text:
    Joe Lewis HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-2285.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.

      Garry M. Glickman, of Hustad & Glick-man, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The facts of this case reveal that a co-defendant, (Brownlee), entered a negotiated plea relevant to a robbery, just prior to going to trial, but adjudication and sentencing were withheld. Later that same afternoon, he (Brownlee) was subpoenaed by the State to testify at a deposition pursuant to the Florida Immunity Statute which provides:

914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — 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. Florida Statute 914.04 (1975).

During the course of the deposition, the said Brownlee gave testimony to the effect that the appellant was not one of the co-robbers, so not surprisingly, the defense counsel for the appellant subpoenaed Brownlee to testify at the trial; however, counsel for Brownlee interposed the privilege against self incrimination and the court ruled that Brownlee did not have to testify, and he did not do so. The appellant was convicted and now enters this appeal.

The State and Brownlee’s counsel argue that Brownlee was only the subject of a defense subpoena for the trial and that the defense cannot confer immunity, and only the prosecution can do so. State v. Schell, 222 So.2d 757 (Fla.2nd DCA 1969). They further argue that the judge had not yet adjudicated Brownlee guilty and any testimony he gave could have been used against him should his negotiated plea be rejected by the court.

We cannot agree with either of these contentions because Brownlee had in fact been subpoenaed by the State under the Immunity Statute for the deposition prior to trial. Said statute, quoted first above, would appear to give Brownlee transactional as well as use immunity as to the robbery then before the court. State ex rel. Hough v. Popper, 287 So.2d 282 (Fla.1973); and State v. Kelly, 71 So.2d 887 (Fla.1954). The statute clearly sets forth that any person subpoenaed to testify before the State’s Attorney upon investigation or proceeding shall receive the immunity. Accordingly, there can be no question but that this immunity attached in the case now before us because the State did issue a subpoena.

The judgment of guilt is hereby reversed and the cause remanded to the circuit court for a new trial.

DAUKSCH, J., and ALAN R. SCHWARTZ, Associate Judge, concur.

      . He was convicted of robbery, conspiracy to commit a felony, to wit: robbery; larceny of a firearm and carrying a concealed firearm during the commission of a felony.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    Arnold I. BARNETT and Alexander P. Rosin, Appellants, v. BARNETT BANK OF JACKSONVILLE, N. A., a National Banking Association, Appellee.
    No. CC-432.
    District Court of Appeal of Florida, First District.
    April 19, 1977.
    Rehearing Denied May 19, 1977.
    Adam G. Adams, II, of Adams & Adams, Jacksonville, for appellants.
    James A. Bledsoe, Jr., of Mahoney, Had-low & Adams, Barry L. Zisser of Zisser & Robison, Jacksonville, for appellee.
   McCORD, Judge.

This appeal is from a final judgment in favor of appellee Barnett Bank of Jacksonville on its complaint against appellants Arnold I. Barnett and Alexander P. Rosin seeking recovery under a promissory note and commercial equipment security agreement which were guaranteed by appellants. Final judgment was entered after partial summary judgment against appellants was granted as to liability and after trial thereafter on damages.

Appellants contended that upon default under the note and security agreement, the Bank sold the collateral prior to giving notice to appellants and thus without affording appellants an opportunity to redeem and be subrogated to the rights of the Bank in the security. Appellants contend that they are thereby released as guarantors. The Bank points out that in the guaranty agreement, appellants expressly waived notice of disposition of the collateral. Appellants counter with the contention that under the Uniform Commercial Code, the guarantor of an obligation may not prior to default waive the rights accorded to a “debtor” under the Code and that they are debtors under the Code. The trial court ruled against appellants’ contention and entered partial summary judgment against them as to liability. We disagree and reverse.

§ 679.501(3) provides in pertinent part as follows:

“To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied . . .:
(a) * * *
(b) Sections 679.504(3) and 679.505(1) which deal with disposition of collateral;
(c) * * *
(d) Section 679.506 which deals with redemption of collateral; and
(ej * * * ”

§ 679.504(3) states as follows:

“(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale of other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.” (Emphasis supplied.)

§ 679.506 states as follows:

“Debtor’s right to redeem collateral. — At any time before the secured party has disposed of collateral or entered into a contract for its disposition under § 679.-504 or before the obligation has been discharged under § 679.505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.”

The foregoing statutes set out the rights of a debtor which may not be waived prior to default. But is a guarantor a debtor? § 679.105(1)(d) defines “debtor” as follows:

“ ‘Debtor’ means the' person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, . . . ”

The District Court of appeal, Fourth District in Hepworth v. Orlando Bank & Trust Company, 323 So.2d 41 (Fla. 4 DCA 1975), held that a guarantor is a debtor under the above statutory definition, and upon default on the note which he guaranteed, the guarantor is entitled to notice prior to sale or disposition of the collateral. The court there said:

“The guarantor stands in the shoes of the debtor not only with respect to liability for the payment or other performance of the general obligation but also in regard to the entitlement to notice prior to the sale of collateral. A sale of collateral without notice by a secured party effectively eliminates the options available to the guarantor, see Turk, supra, and defeats the rights which the guarantor is otherwise entitled to exercise. See 679.-9-504(5), F.S. Apart from what we perceive to be the purpose and intent of the provisions of the code with respect to the rights and duties of a ‘debtor’, fundamental principles of equity and fairness urge that the secured party give a guarantor notice of the sale of collateral securing the promissory note. Cf. 679.9-507, F.S.”

Hepworth did not involve an attempted waiver of the notice as is the situation in the case sub judice. It is clear, however, from the above quoted provisions of § 679.-501(3) that the waiver contained in the guaranty agreement is of no effect. Compare Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966).

Aside from the question of waiver, appellee contends that failure to give a guarantor the notice required by § 679.-504(3) does not bar recovery of a deficiency judgment against the guarantor. While there appears to be a division of authority outside of Florida on this point, the District Courts of Appeal of the Second, Third and Fourth Districts have aligned themselves with the courts which hold that the failure of the secured party to give the requisite notice prior to a sale or disposition of the collateral precludes an action for deficiency against the guarantor. We agree with these rulings. See Hepworth v. Orlando Bank and Trust Company, supra; Washington v. First National Bank of Miami, 332 So.2d 644 (Fla. 3 DCA 1976); and Turk v. St. Petersburg Bank and Trust Company, 281 So.2d 534 (Fla. 2 DCA 1973).

Reversed with directions that the final judgment be vacated and a new trial be held consistent with this opinion.

BOYER, C. J., and RAWLS, J., concur.


author: ERVIN, Judge.

text:
    H. P. BONDURANT, Individually and d/b/a H. P. Bondurant Trucking Company, Appellant, v. BEARD EQUIPMENT COMPANY, Appellee.
    No. BB-238.
    District Court of Appeal of Florida, First District.
    March 3, 1977.

      R. Brownlee Eggart, of Eggart & Hoffman, Pensacola, for appellant.
    Charles C. Sherrill and Eric C. Eggen, of Sherrill & Moore, Pensacola, for appellee.
   ERVIN, Judge.

This is an appeal by defendant Bondurant from a recovery of a deficiency judgment by plaintiff Beard for breach of a retail installment contract following trial by jury. Bondurant’s sole point on appeal relates to the adequacy of notice following default, contending that prior to resale of the loader he should have received written notification from Beard of its intent to resell the machine. Beard sold Bondurant a second-hand front end loader for $15,000.00. Bondurant paid $1,250.00 down and signed a security agreement for the remainder. After using the loader in his dirt moving business for a short time, Bondurant returned it to Beard for engine repairs. When the repairs were completed, Bondu-rant was advised during a telephone conversation with Beard’s sales manager that his loader was ready for removal. Beard’s manager testified at trial:

“A. Well, he said he didn’t want the—
******
—the machine back and I could do what I want to with it. And at that time I told him we were going to take him to court—
Q. [Interposing] What about selling it, did you say anything to him about selling it?
A. I told him we was going to have to sell it and then take him to court for the difference.
Q. You specifically recall telling him you were going to have to sell the machine?
A. Yes, sir, I did.
Q. Where were you going to sell it?
A. Well, we was just going to sell it there at the place.
Q. Put it back on the lot and sell it?
A. Yes, sir.”

About three months after the above conversation and without any further notification to Bondurant, the front end loader was sold by Beard to a retail customer for $14,-500.00. Beard then filed suit against Bon-durant seeking damages for costs of repair, expenses of resale and the $500.00 difference in the purchase price.

This case necessarily involves a construction of Section 679.504(3), Florida Statutes (1975) (Section 9-504, U.C.C.):

“Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. . ” (Emphasis added.)

