author: PER CURIAM. JONES, Justice

text:
    In re Johnny Ray PARKER v. STATE of Alabama. Ex parte Johnny Ray Parker.
    S.C. 2668.
    Supreme Court of Alabama.
    Nov. 4, 1977.
   PER CURIAM.

PETITION FOR WRIT OF CERTIORA-RI QUASHED AS IMPROVIDENTLY GRANTED. (For opinion below, see Ala. Cr.App., 351 So.2d 927.)

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, EMBRY and BEAT-TY, JJ., concur.

JONES, J., dissents, with whom SHORES, J., joins.

FAULKNER, J., not sitting.

JONES, Justice

(dissenting):

This case is before the Court upon writ of certiorari to review the conviction of Johnny Ray Parker, a juvenile, of second decree murder. I would reverse and remand.

On March 3, 1976, the body of Christine Lott was found at the L. & H. Salvage Yard, where she worked, in Morgan County. Early the next morning, Parker, a fifteen-year old, was questioned by Decatur police at his home. Though Parker was orally advised of his rights prior to the questioning, his mother was neither advised of his rights nor advised that he was a suspect in the murder case. Moreover, Mrs. Parker was not allowed to be present during the questioning and her testimony is to the effect that she was told by the police that she could not go to the police station with Parker.

Upon arrival at the police station, Parker was advised of his rights again. Thereafter, Parker read a “rights form” and signed a printed waiver of his rights. After being questioned by three detectives for forty-five minutes, Parker confessed to the murder and signed a written confession statement.

During this time, the police filed a petition with the Juvenile Division of the Circuit Court of Morgan County. The Juvenile Court determined that Parker should be detained. On March 10, the State filed a motion requesting that the case be transferred to Circuit Court and that Parker be tried as an adult. Upon motion by defense counsel, Parker’s mental condition was evaluated.

The Juvenile Court transferred the case to the Adult Division on May 3, 1976. At trial, the jury found Parker guilty of murder in the second degree, and his sentence was set at fifty years.

The Court of Criminal Appeals reversed the judgment of the trial Court. Upon rehearing, however, that opinion was set aside and withdrawn, and the judgment of the trial Court was affirmed.

Parker contends that his confession was inadmissible at his trial because, he asserts, the new Juvenile Code (No. 1205, S. 400, §§ 5-101, et seq., 1975 Ala. Acts) was in effect at that time and prevented its inclusion. It is true that if the Act was in effect at the time of his trial, § 5-125 prevents admissibility of the youth’s confession. This section provides in pertinent part:

“Unless advised by counsel, the statements of a child . . . made while in custody . . . shall not be used . in a criminal proceeding prior to conviction.”

The Act states in § 18-103 that it is to “become effective immediately upon its passage and approval by the governor, except to the extent otherwise provided herein . . .” The Act was approved on October 10, 1975.

Thus, on its face it would appear the section became effective on October 10. This, however, does not satisfy our investigation of the matter. Certainly, this Court does not have the power to pass legislation. Art. 18, § 282, Const. of Ala. 1901. It does have the authority, however, to interpret legislation passed by the Legislature. State v. Union Tank Car Co., 281 Ala. 246, 201 So.2d 402 (1967); and Richardson v. Morrow, 276 Ala. 385, 162 So.2d 480 (1964). It is under this authority that I would resolve that the effective date of Art. 5, Act 1205, was January 16,1977. Without a full recitation of the reasons behind this interpretation, suffice it to say that the Legislature surely intended this latter date because only then would the District Courts, an integral element of both the juvenile code and of the unified court system, be in existence. The Legislature certainly had this in mind and this Article falls within the “otherwise provided” clause. See Huggins v. Huggins, 331 So.2d 704 (Ala.Civ.App.1976).

For this reason, Act 1205 is not applicable and this case falls under prior law, as contained in Tit. 13, §§ 350, et seq., Code. Section 377 provides:

“The voluntary admissions or confessions of any . . . delinquent child, as described herein . . . made to the probation officer, or any other person, in reference to any cause or matter in such court, if otherwise competent, shall be received in such court as legal evidence.”

Therefore, had our interpretation of the “voluntary admissions” section of the applicable code been the sole issue raised, the confession’s admissibility would be evident. This is not the case before us, however.

Parker’s second contention is more viable in that he contends that a specific finding of delinquency is required by the Juvenile Court before a youth may be transferred to the adult division pursuant to Tit. 13, § 364, Code. In support of his contention, Parker cites Seagroves v. State, 279 Ala. 621, 189 So.2d 137 (1966). In that case, it was held that two questions are presented in the determination whether a child should be transferred to the adult division.

“First, the court must decide whether the child is a delinquent child. If the state fails to prove by competent evidence that defendant is delinquent, then the case would appear to be at an end.
“Second, the court must decide, after thorough investigation or exercise of its disciplinary measures, whether the child can, be made to lead a correct life and be properly disciplined under the provisions of Chapter 7, Title 13. . . .” 279 Ala., at 623, 189 So.2d at 139.

In other words, the Juvenile Court must determine that the child was delinquent, and, then, that he was incorrigible. See Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970).

The case of Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972), refines these requirements as follows:

“[T]he finding of the trial court that the appellant-defendant was incorrigible necessarily included a finding of delinquency. Had the court determined the absence of delinquency, there would have been no need to pass on the issue of incorrigibility. The latter issue, unfavorable to the minor, presupposes that the minor was a delinquent. There was no necessity for a specific finding to that effect.” 289 Ala., at 189, 266 So.2d at 749.

The viability of these decisions was seriously impaired, however, by a recent decision of the United States Supreme Court. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Court held that an adjudicatory determination of delinquency placed the juvenile in jeopardy. Further proceedings in the adult forum would place the juvenile twice in jeopardy, thus violating the Fifth Amendment of the Federal Constitution. See also Art. 1, § 9, Const. of Ala. 1901.

In compliance with Breed, this Court has reinterpreted Tit. 13, § 364, Code, to require a finding of probable cause concerning the specific act leading to the delinquency petition, rather than an adjudication of delinquency. Moreover, the statute requires a finding of incorrigibility. Boyd v. State, 341 So.2d 680 (Ala.1976). This procedure was specifically authorized by Breed.

“We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding.” 421 U.S. at 538, 95 S.Ct. at 1790, n. 18.

Thus, a two-step determination is still required under Tit. 13, § 363, Code. The first step, however, is a finding of probable cause rather than an adjudication of delinquency. As shown, to hold otherwise would render the statute unconstitutional.

