to. That is res judicata.
THE COURT: I’ll sustain the objection.
MR. GREENE: Well, Your Honor, what I would proffer is—
THE COURT: All right.
MR. GREENE: Is the testimony of Mrs. Lippert with reference to that, the allegations that we have in count two of the reconstructed petition which consists of paragraphs, after the introductory part, paragraphs 11 through 16; and that she would testify that in accordance therewith that is that these were the periods as outlined therein; that she had custody of the children; that she had during that period of time, the reasonable value of the support would have been $20 for Robert, $30 for Ronald for the period of time described in those paragraphs. That of that total amount, the defendant, A1 Lippert, had paid to her $60 for Robert and $40 for Ronald and he owes her the balance thereon as computed from just reading over that petition; and that the testimony would show that during that entire period that he was employed and was earning sufficient monies wherein he could have paid that money to her and that her income during that period was such that she was unable to sustain the cost of those children and that she had made demands on .him for payment and that from the beginning up to the present time — that the pleadings filed during this time indicate rather that we sought that relief as reflected in the file in this present case.
THE COURT: OK.
MR. GREENE: It’s my understanding that the Court will not listen to any of that testimony?
THE COURT: That’s correct.

Appellee did not establish any basis for res adjudicata. None of the orders of the trial court previously described would constitute a final adjudication on the issue of support payments for the children. See Shirley v. Shirley, 100 So.2d 450 (Fla. 2d DCA 1958).

The case is remanded to the trial court for the purpose of allowing appellant an opportunity to show by competent evidence the amount of expenses she incurred while the two children were in her custody. In all other respects the final judgment of the trial court is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

GRIMES and SCHEB, JJ., concur.

      . On February 11, 1976, appellee filed a suggested order of final judgment of dismissal for the trial judge’s signature. It was not signed by the court. Appellee raised as a cross-assignment of error the trial court’s failure to enter a final judgment of dismissal. This point was not argued at trial nor was it pursued any further on appeal.


author: GRIMES, Judge. SCHEB, Judge,

text:
    Elizabeth B. KRUSE, a/k/a Elizabeth Kruse Wandall, Appellant, v. GROKAP, INC., Appellee.
    No. 76-1187.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1977.

      Ezra J. Regen, Sarasota, for appellant. Law Offices of Robert F. Thompson, Sarasota, for appellee.
   GRIMES, Judge.

This case involves the application of the doctrine of submergence of tidal waters.

The parties were both record title holders of lots in Block 18 of Sarasota Beach Subdivision which is located on Siesta Key. Appellant was the owner of Lot 23. Appellee was the owner of Lot 10. The waters of the Gulf of Mexico originally laid along the southwest side of Lot 23. Lot 10 was located to the northeast of Lot 23 and separated therefrom by an alleyway.

The appellee brought a suit to quiet title to appellant’s Lot 23 alleging that over a period of years the waters of the Gulf of Mexico gradually encroached upon Lot 23 and the alleyway to the extent that Lot 23 became completely submerged and disappeared beneath the waters of the Gulf. The complaint further alleged that the waters subsequently receded thus exposing what was formerly Lot 23 and that appellee is now the riparian owner of this land through accretion. The appellant filed an answer and a counterclaim specifically denying the allegations of submergence and accretion. Following a nonjury trial the court entered judgment quieting the title to Lot 23 in appellee.

There are two lines of authority in this country concerning the doctrine of submergence as related to gradual changes in the shoreline. Some jurisdictions hold that land lost through erosion or submergence is regained by the original owner when by reliction or accretion the water disappears and the land re-emerges. On the other hand, many courts hold that once land is lost by erosion or submergence it is lost for good. If the water encroaches upon the land of a more remote owner and then changes its movement in the other direction gradually restoring the land which had been submerged, the re-emerging land becomes the property of the remote owner through the doctrine of accretion. Florida has adopted the latter view. But the threshold question is when is the land “lost” to submergence.

Private ownership of land in Florida bordering on navigable waters extends to the ordinary high water mark or in the case of tidal waters to ordinary high tide. The ordinary high water mark has been deemed synonymous with mean high tide. Therefore, the issue in this case is whether the ordinary or mean high tide of the Gulf of Mexico had encroached upon appellee’s Lot 10. If it did, appellant’s title to Lot 23 was lost by submergence, and when the land later re-emerged, appellee became its owner by way of accretion. Thus, in ruling for appellee the trial court necessarily concluded that the ordinary high tide of the Gulf had reached Lot 10. We are compelled to reverse because as a matter of law there is insufficient evidence upon which such a conclusion can be based.

The variations which occur in major tide producing forces will go through one complete cycle in approximately 18.6 years. Apparently, this figure is often rounded out to nineteen years. In Borax Consolidated Ltd. v. City of Los Angeles, supra, the court stated:

“In view of the definition of the mean high tide, as given by the United States Coast and Geodetic Survey, that ‘Mean high water at any place is the average height of all the high waters at that place over a considerable period of time,’ and the further observation that ‘from theoretical considerations of an astronomical character’ there should be ‘a periodic variation in the rise of water above sea level having a period of 18.6 years,’ the Court of Appeals directed that in order to ascertain the mean high tide line with requisite certainty in fixing the boundary of valuable tidelands, such as those here in question appear to be, ‘an average of 18.6 years should be determined as near as possible.’ We find no error in that instruction.”