Bondurant argues from the above statute and from the definition of the word “send”, as set forth at Section 671.201(38), that written notice must be sent by the secured party before Beard was permitted to dispose of the collateral. Send is defined in Section 671.201(38) as follows:

“ ‘Send’ in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.”

Send in the above definition applies only to written notice. Notice under Section 679.504(3), however, need only be “reasonable”. Compare 671.201(38), which seems to require notice in writing, with the following definitions of notice from 671.201(25), (26), and (27):

“(25) A person has ‘notice’ of a fact when
(a) He has actual knowledge of it; or
(b) He has received a notice or notification of it; or
(c) From all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person ‘knows’ or has ‘knowledge’ of a fact when he has actual knowledge of it. ‘Discover’ or ‘learn’ or a word or phrase of similar import refers to knowledge rather than to reason to know. The time and circumstances under which a notice or notification may cease to be effective are not determined by this code.
(26) A person ‘notifies’ or ‘gives’ a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person ‘receives’ a notice or notification when
(a) It comes to his attention; or
(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.
(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence.”

There is no question but that Bondu-rant knew the loader would be sold. Bon-durant has advanced no argument that the sale was not commercially reasonable. Bondurant testified that Beard’s business included the sale of used equipment and therefore he had reason to know that Beard would place the loader back on its lot and offer it for sale. All that is required in the private sale of collateral is reasonable notification and there is no requirement of notice of the time and place of sale. 4 Anderson, Uniform Commercial Code, § 9-504:20 (2nd ed. 1971).

The only Florida case we have found involving an interpretation of Section 679.-504(3) is Turk v. St. Petersburg Bank and Trust Company, 281 So.2d 534 (Fla. 2nd DCA 1973) in which the court merely held that before a deficiency judgment might be obtained against one of the debtors on a promissory note, such debtor first must be given notice of the intended sale of repossessed collateral. The judgment debtor, Turk, was never afforded any notice at all from the bank, so the precise question involving the method of notice was not reached.

There is a division of authority of out of state cases involving the type of notice required to be sent under Article nine of the Code. Oral notice to a debtor of the sale of collateral defaulted upon has been held sufficient in the following cases: GAC Credit Corp. v. Small Business Administration, 323 F.Supp. 795 (W.D.Mo.1971); A. J. Armstrong Co. v. Janburt Embroidery Corp., 97 N.J.Super. 246, 234 A.2d 737 (1967); Crest Investment Trust, Inc. v. Alatzas, 264 Md. 571, 287 A.2d 261 (1972); Fairchild v. Williams Feed, Inc., 544 P.2d 1216 (Mont.1976).

Those cases seeming to require written notice as a matter of law — DeLay First National Bank and Trust Co. v. Jacobson Appliance Co., 196 Neb. 398, 243 N.W.2d 745 (1976); Foundation Discounts, Inc. v. Serna, 81 N.M. 474, 468 P.2d 875 (1970) — in our view take an overly restrictive construction of reasonable notice.

The purpose of notice under Section 679.504(3) is to enable the debtor to protect his interest by paying the debt, finding a buyer or being present at the sale to bid on the property or have others do so, to the end that it not be sacrificed by a sale at less than its true value. Franklin State Bank v. Parker, 136 N.J.Super. 476, 346 A.2d 632 (1975). Beard in this instance did not give notice of the exact time of sale because the loader was sold in the normal course of business. Bondurant, however, knew where the loader was and why it was being sold. He had three months to find a buyer for the equipment and in fact tried to do so. We hold under the particular circumstances of this case that the defendant’s actual knowledge of the expected sale was sufficient reasonable notice.

At trial, the burden of proving notice was on the plaintiff who had peculiar knowledge of the facts. Mallicoat v. Volunteer Finance and Loan Corp., 57 Tenn.App. 106, 415 S.W.2d 347 (1966). The question of reasonable notice was for the jury to decide. Baber v. Williams Ford Co., 239 Ark. 1054, 396 S.W.2d 302 (1965). Since the jury found plaintiff met that burden, we find no error.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


author: DAUKSCH, Judge.

text:
    Tyrone Bernard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-719.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.
    David M. Hammond, of Meyers, Mooney & Adler, Orlando, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a denial of a Motion to Suppress Evidence and a Judgment of conviction.

At 4:00 P.M. the Appellant was in his car following two of his friends in another car on their way to the friends’ house. The police had warrants for the arrest of Appellant for driver license violations and stopped the Appellant in order to arrest him in accordance with those warrants. Upon the Appellant being stopped he was ordered from his car, handcuffed and placed in the police car. In the meantime the Appellant’s friend saw the police stop the Appellant, turned her car around and drove back to the scene of the arrest. Both the Appellant and his friends requested the police to release the car to one of the friends, at least one of whom was a licensed driver. Instead the police proceeded to seize the car and search it without a search warrant or the valid consent of the Appellant. Probable cause to search was non-existent.

The State urges the search was not a search but an inventory subsequent to an impounding of the car. The officer testified it is routine procedure to conduct an inventory of the contents of a car after its driver is arrested. The officers also testified that the inventory had already begun when the Appellant and friends asked that the car be released to one of the friends.

During the search of the car, to inventory the contents, the officers opened the trunk and found a suitcase laying underneath a garment bag. There was also a toolbox in the trunk. In order to complete their inventory the officers obtained from the Appellant’s pocket a key which fit the locked toolbox. They opened it. They also opened the suitcase and found an envelope inside. They opened the envelope and found what ultimately turned out to be cocaine.

The question is whether or not the search and seizure was a valid exercise of police power not in contravention of Appellant’s rights under Article I, Section 12 of the Florida Constitution and the Fourth Amendment to the United States Constitution.

There is no question that an inventory is a search. State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975). Nor is there any question that inventory searches are proper to protect the arrestee’s property from theft and the police from false claims. Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969).

But there is a limit to the right of the police to dig into the affairs of an arrestee and the limit was breached here. As was stated in Jenkins, supra, the totality of the circumstances must be viewed in each case, but certain standards are not hard to define. For example, in order for the police to inventory they must have a need to impound. Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976). In the case at bar the friends of the Appellant were on the scene from the beginning and certainly before the trunk search began. They were willing and the Appellant requested that they be allowed to take the car. Thus the need to search the trunk was obviated. With no inventory need to search, no probable cause to search and no search warrant it becomes rather obvious the search was unreasonable and probably a pretext for an exploratory search. Chuze, supra.

In Jenkins, supra, we said:

“The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the car or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstances where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.” at 94-95. (Emphasis in original.)

In the case at bar the police officers never advised the Defendant of the applicable alternative choices and, in fact, eliminated the quite acceptable choice made by refusing to release the car.

The Order denying the Motion to Suppress and the Judgment of conviction is reversed and this matter is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

MAGER, C. J., and ALDERMAN, J., concur.


author: PER CURIAM.

text:
    RESEARCH AND DEVELOPMENT INDUSTRIES, INC., a Florida Corporation, Appellant, v. SOUTHEAST BANK OF EAST ORANGE, formerly known as Bank of East Orange, a Florida Banking Corporation, Appellee.
    No. 76-1046.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.
    J. Russell Hornsby, Orlando, for appellant.
    Mark 0. Cooper, Friedman & Britton, Orlando, for appellee.
   PER CURIAM.

The appellant states in its sworn counterclaim that the appellee bank wrongfully violated certain provisions of an escrow agreement between the parties. These sworn statements raise factual issues which precluded the entry of a summary judgment. Accordingly, the final summary judgment is reversed.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.


author: ALDERMAN, Judge.

text:
    In the Interest of D. F. P., a child.
    No. 76-1050.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman and Preston Migh-doll, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

This appeal is from an adjudication of delinquency for violation of Section 231.07, Florida Statutes (1975). Appellant was found to have created a disturbance which interrupted the orderly conduct of Deer-field Beach Middle School. At the time of the offense, appellant was not a pupil in or subject to the discipline of Deerfield Beach Middle School; he was, however, a student in another public school in Broward County.

The sole issue is whether appellant is exempt from the statute. The last sentence of Section 231.07 provides: “This section shall not apply to any pupil in or subject to the discipline of a school.” Appellant contends that since he is a pupil in “a school”, the statute cannot apply to him. The trial court rejected this interpretation and held that the exemption applies only to a pupil in, or subject to the discipline of, the school where the offense is committed. We agree with the trial court and affirm.