This Court, in Steele, held that a finding of incorrigibility necessarily included a finding of delinquency. Without speaking to the validity of that statement, or to the propriety of the opinion itself, clearly a finding of incorrigibility does not necessarily include a finding of probable cause. The Juvenile Court is to determine, from the evidence presented, whether there is probable cause that the accused youth committed the act as alleged in the petition. Thereafter, assuming the first determination has been made, the Court “after thorough investigation or exercise of its disciplinary measures” must determine that the accused “cannot be made to lead a correct life and cannot be properly disciplined” by the juvenile authorities. While a determination of incorrigibility may not be reached before the probable cause issue is resolved, the two are not synonymous and one does not flow naturally from the other. Therefore, two specific, distinct and separate determinations must be made before a youth may be transferred under Tit. 13, § 364, Code.

In the case before us, there is no indication that the Juvenile Court ever reached the probable cause issue. Its order, transferring jurisdiction over Parker to the Circuit Court, alludes only to certain inadequacies of the juvenile justice system as regards the petitioner. The Court noted that Parker, in a prior and unrelated case, had been adjudged delinquent. This, however, goes only to the incorrigibility issue because the delinquency mentioned in the statute refers to the present acts for which the petition was sought. Any prior acts would be irrelevant as to the probable cause issue. Without a determination of probable cause, the trial Court was without jurisdiction to consider the incorrigibility issue, and thus without any basis to invoke the jurisdiction of the circuit court.

By quashing the writ, the majority implicitly holds that, in order to effect transfer, there is no requirement for even a prima facie or probable cause showing that the minor committed the offense charged in the motion for transfer; i. e., the mere allegation of the commission of a felony, along with a showing of incorrigibility, according to the majority, is sufficient. This is our point of difference.

It should be noted that the transfer provision of the new juvenile code, § 12-15-34, Code of Alabama (1975), concludes with this admonition:

When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion which shall include a finding of probable cause for believing that the allegations are true and correct.

SHORES, J., concurs.

      . This resolution, dated December 1, 1975, provides in part:
      “Whereas, the Supreme Court of Alabama, in reviewing Act No. 1205, Acts of Alabama 1975, approved October 10, 1975, concludes that Article 5 shall become effective January 16, 1977, statutory provisions currently effective remaining in full force and effect until that time .

      . The District Court is essential to the Article in that it has original jurisdiction over juvenile cases. No. 1205, S. 400, § 5-102, 1975 Ala. Acts. Because it does not come into existence until January 16, 1977 (No. 1205, S. 400, § 4-101(a), 1975 Ala. Acts), the Legislature intended the law to remain unchanged until that time.

      . No ruling of the trial Court was invoked as to the constitutionality of this statute; therefore, its constitutionality, vel non, is not before us. Opinion of the Justices, 281 Ala. 50, 198 So.2d 778 (1967); Opinion of the Justices, 267 Ala. 110, 100 So.2d 565 (1958); and Wages v. State, 225 Ala. 2, 141 So. 707 (1932).


source: Caselaw Access Project

author: SUNDBERG, Justice.

license: Public Domain

text:
    Jessie Lee GREENE, Petitioner, v. STATE of Florida, Respondent.
    No. 50451.
    Supreme Court of Florida.
    May 5, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief Asst. Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., for respondent.
   SUNDBERG, Justice.

By petition for certiorari, we review a decision of the District Court of Appeal, Fourth District, Greene v. State, 351 So.2d 1031 (filed August 20, 1976), which allegedly conflicts on the same point of law with a decision of this Court (Land v. State, 293 So.2d 704 (Fla.1974)), a prior decision of the District Court of Appeal, Fourth District (Danahey v. State, 298 So.2d 444 (Fla. 4th DCA 1974)), and a recent opinion from the District Court of Appeal, First District (Pitts v. State, 335 So.2d 367 (Fla. 1st DCA 1976). As the forthcoming reasoning will more fully expound, we have jurisdiction.

Petitioner was charged and convicted of robbery in a jury trial. Prior to the trial, petitioner made a motion to suppress a confession allegedly coerced from him by the police. The trial court denied this motion to suppress with the simple statement, “I am going to deny your motion to suppress. I think you can argue all that to the jury.” No determination was made by the judge as to whether the confession was voluntary. On appeal, the sole question involved was whether the trial court erred in denying petitioner’s motion to suppress without an unequivocal and explicit finding that appellant’s confession was freely and voluntarily given. The District Court' of Appeal, Fourth District, stated that McDole v. State, 283 So.2d 553 (Fla.1973) was disposi-tive. That case requires a trial judge to make his conclusion as to the voluntariness of a confession appear clearly in the record. Finding that the mandate of McDole had not been observed, the District Court of Appeal temporarily relinquished its jurisdiction and remanded the case to the trial judge to consider and made an explicit ruling on the issue of voluntariness. Petitioner might then file that order in the appellate court for further appropriate proceedings if he desired.

Petitioner suggests the remedy afforded by the District Court of Appeal in the instant case was inadequate. Under circumstances essentially the same as in the case at bar, this Court in Land v. State, supra, ruled that a new trial is mandated. As this Court stated in Land when enunciating the rationale for requiring a new trial:

“. . . Otherwise, the result is ‘piecemeal’ prosecution. Where the hearings come after the trial, the likely result is that judges, who are concerned with, as was the majority below, ‘court dockets [that] are entirely too congested’ become somewhat less sensitive to due process considerations, and see retrials as ‘useless and expensive trials which will serve no real purpose.’ We, however, are convinced that, when a man’s liberty is at stake, considerations of due process outweigh those of economics. In the words of dissenting Judge Johnson:
‘. . . I have serious doubts that a trial judge, after a conviction by a jury composed of fellow community members and probable friends of whose opinion he may view with high regard, can anymore be uninfluenced by such jury conviction than the jury can be uninfluenced by the fact of a confession.’ [Land v. State, 280 So.2d 711 (Fla. 1st DCA 1973) (Johnson, J., dissenting)].” Land v. State, 293 So.2d 704, 708 (Fla.1974). (Footnotes omitted.)

A judge is not a computer which can consistently make an objective determination as to the admissibility of a confession without the possibility that a prior jury verdict of guilt may influence that ruling. Due process consequently entitles the petitioner to an independent determination of admissibility, held before admission of a confession and jury deliberation thereon. Accordingly, the petition for writ of certio-rari is granted, that portion of the decision of the District Court of Appeal relinquishing jurisdiction to the trial court is quashed, and this cause is remanded to the District Court of Appeal, Fourth District, with instructions to remand to the trial court for a new trial.

It is so ordered.

ADKINS, BOYD and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


author: PER CURIAM. BOYD, Justice,

text:
    Levis Leon ALDRIDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 46958.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied Dec. 5, 1977.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This case is here on direct appeal from the first degree murder conviction of Leon Aldridge and the imposition of a sentence of death. The trial court’s sentence was preceded by a death sentence recommendation of a jury. Our jurisdiction to review this case is based on Article V, § 3(b)(1), of the Florida Constitution, and Section 921.-141(4), Florida Statutes (1975).