The significance of determining mean high water through observations covering a long period of time is explained in Norwood Gay’s article, The High Water Mark: Boundary Between Public and Private Lands, at 18 U.Fla.L.Rev. 553, 556 (1965), where the author states:

“The definition of mean high water is simple enough: it is the average height of the high waters at a given place over a period of nineteen years. .
“A full tidal cycle is generally considered to be nineteen years, because during this period of time the more important of the tidal variations will have gone through complete cycles. Observations for lesser periods of time can be corrected to the nineteen-year cycle by comparison with a suitable tide station where nineteen-year values are available. In 1951 there were thirty primary tide stations located on the Atlantic coast, eight on the Gulf coast, fifteen on the Pacific coast, and eight in Alaska. The nineteen-year observations provided by these sixty-one stations for primary determination of mean sea level are sufficient because a satisfactory secondary determination of this datum plane can be made at all other places by using short period observations and correcting the results to a mean value by comparison with the data at one of the primary tide stations.”

Thus it is that the boundary of ordinary or mean high tide exists in a particular location at any given time, but in order to determine the location as of that time, it is necessary to average out the high tides over a nineteen-year period. Since this is the duration of the full tidal cycle, it cannot fairly be said that a proper average has been determined by considering the tides over a lesser period of time. However, the location of mean high tide in a particular location can be made by using observations over a shorter period and correcting the results by comparison with the nineteen-year data of one of the primary tide stations maintained by the National Ocean Survey (formerly the United States Coast and Geodetic Survey).

None of this was done in the instant case. The only expert who testified was a survey- or whose observations concerning the mean high tide were properly stricken because they were based on some old photographs about which he had no knowledge. His testimony set forth below amply demonstrates that he did not follow a generally accepted method for determining mean high tide.

“Q Isn’t it a fact, at the time this survey was made, the only real method of actually determining accurately the real mean high water line was the use of tide gauges?
A That was one.
Q That involved using those tide gauges over a considerable period of time at that time?
A That’s right.
Q Do you remember approximately how long?
A You could go for one month, two months. There was an economic problem.
Q I’m talking about actually physically and completely locating the mean high water line. Theoretically, you had to go through a full 18.6 year cycle?
A Yes.
Q By computers, they have managed to shorten that?
A Yes.
Q Did you, in fact, use tide gauges to establish this mean high water line?
A No.
Q Did you take anybody else’s tide gauge readings to establish it?
A No.”

Presumably, the use of an expert would have been unnecessary if residents of the area could have testified that Lot 23 and the alleyway had been covered by the waters of the Gulf for at least nineteen years. Under these circumstances it would have necessarily followed that the boundary of mean high tide had moved upland of Lot 23. However, the longest period of time any witness testified that he observed the waters encroaching upon Lot 10 was for approximately five years. Therefore, there was no legally sufficient evidence upon which it could be said that mean high tide ever reached Lot 10. The appellee failed to carry its burden of proof and should have suffered an adverse judgment.

We do not conceive that we have established a new rule because we know of no reported decision specifying the length of time which must be considered in determining the mean high tide. If some trial courts have been applying a “reasonable time period”, they must have done so simply because no one ever pointed out the generally accepted scientific principle that the extensive nature of tidal variations requires that ordinary high tide be measured with reference to a nineteen year period. Nevertheless, primarily because of Judge Scheb’s apprehension, we have determined to certify this case to the Supreme Court as raising a question of great public interest.

REVERSED.

McNULTY, Acting C. J., concurs.

SCHEB, J., dissents with opinion.

SCHEB, Judge,

dissenting.

I concur in the majority’s observations that under Florida law: (1) an upland owner is divested of title to land which submerges through that gradual, natural process known as erosion; and (2) if that submerged land naturally and gradually reappears through the process of accretion, title is not regained by the former owner but rather is acquired by the owner of land which was riparian when the accretions formed.

In this case the evidence showed that Lot 23, owned by appellant, and the adjoining alleyway which separated it from Lot 10, owned by appellee, were submerged into the Gulf of Mexico through the process of erosion. Witnesses testified that during the late 1940’s and early 1950’s Lot 23 was submerged for a period of three to five years and the Gulf tides penetrated into Lot 10. The evidence supports the implicit finding of the trial court that this tidal action resulted in establishment of a new mean high tide line across Lot 10 to which subsequent accretions of land attached.

The majority opinion by Judge Grimes is an excellent and well documented case for establishing a rule for determining mean high tide lines. Under the rule announced the mean or ordinary high water mark cannot be determined short of averaging the tides for the 18.6 years of the full tidal cycle. The rule makes sense, but I cannot find that trial courts have ever been directed to apply it in the past. Therefore, I cannot say the trial court committed error in failing to do so in this case.