Considering the statute in its entirety, we conclude that its intended purpose is to make disturbances at schools by outsiders illegal. The only reasonable interpretation of the exemption provision is that it applies to those pupils who are subject to the discipline of the school where the offense takes place, thereby allowing that particular school to take care of those disturbances caused at the school by its own pupils. An entirely different situation exists where the disturbance is committed by outsiders, even though the outsiders may be pupils in other schools. If we were to accept appellant’s interpretation, we would have to say that Section 231.07 does not apply to any persons who are pupils in any schools in the world. This is contrary to common sense and the obvious intent of the legislature. In statutory construction legislative intent is the polestar by which we must be guided, and no literal interpretation should be given that lends to an unreasonable or ridiculous conclusion or a purpose not designated by the legislature. State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928).

We hold that the exemption provision of Section 231.07 applies only to a pupil in or subject to the discipline of the school where the offense is committed. In the present case, appellant was not a pupil in or subject to the discipline of Deerfield Beach Middle School where the offense was committed. Therefore, appellant was not exempt.

AFFIRMED.

MAGER, C. J., and LETTS, J., concur.

      . Section 231.07, Florida Statutes (1975), provides:
      Any person who upbraids, abuses or insults any member of the instructional staff of school property or in the presence of the pupils at a school activity, or any person not otherwise subject to the rules and regulations of the school who creates a disturbance on the property or grounds of any school, who commits any act that interrupts the orderly conduct of a school or any activity thereof shall be guilty of a misdemeanor of the second degree, punishable as provided by law. This section shall not apply to any pupil in or subject to the discipline of a school.


text:
    GAC PROPERTIES, INC., a Florida Corporation, Appellant, v. Wade H. LANIER, as Tax Assessor of Osceola County, Florida, et al., Appellees.
    No. 76-2129.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.

      Wofford H. Stidham and Steven D. Mer-ryday of Holland & Knight, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellee J. Ed Straughn, as Executive Director of the Dept, of Revenue.
   DAUKSCH, Judge.

This case comes to us by way of Interlocutory Appeal of an Order below dismissing the second count of a two-count Complaint. Upon consideration of the allegations in the Complaint we find them sufficient to allege a cause of action against the Director of the Department of Revenue on account of his alleged failure to properly supervise the appraisal for tax purposes of real property which appraisal was allegedly conducted by the Osceola County Tax Assessor, as he was then called.

The Complaint alleges that there are some 50,000 lots, half of which lie in Osceola County and half of which lie in Polk County. The lots are alleged to be essentially the same in all characteristics and it is alleged that the Polk County assessment was at $300 per lot as opposed to the Osceola County assessment which was $560 per lot. The Complaint alleges the assessment is “unlawful, unjust and invalid (because) . . . the assessment is based on arbitrary, capricious, unequal and discriminatory methods.” The Complaint further alleges that the just valuation of the lots in Osceola County is $300 per lot and goes on to allege various other things which if proved could require the trial court to give the relief requested. Of course, we make no determination of the merits of count two except to say that the allegations state a cause of action.

REVERSED and REMANDED to permit Appellee Straughn to file his answer to count two.

ALDERMAN and LETTS, JJ., concur.


text:
    CHRYSLER CORPORATION, a Foreign Corporation, Petitioner, v. Dan A. HAMES and Nancye K. Hames, Respondents.
    No. 76-2241.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1977.

      G. William Allen, Jr. of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for petitioner.
    Dan A. Hames, Coral Gables, pro se and for respondent Nancye K. Hames.
   DAUKSCH, Judge.

Petitioner Chrysler Corporation by common law certiorari seeks review of an Order of the trial court entered after Petitioner was dropped as a Defendant by the Respondents who were Plaintiffs at trial. Briefly, Plaintiffs came to trial without complying with a pre-trial Order. When it became apparent to them they might not be able to present certain witnesses and documentary evidence, they announced' on the record a “voluntary dismissal” of Chrysler Corporation as a Defendant. We presume it was Plaintiffs’ intention to “drop” Chrysler Corporation as a party Defendant under Fla.R.Civ.P. 1.250(b). There was further maneuvering in the court room and the trial court said, in effect, it would not honor the voluntary dismissal; it would sua sponte grant a continuance of the whole matter and the parties departed.

Thereafter the Petitioner moved to tax costs against the Plaintiffs. The Plaintiffs gave Notice of Taking of Deposition to the Petitioner, who moved to quash the Notice of Taking of Deposition. The court denied that Motion and the Motion to Tax Costs.

It is Fla.R.Civ.P. 1.250(b) which provides for dropping parties. Rule 1.250(b) states that parties may be dropped in the manner prescribed by Fla.R.Civ.P. 1.420(a)(1). Under the procedure of the latter rule, the court has no discretion to deny the dropping of a defendant by a plaintiff if it is made by notice in writing or stated on the record. At that point the case is ended as to the dropped party. If he is entitled to an order taxing costs against the party who dropped him, the time has ripened for him to file a motion therefor. The Notice of Taking of Deposition should have been quashed and the court should have granted any properly presented Motion to Tax Costs. We do not have a transcript of the hearing, if one is in existence, in regard to the Motion to Tax Costs and we are not called upon to review the sufficiency of the hearing.

Certiorari is granted and the Order of the court orally entered which purported to reinstate Plaintiffs’ cause of action is quashed as is the Order denying Petitioner’s Motion to Quash the Notice of Taking of Deposition. This cause is remanded to the trial court with directions to quash the Notice of Taking of Deposition and to grant a hearing on Petitioner’s Motion to tax the costs below.

REVERSED and REMANDED WITH DIRECTIONS.

ALDERMAN, J., concurs.

MAGER, C. J., concurs in conclusion only.


text:
    William SADOWSKI, Appellant, v. Robert SHEVIN, Attorney General for the State of Florida, et al., Appellees, and Ronald S. Lieberman, Intervenor-Appellee.
    No. 76-1036.
    District Court of Appeal of Florida, Third District.
    April 25, 1977.
    Talbot D’Alemberte, William E. Sadow-ski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and James Whisenand, Asst. Atty. Gen., Tallahassee, Hershoff, Smith, Berlinsky & Lieberman, Miami, and Sheridan K. Weinstein, Coral Gables, for appellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 24, 1976 affirming the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by appeal, the Supreme Court of Florida by its opinion and judgment filed March 10,1977 (345 So.2d 330) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed June 24, 1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the causé is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


author: OTT, Judge.

text:
    Eddie DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 76-467.
    District Court of Appeal of Florida, Second District.
    April 27, 1977.
    Rehearing Denied June 2, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, and Ellen Condon, Asst. Public Defenders, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant appeals the denial of his motion to suppress illegally seized evidence. The lower court found the search to be a proper incident to a lawful arrest. We disagree and therefore reverse.

Officer Pierce observed the appellant driving an automobile in a normal and lawful manner on a public street. The officer decided to stop appellant and ask to see his driver’s license. The officer testified that he had reason to believe appellant did not have a license because (1) he had arrested appellant a year or a year and a half previously for driving without a valid driver’s license, and (2) he had been told by one or more informants that they did not believe appellant had a license, since they had seen appellant being driven around by others. He admitted, however, that he was not conscious of the prior arrest at the time he stopped appellant and further admitted that fellow officers had advised him they suspected the appellant of unlawful drug activity or use.

Appellant was unable to produce a driver’s license.

Officer Pierce thereupon arrested and handcuffed the appellant and proceeded to conduct a thorough search of the vehicle finding, inter alia, a syringe in the pocket of a jacket in the locked trunk. Officer Pierce then transported appellant to the police station, where he ordered appellant to undress. Three decks of cocaine fell from appellant’s undershorts as he removed them. As a result, appellant was charged with and convicted of possession of cocaine.

A minor traffic violation cannot be used as a pretext to search a vehicle for evidence of other crimes. Urquhart v. State, 261 So.2d 535 (Fla.2d DCA 1971). The test for determining whether a traffic arrest which is the basis for seizure of evidence of a serious crime is a “pretext” for the search, as set forth in State v. Holmes, 256 So.2d 32 (Fla.2d DCA 1971), is whether the facts in the case suggest the strong possibility that the arrest was one which would have been made by a traffic officer on routine patrol against any citizen driving in the same manner or whether the arrest was one which would not have been made but for some other motive of the arresting officer.

Further indications that appellant’s arrest was pretextual are (1) the fact that Officer Pierce had been told that appellant was a suspected drug user, (2) the extreme thoroughness of the search of appellant’s automobile (even the hub caps of the vehicle were removed), and (3) the fact that due to officer Pierce’s failure to appear on three different occasions, appellant’s traffic charge had not been disposed of some five months after the summons was issued (See Urquhart, supra).

Nothing in the appellant’s conduct was sufficient to give Officer Pierce reason to stop him. See Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974).

The alleged information provided by Pierce’s informants did not give rise to probable cause because of a total lack of specificity as to the time such information was noted or received and an insufficient showing of the reliability of the informants, which would be fatal to the establishment of valid grounds for a search warrant. State v. Mills, 267 So.2d 44 (Fla.2d DCA 1972).