The facts giving rise to Aldridge’s conviction are not relevant to the points on appeal except insofar as they bear on the imposition of the death sentence. Aldridge previously had been convicted of a felony. While on parole, and after serving approximately 10 years in prison, he had been employed and befriended by the murder victim. The evidence at trial showed that Aldridge had planned to rob the victim’s restaurant, and that he had borrowed a shotgun and shells in advance. During the commission of the robbery, three shotgun blasts were fired at the victim as he left the rear of the restaurant to enter his car. At least one of the blasts struck him in the head.

Aldridge argues for reversal of his conviction on three points, the first of which is the introduction of an allegedly “gruesome” photograph showing the victim’s body near his automobile at the rear of his restaurant. The photograph was introduced despite the fact that both sides had stipulated to the date and place of death. We agree with the trial judge’s ruling on admissibility. The test for admission in Florida is “relevance”. The photograph here was relevant to the details of the events leading up to the crime, in that it showed the location of the victim’s body in relation to the restaurant which had been robbed. This one photograph was not so objectional and inflammatory that the trial jury’s verdict of guilt should be set aside. See Halliwell v. State, 323 So.2d 557 (Fla.1975); Funchess v. State, 341 So.2d 762 (Fla.1976).

Aldridge raises two points on appeal relative to charges given to the jury. The first involves a direction to the jury that it' must find a unanimous verdict. Aldridge contends this instruction deprived him of the right to a so-called “hung” jury. In oral argument, Aldridge’s counsel conceded that this point alone could not stand independently as a basis for reversal. We agree. When this instruction is considered in the context of the whole charge, it is clear that no pressure was placed on the jurors to return a verdict to which they did not agree. This case is not analogous, as Aldridge contends, to Jones v. State, 92 So.2d 261 (Fla.1956).

Aldridge also attacks the trial judge’s instruction on second degree felony murder. In this case, just as in Adams v. State, 341 So.2d 765 (Fla.1976), the trial judge read to the jury a set of standard form instructions which had the net effect of barring a conviction for second degree felony murder. As we stated in Adams, however, those instructions are proper where the perpetrator of the independent felony (robbery here) also committed the homicide. The verdict indicates the jury found that Aldridge had killed a man while in the course of committing a robbery, a form of murder described as “first degree” in Section 782.04(1)(a), Florida Statutes (1973). There was no reversible error.

Aldridge’s final points on appeal relate to the imposition of a death penalty. He asserts the unconstitutionality of the death penalty statute, which has already been resolved against him in other cases, and the alleged error of the trial judge in describing the crime as heinous and atrocious in his written findings of aggravating and mitigating circumstances. We deem it unnecessary to pass upon Aldridge’s challenge to the “heinous” finding of the trial judge inasmuch as there were no mitigating circumstances and adequate aggravating circumstances to sustain the penalty. Aldridge was at the time of the murder already under a sentence of imprisonment, and the capital felony was committed while Aldridge was engaged in the commission of a robbery.

For these reasons, we must conclude, as did the jury and the trial court, that the aggravating circumstances preponderate and the death penalty was warranted. The conviction and sentence are affirmed.

OVERTON, C. J., and ADKINS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

BOYD, Justice,

dissenting.

For two reasons I must respectfully dissent.

First, the only testimony of substance tying appellant to the crime was given by a convicted felon who had purchased and possessed the murder weapon in violation of conditions of his own parole. The witness admitted at trial that he had committed perjury by lying under oath to police in connection with statements made about this crime. He further admitted he feared being returned to prison for buying and lending the death weapon to appellant. He had compelling reasons to implicate appellant or anyone else in the crime, since his gun was proven to have been used in the killing.

It very well may be true that appellant is the murderer, but the evidence submitted at the trial fails to constitute proof of guilt beyond and to the exclusion of reasonable doubt.

Under the statute of this State prescribing the procedures for imposition of sentences for capital felonies, Section 921.-141, Florida Statutes, this Court is not permitted to approve a sentence of death until each case is weighed by the criteria stated in the statute. The facts shown in the record do not afford a lawful basis for conviction or infliction of capital punishment.

Second, even if the evidence had been sufficient to convict, I think a finding of first degree murder would have been improper. The trial court charged the jury that it could not find the defendant guilty of second, degree murder if it found the murder to have occurred during the perpetration of a robbery. This charge was directly contrary to the statute on second degree murder then in existence, Section 782.04(2), Florida Statutes (1973). See my dissent in Adams v. State, Fla., 341 So.2d 765 opinion filed December 16, 1976.

Normally, I would feel bound by the precedent of Adams, supra. However, human life is so precious that I cannot concur in an opinion which sends a condemned person to death after instruction to the jury in direct conflict with the statute.

      . Young v. State, 234 So.2d 341 (Fla.1970).

      . Alford v. State, 307 So.2d 433 (Fla.1975); Dixon v. State, 283 So.2d 1 (Fla.1973). See also, Proffitt v. State, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

      . But see Halliwell v. State, 323 So.2d 557 (Fla.1975), as to the meaning of “heinous” and “atrocious” in our death penalty statute.

      . In this case, the trial court found no mitigating circumstances and Aldridge does not contest that finding on appeal. Rather, Aldridge, through his counsel, admitted the lack of mitigating circumstances and specifically requested the trial judge to impose the death penalty rather than incarcerating him for the minimum 25 years under our life sentence statute. This request, of course, has no bearing on our decision. We have a duty to review the record in every case where the death penalty is imposed. § 921.141(4), Fla.Stat. (1975).

      . (2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.


author: BOYD, Justice.

text:
    Leveral RAFFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 49872.
    Supreme Court of Florida.
    July 14, 1977.
    Rehearing Denied Dec. 6, 1977.

      Guillermo A. Ruiz and Philip J. Padovano of Ruiz, Padovano & Schrader, St. Peters-burg, for petitioner.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

We are reviewing the decision of the District Court of Appeal, First District, reported at 333 So.2d 532 (Fla. 1st DCA 1976), because it conflicts with Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975).

This is the factual background as related in the opinion of the District Court. In early December of 1973 the Florida Department of Law Enforcement received information that Leveral Raffield was involved in importing marijuana somewhere along the Florida Panhandle. Suspicion of Raf-field grew when Marine Patrol officers discovered tracks from a large vehicle and 261 grams of scattered marijuana on a creek bank, near his farm. Other government agents reported that Raffield, a former welfare recipient, was showing a lot of money and had purchased the forty-acre farm in his wife’s name. The Department set up surveillance in a fire tower from which the creek bank and part of Raffield’s property were in view.

