text:
    Petition of the FLORIDA BOARD OF BAR EXAMINERS for Amendment of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar.
    No. 46763-E.
    Supreme Court of Florida.
    Nov. 23, 1977.
    Jerry B. Crockett, Chairman, Miami, John H. Moore, Executive Director, and C. Graham Carothers, Tallahassee, for the Florida Board of Bar Examiners.
   PER CURIAM.

On April 4, 1977, the Florida Board of Bar Examiners filed its petition recommending certain amendments to the existing Rules of the Supreme Court of Florida Relating to Admissions to the Bar.

Appended to this Order are each of the amendments to the Rules submitted by the Board as the same have been revised by this Court upon its consideration of the Board’s recommendations.

The amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar appended hereto are hereby approved and adopted effective at midnight, December 31, 1977, provided, however, that the amendments approved herein to Article II, Section 10(f), Article V, Section 22, and Rule III, Section 21(c), shall apply only to those applicants for The Florida Bar examination who initially apply for admission into the examination subsequent to December 31, 1977; and provided, further, that the amendment approved herein to Article II, Section 10(c), shall become effective at midnight, December 31, 1978.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

Subsection (c) is added to Article I, Section 7 to read:

(c) Upon giving reasonable notice, the Chairman of the Board may conduct a meeting of the Board by conference telephone call for routine administrative action or for emergency action.

Section 10(c) of Article II is amended to read:

Each examination shall consist of three parts to be designated Part I, Part II and Part III. Part I shall be of six hours’ duration and shall be composed of six one hour segments to be promulgated by the Florida Board of Bar Examiners.

One segment shall embrace the subject of Florida Civil and Criminal Rules and Procedure, another shall embrace the subject of Florida Constitutional Law and the remaining four segments shall be selected from the subjects:

Federal Constitutional Law
Business Entities including Corporations
and Partnerships
Wills and Administration of Estates
Trusts
Real Property
Evidence
Torts

Part II of the examination shall be that examination offered to the several states by the National Conference of Bar Examiners and designated by that organization as the Multistate Bar Examination (MBE).

Part III of the examination shall be of one hour’s duration and shall consist of not more than forty multiple-choice questions. These questions shall be designed to permit the applicant to demonstrate knowledge of the Code of Judicial Conduct and the Code of Professional Responsibility, including the Canons, Disciplinary Rules and Ethical Considerations as applicable in the State of Florida. Part III of the examination shall be clearly labeled as to subject matter.

Section 10(d) of Article II is amended to read:

All examination papers produced by applicants for admission to The Florida Bar during their submission to Parts I, II and III of the examination shall be examined by the Board. Upon conclusion of the administration of Part III of the examination, a separate examination on Part I shall be administered. Each examination paper produced by an applicant on Part I or Part III of the examination shall be separately graded and credited with reference to a perfect score of 100%. All examination papers shall be graded and credited by number and not by the applicant’s name. Upon conclusion of Part I and Part III of each examination and a compilation of the grades received by all applicants submitting to Part I or Part III of each examination, the Board shall determine the passing score for each part by adding the grades received by the top 10% of those examined in the respective parts and dividing the total thereof by the number of examinees comprising the top 10% in that part. Those applicants who receive a grade above or within twenty points below such result shall be credited with a passing score for that part of the examination.

Section 10(e) of Article II is amended to read:

The passing score for each administration of Part II of the examination shall be determined by utilization of the basic formula described in subsection (d) of this section applied to the scores of all persons submitting to that administration of Part II of the examination within the State of Florida. Those persons making a passing score on Part II of the examination as determined by this subsection shall be credited with a passing score for Part II provided Part II of the examination, whether taken within or without the State of Florida, was taken at or after a time when the applicant could have qualified to take Part I of the examination. Part II scores obtained through the administration of Part II in February 1976 are the first scores applicable under the provisions of this section.

Section 10(f) of Article II is amended to read:

An applicant must successfully complete each of the three parts of the examination, and all successfully completed portions must have been administered within a period of 25 months. The application for admission to The Florida Bar must be filed not later than 180 days from the date of the notice that success has been attained on all three parts of the examination. Failure to comply with such filing deadline will result in required reapplication for admission to the Florida Bar Examination and a second successful completion of the three parts of the examination.

Section 21(a) of Article IV is amended to read:

Satisfactory evidence that the applicant has received an academic Bachelor’s Degree granted on a basis of a four-year period of study in a college or university on the approved list of any one of the following regional accrediting associations or any Florida college or university approved by the Florida Supreme Court, approval to be withdrawn if accreditation is not met within a period approved by the accrediting agency:

(1) New England Association of Schools and Colleges;
(2) Middle States Association of Colleges and Schools/Commission on Higher Education;
(3) North Central Association of Colleges and Schools;
(4) Southern Association of Colleges and Schools — Commission on Colleges;
(5) Northwest Association of Schools and Colleges;
(6) Western Association of Schools and Colleges — Accrediting Commission for Senior Colleges;

at a time when, or in the same calendar year in which such school was so accredited; or the successful completion of an examination designated by the Board evidencing attained knowledge equivalent to 120 semester hours of college study to be administered under the Board’s supervision.

This section shall be applicable only to those applying for admission to the Bar who enrolled in any accredited law college subsequent to December 31,1975. All other applicants shall be governed by previous requirements under Section 22(a) of Article IV, of the rules aforesaid. (At least two years’ in-residence undergraduate work if entry into law school were prior to December 31,1960, or at least three years’ in-residence undergraduate work if entry into law school were subsequent to December 81, 1960 but prior to December 31, 1975, or the successful completion of a college equivalency examination to be administered under the Board’s supervision.)

Graduation from any one of the following institutions: the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, or the United States Merchant Marine Academy, will fully satisfy the requirement of this section.

Section 21(b) of Article IV is amended to read:

Satisfactory evidence of graduation from a full-time accredited law school at a time when or within 12 months of such accreditation, or in the alternative, satisfactory evidence that the applicant has completed the requirements for graduation from a full-time accredited law school at a time when, or in the same calendar year in which such school was so accredited, and that such accredited law school has or, in the alternative, will confer upon the applicant the degree of Bachelor of Laws or Doctor of Jurisprudence. In instances wherein the applicant has not completed law study prior to a filing deadline as specified in Rule I but anticipates such completion prior to the administration of the examination, such application will be accepted on or before the deadline but evidence that the applicant has completed the requirements for graduation and that the degree will be conferred must be received at the office of the Florida Board of Bar Examiners at least seven days prior to the actual administration of the examination into which admission is being sought. The term “accredited law school” has reference to any law school approved or provisionally approved by the American Bar Association or which is a member of the Association of American Law Schools. None of the following shall be substituted for law school training:

(1) Private study, correspondence school or law office training;
(2) Age or experience;
(3) Waived or lowered standards of legal training for particular persons or groups.

(Attorneys who were in good standing, upon producing such evidence as the Board may require, that such applicant was in the practice of law in the District of Columbia or in other states of the United States of America, or in practice in federal courts in territories, possessions or protectorates of the United States for at least ten years, and that he was in good standing at the bar of the District of Columbia, the territory, possession or protectorate, or of the state from which he came; may, notwithstanding the provisions of Sections 21(a) and 21(b) hereof, be permitted to take the bar examination to be admitted to the practice of law in Florida upon furnishing alternative data in compliance with the following Section. Such data must be filed with the Board at least 90 days prior to the administration of the examination, notwithstanding the provisions of Rule I, Section 4, and Rule II, Section 10.)

Section 21(c)(3) of Article IV is amended to read:

A representative compilation of the work product in the field of law showing the scope and character of the applicant’s previous experience and practice at the bar, including samples of the quality of the applicant’s work, such as pleadings, briefs, legal memoranda, corporate charters or other working papers which the applicant considers illustrative of his expertise, his academic and his legal training. Such representative compilation of the work product shall confine itself to the applicant’s most recent ten years of practice and shall be filed at least 90 days prior to the administration of the examination, notwithstanding the provisions of Rule I, Section 4, and Rule II, Section 10. If a thorough consideration of such representative compilation of the work product shows that the applicant is a lawyer of high character and ability, that his professional conduct has been above reproach, and that his academic and legal scholarship conform to approved standards and sum up to the equivalent of that required of other applicants for admission to the examination, the Board may, in its discretion, admit him to the examination. In evaluating academic and legal scholarship the Board is clothed with a broad discretion.

Section 22 of Article V is amended to read:

Every applicant who has complied with the requirements of the applicable rules for admission into the bar examinations, who has submitted to the examinations and attained scores above the minimum required, who has met the requirements as to character and fitness, and who has:

(a) Furnished to the Board satisfactory evidence that an accredited law school as specified in Section 21(b) herein has conferred upon the applicant the degree of Bachelor of Laws or Doctor of Jurisprudence and who has complied with all other requirements for admission to practice the profession of law;
(b) Or complied with all requirements except the conferral of the first degree in law as set out in Section 21(c) herein, but who has been declared by the Board as being fully qualified under the aforementioned Section 21(c)

shall be recommended by the Florida Board of Bar Examiners to the Supreme Court of Florida for admission to The Florida Bar. If the Court is satisfied as to the qualifications of the applicant so recommended, an Order of admission shall be made and entered in the minutes of the Court, and it shall designate the manner in which all applicants will take the oath. Two induction ceremonies shall be scheduled each year at which the oath shall be administered by the Chief Justice of the Court or a Justice thereof before the Court in formal session or by the Chief Judge of a District Court of Appeal or a Judge thereof before a District Court of Appeal in formal session. Any applicant who chooses not to attend such formal session may take the oath before any resident Circuit Judge or before such other official authorized to administer oaths. All applicants shall present themselves for such administration of the oath not later than 90 days from the date of notification of eligibility for admission by the Clerk of the Supreme Court. No certificate of admission to practice shall be issued until the oath of such applicant has been filed in the office of the Clerk of the Supreme Court. The Clerk shall maintain a permanent register of all persons so admitted.