We conclude that the arrest of appellant for driving without a valid driver’s license was pretextual and therefore invalid. Appellant’s arrest being unlawful, the ensuing searches of appellant’s automobile and his person were also unlawful, and the fruits thereof should have been suppressed.

Reversed.

McNULTY, Acting C. J., and SCHOON-OVER, JACK R., Associate Judge, concur.


author: MILLS, Acting Chief Judge.

text:
    Earnest A. DAVIES, Jr., Appellant (Respondent), v. Sylvia DAVIES, Appellee (Petitioner).
    No. BB-240.
    District Court of Appeal of Florida, First District.
    April 29, 1977.
    Rehearing Denied June 1, 1977.

      James N. Davis, Foxman, Woerner & Davis, South Daytona, for appellant (respondent).
    Richard H. Whitson, Whitson & Whitson, Daytona Beach, for appellee (petitioner).
   MILLS, Acting Chief Judge.

Mr. Davies appeals from a final judgment dissolving the marriage between him and Mrs. Davies. He contends that the trial court erred in awarding exclusive possession of the marital home to his former wife and minor children, in awarding Mrs. Davies permanent alimony, in awarding $755.00 a month for alimony and child support and in awarding the five children of the parties to Mrs. Davies.

The trial court awarded sole possession of the home, held by the entireties, to Mrs. Davies and the children until the home was sold, even though subsequent to the rendition of the judgment the property would be held by the parties as a tenancy in common. A trial court in a dissolution of marriage action has inherent authority to award exclusive possession of entireties’ property to the wife for use as a home by her and the parties’ children, although subsequent to the rendition of the judgment of dissolution the property will become a tenancy in common. Hoskin v. Hoskin, 329 So.2d 19 (Fla.3d DCA 1976). Under the facts of this case, the action taken by the court was proper because Mrs. Davies’ petition contained a prayer for exclusive possession of the marital home, she was awarded custody of the children and exclusive possession was given to her and the children until the home was sold. The requirements of exclusive possession are satisfied by the facts of this case. Hoskin v. Hoskin, supra, and Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975).

The trial court awarded Mrs. Davies $50.00 a week permanent alimony. The purpose of alimony is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor the ability to be self-sustaining. Tierney v. Tierney, 290 So.2d 136 (Fla.2d DCA 1974). “In determining a proper award of alimony, the court may consider any factor to do equity and justice between the parties.” Section 61.08(2), Florida Statutes (1975). The trial court has broad discretion in determining the amount of alimony. Kahn v. Kahn, 78 So.2d 367 (Fla.1955).

Mr. Davies receives a monthly gross salary of $1,599.33 which nets him $1,195.00. Mrs. Davies, though presently unemployed, worked for seven years before this marriage and worked during this marriage except for the last year. She admits that she is capable of returning to work. She has been awarded custody of five minor children. Four of them are attending school. The youngest child is two and one-half years of age. Although Mrs. Davies desires to stay at home to care for him, she worked during the infancy of the other children. The trial court awarded child support of $125.00 a week, required Mr. Davies to maintain a medical and health insurance policy on the children, to pay all of their medical and dental expenses which have been amounting to approximately $20.00 a week, to pay Mrs. Davies’ attorney a fee of $1,100.00, to reimburse Mrs. Davies’ costs of $246.80, and to pay debts incurred prior to 1 November 1974 of approximately $2,000.00. Mrs. Davies was given exclusive possession of the home, she was given an automobile, and she was given one-half of the joint savings account. In addition, when the home is sold she will receive one-half of the net proceeds. She is 38 years of age.

Under the facts of this case and the applicable law, we conclude that the award of $50.00 a week permanent alimony is excessive. However, in order to give Mrs. Davies an opportunity to develop new employment skills, to find employment, to obtain proper care for her youngest child and to provide' her with adequate funds during this period, we will not disturb the $50.00 a week award, but we do find that it should be considered as rehabilitative alimony and limited to three and one-half years from the date of the final judgment rendered in this case.

The record presented to us does not show an abuse of discretion by the trial court in awarding custody of the children to Mrs. Davies nor in awarding $125.00 per week for support of the five minor children.

We, therefore, affirm the final judgment in all respects, except the award of $50.00 per week permanent alimony which we reverse. We remand this case to the trial court for appropriate action in accordance with this opinion.

ERVIN, J., and JOPLING, WALLACE M., Associate Judge, concur.


author: LETTS, Judge.

text:
    Maxwell G. HAZELWOOD, Appellant, v. Judith Ann HAZELWOOD, Appellee.
    No. 76-460.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.

      F. Kendall Slinkman, III, of Farish & Farish, West Palm Beach, for appellant.
    James Fox Miller, of Miller & Schwartz, P.A., Hollywood, for appellee.
   LETTS, Judge.

This is an appeal from a final order of dissolution of marriage which adjudicated the question of alimony and possession of the marital home.

We reverse in part.

The case now before us is yet another example of a long term family marriage breakup involving a twenty-two year marriage, three children and a wife, now 44 years old, who, to all intents and purposes, has never pursued any occupation since the marriage, other than that of housewife and mother. The husband in this instance has a net, take home pay, of $2,000 per month, and the court has awarded the wife $1,000 per month in permanent periodic alimony.

We have very recently, and at great length, set forth our views on a marriage breakup such as this in McAllister v. McAllister, 4th DCA 1977, 345 So.2d 352. Opinion, filed April 1, 1977, and there is no reason to repeat them here. Suffice it to say that we do not believe that the periodic award constitutes an abuse of discretion by the trier of the facts, although by contrast to McAllister, we would comment here that the award is generous; however, we must leave it undisturbed as “it is not the function of the appellate court to substitute its judgment for that of the trial court . . The test ... is whether the judgment of the trial court is supported by competent evidence.” Shaw v. Shaw, 334 So.2d 13 (Fla. 1976). We find such competent evidence in the record of this case.

We do not agree, however, with the trial court’s decision relative to the family home. In the final judgment, the court granted the wife the exclusive possession of said marital home, (formerly held as a tenancy by the entirety) until her death, remarriage or her failure to continue it “as her primary place of residence.” We believe this conclusion to be unsupported by competent evidence, and therefore, in error, even although the wife is directed to maintain the property and make all payments relative thereto (which will obviously be done out of the alimony award).

Only one of the three children is still a minor and she will attain her majority almost simultaneously with the issuance of this opinion. Moreover, the wife is able bodied, capable of employment and the husband has very little in the way of capital assets.

Based on the foregoing facts, we have researched the recent decisions and find them to be contrary to the lower court’s ruling in the case now before us. In Watson v. Watson, 324 So.2d 126 (Fla. 3rd DCA 1975), the court reversed an award of exclusive possession, pointing out that that award did not take the form of lump sum alimony, nor was it awarded by reason of minor children to whom the husband would owe child support obligations. See also Coalla v. Coalla, 330 So.2d 802 (Fla. 2nd DCA 1976); Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2nd DCA 1975); Ranes v. Ranes, 311 So.2d 370 (Fla. 2nd DCA 1975); Reisman v. Reisman, 314 So.2d 783 (Fla. 3rd DCA 1975). The award of permanent exclusive possession to the wife is therefore reversed and the court below is directed to enter an order terminating it within a reasonable time.

The facts of all of the above cited cases approximate to those of the case sub judice, except that in most of those, the husband’s petition or counter partition, properly pled, and prayed, for a partition of the property which was not done in the case now before us. This very court held, in Niemann v. Niemann, 294 So.2d 415 (Fla.4th DCA 1974), that “to justify partition, one of the parties must plead a right thereto in accordance with Chapter 64, Fla.Stat. (1971).” In the light of the Niemann case and other authorities cited therein, we therefore further hold that the court below had no jurisdiction to provide for the sale of the family home upon the happening of the certain events already set forth in the foregoing recitation of facts.

Notwithstanding, we would agree under the authority of Saviteer v. McAdoo, supra., that:

In any case, whatever interest was awarded husband, we think it propitious to say here, and we so hold, that the final judgment did not change the statutory legal effect of the judgment of dissolution on the aforesaid entireties property [689.15 F.S.]. That is to say, upon the judgment of dissolution the parties owned the same as tenants in common.

There is no doubt that in the light of the failure of the parties to plead or pray for partition, we cannot now direct the lower court to so proceed; however, we perceive partition of property held as tenancies in common to be, with certain exceptions, a matter of right [Condrey y. Condrey, 92 So.2d 423 (Fla.1957)], and we see no reason to prevent the parties from seeking such relief in a separate proceeding under Chapter 64, Fla.Stat. (1975). In so holding, we are not unaware of the line of cases to the effect that only the spouse rightfully in exclusive possession can bring the partition action. Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975). However, in the case now before us, the wife is not rightfully in exclusive permanent possession, and as a consequence the husband, as well as the wife, has standing to maintain such an action.