In the meantime, government agents began to observe a Winnebago believed to have been purchased in Jacksonville by a suspected drug dealer. On December 23 the Winnebago, accompanied by a Dodge van and a pickup truck, headed north from Gainesville toward the Panhandle. At one a. m. the following morning, the day of Christmas Eve, agents observed the vehicles on a road leading to either Raffield’s farm or Highway 71. Agents posted at Highway 71 did not see the vehicles pass. An hour and a half or so later the vehicles, much lower to the ground as if heavily laden, returned, presumably from Raffield’s farm. They were stopped in Tallahassee at six a. m., Eastern Standard Time, and searched. Each contained marijuana and the drivers were arrested.

Upon learning of the arrests an attorney for the Florida Department of Law Enforcement directed agents to search Raffield’s barn without attempting to obtain a warrant. The barn was searched at nine a. m., Eastern Standard Time, and in it were discovered two vehicles, each holding large quantities of marijuana. Raffield’s motion to suppress introduction of the marijuana was denied. At trial it was admitted into evidence over his objection. He was convicted of possession of marijuana and conspiracy to sell or deliver marijuana for which he received consecutive imprisonment sentences totalling ten years.

Raffield attacked his conviction before the district court for being obtained with evidence seized in an unreasonable search contrary to the Fourth Amendment to the U.S. Constitution. The state argued that the search was reasonable and therefore excepted from the warrant requirement in two ways: Raffield consented to it and there existed exigent circumstances, coupled with probable cause to search. The district court declined to consider the issue of consent because it found the latter exception to apply and affirmed the conviction. Judge Mills dissented because he could not find that exigent circumstances existed.

We agree with Judge Mills. The state has the burden of showing a warrant-less search comes within an exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It has not met that burden here.

Probable cause to search plus exigent circumstances will usually justify a warrantless search. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The state claims that the circumstances under which the search of Raffield’s barn was undertaken were sufficiently exigent because it was likely that the arrested drivers would alert Raffield by telephone call so that he could dispose of the marijuana and because it was too difficult to obtain a warrant on the morning of Christmas Eve. These contentions do not carry the state’s burden of showing the search to be within an exception to the warrant requirement.

The timing of the drivers’ arrest does not justify the warrantless search, either. Once the drivers were arrested and the agents unquestionably had probable cause to search Raffield’s premises there should have been an attempt to obtain a warrant because the agents had no reason to believe Raffield would learn of the arrest before its issuance. There were five circuit judges in the circuit encompassing Gulf County, not to mention county judges who serve as magistrates. The agents and the Department attorney should have assumed that these judicial officers would have entertained a warrant request even on Christmas Eve. If a magistrate could not have been located and the agents reasonably believed that the evidence might have been destroyed then exigent circumstances would have existed. Even had such an attempt been made, however, the existence of an emergency plus probable cause would not have made the warrantless search reasonable under the circumstances of this case.

As the district court said in Hannigan, supra,

“Inasmuch as appellant’s arrest was obviously part of a substantial well-planned drug ‘bust’, the police should have had a judge at hand for the consideration of search warrant applications, or at least had one on call.” 307 So.2d at 852.

The Department of Law Enforcement had staked out Raffield’s farm in early December and surveillance continued uninterruptedly as the Christmas holidays approached. The proper course would have been to have made arrangements for a judicial officer’s availability for warrant purposes. If such an arrangement had not worked and alternative attempts to locate a magistrate had failed, a warrantless search could have been undertaken once sufficient time had passed to make substantial the likelihood that Raf-field would soon learn of the arrests. The officers inaction in the face of the requirements of the Fourth Amendment subjects the seized marijuana to the exclusionary rule unless saved by the state’s claim that Raffield consented to the search. That issue, left open by the district court opinion, has not been briefed or properly argued before this Court.

For that reason, the cause is remanded to the district court to consider the issue of consent and its decision is quashed to the extent it is inconsistent with this opinion.

It is so ordered.

ADKINS, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., dissents.

       The attorney felt a warrantless search was justified for two reasons. First, he feared marijuana in the barn would be destroyed since it was likely the arrested men would alert Raf-field by telephone call. Second, he felt it would be difficult to secure a warrant on Christmas Eve. The attorney later conceded that although Raffield had been under suspicion for several weeks no attempt was made to learn of the availability of a magistrate should a search warrant be needed. Likewise, no effort was made to obtain a warrant during the three hours which elapsed between the arrests of the drivers and the search.


author: PER CURIAM. ENGLAND, Justice,

text:
    Richard Henry GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 48698.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Dec. 5, 1977.
    Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant, Richard Henry Gibson, was charged by indictment with the premeditated murder of Antonio Chumbo. The jury found appellant guilty as charged and recommended that he be sentenced to death. The trial court so ordered. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. After careful review of the entire record, we affirm the judgment and the sentence.

The facts are as follows: On the evening of May 9, 1975, Antonio Chumbo and Pedro DeMedeiros, two Brazilian seamen whose ship, the Itapua, was docked in Jacksonville, Florida, left their ship to go into the city. During the course of the evening, they had several beers at various bars in town. While they were in one of the bars, their activities were observed by appellant and his companion, Thomas Lee Calvin, and together they conceived a plan to “roll” the sailors. To aid them in their plan, they enlisted the assistance of Delores Walker. Appellant explained to Miss Walker what she was to do and where she was to take the two men. Walker then enlisted the assistance of another young woman, Wanda Payton. Miss Payton was apparently unaware of the planned robbery.

Later that evening, the two women struck up an acquaintance with the sailors and invited them to their house to spend the night. On the morning of May 10,1975, shortly after midnight, Chumbo and DeMe-deiros got into a car with Gibson, Payton, and Walker. After they had traveled a short distance, Walker, who was driving, turned down a dark street and stopped the car. Gibson directed the two men to get out of the car and to hand over their money. As Chumbo got out of the car, offering his money and begging not to be shot, Gibson shot him twice in the head. DeMedei-ros was also shot but was not fatally wounded.

Appellant does not challenge his conviction. All assignments of error are directed to the sentencing portion of the trial.

The sentencing proceeding in this case consisted solely of arguments of counsel. No evidence was presented. As it appears in the record, appellant’s counsel’s remarks to the jury were very brief:

MR. DEMPSEY: May it please the Court.
Ladies and gentlemen, I am going to assure you that I do not believe I will be here five minutes. I do not think that, in the light of three days that we have been here, it takes a great deal to be said, at this time.
I do want to comment on several things that Mr. Austin has said. He read you what purports to be some statements out of some transcripts. One, supposedly, made by Mr. DeMedeiros and one made by Wanda Payton.
I call your attention to the fact that Mr. DeMedeiros cannot speak English; I think the testimony was that Mr. Chum-bo could barely speak English so if Mr. Chumbo was speaking English, I suggest to you Mr. DeMedeiros wouldn’t know what he was saying.
Then, Wanda Payton testified to you she couldn’t understand either one of them. Based on what you have heard in this case up until this point in time, I do not think it is necessary to pursue this thing. I think you have heard the facts; we can stand up here and argue until we are purple in the face.
Mr. Austin indicated how can you stop this behavior in the community. Ladies and gentlemen, I will submit to you that you won’t stop this kind of behavior in the community by convicting one and letting two go.
I have nothing further, Your Honor.