In my opinion the trial judge followed the existing law of Florida; i. e., that a riparian owner possesses all land above the ordinary high tide or water mark and that this land may be added to or subtracted from by the processes known as accretion and erosion. Miller v. Bay-to-Gulf, Inc., 141 Fla. 452, 193 So. 425 (1940); Brickell v. Trammel, 77 Fla. 544, 82 So. 221 (1919); Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708 (Fla. 1st DCA 1957). None of these cases set forth the requirement that the property must be covered for a nineteen-year period in order to be deemed eroded as required by the majority.

Apparently convinced of the need to establish a definite rule to provide certainty in this area of the law, the majority announces the rule and then concludes that the evidence before the trial judge, which admittedly does not comport with the requirements of the announced rule, was legally insufficient to support the judgment rendered in favor of appellee.

As noted, there is considerable logic in establishment of the rule announced by the majority. However, stability in the law of real property frequently has depended more upon history than upon logic. In my opinion the trial judge followed the law of Florida as it existed at the time the case was tried. Even assuming arguendo the correctness of the majority’s approach, to apply the rule the court today announces retrospectively will create uncertainty as to the legal significance of the shift in shorelines that occurred as a result of erosion and accretion in the 1940’s and 1950’s.

In my opinion there was competent, substantial evidence that the waters of the Gulf encroached upon Lot 10 for a sufficient period of time (here three to five years) to establish thereon a new mean high water mark; therefore, any land that accreted to Lot 10 subsequently should belong to appellee. On this basis I would affirm.

Despite the fact that the trial judge applied the law as generally understood by the Bench and Bar, I recognize the lingering question as to the period of time necessary for proof that formerly nonriparian lands have become riparian by the gradual approach of water and then subsequently increased in size by accretions.

I am gratified that notwithstanding the majority views this case differently than I, they have decided to certify the case to the Supreme Court as one of great public interest. In this certification, I concur; however, I respectfully dissent from the majority opinion.

      . E. g., Mikel v. Kerr, 499 F.2d 1178 (10th Cir. 1974) applying Okl. law; Greeman v. Smith, 138 N.W.2d 433 (N.D.1965).

      . E. g., Winkle v. Mitrea, 195 Neb. 821, 241 N.W.2d 329 (1976); Younts v. Crockett, 238 Ark. 971, 385 S.W.2d 928 (1965); Grape v. Laiblin, 181 Kan. 677, 314 P.2d 335 (1957).

      . Schulz v. City of Dania, 156 So.2d 520 (Fla. 2d DCA 1963). See Municipal Liquidators, Inc, v. Tench, 153 So.2d 728 (Fla. 2d DCA 1963); Mexico Beach Corporation v. St. Joe Paper Company, 97 So.2d 708 (Fla. 1st DCA 1957).

      . Brickell v. Trammel, 77 Fla. 544, 82 So. 221 (1919).

      . Miller v. Bay-to-Gulf, Inc., 141 Fla. 452, 193 So. 425 (1940).

      . Borax Consolidated Ltd. v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935).

      . Maloney and Ausness, The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping, 53 U.N.C.L.Rev. 185, 196 (1974).

      . The nineteen-year period for determining mean high water has recently been codified in the Florida Coastal Mapping Act of 1974. Thus, in the section dealing with definitions, Sec. 177.27(15), Fla.Stat. (1975), provides:
      “(15) ‘Mean high water’ means the average height of the high waters over a nineteen-year period. For shorter periods of observation, ‘mean high water’ means the average height of the high waters after corrections are applied to eliminate known variations and to reduce the result to the equivalent of a mean nineteen-year value.”

      . The criteria used in locating the ordinary high water mark or mean high tide in Florida may be slightly different than in many jurisdictions because in Miller v. Bay-to-Gulf, Inc., supra, the court held that the ordinary high water mark was the limit reached by the neap tides rather than the line of the medium high tide between the spring tides and the neap tides. This decision has been criticized as being based upon an erroneous premise. Maloney and Ausness, supra, at 204; Gay, supra, at 561. In any event, this distinction does not affect our disposition of the instant case.

        .See United States v. Pot-Nets, Inc., 363 F.Supp. 812 (D.Del.1973); n. 7, supra.

      . See Maloney and Ausness, supra, at 246 for a detailed discussion of the methodology.


text:
    Darrell W. MAYS, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-263, 77-273.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was charged by separate infor-mations with the crimes of burglary of a dwelling and burglary of a structure contrary to Section 810.02, Florida Statutes (1975). Upon his pleas of guilty he was adjudged guilty of each crime. He was sentenced to one year in a treatment center to be followed by five years probation with credit for time served for his conviction of burglary of a dwelling. He was placed on probation for fifteen years as a result of his conviction of burglary of the structure. The sentences were to run concurrently.