Turning now to the question of the direction of the final judgment requiring the husband to:

pay to the Wife within sixty (60) days from entry of this Final Judgment of Dissolution Of Marriage, the sum of Eleven Thousand Two Hundred Ninety-Five ($11,295.00) Dollars, which sum represents one-half of the intangible assets previously owned jointly by the parties and taken into the custody and control of the Husband at the time of the separation of the parties.

we find no abuse in discretion as to this requirement, nor do we find the judge’s later contempt ruling for failure to carry out the above, improper. The husband argues that the funds to pay the award have been spent (or misspent according to the wife) and that contempt proceedings are unavailable where the husband is unable, financially, to carry out the court’s instruction. However, we note that the same final judgment of dissolution provided for the distribution and release to the husband of $9,781.48 held in escrow pending the outcome of this case. This latter sum was released to him by authority of the very same judgment that required him to pay the $11,295.00 so that there can be no question but that he had $9,781.48 available and that his failure to pay it over was a wilful disobedience of the court’s command. The wife is free to take steps to be in a position to assert her claim to this $11,295.00, when, and if, the real property in question is partitioned, subject, however, to whatever other course of action the court below may want to pursue, in the exercise of its discretion, in this regard.

In all other respects, the final judgment of dissolution is affirmed.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    Renita Penfield NEHLEBER, Appellant, v. Mario Philip ANZALONE, Appellee.
    No. 76-502.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.
    James A. Smith, of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    Howard Todd Jaffee of Kaplan, Jaffee & Associates, Hollywood, for appellee.
   ALDERMAN, Judge.

Mario Anzalone sued Renita Nehleber and obtained judgment in the amount of $2,225.00 for damages allegedly suffered by him as a result of her negligence. Mrs. Nehleber appeals, contending that the trial court erred in not entering judgment in her favor based upon her affirmative defense of release. Mr. Anzalone, on the other hand, not being satisfied with the amount of his judgment, has cross-appealed seeking a new trial.

In the main appeal we hold that the trial court was correct in rejecting the affirmative defense of release. In reference to this issue, it appears that the culprit is James Taylor, Mr. Anzalone’s former attorney, who, without the knowledge or consent of his client, negotiated a settlement with Mrs. Nehleber’s insurance company, accepted a $6,000.00 check, forged his client’s endorsement, cashed the check, and absconded with the funds.

The rules of law applicable to this issue may be summarized as follows:

(1) A party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party. Goff v. Indian Lake Estates, Inc., 178 So.2d 910 (Fla.2d DCA 1965). (The record affirmatively shows that Mr. Anzalone did not assent to or have knowledge of the $6,000.00 settlement offer.)
(2) The mere employment of an attorney does not of itself give the attorney the implied or apparent authority to compromise his client’s cause of action. Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla.2d DCA 1963). (The fact that Mr. Anzalone hired James Taylor to represent him in this ease did not give the attorney the implied or apparent authority to compromise his client’s cause of action.)
(3) An exception to the general rule is a situation in which the attorney is confronted with an emergency which requires prompt action to protect his client’s interest and consultation with the client is impossible. Bursten v. Green, 172 So.2d 472 (Fla.2d DCA 1965). (There is no showing of an emergency which would have required' prompt action on the part of the attorney in this case to protect his client’s interest.)
(4) A client may give his attorney special or express authority to compromise or settle his cause of action, but such authority must be clear and unequivocal. Bursten v. Green, supra. (Mr. Anzalone gave no such authority to his former attorney.)
(5) An *" unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client. Palm Beach Royal Hotel, Inc. v. Breese, supra; State Department of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972). (There was no ratification by Mr. Anzalone. By proceeding to trial on his original complaint, he clearly repudiated the unauthorized compromise negotiated by his former attorney.)

The fact that the $6,000.00 check was delivered to Mr. Anzalone’s attorney does not change the situation. Just as the attorney had no authority to settle the case without his client’s consent, neither did he have the authority to cash the settlement check without his client’s consent. Mrs. Nehleber’s insurance company is not without a remedy. It can look to its bank to recover the money improperly paid by the bank on the forged endorsement. The bank in turn may have a cause of action against the attorney who forged the endorsement and actually received the $6,000.00.

Turning now to the cross-appeal; it appears that Mr. Anzalone would have been better off if he had received the $6,000.00, because when the case was tried the jury returned a verdict in his favor for only $2,250.00. We have considered the points raised by the cross-appeal and find no reversible error.

AFFIRMED.

MAGER, C. J., and DAUKSCH, J., concur.


text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. Pauline PAPPAS, as personal representative and Executrix of the Estate of John Pappas, Deceased, Appellee.
    No. 76-876.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.

      Larry Klein, West Palm Beach, and Pysz-ka, Kessler, Adams & Solomon, Fort Laud-erdale, for appellant.
    Wilton L. Strickland, of Ferrero, Middle-brooks & Houston, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

This is an appeal by Great American Insurance Company from a final judgment confirming an arbitration award in favor of Pauline Pappas, the personal representative of her deceased husband’s estate. The issue is whether uninsured motorist coverage in this case is determined by an earlier and larger arbitration award or by a later and smaller jury verdict against the uninsured motorist. We hold that the trial court correctly confirmed the arbitration award.

Mr. Pappas was killed in an automobile accident. The person who caused the accident had liability insurance coverage up to $100,000.00. Great American had issued an uninsured motorist policy to Mr. and Mrs. Pappas in the amount of $300,000.00. Mrs. Pappas requested that Great American either join in her law suit against the tort-feasor or agree to be bound by the results of that suit. The insurance company refused and insisted on its arbitration rights under the policy. The issues of liability and damages under the uninsured motorist policy were then submitted to arbitration. The arbitrator found in favor of Mrs. Pap-pas and assessed her total damages at $216,-000.00. This award was reduced to $111,-695.75, after allowing set offs for the $100,-000.00 liability insurance coverage of the tortfeasor and $4,304.25 personal injury protection payments made by Great American.

Great American refused to pay any part of the arbitration award. Mrs. Pappas proceeded with her suit against the tortfeasor and received a jury verdict in that case for $80,595.00. She then applied to the trial court for confirmation of the arbitration award and obtained judgment against Great American for $111,695.75.

Great American now contends that it is not liable for any part of the arbitration award because Mrs. Pappas did not obtain a judgment against the tortfeasor in excess of his liability limits. We reject this contention. Under the terms of the policy, any judgment Mrs. Pappas might obtain against the tortfeasor was not conclusive against Great American without its written consent. In this case the insurance company not only refused to give such consent, it also insisted that the matter be submitted to arbitration. Not satisfied with the arbitration award, Great American now wants its liability determined by the jury’s verdict in Mrs. Pappas’s suit against the tortfeasor.

There is no provision in the policy, or in the Florida Statutes, requiring the insured to obtain judgment against the uninsured tortfeasor as a precondition of arbitration. Of course, the parties may agree that they will be bound by such judgment, but in this case the insurance company refused. Having insisted upon arbitration and having refused to join in the suit against the uninsured tortfeasor or to be bound by the judgment in that case, Great American cannot now avoid the arbitration award. As stated by the trial court in the final judgment: “The later results of the suit against the tortfeasor, while interesting, cannot alter, modify, or restrict the vesting of plaintiff’s rights under the arbitration award, and is therefore irrelevant to these proceedings.”

AFFIRMED.

MAGER, C. J., and LETTS, J., concur.

      . Uninsured motorist coverage has been expanded to include the concept of underinsured motorist coverage. The term “uninsured motor vehicle” by definition now includes an insured motor vehicle when the liability insurer thereof has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage. Section 627.727(2), Florida Statutes (1975). See also Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla.3d DCA, opinion filed March 15, 1977).

      . The policy provided:
      8. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.

      . The policy provided:
      No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.


text:
    Leonard PANET, et al., Appellants, v. REXOD CORP. et al., Appellees.
    No. 76-877.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.

      Myron H. Burnstein, of Salter, Yeslow & Burnstein, Hollywood, for appellants.
    Fred J. Ward, of Fred J. Ward, P.A., Hallandale, for appellees.
   LETTS, Judge.

This is an appeal from a final judgment dismissing a cause of action at the close of the plaintiffs’ case, in a non-jury trial without the defendants being required to come forward with any defense.

We reverse.

The appellants were contract purchasers of individual condominium units and they brought suit against the owner-developer seeking rescission of their purchase and sales agreements and the return of their deposits under both the common law theory of rescission and also pursuant to Chapter 711.24(3) Florida Statutes (1972). A third count alleged breach of contract.