Should any applicant gain admission to The Florida Bar upon an application for admission into the Florida Bar Examination, an application for admission into The Florida Bar, or an amendment or a supplement thereto which, within 12 months of admission to The Florida Bar, is revealed to have been falsified in any respect, the Board, after investigation and hearings, shall make its findings and recommendations as to revocation of any license issued to any such applicant and shall file its findings with the Supreme Court of Florida for final determination by the Court.

Section 1 of Rule I is amended to read:

Applications shall consist of:

(a) An Application for Admission into the Florida Bar Examination and;
(b) Application for Admission to The Florida Bar. The Application for Admission to The Florida Bar must be filed not later than 180 days from the date of the notice that success has been attained on all three parts of the examination as is provided under Article II, Section 10(f).

Applications for admission into Part I and Part III of The Florida Bar Examination, Part II if the applicant anticipates submission to Part II within the State of Florida, and applications for admission into The Florida Bar shall be made upon forms supplied by the Board pursuant to Rule V, Section 62.

Section 2 of Rule I is amended to read:

Applicants who have not been admitted to the Bar in any other jurisdiction for a period in excess of twelve months preceding the filing of an application for admission into The Florida Bar, time spent in military service of the United States not to be reckoned as part of said twelve months, shall accompany the application with a fee of $120.00, as specified under Rule V, Section 50, and such other fee as may be required under Rule IV.

Section 3 of Rule I is amended to read:

All applicants except those described in Section 2 shall accompany the application with a fee of $500.00, as specified under Rule V, Section 51.

Section 4 of Rule I is amended to read:

Part I and Part III of the Florida Bar Examination shall be administered on the Tuesday preceding the last Wednesday of February, May, July and October of each calendar year. Part II of the examination is presented simultaneously in the several participating states on the last Wednesday of February and July of each calendar year. Applications for admission into the February administration of the Florida Bar Examination must be postmarked or received not later than the first Tuesday of January. Applications for admission into the May administration of the Florida Bar Examination must be postmarked or received not later than the first Tuesday of April. Applications for admission into the July administration of the Florida Bar Examination must be postmarked or received not later than the first Tuesday in June. Applications for admission into the October administration of the Florida Bar Examination must be postmarked or received not later than the first Tuesday in September. Late applications shall be returned to the applicant.

Section 5 of Rule I is amended to read:

Applicants seeking postponement of their submission to the bar examination shall be permitted to do so upon payment of

(a) a fee of $20.00, as specified under Rule V, Section 57(a), if written notice of postponement is received at least seven (7) days in advance of the commencement of the administration of the examination; or

(b) a fee of $30.00, as specified under Rule V, Section 57(b), if a written notice of postponement is received thereafter but preceding the deadline for filing for the next administration of the examination.

All such applicants must bring their applications to current status by the filing of another Application for Admission into the Florida Bar Examination by the deadline as specified under the provisions of Section 4 of this Rule.

Section 6 is added to Rule I to read:

(a) Applications for Admission to The Florida Bar whether filed as a registrant under Rule IV or as an applicant under this Rule are continuing in nature and must give correctly and fully the information therein sought as of the date that the applicant is sworn in as a member of The Bar of Florida. The Board may require that all information furnished to it be given under oath.

(b) Every applicant or registrant shall immediately inform the Board of any change or discovered error in information previously furnished to the Board.

(c) As a condition for admission into the bar examination, every applicant shall state under oath when filing an Application for Admission into the Florida Bar Examination that all information in every application and amendments thereto previously submitted is true and complete.

Section 10(a) of Rule II is amended to read:

The required fees must be paid at the time an Application for Admission into the Florida Bar Examination is filed. Each such application, as an integral part thereof, must be accompanied by the following:

(1) A photograph, 21/2/' X 2V2", made within six months prior to the filing of the application;
(2) Two (2) complete sets of fingerprints taken and certified by an authorized law enforcement officer;
(3) Such supporting documents or additional information as may be required in the forms supplied by the Board.

(b) The following documents are also required but may be received subsequent to the filing deadline specified under Rule I, Section 4:

(1) A Certificate of Dean, Florida Board of Bar Examiners Form No. 3, certifying the applicant’s graduation from a full-time accredited law school or certifying that the applicant has completed the requirements for graduation from a full-time accredited law school and that the first degree in law will be conferred (except as is provided under the provisions of Article IY, Section 21(c)), which certificate must be received by the Board at least 7 days prior to the actual administration of the examination into which admission is being sought;
(2) An official transcript of academic credit certifying that the applicant has received an academic Bachelor’s Degree granted on the basis as specified under Article IV, Section 21(a), of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, which transcript must come directly from the awarding institution. The transcript or such other documentation for which provision is made in the Rules may be received subsequent to the filing of the application for admission into the bar examination.

Section 10(c) of Rule II is amended to read:

Except as provided in Section 11, an Application for Admission to The Florida Bar, which must be filed not later than 180 days from the date of the notice from the Board that success has been attained on all three parts of the examination, must be accompanied by the following which will be deemed a part of it:

(1) If the applicant is not a natural born citizen of the United States and indicates a name change at the time of naturalization, evidence of naturalization satisfactory to the Board that such name change occurred.
(2) If the applicant has been admitted to the practice of law in one or more jurisdictions, evidence satisfactory to the Board that the applicant is of good standing in such jurisdictions and a copy of the application for admission filed in each such jurisdiction.
(3) An authorization and release on a form supplied by the Board requesting and directing the inspection and furnishing to the Board, or any of its authorized representatives, of all relevant documents, records or other information pertaining to the applicant and releasing any person, firm, officer, corporation, association, organization or institution from any and all liability in respect to such inspection or the furnishing of any such information.
(4) Supporting documents and other in formation as may be required in the forms supplied by the Board and such other documents as the Board may, in addition, from time to time reasonably require.
(5) In instances wherein the applicant elects to demonstrate compliance with the requirements of Part II through submission to Part II in an admitting jurisdiction other than the State of Florida, a certificate bearing the score attained in that jurisdiction forwarded directly to the Florida Board of Bar Examiners by the administering jurisdiction on a form for such certification supplied by the Florida Board of Bar Examiners (Form 32).

Section 11 of Rule II is amended to read:

(a) If the applicant has filed an Applicant’s Questionnaire and Affidavit as a registrant as required by Rule IV, Section 30, the provisions of Rule II, Section 10 shall be inapplicable but in such case the applicant shall, not later than 180 days from the date of notice that success has been attained on all three parts of the examination, file a supplement to said questionnaire and affidavit upon forms supplied by the Board, and upon the filing of such supplement, the said questionnaire and affidavit filed as a registrant and all documents, records, information, and every other portion of the file shall be deemed converted into and shall thereupon be an Application for Admission to The Florida Bar. The Board may require the applicant to furnish such additional or supplemental information as the Board deems reasonable and necessary in the consideration of the Application for Admission to The Florida Bar.

(b) Even though an applicant has filed an Applicant’s Questionnaire and Affidavit as a registrant as specified under Rule IV, the separate Application for Admission into the Florida Bar Examination must be filed by the deadlines as specified under the provisions of Rule I and in compliance with the provisions of Rule II, Section 10 except that compliance with subsections (a)(1) and (2) and (b)(2) may be omitted if there has been previous compliance.

Section 21(c) of Rule III is amended to read:

An applicant who fails three times to pass Part I, or Part III, shall not be reexamined.

Section 22 of Rule III is amended to read:

Every applicant who is qualified to and who desires to repeat any part of the bar examination shall file an Application for Admission into the Florida B'ar Examination on a form prescribed by the Board and such application shall be accompanied by a fee of $75.00 as prescribed under Rule V, Section 56 and shall be filed in the Board’s office within the deadlines as specified under the provisions of Rule I as they pertain to the examination which such applicant desires to take. In those instances wherein the running of the deadline under this Section occurs prior to notification being given of the failure of any part of the examination, thus precluding compliance with the deadline by unsuccessful examinees, the deadline shall extend for a period of ten days from the date of notice of failure on the examination.

Section 30 of Rule IV is amended to read:

Every person intending to apply for admission to The Florida Bar shall, within one hundred fifty (150) days following the commencement of the study of law in an accredited law school, register with the Board by filing an Applicant’s Questionnaire and Affidavit as a registrant upon the forms supplied by the Board, including the documents and papers specified in Rule II, Section 10, except for the filing of the Certificate of Dean as specified in Rule II, Section 10(b)(1); a fee of $40.00 as specified in the provisions of Rule V, Section 52; and such other papers as may from time to time be reasonably required by the Board. The Board will consider as timely filed any registration postmarked or received one hundred fifty (150) days following the commencement of the study of law.

Section 31(a) of Rule IV is amended to read:

If any person shall fail to so register but shall do so within one hundred sixty-five (165) days following the commencement of the study of law and shall fully respond to requests contained in notice of untimely filing within a period not to exceed ten (10) days from mailing of such notice, such registration shall be accepted with a fee of $50.00 as specified under Rule V, Section 53(a).