Appellant first contends that his being placed on probation for fifteen years for burglary of a structure is illegal, since he could have received only a maximum of five years in prison for the crime. We agree. The information in case number 76-6103 (appeal number 77-273) does not allege that there was a human being in the structure at the time appellant committed the crime. Such an allegation is essential to the charge where a structure, as opposed to a dwelling, is involved in order for the crime to be a second degree felony which carries a maximum punishment of fifteen years. Section 810.02(3), Florida Statutes (1975). Absent this allegation, the burglary charged is a third degree felony punishable by a maximum of five years imprisonment. Section 775.082(3)(d), Florida Statutes (1975). Since a probationary term may not exceed the maximum possible sentence unless expressly provided by law, Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976), placing appellant on probation for fifteen years in case number 76-6103 (appeal number 77-273) was excessive and this case must be remanded for entry of a probationary term not exceeding five years.

Appellant next contends that condition thirteen of his probation, prohibiting him from living with a member of the opposite sex unless married, is overbroad. Although this condition may be considered a layman’s formulation that appellant must comply with Chapter 798, Florida Statutes (1975) which proscribes fornication, the restriction is overbroad since its language would prohibit appellant from living with his mother or any other female relative of appellant. Hence, on remand, condition thirteen must be modified to permit appellant to live with his female relatives.

Finally, appellant points to the record which shows he was to receive credit for time spent in jail in case number 76-6102 (appeal number 77-263). However, the final judgment and sentence omits any reference to credit appellant is to receive for time served. On remand, the precise number of days of credit to which appellant is entitled must be stated. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Appellant’s convictions are affirmed. The sentence in each case is vacated and each cause is remanded for resentencing in accordance with this opinion. Appellant need not be present for this purpose.

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


text:
    Victor L. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 77-272.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen Lindsey Gorman, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover the phrase “at hard labor” in the sentence is improper. McDonald v. State, 321 So.2d 453 (Fla. 4th DC A 1975). The appellant does not have to be present at resentencing.

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


text:
    David Leroy JONES, Appellant, v. STATE of Florida, Appellee.
    No. 77-403.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1977.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order revoking the appellant’s probation and the judgment are affirmed but this ease is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.-161(1), Florida Statutes (1975), Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). The appellant does not have to be present at resentencing.

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


author: HOBSON, Acting Chief Judge.

text:
    M. H. FOSTER and A. N. Britt, Trustees, Appellants, v. Clarence JONES and Mary Ellen Jones, his wife, Appellees.
    No. 76-1566.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1977.

      John R. Newcomer, Jr., of Yado, Keel, Nelson, Casper, Bergmann & Newcomer, Tampa, for appellants.
    David L. Anderson, New Port Richey, for appellees.
   HOBSON, Acting Chief Judge.

In this test case we are called upon to. decide the validity of a “land covenant fee” and whether such a payment is supported by adequate consideration. The trial court found no such consideration. We reverse and remand for further proceedings.

On December 12, 1969, William J. Morrison, as Trustee for the owner, Sadie Foster Trust, leased a tract of land to Florida Leisure Homes, Inc., which lease was duly recorded. Florida Leisure, acting as developer, was to construct and develop four condominium projects to be known as Imperial Embassy Condominiums I, II, III and IV. This lawsuit concerns only phase III of that condominium- development. It should also be noted that whether or not this long-term lease (99 years) covered the land on which phase III is located was the central dispute below.

On September 5, 1970, Morrison assigned the lease to . the present appellants, Foster and Britt, also trustees for the owner, Sadie Foster Trust. Shortly thereafter Foster and Britt, in conjunction with Florida Leisure, cancelled the long-term lease on condominiums phases I and II. Despite the dispute between the instant parties as to whether or not the lease given to Leisure Homes in 1969 ever covered the property on which Imperial Embassy III was built, there is evidence in the record that the lease was also cancelled with respect to this third phase. Following the purported cancellation of the long-term lease, on or about August 16, 1971, the Declaration of Condominium of Imperial Embassy III was signed. It was recorded thereafter. The declaration provided that in consideration for cancellation of the long-term lease, creation of the condominium and conveyance of the condominium parcels the association would assume all of the obligations running to Florida Leisure Homes under the long-term lease and that every unit owner would be responsible for a pro-rata share of the cancelled lease fee, which became known as the “land covenant fee.”

■ On March 20, 1972, the appellees contracted with Florida Leisure Homes to buy Unit 24-A of condominium III. Appellants did not participate in the sales negotiations nor did they sign the contract of purchase. However, as trustees for the owner, Sadie Foster Trust, appellants did convey a warranty deed to the appellees on April 12, 1972. The deed was allegedly delivered some months later. Both the contract of purchase and the warranty deed contain specific limitations subjecting the condominium unit to all provisions in the Declaration of Condominium. Despite these references in the documents of sale, appellees maintain they were not aware of the Declaration of Condominium, a land covenant fee or any aspect of a long-term lease. They admit that they were aware that included in the purchase arrangement was a requirement to pay a monthly maintenance fee for utilities, recreational facilities, and maintenance.