Based on these remarks, appellant argues that he received ineffective assistance of counsel at the advisory portion of the trial. Appellant specifically points to counsel’s failure to offer facts in mitigation.

This point is raised for the first time on appeal and was not previously ruled upon by the court below. In State v. Barber, 301 So.2d 7 (Fla.1974), we held that the issue of adequacy of representation by counsel cannot properly be raised at this time. Except where the error is fundamental, an appellate court must confine itself to a review of those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Ashford v. State, 274 So.2d 517 (Fla.1973); Silver v. State, 188 So.2d 300 (Fla.1966). In any event, the alleged incompetence must be such that the trial was reduced to a mockery or a sham. Parker v. State, 295 So.2d 312 (Fla. 1st DCA 1974); McCrae v. State, 313 So.2d 429 (Fla. 3d DCA 1975); Biggs v. United States, 318 F.Supp. 212 (N.D.Fla. 1970). There is nothing in the record to support such a finding by this court. It is probable that appellant’s counsel offered nothing in mitigation because there was nothing to offer. This is substantiated by the findings of the trial judge. Having had the additional benefit of a presentence investigation report, she determined that there were no mitigating circumstances. Counsel is not required to manufacture facts or arguments where none exist.

We reject appellant’s contention that Section 921.141, Florida Statutes (1975), is unconstitutional on the basis of State v. Dixon, 283 So.2d 1 (Fla.1973).

We also reject the argument that appellant was denied fundamental due process of law when:

(a) The prosecutor was permitted to argue to the jury that they should recommend the death penalty as a deterrent to crime;
(b) The prosecutor was permitted to argue to the jury that the testimony was overwhelming and uncontradicted that appellant “pulled the trigger”; and
(c) The prosecutor was allowed opening and closing arguments to the jury in the sentencing portion of the trial.

The comments of the prosecutor regarding the deterrent effect of the death penalty, read in context, were not so prejudicial as to require a new trial. Darden v. State, 329 So.2d 287 (Fla.1976). Furthermore, appellant is precluded from asserting this argument since he failed to object to the allegedly improper prosecutorial comments at trial. Songer v. State, 322 So.2d 481 (Fla.1975); State v. Jones, 204 So.2d 515 (Fla.1967); Tillman v. State, 44 So.2d 644 (Fla.1950).

The comments referred to in point (b) had a basis in the record and were therefore proper. Songer v. State, supra; Wade v. Wainwright, 266 So.2d 378 (Fla. 4th DCA 1972); Roundtree v. State, 229 So.2d 281 (Fla. 1st DCA 1969).

As to point (c), appellant’s counsel not only failed to object to the procedure but acquiesced in it after full discussion with the prosecutor and the bench.

A more serious question is raised by appellant’s contention that the trial judge improperly weighed the aggravating and mitigating circumstances in arriving at a sentence. Three circumstances were listed in aggravation:

1. The murder was committed during the commission of an armed robbery. Section 921.141(5)(d), Florida Statutes (1975).
2. The murder was committed for pecuniary gain. Section 921.141(5)(f), Florida Statutes (1975).
3. The murder was especially heinous, atrocious, and cruel. Section 921.-141(5)(h), Florida Statutes (1975).

There were no mitigating circumstances. Appellant argues that the trial judge improperly combined numbers (1) and (2). Robbery, by its very nature, includes a motive of pecuniary gain. Thus, in all robbery murders, these two factors will be identical. We agree and have so held in Provence v. State, 337 So.2d 783 (Fla.1976). In Elledge v. State, 346 So.2d 998, 1003, opinion filed April 7, 1977, this court stated: “We must guard against any unauthorized aggravating factor going into the equation which might tip the scales of the weighing process in favor of death.” However, where there are no mitigating circumstances, as in the case here, there is no danger that an unauthorized aggravating factor has served to overcome the mitigating circumstances in the weighing process dictated by our statute. Therefore, although the trial judge improperly combined the two aggravating factors, the aggravating factors which remain are sufficient to justify the sentence of death imposed below.

Accordingly, the judgment and sentence are affirmed.

It is so ordered.

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

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

ENGLAND, Justice,

concurring in part, dissenting in part.

I agree with my colleagues that Gibson’s conviction should be affirmed. I dissent from that portion of the opinion affirming the sentence, on the ground that Gibson did not have adequate assistance of counsel in the advisory proceeding.

      . The second count of the indictment charged appellant with robbery.

      . It is our responsibility, however, to review the entire record to determine whether reversible error was committed. We find no such error.

      . Now, ladies and gentlemen, I have been the heavy, I took the voir dire we call it when we ask you what the questions and what your opinion was and you said you didn’t have any strong convictions against the death penalty and I am up here now asking you to sentence a man to death and I don’t like to feel — I don’t feel real good in the pit of my stomach right now. My knees don’t feel real strong right now because I don’t like it, I detest it, but I took an oath and we are a nation of laws and we are sworn to follow that law.
      I don’t want to murder Gibson, I never saw him before a week ago. I don’t know a thing about him. I really don’t want to hurt him.
      Ladies and gentlemen of the jury, the law of the Florida Legislature for a reason says that if you kill under these circumstances, when you are robbing, and you do it under these circumstances where there is aggravation, that you should die and I think they did it and I believe they did it and I think I am justified in asking here that you recommend to this Judge that she put them in the electric chair and share that horrible burden with her for the reason that it tells other people don’t do it.
      It tells other people this is — you just cannot do this and get away with it, you cannot gun down your fellow man and get away with it. You have to draw the line.
      The People of the State of Florida, the People of Jacksonville, the People of Duval County, have got to draw the line on animal-istic behavior; you have got to stop it. And that is why we bring 12 people in that know nothing about the facts of the case, that will be the conscience of this community and when they speak and the Court asks you to advise and to help us with this horrible thing.
      But I submit to you under your oath that you have got a duty in this case, under the aggravation and mitigation that the Judge will tell you about, to return a verdict of death and I don’t do it because I like it.
      I don’t do it because I like to see people die. I don’t want to do that, I am asking because I think it is the law and it is the only way we can live in a civilized society. It must be by law — it must be by law.

      . Well, the conviction is overwhelming in this case — he pulled the trigger, but even if he didn’t pull the trigger, he was an active participant in it, helped set it up, he planned it and schemed it all evening long, helped carry it out and there is overwhelming testimony and the uncontradicted testimony is that he, again, pulled the trigger and shot one man in the head ....