Apparently, the several appellants entered into the purchase and sales agreements in early 1973, and the project was to be completed and all units ready for occupancy within, one year thereafter. The plaintiffs alleged, and produced evidence to the effect that, the apartments were not ready for closing for over twelve months beyond the scheduled closing dates, that the developer had distributed false and misleading brochures, budgets and information, and that promised recreational facilities had not been forthcoming, Notwithstanding, the court, at the close of plaintiffs’ case, granted the motion to dismiss as a matter of law.

Without further reference to the burdensome record, it is apparent from the judge’s own remarks, upon the occasion of his granting the motion to dismiss, that the plaintiffs had set forth a prima facie case. As examples of this, the trier of the fact observed:

(1) The builders here certainly . allowed their employees to puff it up considerably and lead you folks along the primrose path, so to speak .
(2) I don’t think that the change between the proposed condominium declaration and the recorded condominium declaration . . . is a material change.
(3) The percentage points [of each unit] did change slightly .
(4) . . . The final analysis of the [accountant’s] figures probably come out closer to a real budget than the figures which were set forth and I suppose that over the long run, $350,000 will be more likely what it costs to run this place than $250,000 . . .. If you had a proposal of $22 a unit [per month] and you now end up paying $50.00 a unit, that may be possible, but I don’t think it’s outlandish...
(5) . . . You found out the costs were increased and you became outraged because . . . these fellows over here were blowing smoke . . ..I think what [the developers] have done, of course ... is not necessarily praiseworthy, but it certainly isn’t unexpected in the condominium business
(6) The delay is, I guess, the most serious thing . . . but in [view] of . the building market ... in the last two years, I think that the delay of a year is about as common as anything that I’ve come across in the building game.
(7) . . . Both of your witnesses didn’t feel in many of the instances that these defects were terribly below average.
(8) . . . Assuming [the developers] haven’t completed this thing yet. They are still under bond to complete it .
(9)I THINK THAT THE BUILDERS ARE GUILTY OF SERIOUS PUFFING, SERIOUS MISREPRESENTATIONS (emphasis supplied).

We are of the opinion that the foregoing statements, in and of themselves, establish a prima facie case in favor of the appellants which preclude an involuntary dismissal thereof. As was said in Tillman v. Baskin, 260 So.2d 509 (Fla.1972):

It is inconceivable that a trial judge can fairly find for a defendant after hearing nothing more than testimony from a plaintiff establishing a prima facie case in the plaintiff’s favor. When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of strength or weakness of the defendant’s evidence, if any, as in the case of a jury trial.

The same conclusion was reached in Preisner v. Cropf, 278 So.2d 295 (Fla. 4th DCA 1973); Hart v. Bankers Fire and Casualty Insurance Co., 320 So.2d 485 (Fla. 4th DCA 1975); Alcott v. Wagner and Becker, Inc., 328 So.2d 549 (Fla. 4th DCA 1976); Buchanan Construction, Inc. v. City of Tallahassee, 308 So.2d 613 (Fla. 1st DCA 1973). It has been stated:

. where the plaintiff has made a prima facie case in a nonjury trial, the trial court should not grant a motion for involuntary dismissal at the conclusion of the plaintiff’s case even though the trial court, as the trier of the fact, feels that the plaintiff has not sustained his burden of proof. Buchanan Construction, Inc., supra.

We agree, and the decision of the trial court is quashed and the cause remanded for a new trial.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    SEBASTIAN ENTERPRISES, INC., a Florida Corporation, Appellant, v. FLORIDA FIRST NATIONAL BANK AT VERO BEACH, Executor of the Estate of Wellington G. Bosworth, Deceased, et al., Appellees.
    No. 76-906.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.

      Steve L. Henderson, Jones, Paine & Foster, P. A., Vero Beach, for appellant.
    Robert Jackson, Jackson & Clem, P. A., Vero Beach, for appellee-Florida First National Bank at Vero Beach.
   DAUKSCH, Judge.

The question is whether or not the inclusion of a debt on a tax return or a financial statement is sufficient acknowledgement to toll the statute of limitations. We hold that it is and that the debt is enforceable here.

Mr. Bosworth died owning 49% of the stock in the appellant corporation. The balance was owned by his secretaries and bookkeepers; the two ladies owned 25% each, and one share was owned by his lawyer. ■ Apparently Mr. Bosworth was the primary operator of the business and saw to the daily operation while he was alive. He started the business and, when necessary, kept it going by loaning money to it. After Mr. Bosworth died the corporation carried on its balance sheet an entry acknowledging notes payable to the Estate of W. G. Bosworth. On its December, 1973 balance sheet (year end) there is a notation that the stockholders “voted ... to cancel a debt alleged to be owed by the corporation to the estate . . .” Further, in response to a request for admissions, the surviving stockholders admitted the corporation received “but not borrowed” the amount of $27,806.50. The trial court entered judgment in that amount plus interest.

It was agreed by all parties and the record supports the fact that the statute of limitations had run on the debts since no notes were produced and the four year limit under Section 95.11, Florida Statutes (1975) was applicable. Section 95.04, Florida Statutes (1975) provides “an acknowledgement of . . .a debt barred by a statute of limitations must be in writing and signed by the person sought to be charged.” Both the balance sheets and the income tax returns were signed by the accountant for the corporation and the return was also signed by one of the stockholders of the corporation who was a party to this suit. It does not appear in the record that Appellants offered any evidence to refute the acknowl-edgement of the debt.

In Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (5th Cir. 1959) the Fifth Circuit held that the inclusion of a debt on a balance sheet was sufficient acknowledgment to toll the statute and infer a promise to pay. See also Hall v. Brown, 80 Fla. 481, 86 So. 277 (1920). The trial court in this case held likewise and we affirm.

AFFIRMED.

ALDERMAN and LETTS, JJ., concur.


text:
    Mabel BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 76-1493.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and David R. Evans, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of violation of Section 832.05(3), Florida Statutes (1975). The trial court instructed the jury in accordance with the Florida Standard Jury Instructions In Criminal Cases, using the appropriate instruction for violation of Section 832.05(3). The only issue is whether the trial court committed fundamental error, in view of the defense of good faith, by failing to also charge the jury that intent to defraud is an indispensable element of the crime of obtaining property in return for a worthless check.

This court has previously held that failure to give this additional instruction is fundamental error, the gravity of which requires reversal. Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976). On the authority of oúr holding in Prince, we reverse appellant’s conviction and remand this case for a new trial.

. Because of the conflict which exists between our holding and the Florida Standard Jury Instructions in Criminal Cases we hereby certify to the Supreme Court as a matter of great public interest the following questions:

1. Is the Florida Standard Jury Instruction entitled “Worthless Check — Obtaining Property F.S. 832.05(3)”, set forth on pages 203 and 204 of the Second Edition, defective because it fails to instruct the jury that intent to defraud is an indispensable element of the crime of obtaining property in return for a worthless check?
2. In a prosecution for violation of Section 832.05(3), Florida Statutes (1975), where the trial court has instructed the jury in accordance with the Florida Standard Jury Instruction entitled “Worthless Check — Obtaining Property F.S. 832.05(3)”, as set forth on pages 203 and 204 of the Second Edition, is fundamental error committed when the trial court does not additionally instruct the jury that intent to defraud is an indispensable element of the crime of obtaining property in return for a worthless check?

REVERSED and REMANDED.

MAGER, C. J., and ALDERMAN and LETTS, JJ., concur.


author: BOYER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Ruby Jane PUCKETT, Appellee.
    No. CC-131.
    District Court of Appeal of Florida, First District.
    May 2, 1977.
    Rehearing Denied May 31, 1977.

      Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Barry W. Beroset, Murphy & Beroset, Pensacola, for appellee..
   BOYER, Chief Judge.

Appellee was charged by indictment with and found guilty by a jury of first degree murder. The trial court denied her motion for judgment of acquittal and for new trial. The court thereupon sentenced appellee to life imprisonment, after having adjudicated her guilty of second degree murder. The State’s motion for rehearing regarding the sentence was denied. Believing that the sentence imposed was illegal, the State appealed. See Section 924.07(5), Florida Statutes (1975).

Initially, appellee argues that the sentence (life imprisonment), being proper for both first and second degree murder, is not illegal and that, therefore, the State may not appeal. Although superficially identical, the life sentence imposed for first degree murder and that imposed for second degree murder differ significantly. Under the former offense (a capital crime) one must serve 25 years before becoming eligible for parole (Section 775.082(1), Florida Statutes (1975)), whereas there is no such mandatory term for the latter offense. Consequently, a term of life imprisonment, if imposed for second degree murder when it should have been imposed for first degree murder, is an illegal sentence.