Section 31(b) of Rule IV is amended to read:

If any person shall fail to so register but shall do so within two hundred fifty (250) days following the commencement of the study of law, the fee shall be $75.00 as specified under the provisions of Rule V, Section 53(b).

Section 31(c) of Rule IV is amended to read:

If any person shall fail to so register within two hundred fifty (250) days following the commencement of the study of law, the fee shall be $100.00 as specified under the provisions of Rule V, Section 53(c).

Section 32 of Rule IV is amended to read:

The Board may at any time find it advisable to make further inquiry into the character, fitness and general qualifications of a registrant. In such case the registrant may be required to pay a fee of $50.00 as is prescribed in Section 54 and the Board shall conduct an investigation and otherwise inquire into the character, fitness and general qualifications of such registrant and in every such investigation and inquiry the Board shall have all of the powers given it in respect to inquiry and investigation of applicants for admission to the Bar.

Section 49 of Rule V is repealed.

Section 56 of Rule V is amended to read: For each examination administration entered after the first which must be paid by the deadlines prescribed in Rule I, a fee of.$75.00

The term “administration” refers to any one of the four annual presentations specified under Rule I, Section 4, two of which are of two days duration and two of which are of one day duration. The second quarterly presentation entered, whether to repeat a part or parts of the examination or attempt a part or parts of the examination for the first time, requires payment of this fee.

Section 62 of Rule V is amended to read:

Requests for copies of the application forms for admission to the Florida Bar Examination, for admission to The Florida Bar or both filed by persons other than students matriculating at the law schools within the State of Florida, the deans and librarians of such Florida law schools, and any other persons to be designated by the Board, shall be accompanied by a fee of $10.00. Any person having paid this fee shall have a like amount deducted from any application fee which is paid within one year from the receipted date of the payment of this fee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Joseph C. VALANTIEJUS, Respondent.
    No. 52191.
    Supreme Court of Florida.
    Feb. 9, 1978.

      Wallace B. McCall, Bar Counsel, West Palm Beach, and Elinor P. Smith, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This is a disciplinary action brought by The Florida Bar against one of its members, Joseph C. Valantiejus. Our jurisdiction is authorized by Article V, Section 15, Florida Constitution.

The Florida Bar filed its Complaint in March, 1975, charging Valantiejus with (1) failure to properly perform his duties as a guardian, (2) failure to promptly handle clients’ business, and (3) failure to fully advise a judicial officer, when questioned, regarding his delay in bringing these legal matters to a close.

The Florida Bar, through its Referee, had great difficulty advising Respondent of the charges against him. On several occasions, judicial officers either telephoned or wrote Valantiejus concerning the matters here under consideration. In spite of mailings to both his business and home addresses, the respondent failed to answer. This court ordered its Clerk to have a copy of the charges and Referee’s Report served upon the respondent by mail. On November 21, 1977, the respondent received a copy of the charges, Referee’s Report (with recommendations), and a letter from this court advising him that he could reply within 15 days. No response has been filed.

Without a detailed account of the evidence, it is sufficient to state that the record proves by clear and convincing evidence that Valantiejus failed to perform his duties as a guardian, that he consistently ignored the ward’s needs, and ignored the pleas of other parties to take immediate action. The pleas by non-parties included a direct conversation in which a circuit judge urged Valantiejus to take speedy action. In nine other cases the pattern was the same. Although urged to do so by the parties and other interested persons, he failed to properly perform. We find the evidence sufficient (clear and convincing) to show a violation of the Code of Professional Conduct as charged in Counts I and II of the Bar’s complaint. The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970), and The Florida Bar v. Wagner, 212 So.2d 770 (Fla. 1968).

The Referee found that there was insufficient evidence to sustain the Bar’s charges in Count III of the complaint, that respondent made an intentionally false or incomplete statement to a judicial officer. We also find the evidence insufficient on this point.

The respondent is guilty as charged by the Bar’s Complaint in Counts I and II thereof in that he did violate Disciplinary Rules 1 — 102(A)(5), 1-102(A)(6), and 6-101(A)(3).

Accordingly, Joseph C. Valantiejus is suspended from the practice of law in the State of Florida for a period of twelve months, beginning February 9, and thereafter until he shall prove his rehabilitation and pay the costs of these proceedings in the sum of $358.60.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.


text:
    In the Matter of THE FLORIDA BAR (Reapportion—Board of Governors), Petitioner.
    No. 52843.
    Supreme Court of Florida.
    Feb. 9, 1978.

      Marshall R. Cassedy, Executive Director, and William B. Wiley, Asst. Legislative Counsel, The Florida Bar, Tallahassee, for petitioner.
    A.- J. Thomas, Jr., President, Broward County Bar Ass’n, and Russell E. Carlisle, Chairman, Committee for Fair Apportionment, Fort Lauderdale, for Broward County Bar Ass’n.
    James F. Crowder, Jr., President, Miami, for Dade County Bar Ass’n.
    Enoch J. Whitney, President, Tallahassee, for Fla. Government Bar Ass’n.
    Ken W. Davis, President, C. Gary Williams, President-Elect, and Kathleen Frances Dekker, Member, Tallahassee, for Tallahassee Bar Ass’n.
    A. J. Barranco, Jr., President, Miami, and John Frost, President-Elect, Bartow, for The Young Lawyers Section.
    Bruce Harper, President, Miami, for Dade County Young Lawyers Section.
    Michael J. McNerney, President, Fort Lauderdale, for Broward County Lawyers Section, The Florida Bar.
   PER CURIAM.

The Board of Governors of The Florida Bar has asked the Court to amend Article III of the Integration Rule, and the By-laws thereunder, to reapportion and expand the membership of the Board. The genesis of the Board’s proposal is three years of pressure for more proportionate representation on the Board among the state’s lawyers, principally from Dade, Broward and Leon County attorneys. The proposal brought to us is the result of analysis by the Board’s reapportionment study committee, and represents the Board’s best effort to reapportion itself.

The Board’s proposal is opposed both by the Broward County Bar Association, which has submitted an alternate plan, and by the Dade County Bar Association, which recommends that the Court appoint a committee of its own to reapportion the Board.

We have considered in detail the vexing and complex questions posed by the Board and by the local bar associations which oppose the Board’s proposal, including the value of the proposed reapportionment plan over the status quo, the relationship of the Board to the Court on the one hand and to the lawyers of Florida on the other, the desirability of a modified bicameral policy body to govern The Florida Bar, the practical ability of the Board (or indeed any representative body) to reapportion itself, the suitability of one-man, one-vote principles for the Board’s selection process, the lack of lay representation on the reapportioned Board, and the lack of direct representation on the Board by non-resident Bar members. We have also considered and weighed the Board’s request for prompt action by the Court so that the new (and more fair) plan can be put into effect for the 1978 Board elections, the fact that the Board unanimously approved the proposal (including, we are told, the votes of the Dade and Broward Board members), and the fact that any Board selection plan will not fully resolve alleged inequities created by circuit as opposed to at-large representation or by the presence of identifiable classes of lawyers admitted to practice, such as governmental v. private, large- firm v. small, male v. female, young v. older, etc. We have also considered the fact that no spokesman for or against the proposal has identified with particularity any action by or any instance in which the so-called malapportioned present Board, or any predecessor Board, has acted to the detriment or disadvantage of the Broward bar, the Dade bar, any geographical area, or any under-represented group of lawyers in the state.

Taking all these factors into account, and with a clear recognition that the Board’s proposal offers little change from the present method of selecting Board members, we approve the proposal as submitted. By our adoption, however, we do not intend to foreclose continued discussion on, or further efforts to find ways to select Board members on a basis more acceptable to all members of the Bar. In particular, we invite the Board .to consider at the earliest opportunity such matters as lay representation on the Board, direct representation of non-resident lawyers, and financial assistance to Board members in order to attract attorneys who cannot meet the high financial burdens which Board membership now requires.

The following amendments to Sections 2 and 3 of Article III of the Integration Rule, and to Section 2 of the By-laws thereunder, are adopted as of the effective date of this order. Underscoring indicates new material and strike-throughs indicate deletions.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

INTEGRATION RULE OF THE FLORIDA BAR

Article III. Board of Governors

2. The Board of Governors shall consist of the President of The Florida Bar, the President-elect, the President of the Young Lawyers Section, the President-elect of the Young Lawyers Section^.who shall-not-be entitled to vote exoept in the absence of the President of the Young Lawyers Section, and representatives elected by and from the active members of The Florida Bar in each judicial circuit. There shall be one such representative from each judicial circuit and eleven fourteen additional circuit representatives who shall be apportioned among and elected from the judicial circuits as follows:

(a) Five of the additional circuit-representatives shall be elected by and from the judicial circuit of the State having the largest number of active members-of-The Florida-Bar;

(b)-The six remaining additional circuit representatives shall be apportioned among and- elected by and from the next sfa^-judi-oial circuits- having the largest number of active members of- The Florida Bar — with eaeh-of -the described judicial-circuits receiving one- additional circuit representa-tiver on the basis of the number of members in good standing residing in each circuit. The formula for determining the number of representatives apportioned to and elected from each judicial circuit shall be: first, determine the average number of members in good standing residing in each judicial circuit bv dividing the number of Florida resident members in good standing by the total number of judicial circuits, and then dividing the members in good standing residing in each judicial circuit bv such average. Apportionment of representatives among the judicial circuits shall be in accordance with the results thus obtained, bv apportioning each judicial circuit one representative for each multiple of one (including one) of the results obtained for such circuit, provided such number does not exceed fourteen, and one representative for the circuit’s remaining fraction of a multiple commencing with the largest such fraction and continuing in descending order to the next largest fraction and so on until all representatives of this category shall be apportioned to judicial circuits: in the event the sum of the whole integers so determined exceeds fourteen, then circuits whose results show whole integers from the application of the formula shall be determined bv eliminating one representative for the lowest fraction of a whole integer among such circuits and continuing in ascending order until fourteen is reached.