      . The trial court’s findings of fact in aggravation:
      (a) Whether the defendant was under sentence of imprisonment when the defendant committed the murder of which the defendant has been convicted.

        Finding: Gibson was not under sentence of imprisonment when he committed the murder of which he has been convicted.
      (b) Whether the defendant has previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person.

        Finding: Gibson has not previously been convicted of any capital felonies or of any felonies involving the use or threat of violence to the person.
      (c) Whether, in committing the murder of which the defendant has been convicted, the defendant knowingly created a great risk of death to many persons.

        Finding: Gibson did not create a great risk of death to many persons. He did, in murdering Chumbo, create risk of death to the other four people present and, in fact, left one of those people, DeMedieros, to die.
      (d) Whether the murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery or rape.

        Finding: The murder was committed while Gibson was engaged in the commission of an armed robbery of two people.
      (e) Whether the murder of which the defendant was convicted was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

        Finding: The murder had the purpose of silencing the victims of the robbery. It was not, however, directly committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
      (f) Whether the murder of which the defendant has just been convicted was committed for pecuniary gain.

        Finding: The murder was committed during the commission of an armed robbery of two people which Gibson committed for pecuniary gain.
      (g) Whether the murder of which the defendant has just been convicted was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

        Finding: The murder was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
      (h) Whether the murder of which the defendant was convicted was especially heinous, atrocious or cruel.

        Finding: The murder was committed after a robbery had been planned by Gibson. Gibson then murdered one person by shooting him twice in the head. At the same time Gibson killed Chumbo, he also shot DeMedie-ros and left him lying wounded in the gutter.

      .The trial court’s findings of fact in mitigation:
      (a) Whether the defendant has no significant history of prior criminal activity.

        Finding: The defendant has a significant history of prior criminal activity related as follows:

        Juvenile: On February 2, 1962, Gibson was found incorrigible, growing up in idleness and crime, after he had stolen a panel truck from the Arnold Company, 38 East Union Street. On February 2, 1962, Gibson was found guilty of Breaking and Entering and stealing from the Florida Business College, 1214 Jessie Street. While Gibson was being held in custody on these charges in Duval County, he escaped. On September 6, 1962, Gibson was arrested as a Runaway and charged with stealing a 1955 Ford for which he was found guilty and sentenced to the Arthur G. Dozier School for Boys, Marianna, Florida, to remain no longer than January 7, 1968. Gibson remained at the Arthur G. Dozier School for Boys for eight and one-half months and then was released. On November 6, 1963, Gibson was arrested for Robbery having stolen $12.50 from the store of Elizabeth Clinger, 354 East 21st Street. Gibson was given a suspended sentence on the condition that he leave Duval County for a period of not less than one year.

        Adult: On January 17, 1965, Gibson was arrested in Jacksonville and charged with Larceny of an Auto, Case No.65-703, in that he stole a 1954 Ford on January 12, 1965, belonging to Emmett Bruce. On March 31, 1965, Gibson pled guilty to the lesser offense of Using a Motor Vehicle without the Owner’s Consent and was placed on one year’s probation. On April 7, 1965, Gibson was arrested in Jacksonville for Breaking and Entering a Business and Possession of and Carrying a Sawed-off Shotgun. In this case Gibson was later charged with Burglary of a Pic N’ Save Drug store. A second count charged him with Grand Larceny in that he took $274.00 and a pistol valued at $15.00. Gibson pled guilty to the first count and was sentenced to two years in the Duval County Jail. On May 4, 1965, Gibson was arrested in Jacksonville for Violation of Probation, Case No.65-703. Gibson’s probation in Case No. 65-703 for using a Motor Vehicle without the Owner’s consent was revoked based upon his arrest on April 7, 1965, for Burglary, and he was, thereafter, sentenced to six months in the Duval County Jail. On August 12, 1967, Gibson was arrested in Jacksonville and charged with robbery of a Pic N’ Save Drug store while armed. A trial was held and Gibson was found not guilty. On July 21, 1968, Gibson was arrested in LaGrange, Georgia for Burglary. He was, thereafter, sentenced to the Georgia State Prison for one year. On May 5, 1970, Gibson was arrested in Jacksonville for Drag Racing, Causing an Accident, Reckless Driving and Damaging City Property. Gibson pled guilty and was fined $140.00 with his driver’s license revoked for one year. On March 8, 1971, Gibson was arrested in Jacksonville and charged in Case No.71-988 with Possession and Sale of Dangerous Drugs. He pled guilty to the first count of Possession of Narcotic Drugs and was sentenced to two years in the State Prison. On April 26, 1971, Gibson was charged in Jacksonville with Breaking and Entering with Intent to Commit a Felony and Grand Larceny. It was alleged that Gibson broke into the dwelling of Mary Lee Flanders and stole one fan, one pair of shoes and a bottle of perfume. On June 1, 1971, Gibson was charged in Jacksonville with Breaking and Entering with Intent to Commit a Felony and Grand Larceny. It was alleged that Gibson broke into the dwelling of Laura Mae Tate and took two television sets. Both the April 26, 1971, and June 1, 1971, Breaking and Entering cases were passed to the absentee docket as a result of the two-year State Prison sentence Gibson received in Case No. 71-988. On November 19, 1974, Gibson was arrested in Jacksonville for Fleeing or Attempting to Elude a Police Officer, Unlawful Speed and two counts of Running a Stop Sign. The charge of Fleeing or Attempting to Elude a Police Officer was no billed and Gibson was fined $100.00 for Unlawful Speed and $100.00 for two counts of Running a Stop Sign. On March 28, 1975, Gibson was arrested in Jacksonville and charged with Auto Theft. It is alleged that Gibson and co-defendant, Thomas Lee Calvin, stole a 1971 Volkswagon belonging to Holly Temple of 5424 Roanoke Blvd. Gibson was working at Maddox Brothers Wrecker Service and picked up the Volkswagon with his wrecker. The Volkswagon had been left on the side of the road with mechanical problems. This case is still pending. On April 24, 1975, Gibson was arrested in Jacksonville and charged with Making Threats and Refusing to Disperse. Gibson pled guilty to Making Threats and was sentenced to two days in the Duval County Jail.
      (b) Whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
      Finding: From the evidence, Gibson was not under the influence of extreme mental or emotional disturbance on May 9, 1975, when he planned the robbery or on May 10, 1975, when he committed the robbery and murder. There was no evidence that alcohol or drugs were being used by Gibson and the evidence conclusively showed that he had the ability to plan and execute the crime. Further, his demeanor before and at the trial gave no indication of any type of emotional or mental disturbance. It should be noted that no Suggestion of Insanity was ever made by either the Court or the defense.
      (c) Whether the victims were participants in the defendant’s conduct or consented to the act.
      Finding: The victims at no time and in no way consented to nor participated in the conduct of the defendant’s acts.