In 1974 the appellees first became aware that they were making a payment for a land covenant fee that was not being retained by the association for common expenses. Upon realizing that only one-half of his $45 maintenance fee was being applied to the condominium maintenance expenses, appellee Clarence Jones refused to continue paying that portion of the monthly maintenance bill allocable to the land covenant fee. Other members of the association, also having discovered the land covenant fee, refused to pay it.

On May 6, 1975, appellants filed a claim of lien on the property owned by the appel-lees for failure to pay the land covenant fee as per the Declaration of Condominium. In response the appellees filed a complaint to show cause why the lien should not be vacated. Appellants answered this complaint and counterclaimed to foreclose the lien. Following the filing of appellants’ second amended counterclaim to foreclose the lien, the appellees filed an answer and some eighteen affirmative defenses including, inter alia, lack of consideration, illegal restraint on alienation, full payment for the condominium parcel, the fee was a mortgage without compliance with formal requisites and unconscionability.

Subsequently, on June 21,1976, the cause went to trial and the trial judge ruled that the land covenant fee contained in the Declaration of Condominium was not supported by sufficient consideration and thus was null and void. His ruling was specifically based upon a finding of fact that the lease between Morrison and Florida Leisure Homes in 1969 covered only the erection of Imperial Embassy Condominiums I and II.

The narrow issue presented by this case is whether sufficient consideration exists for payment of the land covenant fee. Implicit in the answer to this question is the effect, if any, of the execution and subsequent cancellation of the long-term lease by appellants and Florida Leisure Homes with the lease obligation being incorporated in the Declaration of Condominium. Appel-lees assert, and the trial court found, that the lease executed by the appellants’ predecessor never covered the property designated for construction of Imperial Embassy III. Thus, they posit that since any cancellation of a non-existent lease was a nudum pactum, then any consideration recited in the declaration as accruing because of the cancellation of the lease was similarly illusory, void and without effect. In the alternative the appellees contend that if the lease ever did cover phase III its cancellation, prior to the recording of the Declaration of Condominium, yields the same result, to wit, the consideration is illusory.

Our analysis of this unusual “land covenant fee” suggests that cancellation of the lease to Florida Leisure Homes is only one factor of “consideration” recited in the Declaration of Condominium. The disputed portion of the Declaration of Condominium pertaining to the land covenant fee as consideration provides in pertinent part,

M. ADDITIONAL PROVISIONS, COVENANTS, RESTRICTIONS, CONDITIONS AND LIMITATIONS:
(1) Reservation of Land Payment.
The improvements constructed, placed and installed on the land, described in Paragraph C hereof, were placed, installed or constructed (as the case may be) by Florida Leisure Homes, Inc., a Florida corporation, a party to this Declaration, pursuant to a right-to-build covenant contained in a Long Term Lease with A. N. Britt and M. H. Foster, Trustees, Fee Owners of the land referred to herein as Fee Owner. In order to submit the condominium property, consisting of land and improvements, to condominium ownership and to convey condominium parcels therefrom, the undersigned, Florida Leisure Homes, Inc., requested the above Fee Owner to cancel the Long Term Lease, join in this Declaration, and when requested by Florida Leisure Homes, Inc. to execute Warranty Deeds conveying the condominium parcels to the designees or assigns of Florida Leisure Homes, Inc. The sole consideration running to the said Fee Owner for the cancellation of the Long Term Lease, the execution of this Declaration, and, subsequent hereto, the conveyance of the condominium parcels to the designees or assigns of the corporation, was and is the right to receive from the unit owners an annual payment of moneys equivalent to that which the Fee Owner would have received by virtue of the cancelled Lease.
In consideration of the foregoing, the undersigned parties hereby establish and set forth in the following paragraphs conditions, reservations, restrictions, covenants and equitable servitudes which shall run with the land, to-wit:
(a) There is hereby reserved unto the said Fee Owner, his heirs, executors, administrators, successors or assigns, the right to receive the total sum of TWENTY THOUSAND THREE HUNDRED AND FIFTY-EIGHT ($20,358.00) DOLLARS per annum from the owners of the condominium parcels in this condominium, and all owners, by the acceptance of their respective Deeds from the said Fee Owner, agree to pay their hereinafter allocated portion of said annual sum, for that period of time and in the manner hereinafter stated.

We submit that this reservation of land payment provision, particularly, that portion relating to consideration, is susceptible of more than one construction. Facially the consideration clause, when read with the previous statements pertaining to the circumstances giving rise to the Declaration of Condominium, supports the appel-lees’ position that the cancellation of the lease and payments due under it is the consideration for the land covenant fee. Thus, if no lease ever covered phase III, or if the lease was cancelled prior to the declaration, then the consideration is illusory. However, we are constrained to interpret this provision otherwise for two reasons.