3. The Executive Director biennially annually. as of December 15, commencing with the year 4968 1977. from the records of The Florida Bar shall certify to the Clerk of the Supreme Court of Florida the number of active members of The Florida Bar residing in each judicial circuit, and his certificate or a notice thereof shall forthwith be published in The Florida Bar Journal or “The Florida Bar News.” This certificate of the Executive Director of The Florida Bar shall be the basis of apportionment of circuit representatives elected to the Board of Governors in the ensuing regular Bar judicial circuit elections.

BY-LAWS UNDER THE INTEGRATION RULE OF THE FLORIDA BAR

Article III. Board of Governors

Section 2. Nomination,

a. Staggered Terms. Elections shall be held in even-numbered years beginning in 1974 for the following circuit representatives:

Circuit Circuit

(Office Number) (Office Number)

1 11(3)

3 11(5)

4(1) 13(1)

6(1) ■14

7 15(1)

9 17(1)

10 18

HO) 20

Elections shall be held in odd-numbered years beginning in 1975 for the following circuit representatives:

Circuit (Office Number) Circuit (Office Number)

2 11(6)

4(2) 12

5 13(2)

6(2) 15(2)

8 16

9(2) 17(2)

11(2) 19

11(4)

In order to convert from the system of election of all members every two years, to a system of staggered terms, there shall be an election for all circuit representatives in 1974. Those representatives in the circuits designated herein for election in odd-numbered years, shall be elected for a one-year term in 1974.

Additions or deletions of circuit representatives resulting from the application of the Integration Rule formula will necessitate changes in the lists set forth above. both in circuit and office numbers: such changes will be made by the executive director as appropriate. In the initial year of application of the formula the three additional representatives will be elected in 1978 but two of them shall be for one year terms to provide for staggered terms of approximately one-half of the Board to be elected each year.

b. Time for Filing Nominating Petitions. Nominations for the election of representatives on the Board of Governors from each judicial circuit in accordance with the provisions of Article III of the Integration Rule, as amended, shall be made by written petition signed by not less than five active members of The Florida Bar in good standing. In each circuit in which there is more than one representative to be elected, the offices of the representatives shall be designated numerically, with the executive director making whatever adjustments are necessary to reflect changes resulting from the annual certification, and a nominating petition shall state the number of the office sought by a nominee. Any number of candidates may be nominated on a single petition, and any number of petitions may be filed, but all candidates named in a petition and all members signing such petition shall be residents of the judicial circuit which the candidate is nominated to represent, and shall be active members of The Florida Bar in good standing. Nominees shall endorse their written acceptance on such petitions but no nominee shall accept nomination for more than one office. All nominating petitions shall be filed with the executive director at the headquarters office on or before 5:00 p. m. February 15. On a date to be fixed by the executive director, the nominating petitions shall be canvassed and tabulated by the executive director and the clerk of the Supreme Court of Florida, and they shall thereupon certify in writing the names of all members who have been properly nominated.


text:
    THE FLORIDA BAR, Petitioner, v. John V. BAUM, Respondent.

      No. 53262.
    Supreme Court of Florida.
    Feb. 10, 1978.

      Marshall R. Cassedy, Executive Director, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

The Florida Bar has filed a petition for temporary suspension of John V. Baum from the practice of law pursuant to Rule 11.10(5), Article XI, of the Integration Rule of The Florida Bar. In its petition, The Bar alleges:

“1. The filing of this petition has been authorized by the Executive Director of The Florida Bar.
“2. The affidavit of William L. Colbert, chairman of the Eighteenth Judicial Circuit Grievance Committee ‘A,’ attached hereto as Exhibit ‘1,’ shows that Mr. Baum has misappropriated money from his law firm’s trust and general accounts, as well as money received directly from clients, in the total amount of $21,100. Mr. Colbert’s affidavit includes his statement that he believes that John V. Baum is causing great public harm by misappropriating funds to his own use, and that the best interest of the public would be served by the immediate temporary suspension of Mr. Baum from the practice of law.
“3. The affidavit of Newman D. Brock, Gary E. Massey, Franklin T. Walden and O. H. Eaton, Jr., the surviving partners of the law firm of Brock, Massey, Walden, Baum and Eaton, attached hereto as Exhibit ‘2,’ sets forth specific examples of misappropriations of funds by Mr. Baum. The affidavit includes the affiants’ assertion that Mr. Baum is causing great public harm by misappropriating funds to his own use and that the best interest of the public would be served by his immediate suspension from the practice of law.
“4. Respondent, John V. Baum, is causing great public harm by misappropriating funds to his own use.
“5. The respondent, John V. Baum, has submitted his consent to suspension pending investigation, and it is attached hereto as Exhibit ‘3.’
“7. The Bar has also been advised that Mr. Baum’s partners have covered all known shortages in the firm’s trust account.”

Having carefully examined the petition and accompanying affidavits demonstrating Baum’s misconduct, we hereby grant the petition of The Bar requesting temporary suspension of Baum from the practice of law. It is, therefore, ordered that:

1. Respondent be and is hereby suspended from the practice of law in this state until further order of this Court.

2. Respondent is enjoined from withdrawing any trust funds now on deposit with any bank as provided in Rule 11.10(5) of Article XI of The Florida Bar Integration Rule until further order of this Court.

3. Respondent shall immediately notify in writing all banks in which he maintains accounts of the provisions of his suspension, and respondent shall provide said banks with a copy of this order. Respondent shall also provide staff counsel of The Florida Bar with a copy of the notice that he sends to each bank.

4. Respondent shall deposit into a trust account all sums hereafter received from the practice of law, whether fees, costs, deposits, or trust funds, and respondent shall immediately advise staff counsel of The Florida Bar of the receipt and location of such funds.

5. Respondent shall furnish a copy of his suspension order to all clients whom he, himself, is representing in matters pending and shall furnish staff counsel with an affidavit listing the names and addresses of clients so notified.

6. Although Rule 11.10(5), Article XI, Integration Rule, provides:

“Any order of temporary suspension issued under this rule shall preclude the attorney accepting any new cases but shall not preclude him continuing to represent existing clients during the first thirty days after issuance of such temporary order; . . .

this does not mean that respondent has the right to reclaim any cases or files which have already been turned over to other members of the firm of which he was a member or that have been turned over to other members of The Florida Bar.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


author: ADKINS, Acting Chief Justice,

text:
    FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, and Harbor Insurance Company, Petitioners, v. Audrey HANSON, as surviving spouse of Charles W. Hanson, Deceased, and Audrey Hanson, as Executrix of the Estate of Charles Walter Hanson, Deceased, Respondent.
    No. 49729.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Kenneth L. Ryskamp and Arthur M. Simon of Bolles, Goodwin, Ryskamp & Welch-er, Miami, for petitioners.
    Larry S. Stewart and James D. Little of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for respondent.
    BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.
    ADKINS, Acting C. J., concurs specially with an opinion.
   ADKINS, Acting Chief Justice,

specially concurring:

This cause is a petition for writ of certio-rari to review a decision of the District Court of Appeal, Third District, reported at 334 So.2d 63. Petitioner alleges that the decision rendered by the District Court conflicts with decisions of this Court in Clouds v. Fallis, 110 So.2d 669 (Fla.1959); Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961); and Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975), on the same point of law, namely, the test by which should be determined the propriety of an order of a judge granting a motion for a new trial.

The action was instituted by the respondent, Mrs. Hanson, both individually and as executrix of her deceased husband’s estate. Mr. Hanson was killed in a railway crossing accident involving a collision of a train operated by the petitioner-defendant railway company and an automobile driven by Mr. Hanson. Mrs. Hanson, as executrix, sought damages of $1,644, representing the amount of the funeral expenses. Mrs. Hanson, individually, sought wrongful death damages as allowed by law.

The case was tried before a jury. The evidence was such that the jury could have found that both the railway company and Mr. Hanson were guilty of negligence which in combination was the legal cause of the accident. The trial judge denied a request of the railway company to submit interrogatories to the jury for findings as to the percentages of negligence of the railway company and Mr. Hanson. The jury returned a verdict which awarded to Mrs. Hanson, as executrix, the full amount of the damages claimed of $1,644, and awarded to Mrs. Hanson individually damages in the amount of $175,000. Judgment was entered on the verdict.

On defendant’s motion for a new trial, the court ordered a remittitur of one-half of the total of the awards, with a grant of a new trial in the event of rejection by the remittitur by plaintiffs. As grounds therefor, the Court stated:

“The Court finds that the jury verdict and Judgment entered thereon was unconscionable and not based upon the evidence, the Court being of the opinion, based upon the evidence and the law, that the decedent-driver was at least fifty per cent negligent and that there was no way for the jury to have found no negligence on the part of the decedent-driver; the verdict and Judgment entered thereon reflected total sums without reference to negligence on the part of the decedent-driver and thus such verdict and Final Judgment entered thereon is contrary to the law and evidence in this case; . . .”