        (d) Whether the defendant was an accomplice in the murder committed by another person, and the defendant’s participation was relatively minor.
      Finding: Gibson was the prime planner of the robbery and the active and aggressive perpetrator of the murder.
      (e) Whether the defendant acted under extreme duress or under the substantial domination of another person.
      Finding: Gibson was the dominant person in the robbery and murder. Even his demeanor in the courtroom was one of a dominant personality. There was absolutely no evidence of any form of duress or domination by another.
      (f) Whether the capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired.
      Finding: Gibson fully appreciated the criminality of his conduct and was capable of conforming his conduct to the requirements of law.
      (g) The age of the defendant at the time of the crime.

        Finding: As Gibson was twenty-eight years of age at the time of the crime, he had, of course, reached his majority ten years before the crime.


author: PER CURIAM.

text:
    David Alan McCRAW, Petitioner, v. STATE of Florida, Respondent.
    No. 48848.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Dec. 6, 1977.
    J. LaDon Dewrell, Dewrell & Kessler, Fort Walton Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    Bernard DORFMAN, Petitioner, v. The STATE of Florida, Respondent.
    No. 50026.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Dec. 6, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for respondent.
   ENGLAND, Justice.

Bernard Dorfman brings us by petition for a writ of certiorari two issues requiring statewide clarification: (1) whether trial judges may impose so-called “general sentences” on defendants convicted of more than one crime; and (2) whether one sentenced to a prison term after he has spent time in a state mental hospital under a court committal order must be given credit against his sentence for the time spent in hospital confinement. The Third District Court of Appeal, in a decision reported at 333 So.2d 481, has approved a three year general sentence for the nine crimes of which Dorfman was convicted, and it has refused to give him credit for the time he spent in South Florida State Hospital.

In 1971, Dorfman entered pleas of guilty to each of nine counts of lewd and lascivious assault on a minor female without intent to commit rape, and was adjudicated guilty as to each. Pursuant to Chapter 917, Florida Statutes (1971), he was ordered committed to South Florida State Hospital as a mentally disordered sex offender and placed on five years probation, to begin upon his release from the hospital. He was released from the hospital in 1972. In 1975, his probation was revoked and he was given a general sentence of three years imprisonment, without apportionment of the term between the nine counts. The crimes for which Dorfman was found guilty were at that time punishable by imprisonment for not more than ten years. Dorfman was not given credit for the time he had spent in the hospital under a commitment order.

1. General Sentence

Dorfman concedes that general sentences are not inherently unlawful, but he insists that the practice of imposing a general sentence produces such burdens for appellate courts and prison authorities that we should strike them down. The State agrees that general sentences are not inherently unlawful and argues that it is legally irrelevant that they may have adverse practical effects.

At the time Dorfman was sentenced, no rule or statute of this state authorized the imposition of a single sentence on a defendant adjudged guilty of more than one crime. General sentences have long been utilized by some of Florida’s trial judges, however, and the parties agree that this Court has never required resentencing in this class of cases.

Obviously, the imposition of general sentences has essentially been left to the discretion of trial judges. In fact, appellate courts of Florida had not much concerned themselves with general sentences until 1975 when the Second District Court of Appeal vacated a general sentence and remanded the case for resentencing on the basis of the reasoning of the United States Fifth Circuit Court of Appeals in Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). In Benson, the court had invalidated a general sentence because its imposition impeded appellate and collateral review of convictions, and hindered prison authorities.

Since Darden, the Second District Court of Appeal has regularly vacated all general sentences which have come to its attention. The First District Court of Appeal has now adopted the Second District’s position. Johnson v. State, 338 So.2d 252 (Fla. 1st DCA 1976).

The Third District Court of Appeal, which had also accepted Darden, has now limited its application to those general sentences which do not exceed the maximum sentence which could have been imposed as to any one of the crimes for which the defendant was convicted. The Fourth District Court of Appeal apparently has not decided the issue. It has, however, applied our decision in Cone v. State, 285 So.2d 12 (Fla.1973), and held that a single sentence imposed for crimes charged in a dual-count information and representing facets of the same criminal transaction will be treated as having been imposed for the highest offense and therefore not considered to be a “general” sentence. Carter v. State, 330 So.2d 508 (Fla.4th DCA 1976).

Courts in some jurisdictions have disapproved general sentences on the basis of inferred statutory policies or judicially declared policy, usually with only minimal discussion, while other courts have affirmed general sentences on the ground that no prejudice results to the defendant. Many courts have criticized the practice of imposing general sentences, however, even while affirming them, on the ground that an appellate court finding reversible error as to any one of the several convictions would have to vacate the entire sentence on direct review. The same, of course, is true on collateral review.

The ready acceptance of Darden by our district courts suggests to us that the concept of traditional sentencing discretion should no longer serve as the basis on which to uphold a practice shown to have only negative effects on our criminal justice system. We will not accept the notion that trial judges should be allowed to impose general sentences simply because they have always done so.

A general sentence aggregates all of the defendant’s individual crimes into a new whole. It is not possible to assume that the sentence term would have been the same even if one of the crimes had not been committed. In this case, for example, the district court affirmed Dorfman’s general sentence because it fell within the maximum allowed by law for any one of the several counts on which he was convicted. We cannot know whether the trial judge intended this general sentence to be the equivalent of nine concurrent three year sentences, nine consecutive sentences which when added together aggregate three years, or a single sentence which he determined to be proper for the totality of crimes before him.

It is virtually impossible to show that there has been any prejudice to Dorf-man, particularly since he pled guilty to all nine counts. The evil of a general sentence, however, inheres in the uncertainty that its inscrutability creates, for if the trial judge had committed a reversible error as to any count for any reason, the entire sentence would have to be vacated. Then, on resen-tencing, a failure to reduce a new sentence for the affirmed conviction or convictions could raise complications comparable to those arising from the imposition of a more severe sentence when a defendant is convicted on retrial of the charges which underlay the reversed conviction. We conclude and now hold that general sentences are no longer proper and they may not be imposed by any trial court.

2. Credit for time in an institution

We affirm the district court’s decision that the trial judge was not required to credit Dorfman with the time he was hospitalized as a mentally disordered sex offender. It is clear that the trial court had no authority to impose a split sentence since, at the time of the crime, Section 948.01(4), Florida Statutes (1971), did not allow the split sentence alternative for felonies. Additionally, the law provides that a person committed pursuant to Chapter 917 is released from treatment upon a finding that he or she is no longer a menace to society, and at that point the criminal proceeding “recommences” if it is still pending. The suspension was ostensibly created for medical treatment and not for punishment.