The rule of law that a judgment of the trial court must conform to the verdict of the jury is well-established. Thrift v. State, 295 So.2d 690 (Fla. 1st DCA 1974). Once the jury found appellee guilty of first degree murder, and a new trial was denied, the trial court was compelled to adjudicate appellee guilty and sentence her for that offense. Having read the record and transcript of trial testimony, we can well appreciate the motives underlying the action of the learned trial judge, but the fact remains that he was without authority to take such action.

We have carefully considered the points raised by appellee on her cross-appeal and have found them to be without merit.

The cause is therefore reversed and remanded with directions to the trial court to vacate and set aside the judgment and sentence and to enter a judgment in accordance with the jury verdict, sentence to be as provided by law.

REVERSED AND REMANDED.

RAWLS and McCORD, JJ., concur.


text:
    ISLAND-IN-THE-SUN CONDOMINIUM OF KEY WEST, FLORIDA, INC., Petitioner, v. GOVERNOR AND CABINET OF the State of FLORIDA et al., Respondents.
    No. DD-235.
    District Court of Appeal of Florida, First District.
    May 3, 1977.
    Rehearing Denied June 1, 1977.
    Gerald B. Jaski, of Hoffman & Jaski, Miami, for petitioner.
    Ross A. McVoy and Terry Cole, Tallahassee, and Joseph Z. Fleming, of Fleming & Neuman, Miami, for respondents.
   PER CURIAM.

This petition for review of agency action is considered under standards applicable to the 1961 Administrative Procedure Act, Chapter 120, Florida Statutes (1973). The agency order is supported by competent substantial evidence adduced before the hearing examiner. There was no reversible error in the hearing proceedings. Each of petitioner’s points has been considered and has been found to be without merit. The prayer of the petition for review is

DENIED.

RAWLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: ERVIN, Judge. BOYER, Chief Judge,

text:
    Mary W. CRUTCHFIELD, now known as Mary W. Roberts, Appellant, v. Inman Payne CRUTCHFIELD, Appellee.
    No. EE-37.
    District Court of Appeal of Florida, First District.
    May 3, 1977.
    Rehearing Denied June 1, 1977.

      Bruce Culpepper, Tallahassee, for appellant.
    G. B. Stockton, Jr., Jacksonville, for ap-pellee.
   ERVIN, Judge.

This is an appeal from an order holding appellant in contempt of court and sentencing her to 30 days, but allowing her to purge herself of contempt provided she comply with the provisions of the court’s order relating to the visitation rights of appellee with the minor children of the parties and that she pay the remaining balance of $575.00 in attorney’s fees to appel-lee’s attorney at the rate of $100.00 per month until the same was paid in full.

The direction of the court that Ms. Crutchfield pay the remaining balance of $575.00 in attorney’s fees or be held in contempt of court, without an express finding that she had the present ability to comply with the order of the trial court, is inconsistent with a recent opinion by the Florida Supreme Court in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). In Faircloth v. Faircloth, the court stated at 339 So.2d 651-652:

“We hold a trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

This Court expressly stated in State ex rel. Trezevant v. McLeod [126 Fla. 229, 170 So. 735], supra, as follows:

‘Under the most respectable authority on contempt that we have been able to find, a “process” contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129. The order here involved is not an order of that nature.’ ”

We are also of the view that the portion of the order relating to visitation rights of the former husband should be modified. The terms of the order are exacting and inflexible and make no allowance for illness or other extenuating circumstances which would permit appellant any latitude in the event of noncompliance. Since the youngest child born of the marriage was eight years of age, appellant was obliged for ten years to follow the order to the letter or be subject to a jail term without prior notice. Moreover, for the next ten years appellant must present the children at appellee’s residence not later than 3:00 p, m. on the second Saturday of each August and upon her failure to do so, she may purge herself of contempt only “if she will strictly and without deviation comply with the provisions of paragraph number three of this order with respect to the full and free visitation rights of the defendant, . .” Otherwise, a writ of attachment for her arrest and incarceration will be issued “upon sworn application as to her defalcations and without further notice to the plaintiff.”

Aside from any consideration that the above order may not be in compliance with Section 38.23, Florida Statutes (1975), providing that a refusal to obey any legal order “after due notice thereof, shall be considered a contempt . . . (Emphasis added), it is clear that the order was couched in language must too broad. It is similar to the contempt order which was reversed in Kranis v. Kranis, 313 So.2d 135 (Fla.3rd DCA 1975), in which the former wife was held in contempt of court for failure to comply with a final judgment of dissolution granting the former husband the right of reasonable visitation to the minor children born of the marriage. Subsequently she moved from Florida to New York and the former husband sought to have the wife permit him to take the children to Florida to visit him there but she refused to do so. The court found her in contempt in absentia and modified the child support provisions, but also provided that she could purge herself of continuing contempt by acceding to the provision allowing for visitation. On appeal, the court stated that the lower court’s order modifying the final judgment without prior notice was error, citing Cortina v. Cortina, 98 So.2d 334 (Fla.1957). Moreover the court’s order finding the former wife in contempt for failure to comply with the reasonable visitation provision of the judgment was not clear and concise since the court observed that it was questionable whether such provision permitted the former husband to take the children from New York to Florida to visit with him there for a period of two weeks. The court continued:

“We so hold because a party should not be held to be in contempt for violation of an order, or provision of a judgment, which is not clear and definite, so as to make the party aware of its command and direction, as applied to a given circumstance upon which such party is called upon to act, or refuse to act.
Thus in Hettinger v. McMahon, Fla.App.1964, 164 So.2d 553, 555, the court said:
‘The real question raised in this controversy is whether or not the appellants were sufficiently charged with the' knowledge of what they were required to do in order to comply with the decree of the court. Without doubt obedience of a court order must be secured, and to secure such obedience is the usual function of a proceeding for contempt. However, courts should be explicit and precise in their commands and should only then be strict in exacting compliance.
‘On the other hand, if a court order directed to litigants is too general and appears too burdensome and uncertain in its scope the aggrieved parties should petition the court for modification, clarification or construction of the order, and if they fail to do so they act at their own peril. However, we are satisfied that this rule must be applied with great caution in contempt matters where severe penalties can be pronounced.’
The provision for ‘reasonable rights of visitation’ in the judgment in this case was not thus ‘explicit and precise’, as a command or judicial direction to the wife to grant the particular extended visitation sought by Robert.” 313 So.2d at 139.

This cause is remanded with directions that the trial court modify its order of contempt in accord with the views expressed in this opinion.

MILLS, J., concurs.

BOYER, C. J., concurs in part and dissents in part.

BOYER, Chief Judge,

concurring in part and dissenting in part.

I concur in reversal and remand for the sole purpose of permitting the trial court to comply with Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). In all other respects I would affirm. While it is true that the order relating to visitation is strict and precisé, experienced trial judges find that oftentimes parents must be treated like children and given strict guidelines to follow. Once the judge makes that determination he should be permitted to enforce his order by contempt.

Further, I would grant appellee’s motion for attorney’s fees incident to this appeal. If he were the appellant and his former wife appellee, there is little question but that her motion for attorney’s fees and costs would be granted. The legislature and the courts have mandated that the sexes be treated equally. In my view the award of attorney’s fees is not a proper area for sex discrimination.


author: NATHAN, Judge.

text:
    Jordan FREEDMAN and Alan Freedman, Appellants, v. Franklin FREEDMAN, etc., Appellee.
    No. 76-801.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.

      Freidin & Goldfarb, Miami, for appellants.
    Broad & Cassel and Lewis Horwitz and Craig B. Sherman, Bay Harbor Island, for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Plaintiff brothers Jordan and Alan Freedman appeal from a final judgment upholding the validity of certain gifts allegedly made by their father, Maurice Freedman, to the defendant, their brother Franklin. Appellants contend that their father never intended to relinquish dominion or control over the contested property and that the inter vivos transfers were the result of undue influence.

At the close of the plaintiffs’ case during the nonjury trial, Franklin moved for a judgment in his favor on the grounds that the evidence did not establish plaintiffs’ cause of action. The trial court judge stated that he was ready to direct a verdict for the defendant, but he reserved ruling pending the receipt of memoranda by counsel on the question of whether a certain certificate of deposit had to conform to the wills statutes. After considering the memoranda, the trial judge granted Franklin’s motion and rendered judgment in his favor and against his brothers.

Appellants contend that the trial court erred in directing a verdict at the conclusion of plaintiffs’ ease, since a prima facie showing of undue influence had been made. They further argue that the trial court should have set aside inter vivos transfers involving a house, stocks and a certificate of deposit, since their father had retained all dominion and control over the property and no interest was to vest in the defendant during the father’s lifetime.