Mrs. Hanson appealed. On appeal, the District Court reversed the remittitur and new trial order to the extent it related to Mrs. Hanson individually and affirmed the remittitur order to the extent it related to Mrs. Hanson as executrix.

The point urged here by petitioners is that the decision of the District Court reversing the trial court order for a new trial conflicts with this Court’s holding in Clouds v. Fallis, supra, and its progeny. In Clouds, this Court clarified the rule that the granting of a motion for new trial was an action within the sound discretion of the trial judge and that the ruling should not be disturbed except upon a clear showing by the appellant that the discretion had been abused. See Castlewood International Corp. v. LaFleur, supra; Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Russo v. Clark, 147 So.2d 1 (Fla.1962); Bennett v. Jacksonville Expressway Authority, supra.

In the case sub judice, the trial judge was motivated in granting the motion for new trial on the belief “that the jury verdict and Judgment entered thereon was unconscionable and not based upon the evidence.” In effect, he disagreed with the jury based on his perception that the award of damages to Mrs. Hanson individually did not reflect the relative fault of the railway company and Mr. Hanson. He so concluded on the basis that since the jury failed to reduce the damages to Mrs. Hanson as executrix by the percentage of negligence of Mr. Hanson, the jury also must not have reduced the damages to Mrs. Hanson individually by the percentage of negligence of Mr. Hanson.

Ordinarily a trial judge is given broad discretion in granting a new trial. But when it is apparent from the grounds stated in granting a new trial that the trial judge was acting under an erroneous assumption, then it is not a question of discretion.

As we stated in Clouds, when the trial judge concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial. But it was not a discretionary act for the trial judge to make an assumption that the jury misapplied the rules of comparative negligence simply because the jury did not reduce the damages awarded to Mrs. Hanson as executrix by the percentage of the negligence of Mr. Hanson. Indeed, as the District Court found, it may be more readily assumed that the award of damages to Mrs. Hanson individually involved a reduction based on a found percentage of negligence of Mr. Hanson, and simply because the jury awarded full recovery to the executrix should not result in depriving Mrs. Hanson individually of the benefit of her jury award. The District Court supported this finding on the basis that the trial judge’s charge to the jury with respect to comparative negligence was addressed only to the claim of Mrs. Hanson individually and not to Mrs. Hanson as executrix and that in closing arguments Mrs. Hanson’s attorney requested an award of $600,000.

As we pointed out in Russo v. Clark, supra, an order granting a new trial is not sacrosanct, stating:

“[T]his Court has consistently held that such an order may be reviewed on the record for the purpose of ascertaining whether the exercise of judicial discretion implicit in the order has been abused.” 147 So.2d at 3.

But as alluded to above, this case is not one in which the trial judge granted a new trial on the basis that the verdict was contrary to the manifest weight of the evidence. Clouds, supra. On the contrary, the trial judge ordered a new trial on mere conjecture that the jury had not applied the rules of comparative negligence in arriving at the award of damages. It is therefore patent that the situation confronting the Court in this case is not the same as the one in Clouds.

In regard to the trial court’s remittitur order as to Mrs. Hanson individually, the District Court was within its authority in ordering a reversal. See Smith v. Jackson County, 134 Fla. 354, 183 So. 738 (1938).

Having concluded that no conflict has been demonstrated and that the decision of the District Court should not be overturned, the writ of certiorari heretofore issued in this cause is properly discharged.


author: ALDERMAN, Chief Judge.

text:
    Levi McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1527.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Richard W. Springer of Kohl, Springer & Springer, Palm Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky and Harry M. Hipler, Asst. Attys. Gen., West Palm Beach, for appellee.
   OPINION ON ORDER DENYING BAIL PENDING APPEAL

ALDERMAN, Chief Judge.

Defendant seeks review of an order denying bail pending appeal. The determinative question is whether the trial court, under Fla.R.Crim.P. 3.691(a) (effective July 1, 1977) has any discretion to allow bail pending appeal to a person who has .previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony.

The relevant portion of the current rule 3.691(a) provides that “in no case shall bail be granted if such person has previously been convicted of a felony.” This differs from the former rule, which said that “a person may be denied bail upon appeal from conviction of a felony if such person had previously been convicted of a felony.” Clearly the former rule allowed the exercise of judicial discretion; just as clearly, the current rule is mandatory and allows no basis for the exercise of judicial discretion.

' Defendant cites Bamber v. State, 300 So.2d 269 (Fla. 2d DCA 1974) and Rolle v. State, 314 So.2d 624 (Fla. 1st DCA 1975), in support of his position. These cases, however, are ntí longer applicable. Both involve a conflict between the former Section 903.132, Florida Statutes (1974) and former Rule 3.691(a), and were decided on the basis that the legislature cannot deprive the court of its discretion to determine whether bail should be granted pursuant to a rule of criminal procedure. In the present case we do not have a conflict between the legislative and judicial branches of government. The Supreme Court of Florida, by its promulgation of Fla.R.Crim.P. 3.691(a) (effective July 1, 1977), has said “in no case shall bail be granted if such person has previously been convicted of a felony.” We assume that the Supreme Court meant what it said.

The trial court’s order denying bail pending appeal is affirmed.

DOWNEY and LETTS, JJ., concur.


text:
    Herbert J. DICKSON, Nominee of the Trustees of Cousins Mortgage and Equity Investments, Appellant, v. JUBELCA CORP. et al., Appellees.
    No. 76-1525.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Rehearing Denied Nov. 30, 1977.
    Mershon, Sawyer, Johnston, Dunwody & Cole and James M. McCann, Jr., Miami, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Taylor, Brion, Buker & Greene, Anthony Villaamil, Miami, Albert I. Caskill, Opa Locka, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969).


text:
    The HAMMET COMPANY, Appellant, v. George H. SMITH, Appellee. George H. SMITH, Appellant, v. The HAMMET COMPANY, a corporation, duly licensed and authorized to do business in the State of Florida, Appellee.
    Nos. 76-2562, 77-23.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied March 21, 1978.
    Lawrence G. Mathews, Jr., of Gray, Adams, Harris & Robinson, Orlando, for The Hammet Co., appellant in No. 76-2562 and appellee in No. 77-23.
    Frank P. Mehok, Jr., of DeRenzo & Me-hok, Boca Raton, for George H. Smith, ap-pellee in No. 76-2562 and appellant in No. 77-23.
   PER CURIAM.

Our consideration of the briefs and record convinces us that no reversible error has been demonstrated in either of these consolidated appeals.

Accordingly, the judgment appealed from in Case No. 76-2562 and the order appealed from in Case No. 77-23 are

AFFIRMED.

CROSS, DOWNEY, and LETTS, JJ., concur.


author: ANSTEAD, Judge. DOWNEY, Judge,

text:
    Lewis C. GIFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1307.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Rehearing Denied March 21, 1978.
    Richard L. Jorandby, Public Defender, James K. Green and Craig S. Barnard, Asst. Public Defenders, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Lewis C. Gifford, was convicted of sexual battery and breaking and entering with the intent to commit a felony. He claims that the state improperly commented on his right to remain silent after his arrest and that the trial court erred in refusing to instruct the jury on the lesser included offense of trespass. We agree and reverse.

Gifford testified in his own defense that he was invited by the victim to her residence, where she engaged in voluntary sexual intercourse with him. It was also shown that he had given a similar statement to the police several days after he was arrested. On cross-examination the defendant was asked several times why he didn’t give the police a statement to that effect when he was arrested. When this question was first asked, the trial court sustained a defense objection. Despite this the prosecution again elicited the fact that Gifford had made no statement when he was first arrested. Upon objection the prosecutor argued to the trial court:

So, that opens up my questions, Your Honor, about whether he made any statement when he was arrested, which he did not. He made it three days later after he was identified.

By his argument the prosecutor conceded that he knew the appellant had made no statement at the time of his arrest. Notwithstanding this the prosecutor proceeded to elicit that fact from the appellant repeatedly. This constituted an improper comment on the appellant’s right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Smith v. State, 340 So.2d 930 (Fla. 4th DCA 1976). It makes no difference that the appellant was shown to have later given a statement. Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976). And the Florida Supreme Court has held that such error requires reversal without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975).

We also agree that the appellant was entitled, pursuant to his request, to have the jury instructed on the offense of trespass, as a lesser included offense of breaking and entering. Dowis v. State, 326 So.2d 196 (Fla. 4th DCA 1976).

The judgment of the trial court is hereby reversed with directions that a new trial be granted in accordance with this opinion.

SCHWARTZ, ALAN R., Associate Judge, concurs.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

In my judgment this is not a Doyle or Smith situation. In both of those cases the defendant, after being advised of his rights, remained silent at the time of his arrest and thereafter until trial. At trial the defendant in each of those cases had an exculpatory story. Then the prosecutor in each case tried to attack the believability of defendant’s exculpatory story by eliciting the testimony that defendant had remained silent at the time of his arrest. In this case appellant remained silent at the time of his arrest after receiving advice as to his rights, but shortly thereafter he gave an inculpatory statement. At trial the incul-patory statement and the fact that appellant remained silent were revealed to the jury. I perceive a vast difference between commenting upon a defendant’s silence at the time of arrest when he never admitted guilt and at trial seeks to exculpate himself and a comment on a defendant’s silence at the time of arrest where he shortly thereafter admits his guilt. In the former situation the comment prejudices the defendant for exercising his constitutional right to remain silent — the prejudice is that it makes one suspect the defendant is guilty. In the latter situation, how can a defendant be prejudiced by the jury knowing he remained silent when in the next breath the jury is advised the defendant admitted his guilt.