First, the consideration clause states. The sole consideration running to the said Fee Owner for the cancellation of the Long Term Lease, the execution of this Declaration, and, subsequent hereto, the conveyance of the condominium parcels to the designees or assigns of the corporation . . . . (emphasis supplied)

Consequently, within Section M(l) of the declaration there are three factors listed as representing the consideration for the land covenant fee, namely: 1) cancellation of the lease; 2) execution of the declaration; and 3) conveyance of the condominium parcels. Thus, there is no merit to the appellees’ contention that the sole consideration for the land covenant fee was and is the cancellation of the long-term lease, which appel-lees contend was either nonexistent or previously cancelled prior to the declaration being filed. The relevant inquiry at this juncture is, then, whether the cancellation of a nonexistent lease, which forms one of the bases of consideration in the Declaration of Condominium, is sufficient to vitiate the entire land covenant fee because this factor is illusory. We submit that it is not.

The second and related reason for sustaining this fee on the basis of a finding of consideration is the purpose of the obligation as set forth in the Declaration of Condominium. Specifically, extensive review of the transcript and records filed in this cause lead us to the conclusion that when the Declaration of Condominium was filed it was contemplated that these annual payments or land covenant fees would be payments on the purchase price of the land. This construction is derived from the language contained in the consideration clause above, i. e., “. . . [T]he conveyance of the condominium parcels to the designees or assigns of the corporation . .” Moreover, such a result, not being dependent on the existence or nonexistence of the lease, makes consideration of the cancellation of such a lease irrelevant. This conclusion is further supported by the fact that any lack of consideration flowing from any cancellation did not accrue to the appellees. Instead Florida Leisure Homes would be the only proper party to effectively raise a lack of consideration argument with respect to the lease.

We think such a construction comports with the general rules governing the interpretation of contracts. For example, at 7 FlaJur. Contracts § 84 (1956) it is posited,

If the language of a contract is contradictory, obscure, or ambiguous, or its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, and such as a prudent man would naturally execute, while the other makes it inequitable, unnatural, or such as a reasonable man would not be likely to enter into, then the reasonable, logical, and rational interpretation should be adopted.

In the case sub judice were we to hold the land covenant fee invalid for a lack of consideration, the appellants, as fee owners, would have in effect, deeded away the land composing each condominium parcel without compensation. Such a result is neither equitable nor do we believe there exists competent and substantial evidence in the record to support such a construction. This view is also consistent with the general policies of construing contracts, or, in this case, covenants in a Declaration of Condominium, in favor of validity rather than invalidity. 7 Fla.Jur. Contracts § 86 (1956).

By far the most important facet of our upholding this land covenant fee on the basis of adequate consideration is the desire not to elevate the form of the transaction over the substantive purpose of that arrangement. Whether the lease ever existed as to phase III or not was inconsequential. The appellants, as fee owners, simply wanted payment for the land. In turn the developers, as parties to the sale of the unit, also sought and received compensation for their contribution to the development. However, the sale of their unit to the appel-lees was directly dependent on the conveyance of the warranty deed by appellants. Both documents, the contract of purchase and the deed, contain specific references to the Declaration of Condominium. We decline to comment on any issue of notice with respect to these documents as the trial court has not yet decided that issue.

Finally, we agree with the appel-lees that this land covenant fee is a highly unusual financing arrangement for the purchase of the land, separate and apart from the purchase of the unit itself. In addition, neither of the parties to this cause have pointed us to any cases construing, upholding or overturning similar arrangements. Nevertheless, it is fundamentally accepted that competent parties have the utmost liberty of contracting and agreements voluntarily and fairly entered into will be enforced by the courts except where illegal, against public policy, or in contravention of statute. Our holding in this case goes no further than a finding of adequate consideration in the Declaration of Condominium for the payment, by the unit owners, of the land covenant fee. On remand the proceedings should be continued to allow the appel-lees to go forward to demonstrate the validity of their affirmative defenses to appellants’ lien foreclosure claim. At that time questions of notice, the nature of the transaction, unconscionability, the effect of representations made at or before sale, etc., will be in order.

Accordingly, the judgment below is reversed and remanded consistent with the view expressed herein.

GRIMES and OTT, JJ., concur.

      . In addition to the appellees there are some 85 other individual condominium owners who have refused to pay this land covenant fee. Following the filing of numerous claims of lien by the appellants against each one of these unit owners, it was agreed that a single test case would be preferable to conducting 85 simultaneous suits.

      . Appellants in their brief assert that it was stipulated below that the lease covered condominium III and furthermore that the lease was inadvertently cancelled by the cancellation of the lease on phase II. Appellees dispute that any such stipulation was made.

      .Appellants were entitled under their long-term lease to receive some $20,358 from Florida Leisure Homes per annum. This sum, mentioned specifically in the declaration for condominium III, was then allocated on a pro-rata basis depending on each association member’s percentage of ownership, In this case the ap-pellees were responsible for some 1.15% of the stated land covenant fee, or approximately $20.53 per month.

      .It should be noted that appellees purchased their condominium unit from Florida Leisure Homes, as developer of the units, for $16,990. Appellants, in essence, contend that this price only reflects the purchase price for the unit itself. They further posit that the land covenant fee represents the consideration flowing to them for the deeding away of their land to the designees or assigns of the developer pursuant to the terms of the Declaration of Condominium.