As to the question of undue influence, we feel that the trial judge properly directed a verdict for defendant at the close of plaintiffs’ case. At the outset, we note that the burden of proof rests with the party claiming undue influence, Courington v. Courington, 120 So.2d 64 (Fla.2d DCA 1960), and such proof must be clear and convincing. See Murray v. Barnett National Bank of Jacksonville, 74 So.2d 647 (Fla.1954). The facts here reveal that Maurice Freedman was extraordinarily concerned about the welfare of his son Franklin, due to the latter’s poor medical background and history of business failures. It was thus quite logical that Maurice would be more prone to provide for Franklin’s needs than those of his brothers, who were better able to care for themselves. By comparison, it is uncontroverted that Maurice was mentally alert and very active right up until the time of his accidental death by drowning. Given the relative physical and mental strengths of the father and son, this can hardly be characterized as a case where the father’s will was dominated by that of the son. See Wilkins v. Wilkins, 141 Fla. 188, 192 So. 791 (1940).

At best, it can be said that some sort of confidential relationship existed between Maurice and Franklin, to the extent that Maurice gave Franklin a general power of attorney. However, the record discloses that Franklin played a minimal role in the conduct of his father’s business affairs, since all major decisions were ultimately made or ratified by Maurice. Thus, we find that any presumption of undue influence was reasonably explained by Maurice’s concern for his son’s well being as well as what seems to have been an on-going attempt to impart some sort of business acumen to Franklin. See Majorana v. Constantine, 318 So.2d 185, 186 (Fla.2d DCA 1975), citing In re Estate of Carpenter, 253 So.2d 697 (Fla.1971). In light of all these facts, we feel that the trial judge properly held that plaintiffs had failed to establish a case of undue influence.

Appellants further challenge the validity of certain inter vivos gifts, consisting of a house, stocks and a certificate of deposit. The common element to each challenge is that the transfers were made without any present interest vesting and with Maurice retaining all dominion and control over the respective property.

As far as the home is concerned, it seems clear that it was intended to be an inter vivos gift to Franklin. The house was deeded to Franklin and Maurice as joint tenants with a right of survivorship. Franklin and his wife and child lived in the house continuously, while Maurice resided there only intermittently. In addition, Franklin maintained the house and made all mortgage payments. The only testimony which might detract from the otherwise obvious validity of this gift was given by Franklin himself, wherein he stated his belief that his father wanted him to have title to the house after Maurice’s death. This statement does not necessarily reflect a lack of present donative intent on the part of Maurice, for he was in fact a joint tenant with Franklin and it may well indicate merely that he intended Franklin to have sole legal title to the house after his death. However, we will not attempt to divine his meaning, for this was the province of the trier of fact, who apparently felt that all the evidence supported the finding of an inter vivos gift of the house. Having reviewed the record, we cannot say that he erred as a matter of law. See Lowry v. Florida National Bank of Jacksonville, 42 So.2d 368 (Fla.1949).

The certificate of deposit presents a different question, since joint bank accounts with a right of survivorship—including certificates of deposit—are governed by Section 659.291, Florida Statutes. That section establishes a presumption that all interest in such an account is intended to vest in the survivor or survivors upon the death of one of the depositors. This presumption may only be overcome by proof of fraud or undue influence or by clear and convincing proof of a contrary intent. In addition, in the absence of such proof, all rights, title and interest are to vest in the survivor

“notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person, and notwithstanding the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which, except for the provisions of this section, would or might otherwise be void or voidable.”

Section 659.291(2), Fla.Stat. (1975).

As we have already noted, the trial court properly held that there was no undue influence affecting the transactions herein. Nor do we find any “clear and convincing proof” that Maurice did not intend to give Franklin a joint right to the account which would vest completely upon the death of Maurice, despite Franklin’s belief that legal title to the money would not be his until after the death of his father. We therefore affirm the trial court’s ruling with regard to the certificate of deposit.

The final challenge herein involves approximately $50,000 worth of stocks. While it is true that stock certificates were issued in the names of Maurice and Franklin as joint tenants, we feel that the other evidence with regard to the stock militates against the finding of a valid inter vivos gift. As with the other transactions, Franklin stated his belief that the stocks belonged to his father while he was alive. But here he further stated that his father exercised control over the stock and received all the dividends. In addition, he testified that all ultimate decisions with regard to the investments were made by his father. We find this to be entirely consistent with our aforementioned views concerning the relationship between Maurice and Franklin, and yet totally incompatible with the idea that Maurice had yielded any dominion or control over the stock. Whereas an adroit business sense was not necessary to maintain the house nor even an issue with regard to the certificate of deposit, it is a critical factor where the management of a stock portfolio is concerned. Thus we find that Maurice never relinquished dominion or control over the stocks and hold that the trial judge erred as a matter of law in ruling that Maurice had made a valid inter vivos gift of the stocks to Franklin.

In holding as we do, we feel obliged to acknowledge the decisions of the Second District Court of Appeal in Maier v. Bean, 189 So.2d 380 (Fla.2d DCA 1966) and Kuebler v. Kuebler, 131 So.2d 211 (Fla.2d DCA 1961), which note that the creation of a joint tenancy in stock does not require a complete surrender of dominion and control. Nevertheless, as was pointed out in Kue-bler, supra, “a present, irrevocable intent to make an inter vivos gift” is still necessary in such instances. Such intent must be “clear and unmistakable.” Kuebler, 131 So.2d at 218. The facts of this case show no such intent.

The judgment of the trial court is affirmed with respect to the house and certificate of deposit and reversed with respect to the stocks, which stocks shall become a part of the estate of Maurice Freedman.

Affirmed in part and reversed in part.

      . At the close of plaintiffs’ case, plaintiffs’ counsel stated that he did not want the trial to conclude without an appropriate stipulation to the effect that there was no need to present the case for the defense; since it would only substantiate what the trial judge had declared to be his findings, counsel for both parties agreed that there was no need to present defense witnesses.

      . In particular, Franklin had undergone two brain operations, one in 1959 and one in 1967, which had caused him periods of incapacitation.


text:
    James Theodore ROBERTS, Petitioner, v. The STATE of Florida, Respondent.
    No. 76-2068.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for respondent.

      Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

This petition for writ of certiorari seeks review of the trial court’s denial of a motion to withdraw filed by the assistant public defender representing James Theodore Roberts, defendant herein, on the basis of a potential conflict created by the State’s having subpoenaed another assistant public defender to testify in the defendant’s sentencing hearing.

The record reflects that Roberts was charged by information with burglary, tried by jury, found guilty and convicted. He was represented by the public defender throughout the proceedings. Presentence reports were submitted to the court and a sentencing hearing was scheduled. The State filed a notice seeking to have Roberts declared an habitual offender under Section 775.084, Florida Statutes, and subpoenaed assistant public defender Snyder to testify that she represented Roberts in prior criminal proceedings which resulted in felony convictions.

Assistant public defender Kershaw, representing Roberts in the current proceedings, moved the trial judge to permit him to withdraw as counsel. His argument was that to compel him to represent Roberts while Snyder testified against Roberts would be a violation of Disciplinary Rules 5 — 101(B), 5-102(A) and 5-102(B), of the Florida Code of Professional Responsibility. The court inquired of the State whether it would be possible to identify Roberts as the person previously convicted, by some means other than Snyder’s testimony, but was advised that such identification would be “convoluted.” The court denied Kershaw’s motion to withdraw and stated that Snyder would be permitted to testify. The defendant then filed this petition for writ of cer-tiorari.

Disciplinary Rule 5-101(B), from Canon 5 of the Florida Code of Professional Responsibility, cited above, provides:

“(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.”
[(3) and (4) are inapplicable.]

Disciplinary Rule 5-102 provides that if, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm

“(A) ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial, and his firm, if any, shall not continue representation in the trial except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).”
“(B) may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

We find the case of Turner v. State, 340 So.2d 132 (Fla.2d DCA 1976), to be controlling. That case concerns representation by the public defender’s office of co-defendants with conflicting interests, and holds that the public defender’s office of a given circuit is a “firm” within the discipline of Canon 5.

In our opinion, under the facts presented in the instant case, the trial court departed from the essential requirements of law by refusing to permit assistant public defender Kershaw to withdraw as counsel for Roberts in the sentencing proceedings and in refusing to appoint special counsel to represent him, where the State intended to rely on the testimony of another attorney from the same “firm,” the public defender’s office, for the purpose of increasing the sentence.

Accordingly, the writ of certiorari is granted. The ruling under review is hereby quashed and the cause is remanded for further proceedings consistent with this opinion.