In view of the foregoing, it seems to me that the facts of this case are akin to the facts in Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976) and Breniser v. State, 267 So.2d 23 (Fla. 4th DCA 1972). As I noted in Williams, I disagree that on these facts the Bennett, Bostic rule is applicable. However, the court in Breniser and Williams ruled otherwise. Accordingly, I reluctantly concur in the decision to reverse the judgment appealed from on that point.


author: DOWNEY, Judge.

text:
    Lee WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 76-836.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied March 21, 1978.

      Richard L. Jorandby, Public Defender, Frank B. Kessler and Laurie Sistrunk, Asst. Public Defenders, and Joe Atterbury, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

In this appeal from a conviction and sentence for delivery of heroin seven points are presented for reversal. We have carefully considered all points presented and find only one constitutes reversible error. That point involves the action of the trial court in denying appellant’s- pretrial discovery motion to produce the name and address of the confidential informant.

The cases seem to indicate that the primary test controlling the right of a defendant to be advised of the name and address of a confidential informant is one of fairness. Is the name and address of the informant essential to a fair determination of the case? If so, the State’s privilege against disclosure must give way. Richert v. State, 338 So.2d 40 (Fla. 4th DCA 1976). In the most recent case on the subject the Supreme Court of Florida, in State v. Hassberger, 350 So.2d 1 (Fla.1977), confirmed that test once again, stating:

“Where disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way. State v. Matney, 236 So.2d 166 (Fla.1st DCA 1970); Rovario v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).” Id. at 2.

In the oft cited case of Treverrow v. State, 194 So.2d 250 (Fla.1967), the Florida Supreme Court suggested some of the guidelines or factors which should be considered in determining when the privilege against disclosure is dissipated, after first noting that the problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Those factors are:

1) “whether it was necessary for the prosecutor to refer to the informer in the presentation of the case, or whether the informer’s existence was first brought out on cross-examination by the defendant;
2) “whether the informer was an ‘active participant’ in the offense with which the defendant is charged or is a ‘mere informer’ who supplies a ‘lead’;
3) “whether the accused admits or does not deny guilt;
4) “and whether there is independent evidence of the accused’s guilt.” Id. at 252.

Without detailing the facts in this case, we note that the State referred to the confidential informant in presenting its case in chief. The informant was present at least to some extent during all or a part of the criminal transaction with which appellant is charged. The exact extent of his participation or knowledge is not totally clear, but it may well have been substantial. The appellant’s defense was misidentification and alibi. The only evidence against appellant is the testimony of one police officer.

Suffice to say that as we view this case and its substantial conflicts the testimony of the informant could have been very helpful to appellant’s case. Had the informant corroborated appellant’s contention it may well have led to an acquittal. In other words, this case seems to meet all the criteria necessary to dissipate the privilege against disclosure.

Accordingly, we reverse the judgment and sentence appealed from and remand the cause for a new trial.

REVERSED AND REMANDED.

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


text:
    Lee WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1104.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied March 21, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Stuart A. Young, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of delivery of heroin. Of the five appellate questions presented only one requires a reversal of the judgment and sentence being reviewed.

The appellant here is the same individual involved in the case of Woods v. State, Case No. 76-836, Fla.App., 355 So.2d 437, opinion filed February 7, 1978. Oddly enough, the point requiring reversal in this case is the same point upon which we based our reversal in the other Woods case, i. e., denial of appellant’s motion to furnish the name and address of the confidential informant. Although the factual situation giving rise to the criminal transaction in the two cases is different, nearly everything said in Woods v. State, Case No. 76-836, Fla.App., supra, is applicable here.

In this case the State makes a stronger argument that the appellant knew the name and address of the informant and thus cannot complain. We dispose of that contention by noting that the appellant was never sure of the identity of the informant as the State refused to identify him. When appellant tried to depose a person who may have been the informant, the prosecutor, through objection and instructions to the witness not to answer, effectively precluded the deponent from testifying to anything meaningful. And so the important business of developing appellant’s defense through the help of the confidential informant turned into a charade.

Accordingly, we reverse the judgment and sentence appealed from upon authority of Woods v. State, Case No. 76-836, Fla. App., 355 So.2d 437, opinion filed February 7, 1978 and remand the cause for a new trial.

REVERSED AND REMANDED.

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

      . An enlightening discussion of the duty of the State in furnishing information regarding a confidential informant is contained in State v. Jones, 247 So.2d 342 (Fla.3rd DCA 1971).


text:
    James O’NEILL, Appellant, v. James T. SCHOENBROD, the Yacht Andiano and the United States Fire Insurance Company, Appellees.
    No. 77-1922.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Rehearing Denied March 17, 1978.
    Dolan, Denman & Grambling and Christopher R. Fertig, Fort Lauderdale, for appellant.
    Smathers & Thompson and John W. Keller, III, James T. Schoenbrod, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Plaintiff, James O’Neill, appeals an order dismissing his complaint for salvage for lack of jurisdiction over the subject matter on the ground that a salvage action is within the exclusive jurisdiction of the federal district court sitting in admiralty.

O’Neill contends that since the instant action has been brought in personam (as opposed to in rem), the circuit court for Dade County has concurrent jurisdiction with the federal district court under the “savings to suitors” clause contained in 28 U.S.C. § 1333.

Salvage being a matter peculiarly within the jurisdiction of the admiralty courts because, inter alia, of the peculiar system awarding the compensation, we hold that the trial court correctly dismissed the instant salvage action. See 68 Am.Jur.2d Salvage § 40 (1973).

Affirmed.


text:
    Ralph RUSSELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-468.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1978.
    Rehearing Denied March 16, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I.. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, the present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975) requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Therefore, we remand the case for correction of sentence, and appellant need not be present at that time.

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


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    LUMBERMEN’S MUTUAL CASUALTY COMPANY, a Foreign Insurance Corporation, Appellant, v. Mark BEAVER, Appellee.
    Nos. 76-1086, 76-1294.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 21, 1978.

      Jeanne Heyward and Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellant.
    Marc Cooper of Greene & Cooper and Maurice Fixel of Meyer, Leben, Fixel, Cantor & Englebert, Hollywood, for appellees-Beaver and Welch.
   DOWNEY, Judge.

Appellee, Mark Beaver, was struck on his bicycle by an uninsured motorist. However, at the time of the accident Mark was covered by an insurance policy effective March 1,1973, issued by appellant, Lumbermen’s Mutual Casualty Company, to Norman Welch. The Lumbermen’s policy contained bodily injury liability limits of $100,-000/$300,000 and uninsured motorist coverage limits of $10,000/$20,000.

Mark filed a claim for arbitration pursuant to the terms of appellant’s policy. Thereafter, Mark, through his next friend, filed suit for declaratory judgment against Lumbermen’s Mutual Casualty Company and Stevenson’s Insurance Agency, Inc., the agent which sold the policy. Mark contended that the Welch policy should be held to provide $100,000/$300,000 limits of uninsured motorist coverage because the agent had not offered to Welch uninsured motorist coverage in an amount equal to the bodily injury limits of said policy.

Welch testified on deposition that he purchased the policy from Stevenson Insurance Agency, Inc., and at that time there was no discussion concerning uninsured motorist coverage nor did he know he could have purchased uninsured motorist coverage up to a maximum of the bodily injury limits.

The agent who sold the policy to Welch contradicted Welch to some extent in testifying that it was his standard procedure always to inform an insured how much uninsured motorist coverage he could purchase. He testified that, although he had nothing in writing to prove it, to the best of his recollection and knowledge he had advised Welch of his options.

The trial court granted appellees a summary judgment and held that the amount of uninsured motorist coverage available to Mark was $100,000/$300,000. Furthermore, although the trial court initially stayed the arbitration proceeding, after entry of the summary judgment the trial court vacated the stay order.

On appeal appellant contends^ a) that the court erred in holding that appellant did not fully comply with Section 627.727(1), Florida Statutes (1971) in issuing the policy in question, b) that it was error to grant summary judgment for appellees on the issue of the amount of uninsured motorist coverage, and c) that it was error for the trial court to vacate the stay of the arbitration proceeding.

We feel obligated to reverse the summary judgment because the movant did not conclusively demonstrate there was no genuine issue of material fact involved. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The next point on appeal involves the real issue in this case and should be treated now for the future guidance of the trial court during the proceedings following remand. The question involved as stated by appellee is:

“[W]hether Fla.Stat. § 627.727(1) (1971) mandates that an insured is entitled to uninsured motorist (UM) coverage in the same limits as his bodily injury liability coverage unless he affirmatively rejects those limits in whole or in part.”

Inferentially, the trial court answered this question affirmatively, holding an insured is entitled to maximum limits unless those limits are rejected by the insured. We agree and answer the question affirmatively-

Prior to 1971 uninsured motorist coverage was provided for in Section 627.0851, Florida Statutes (1969). Paraphrased, that section provided that no automobile insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle registered or principally garaged in this state shall be issued or delivered unless the policy contained uninsured motorist coverage with limits not less than those described in Section 324.021(7) (limits of $10,000/$20,-000). The statute provided, however, that this uninsured motorist coverage was not applicable where any insured named in the policy rejected the coverage.