      . Even then, assuming the lease covered phase III, it could be argued that Florida Leisure Homes has received consideration for its cancellation of the long-term lease since it was the developer and was afforded the rights to construct and sell units at the complex.

      . See note 4, supra.


text:
    Richard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-248.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1977.
    Rehearing Denied Sept. 29, 1977.
    Jack 0. Johnson, Public Defender, James A. Cornelius, Asst. Public Defender, and Lawrence D. Shearer, Legal Intern, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of possessing a controlled substance with intent to deliver and delivering a controlled substance. Both crimes were charged under Section 893.-13(1)(a)1, Florida Statutes (1975). Both crimes occurred during a single episode in which the appellant delivered heroin to an undercover agent.

Appellant received a fifteen year sentence on count I and a five year concurrent sentence on count II. The sentence on count II must be set aside because both of the crimes were a facet of the same transaction. Orange v. State, 334 So.2d 277 (Fla. 3d DCA 1976). The state’s reliance upon Section 775.021(4), Florida Statutes (Supp. 1976), is misplaced because this new statute only mandates separate sentencing where a person has committed an act in the course of one criminal transaction which constitutes a violation of two or more criminal statutes.

Appellant’s second point is without merit.

The judgments and the sentence on count I are affirmed. The sentence on count II is hereby set aside.

GRIMES, A. C. J., and SCHEB and OTT, JJ., concur.


text:
    Mary NICHOLSON, Appellant, v. P. B. UNDERWOOD, Appellee.
    No. EE-407.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1977.
    G. Robert Barron of Smith, Brimsley, Barron & Remington, Fort Walton Beach, for appellant.
    George Ralph Miller of Andrews & Miller, De Funiak Springs, for appellee.
   PER CURIAM.

Appellant, defendant in the trial court, seeks relief from an adverse final judgment entered following a non-jury trial, by which it was determined and held that appellee was entitled to receive a real estate commission from appellant by virtue of appellee having been the procuring cause of the transaction.

The evidence in this case is subject to the same interpretation as that discussed by this Court in Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975), and Realty Marts, International, Inc. v. Barlow, 348 So.2d 63 (Fla. 1st DCA 1977). Finding as we do that the evidence was sufficient to sustain the findings of the learned trial judge, sitting as trier of the facts, we affirm.

Another point, inferentially addressed by appellant, deserves our attention. During the trial appellee called as a witness one of the purchasers of appellant’s property whose testimony was not favorable to ap-pellee and in many respects substantiated the contentions of appellant. In Parker v. Miracle Strip Boat & Motors Hdqtrs., 341 So.2d 197 (Fla. 1st DCA 1976), this Court stated:

“* * * The overwhelming majority rule on that issue is that notwithstanding the rule that a party cannot impeach his own witness the party may establish, by other witnesses that the facts are otherwise then as stated by a particular witness. * * * It has been observed that even where a witness has not been called as an adverse witness, plaintiff is not always bound by the unfavorable testimony of such a witness. * * *” (341 So.2d at page 199)

AFFIRMED.

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


text:
    Jack PINES and Shirlee Pines, his wife, Appellants, v. BARNETT BANK OF CYPRESS GARDENS, N. A., et al., Appellees.
    No. 76-1232.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.

      Thomas F. Icard, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellants.
    Roy C. Summerlin of Summerlin, Connor & Casey, Winter Haven, for Barnett Bank of Cypress Gardens.
    Clinton A. Curtis of Peterson, Myers, Curtis, Craig & Crews, Lake Wales, for Irbys and Life Ins. Co. of Georgia.
   PER CURIAM.

This case involved complicated factual and legal issues and at first gave us considerable pause. However, upon a careful review of the record and briefs, we have concluded that the appellants failed to show any reversible error on the part of the trial judge.

Accordingly, the judgment of the trial court should be and is hereby affirmed.

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


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Erwin PERKINS, Appellee.
    No. 76-1678.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Erwin Perkins, pro se.
   OTT, Judge.

Appellee’s motion to dismiss the charges against him was granted. The State of Florida appeals the order granting the motion.

The facts giving rise to this appeal are as follows.

Pursuant to an investigation being conducted by the State Attorney’s office, a subpoena duces tecum was issued to appel-lee, directing him to produce “all original checks, bank statements and any other documents pertaining to the business affairs of Perkins Pipe & Steel Supply, Inc. for the period between August 1, 1973 through December 1, 1974.” The subpoena specified that the records were to be turned over on December 18, 1974, but at a discussion between appellee’s attorney and an assistant state attorney held shortly after December 16, 1974, it was agreed that the records would be turned over at a future date. The records were given to the State Attorney’s office on January 13, 1975.

On May 12,1975, appellee was charged by information with two counts of buying, receiving or aiding in the concealment of stolen property. His first trial ended in a mistrial. Sometime subsequent to the con-elusion of his first trial, appellee discharged his attorney and has since acted as his own counsel.