In 1971 the Legislature amended Section 627.0851(1), by providing:

“(1) No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in § 324.021(7), and in an amount up to 100 percent of the liability insurance purchased by the named insured for bodily injury, under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage; . . . ” Section 627.727(1), Florida Statutes (effective Jan. 1, 1972) (Emphasis added.)

In 1973 the Legislature passed Chapter 73-180, Laws of Florida, which further amended Section 627.727(1), by, among other things, requiring that no liability insurance policy should be issued unless uninsured motorist coverage was provided therein in an amount not less than the limits of liability insurance purchased by the insured. This statute retained the previous provision that the insured could reject the coverage.

In order to comply with the law in existence prior to 1971, or the law as amended thereafter, an insurance carrier would be required to advise its insured of the options available regarding the purchase of uninsured motorist coverage. Wilson v. National Indemnity Company, 302 So.2d 141 (Fla. 1st DCA 1974); Bernstein v. Liberty Mutual Insurance Company, 294 So.2d 63 (Fla. 3rd DCA 1974); 14 Univ.Fla.L.Rev. 455 (1962), Uninsured Motorist Coverage in Florida. Rhetorically, we might ask, how could a company comply with the law in effect at any of those times if it issued a policy, for example, with no uninsured motorist coverage, unless it had apprised the insured of the options available and the insured had rejected said coverage? Likewise, if an insurance carrier issued a policy in March 1973 (while 627.727(1), Florida Statutes (1971) was in effect) with bodily injury limits of $100,000/$300,000 and uninsured motorist coverage with limits of $10,-000/$20,000, or any other limits less than the bodily injury limits, it could not have complied with the law then in effect unless the insured had rejected the uninsured motorist limits equal to the bodily injury limits contained in the described policy.

This conclusion is supported by a Rule promulgated by the Department of Insurance of the State of Florida. Section 624.308(1), Florida Statutes (1971), provides that “the department [of insurance] may make reasonable rules and regulations necessary for or as an aid to the effectuation of any provision” of the Insurance Code. In implementing that authority the Department of Insurance promulgated Rule 4-28.-02, which provides as follows:

“4r-28.02 Increased limits — uninsured motorist. Chapter 71-88, Laws of the State of Florida, as respects the provision for increased uninsured motorist coverage limits, is applicable to policies with effective dates or renewal dates on or after January 1, 1972. Evidence must be maintained by the company that such coverage was offered in limits up to the bodily injury limits of liability applicable to the policy. The applicant or insured may accept limits for uninsured motorist coverage in an amount less than the bodily injury limits of the policy. Specific Authority 624.308, 120.031 FS. Law Implemented 627.727 FS. History-New 12-19-71.”

Appellant contends that Rule 4-18.02 violates Section 624.308(1), Florida Statutes (1971), in that it modifies or extends Section 627.727(1), Florida Statutes (1971). We disagree.

We recognize that our interpretation of Section 627.727(1), Florida Statutes (1971) conflicts with the holding of the Third District Court of Appeal in Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3rd DCA 1976). However, we decline to follow that decision. Further, we would point out that in a later decision of that Court, Allstate Insurance Company v. Baer, 334 So.2d 135, 136 (Fla. 3rd DCA 1976), it states in a footnote that Section 627.727(1), Florida Statutes (1971), requires a company issuing a liability insurance policy after January 1, 1972, to include uninsured motorist coverage in limits no less than the liability limits, unless rejected by the insured.

Accordingly, we find the apparent interpretation of Section 627.727(1), Florida Statutes (1971), by the trial judge to be correct. However, the entry of a summary judgment was erroneous because there remains an issue of fact as to whether the agent involved ever advised the insured, Welch, of his option to purchase uninsured motorist coverage with limits equal to the bodily injury limits contained in the policy.

The interlocutory appeal from the summary judgment regarding the limits of uninsured motorist coverage has been consolidated with an interlocutory appeal from an order vacating a previous order staying the arbitration proceeding initiated by ap-pellees. Appellant contends the order vacating the stay order was error because once appellee, Mark Beaver, filed suit for declaratory relief in the Circuit Court, that court then had jurisdiction not only to declare the rights of the parties vis-a-vis coverage, but also to adjudicate the entire controversy between the parties. It is interesting to note that, while appellees initiated the arbitration proceeding, they also initiated the suit for declaratory relief. In the latter suit they prayed for an adjudication not only of their rights regarding the coverage question, but also an adjudication of the damages to which Mark Beaver was entitled.

We hold that the trial court did err in vacating the stay order because of the rule announced in Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla. 3rd DCA 1964):

“It seems apparent that once either party to an insurance contract is successful in pleading a complaint for declaratory relief in the Circuit Court under the provisions of Ch. 87, Fla.Stat, F.S.A., [which is a court of general jurisdiction pursuant to Art. V, § 6, Florida Constitution F.S.A.] that said court is then fully empowered and should completely adjudicate all the rights of the parties relating to coverage, liability, damages, etc., in order that the rights of the parties not be determined in a piecemeal fashion.” Id. at 694. (Emphasis added.)

It may be that the order vacating the stay of the arbitration proceéding is an order granting a motion or application to compel arbitration and is thus a non-appeal-able order. Accordingly, we exercise our discretion to treat the interlocutory appeal in Case No. 76-1294 as a petition for writ of common law certiorari, Fla.App.Rule 4.2. See Harris v. State Farm Mutual Automobile Insurance Co., 283 So.2d 147 (Fla. 2nd DCA 1973).

In view of the foregoing, we reverse the order granting appellees a summary judgment in Case No. 76-1086, and we grant the petition for writ of certiorari in Case No. 76-1294, and quash the order of May 24, 1976, and remand the cause for further proceedings consistent with this opinion.

CROSS, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I believe the result announced in the majority opinion as to the interpretation of Section 627.0851(1) is a correct one and in accord with the legislative intent. However, this result is reached not only because of the language of the statute but almost in spite of it. The appellant contends that the amendment to Section 627.0851(1) created a limit as to the amount of uninsured motorist coverage that can be written in Florida. And, if the language in question is examined, out of context with the other language in the statute, and without consideration to the purposes of the statute, that contention appears valid:

No . . . insurance . . . shall be issued . . . unless coverage is provided ... in not less than the limits described in § 324.-021(7), and in an amount up to 100 percent of the liability insurance purchased by the named insured for bodily injury.

This seems to simply provide a minimum and a maximum, and indeed has been so construed. Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3d DCA 1976).

However, at the same time the above language was added to the statute it was also amended to provide that the coverage required was not applicable “to the extent that” it was rejected by any insured named in the policy. Before this amendment, minimum limits of $10,000/$20,000 were required unless uninsured motorist coverage was rejected by the insured. There was no limitation on the amount of such coverage that could be written. If the appellant’s interpretation of the amendment is accepted, then there would be no change created by the amendment other than to impose a limitation on the amount of such insurance that could be written. Moreover, no reason of any kind is postulated for the legislature’s action in imposing such restrictions. Such action would in fact be completely contrary to the legislature’s action in requiring uninsured motorist coverage in all policies written in Florida and would pose serious constitutional questions. Why would the legislature limit a type of coverage it has expressly required? I believe a more reasonable construction of the amendment requires us to acknowledge an ambiguity and then consider both changes together so that the statute provides expanded coverage up to the bodily injury limits which may not be applicable to the extent that it is rejected. This is the interpretation relied on by the Department of Insurance in promulgating Rule 4-28.02 set out in the majority opinion. Such an interpretation is consistent with the public policy considerations advanced by the legislature in enacting Section 627.0851(1) and is consistent with a substantive and purposeful change being made to the section by the 1971 amendment.

It is true that the legislature again amended the section in 1973 and laid to rest any question of its intent about the amount of required coverage. However, the 1973 amendment appears to simply resolve the ambiguity patent in the 1971 amendment and under consideration here. I believe such ambiguity has also been correctly resolved in the result reached herein which is in accord with purposeful change in the same direction of public policy clearly expressed by the legislature. A contrary interpretation results in either no change at all or in a turnabout from announced public policy.

      . Fla.Const. art. I, § 10.


text:
    Mildred McNASH, Appellant, v. Edward Hugh OXENHANDLER, Allstate Insurance Company, Walter Dean McNash, and Roger McNash, a minor, by and through his father and next friend, Appellees.
    No. 77-338.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 22, 1978.
    Charles A. Goff of Casoria, Goff & Blo-stein, P. A., Fort Lauderdale, for appellant.
    John E. Donahoe of Budick & Donahoe, Fort Lauderdale, for appellees.
   PER CURIAM.

This is the second time we have had an opportunity to review an award for appellants in this case.

Mildred McNash and her son, Walter, were injured in an automobile accident. Mildred, her husband and son sued the alleged tort-feasor and recovered a jury verdict which, on appeal, was reversed on the grounds of inadequacy. Upon remand the parties submitted the case to the court without a jury based upon the testimony adduced at the original trial, plus additional live testimony of Mrs. McNash. The trial judge rendered an award substantially higher for both Mrs. McNash and her husband than the original jury award.

Appellants still contend the award is inadequate, and we could well affirm a much larger award. However, we cannot say the record does not support the finding of the trial judge. Thus, to find as appellant suggests would require us to substitute our judgment for that of the trier of fact.

Accordingly the judgment appealed from is affirmed.

AFFIRMED.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: LETTS, Judge.

text:
    ST. CLOUD UTILITIES, an agency board or commission of the city of St. Cloud, Florida, a Municipal Corporation, Appellant, v. Erick S. MOORE, a minor by and through his natural father and legal guardian, Jack H. Moore, Jack H. Moore, Individually, Arthur L. Cassel d/b/a Cassel’s Garage, James M. Miller and David Milliron, jointly and severally, Appellees.
    No. 77-351.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 21, 1978.

      Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, and Stephen Miles, Kissimmee, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Nance, Cacciatore & Sisserson, Melbourne, for appellees Erick Moore and Jack H. Moore.
   LETTS, Judge.

This appeal is from a trial judge’s ruling that interest on a judgment modified by appellate decision commences from the date of the original jury verdict pursuant to Fla.App. Rule 3.15(a). We reverse.

This case comes to us for the second time. Previously, in reversing the trial judge, we held that the doctrine of comparative negligence does not alter the rule that joint tort feasors are each jointly and severally liable for all damages recoverable by a plaintiff. 337 So.2d 982, cert. den. 337 So.2d 809 (Fla.1976).

Accordingly, we earlier remanded the case for the sole purpose of having the trial judge reapportion the damages which he did by way of an amended final judgment.

Apparently, after the original jury verdict, before the first appeal, the judge took several months to decide how to apportion the damages prior to entering the final judgment previously reversed.

As a result, there are three possible dates on which the interest was to commence accruing under Section 55.03 Florida Statutes (1975). They are:

1. The date of the original verdict.
2. Several months later on the occasion of the original final judgment being entered.
3. The date of the amended final judgment.

We commence by eliminating the third alternative. No further judicial labor was required and the act mandated was purely ministerial. Kulhanjian v. Moomjian, 105 So.2d 783 (Fla.1958).

As to the two alternatives remaining, we are of the opinion that the interest should run from the date of the original judgment entered. The required mandate from this court was but a modification of an existing money judgment for the same amount by way of reapportionment among the several defendants. See Gilmore v. Morrison, 341 So.2d 779 (Fla. 4 DCA 1976).

The appellees argue that the controlling date should be that of the verdict in the light of Fla.App. Rule 3.15(a), which provides:

3.15(a). Issuance of Mandate. Unless the Court, by special order, shall otherwise direct, the clerk, upon the expiration of 15 days from the decision or order, shall issue such mandate or process as may be directed by the Court. When a judgment of reversal is entered which requires the entry of a money judgment on a verdict the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

We distinguish, because our previous reversal in this case did not require the entry of a money judgment for the simple reason that one for the exact same sum had already been entered and, in effect, only a modification of that existing judgment was required.

In so holding we would comment that if the trial judge had originally correctly apportioned the damages, interest would most certainly only have commenced to accrue upon the entry of the original final judgment. It would be less than just to now punish the appellant for the judge’s error.

REVERSED AND REMANDED IN ACCORDANCE WITH THIS OPINION.

CROSS and MOORE, JJ., concur.

      . We concede the wording in our opinion of reversal employs the word “reversed” and directs the entry of a new judgment. Nonetheless, we adopt the same explanation to be found in Smith v. Goodpasture, 189 So.2d 265, 267 (Fla. 4 DCA 1966): “. the mandate and the opinion taken together, although employing the word ‘reversed’ amount to reversal only in respect to the amount of the award and amounts to an affirmance in all other respects. Thus, interest is allowed on the judgment as reduced from the original date of the judgment.”

      . Less credits for sums paid in the meantime.


text:
    Raymond S. HURLEY and Vista Realty, Inc., Petitioners, v. The FLORIDA REAL ESTATE COMMISSION and Floyd M. Stevens, Respondents.
    No. 77-1756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 17, 1978.
    Ronald Sales of Law Offices of Ronald Sales, Palm Beach, for petitioners.
    Howard Hadley and Louis B. Guttmann, III, of Florida Real Estate Commission, Winter Park, for respondents.
   PER CURIAM.

Petition for writ of certiorari denied.

ALDERMAN, C. J., and ANSTEAD and MOORE, JJ., concur.


author: ERVIN, Judge.

text:
    J. T. SKINNER and Louise Skinner, his wife, Appellants, v. Jack H. SIMMS and Katie L. Simms, Appellees.
    No. EE-489.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1978.

      Charles R. Rowe, Ocala, for appellants.
    Harry C. Dozier, Jr., Ocala, for appellees.
   ERVIN, Judge.

Appellants-Skinners have lived on a tract of land since 1965 on which the appellees Simms hold a tax deed. This appeal involves the validity of the tax deed.

In 1958, Thomas Smith was conveyed the north Vi of Lot 28, west of a paved road in Section 6, Township 12 South, Range 23 East. His property, as then conveyed, is the shaded portion of the following diagram:

Several years later he built a house on the eastern half of his property and mortgaged that half to finance the building. The legal description contained in the mortgage read:

“The East Vz of the North Vi of Lot 28, West of the paved road, in Section 6, Township 12 South, Range 23 East.”

A close reading of this description shows it does not enclose half Smith’s property, but rather only that portion represented by the shaded area in the following diagram:

When the frame house was completed, Smith was dissatisfied with its condition and allowed the mortgaged property to be foreclosed.

After the foreclosure, the Skinners purchased the property and received a quitclaim deed from the mortgagee with the same description as above. Smith later conveyed the west 2V2 acres of his property to a grantee who subsequently conveyed to Gleason and Linda Whipple.

The tax assessor set up the following assessments:

“(i) J. T. SKINNER and LOUISE SKINNER, his wife, Parcel No. 04451-002-00, describing the following lands, to wit: The East V2 of the North Vi of Lot 28 in Section 6, Township 12 South, Range 23 East, West of the paved road.
(ii) GLEASON S. WHIPPLE and L. M. WHIPPLE, his wife, Parcel No. 04451-001-00, covering the following described lands, to wit:
West 2V2 acres of the West V2 of the North Vi of Lot 28, West of the paved Road, in Section 6, Township 12 South, Range 23 East.
(iii) THOMAS D. SMITH, Parcel No. 04451-000-00, covering the following described lands, to wit:
The West V2 of the North Vi of Lot 28, West of the paved road, except the West 2V2 acres, Section 6, Township 12 South, Range 23 East.”

The Skinners have continuously occupied all the property east of the 2V2 acres in the north Vi of Lot 28 owned by the Whipples or their predecessors since their conveyance in 1965. The tax certificates, however, were sold on the uncollected property taxes assessed to Thomas Smith. Appellee Jack Simms attended public sale in June, 1975, and purchased the tax deed for $1,515. The Simms then demanded possession of the land from the Skinners, who refused, and a petition for writ of assistance was filed. The Skinners contended, as affirmative defenses, the tax deed was void due to improper assessments and there were no delinquent taxes.

The Skinner’s counterclaim for reformation of the deed was properly dismissed, there being no joinder by the grantor of the deed. Bevis Construction Co. v. Grace, 115 So.2d 84 (Fla. 1st DCA 1959). The trial judge found the county assessor properly assessed the following lands

“West V2 of North Vk of Lot 28, West of paved road, except West 2V2 acres, Section 6, Township 12 South, Range 23 East,”

to Thomas Smith, the record owner; taxes were not paid when due, tax certificates were sold for non-payment, and upon application, a tax deed was duly and regularly issued to the Simms. Summary judgment was granted against the Skinners and the Simms placed in possession of the Smith parcel. We reverse.

The tax assessor incorrectly made a double assessment of the east half of the land lying west of the paved road. Smith was properly assessed for 2Vi acres, having a land value of $1,820 and a value for improvements of $3,680 for a total of $5,500. Smith, of course, never paid property taxes on this assessment, thinking he had lost the parcel due to foreclosure. It was this land the Simms bought to satisfy the outstanding tax certificates. On the other hand, the Skinners held title to land which, by its legal description, is very small in area. They were assessed, though, for the same value in land and improvements — $5,500— on the same 2.5 acres as Smith.® Had the tax assessor complied with Section 193.-023(2), Florida Statutes (1975), requiring that he physically inspect the property every three years, he would have discovered, in making his assessment, that the property enclosed by the legal description which was conveyed to the Skinners contained no improvements. Yet in preparing his real property assessment roll each year during the time the Skinners were in possession of the property prior to the issuance of the tax deed, the tax assessor continuously incorrectly appraised the property in the same amount which he had assessed to Smith. Their property thereby was subjected to a double assessment, an event clearly prohibited by law. Section 197.032, Florida Statutes (1975).

The Skinners have properly paid the taxes on the Smith parcel, which they thought was their land. Since no outstanding taxes were due, the certificates were improperly sold and the tax deed is void. The fact the Skinners do not have proper record title to the land on which they reside is not relevant. As to the validity of the tax deed, we are only concerned with whether taxes have been paid upon the parcel. The taxes were paid by the Skinners during certain years and in other years the property was exempt from taxation. If taxes have been paid on the property assessed before a tax sale occurs, the tax sale proceedings are a nullity and confer no title in the purchaser. Conant v. Buesing, 23 Fla. 559, 2 So. 882 (1887); Garner v. Larkin, 132 So.2d 298 (Fla.2d DCA 1961). Compare Shuptrine v. Wohl Holding Corp., 147 Fla. 185, 3 So.2d 524 (1941); Golden v. Grady, 160 Fla. 348, 34 So.2d 877 (1948); Helseth v. Cleveland Trust Co., 49 So.2d 91 (Fla.1950).

REVERSED.

BOYER, Acting C. J„ and SMITH, J., concur.