On April 22,1976, appellee filed his pro se motion to dismiss. The trial court granted the motion, finding that the issuance of the subpoena duces tecum constituted a grant of total immunity to appellee. We disagree and reverse.

The immunity statute, Section 914.04, Florida Statutes (1975) is not self-executing upon the mere issuance of a subpoena or unprotesting compliance therewith. The issuance of a subpoena compels only the witness’ attendance (with the required documents in the case of a subpoena duces tecum). If the witness asserts his fifth amendment privilege upon being interrogated or requested to surrender the subpoenaed documents, the State may relieve him of providing incriminating evidence in compliance with the subpoena, see State ex rel. Foster v. Hall, 230 So.2d 722 (Fla.2d DCA 1970), cited and quoted with approval in Tsavaris v. Scruggs, No. 48,-637 (Fla. March 17, 1977), or may require him to testify or turn over the subpoenaed documents, in which event the witness will have immunity pursuant to Section 914.04, Florida Statutes (1975).

In order to invoke the immunity provided by the statute, the witness must assert his privilege against self-incrimination. If he is nevertheless compelled to provide incriminating evidence, his answers may not be used against him in a later criminal prosecution. However, if he fails to assert his privilege, his failure to object may justifiably lead the state to assume that its compulsory process did not result in eliciting evidence that the witness deemed incriminating, and he should not be allowed to claim immunity after the fact. Orosz v. State, 334 So.2d 26 (Fla.1st DCA 1976).

At no time during the investigatory proceedings here did either appellee or his counsel raise an objection on the ground of self-incrimination. Having failed to assert his fifth amendment privilege against self-incrimination, he may not now claim immunity from prosecution or use of the subpoenaed documents against him on the sole basis that he turned over the requested documents.

The trial court below relied on State v. Deems, 334 So.2d 829 (Fla.3d DCA 1976) in granting appellee’s motion to dismiss. Deems, however, dealt solely with the question of whether the subpoena directed to the defendant in that case unambiguously called for the production of corporate documents rather than personal records, an issue we deem unnecessary to decide in view of our disposition of this case.

Reversed and remanded for further proceedings not inconsistent with this opinion.

McNULTY, Acting C. J., concurs.

SCHOONOVER, JACK R., Associate Judge, dissents.

      . Section 914.04, Florida Statutes (1975) provides:
      “No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any .book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”

      . We do not deal here with the issue of whether the investigation had focused upon the ap-pellee at the time the records were produced, and if so, whether Miranda warnings were or should have been given. For a discussion of that issue, see State v. Newsome, 349 So.2d 771 (Fla.2d DCA, 1977).

      . And only the individual actually producing evidence or testifying in compliance with a subpoena is entitled to immunity under the statute, Tsavaris v. Scruggs, supra.


author: GRIMES, Judge.

text:
    PROPERTY APPRAISAL ADJUSTMENT BOARD OF SARASOTA COUNTY, Florida, a political subdivision of the State of Florida, Petitioner, v. FLORIDA DEPARTMENT OF REVENUE, a political subdivision of the State of Florida, Respondent.
    No. 77-922.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Rehearing Denied Oct. 6, 1977.

      Robert L. Hesse of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, for petitioner.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for respondent.
   ON MOTION TO DISMISS

GRIMES, Judge.

Upon the assertion of the Sarasota County Property Appraiser pursuant to Section 194.032(6)(a)3, Florida Statutes (Supp.1976), the Department of Revenue determined that by virtue of certain of its decisions the Property Appraisal Adjustment Board of Sarasota County had consistently and continuously violated the intent of the law. The Adjustment Board has filed in this court a petition to review this determination, and the Department of Revenue has filed a motion to dismiss.

The obtaining of a determination by the Department of Revenue that “there exists a consistent and continuous violation of the intent of the law or administrative rules by the Property Appraisal Adjustment Board in its decisions” is one of several alternative statutory conditions precedent which must exist before a property appraiser may appeal a decision of the Property Appraisal Adjustment Board to the circuit court. In essence, by virtue of its general supervision over property assessments, the Department of Revenue is charged with deciding whether the property appraiser has probable cause to go to court. Yet, even when a determination of probable cause has been made, the decision of whether to appeal to the court remains within the discretion of the property appraiser. In the event the matter goes to court, the proceeding is de novo, and the burden of proof is on the property appraiser. Section 194.-032(6)(c), Florida Statutes (Supp.1976). The determination of probable cause can have no bearing upon the outcome of the litigation. Thus, even though the action of the Department of Revenue is final in the sense that the Department will have nothing further to do with the matter, it is not final agency action which has adversely affected the Adjustment Board. Section 120.-68, Florida Statutes (1975). We do not pass on the question of whether a determination adverse to the property appraiser would be final agency action, because under those circumstances the property appraiser would be without further recourse.

The petition for review is hereby dismissed.

BOARDMAN, C. J., and McNULTY, J., concur.