Here Dorfman pleaded guilty and the trial judge entered the order of probation without awaiting the results of the hospitalization. We do not think this procedure can reasonably be construed to transform a civil commitment into a criminal incarceration. It is convenient rhetoric to say, as Dorfman argues, that incarceration is incarceration whether spent in a jail cell or a hospital. There is an obvious difference, however, between confinement in a prison (or in a prison infirmary during a period of imprisonment), as part of a criminal sentence, and a period of treatment in a mental hospital for the purpose of helping the individual to return to society.

This case is remanded to the Third District Court of Appeal with instructions to order resentencing. The court’s decision is affirmed in all other respects.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS, J., concurs in result only.

      . The district court’s decision conflicts with Kelly v. State, 334 So.2d 128 (Fla.2d DCA 1976), and with King v. State, 320 So.2d 19 (Fla.2d DCA 1975), thereby providing this Court with jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const.

      . § 800.04, Fla.Stat. (1969). Since the general revision of Florida’s criminal penalty statutes took effect on January 1, 1972, this offense has been classified as a second degree felony punishable by up to 15 years imprisonment. Ch. 71-136, Laws of Florida.

      . Credits for time spent in jail before sentencing and before hospitalization were granted by the district court and are not in controversy on review here.

      . In fact, both the rules and statutes of this state have contemplated the imposition either of consecutive or concurrent sentences as to each. See § 921.16, Fla.Stat. (1971); Fla.R.Crim.P. 3.722.

      . See, for example, Washington v. State, 51 Fla. 137, 40 So. 765 (1906).

      . Although not affecting this case, we note that the Legislature has now abolished general sentences in the vast majority of cases. § 775.-021(4), Fla.Stat. (Supp.1976).

      . The criticism is that general sentences undercut the rehabilitative process in prison because neither the prisoner nor the prison authorities know how much of the sentence is attributable to a particular offense. A different panel of judges in Clark v. United States, 367 F.2d 378 (5th Cir. 1966), limited the Benson holding to cases where the general sentence, although within the aggregate of the maximum sentences allowable, would exceed the maximum sentence which could have been imposed on any single count.

      . See, for example, Massey v. State, 338 So.2d 560 (Fla.2d DCA 1976); Clark v. State, 338 So.2d 572 (Fla.2d DCA 1976); Oakley v. State, 338 So.2d 92 (Fla.2d DCA 1976); Maxwell v. State, 336 So.2d 658 (Fla.2d DCA 1976); Kelly v. State, 334 So.2d 128 (Fla.2d DCA 1976); Taylor v. State, 330 So.2d 857 (Fla.2d DCA 1976); King v. State, 320 So.2d 19 (Fla.2d DCA 1975); Donathen v. State, 319 So.2d 579 (Fla.2d DCA 1975); Griffin v. State, 315 So.2d 486 (Fla.2d DCA 1975); Landers v. State, 315 So.2d 522 (Fla.2d DCA 1975); Farmer v. State, 315 So.2d 225 (Fla.2d DCA 1975); Long v. State, 310 So.2d 35 (Fla.2d DCA 1975); Haddon v. State, 307 So.2d 238 (Fla.2d DCA 1975).

      . The decision suggests, contrary to the Clark limitation on Benson (n. 7 above), that all general sentences are improper.

      . Paul v. State, 340 So.2d 1249 (Fla.3d DCA 1976) (dictum).

      . Dorfman v. State, 333 So.2d 481 (Fla.3d DCA 1976), essentially adopting the Clark limitation on Benson described in n. 7 above. It is not clear whether the Third District accepts the Fourth District’s position in Carter that an otherwise invalid general sentence may be affirmed where sentence could have been imposed as to one count, as in Cone v. State, 285 So.2d 12 (Fla.1973). In Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976), the Third District remanded for resentencing because of record inconsistencies but stated that our decision in Cone had been “overruled by implication” by Estevez v. State, 313 So.2d 692 (Fla.1975), and Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). However, in Gonzalez v. State, 342 So.2d 557 (Fla.3d DCA 1977), the Third District declined to vacate a general sentence, relying at least in part on the Fourth District’s decision in Carter, which in turn was based solely on Cone.

      . The ruling in Carter was similar in reasoning to that of the Second District in Neville v. State, 322 So.2d 617 (Fla.2d DCA 1975). Without discussion of the point, however, the Second District departed from its Nevilie decision and vacated a sentence in Taylor v. State, 330 So.2d 857 (Fla.2d DCA 1976). See also Leisure v. State, 320 So.2d 37 (Fla.2d DCA 1975).

      . See, for example, State v. Cianci, 18 N.J. 191, 113 A.2d 176 (1955), which based its decision on the fact that each sentence was allowed by different statutory provisions and therefore could not be aggregated. By contrast, the district court’s decision in the present case clearly states that “each crime was a violation of the same statute.” 333 So.2d at 482.

      . See, for example, Ruth v. People, 329 Ill.App. 369, 68 N.E.2d 624 (1946); Commonwealth ex rel. Ciampoli v. Heston, 292 Pa. 501, 141 A. 287 (1928); Williams v. State, 114 Neb. 132, 206 N.W. 731 (1925).

      . See, for example, Allen v. MacDougall, 248 S.C. 588, 151 S.E.2d 863 (1966); Gatewood v. State, 244 Md. 609, 224 A.2d 677 (1966); State v. Smith, 266 N.C. 747, 147 S.E.2d 165 (1966); People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433, cert. denied, 305 U.S. 620, 59 S.Ct. 81, 83 L.Ed. 396 (1938).

      . See, for example, Vandegrift v. State, 226 Md. 38, 171 A.2d 713, 91 A.L.R.2d 507 (1961); and Johnson v. United States, 276 F.2d 84 (4th Cir. 1960). See also Annot., 91 A.L.R.2d 511 (1963).

      . See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . We also reject Dorfman’s contention that the probation and commitment ordered in the original case constituted a “split sentence” under our holding in State v. Jones, 327 So.2d 18 (Fla.1976). The Mentally Disordered Sex Offender Act makes it clear that commitment pursuant to its provisions is civil in nature, not criminal. § 917.24, Fla.Stat. (1971).

      . § 917.20, Fla.Stat. (1971).


text:
    Mae Helen EARNEST, Petitioner, v. STATE of Florida, Respondent.
    No. 51491.
    Supreme Court of Florida.
    Aug. 31, 1977.
    Rehearing Denied Dec. 6, 1977.

      Louis G. Carres, Asst. Public Defender, for petitioner.
    • Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   ENGLAND, Justice.

The First District Court of Appeal has certified to us its recent decision concerning Florida’s statute requiring a three year minimum jail sentence for possession of a firearm during the commission of certain specified crimes, indicating that in construing the statute to encompass aiders and abettors who are principals in the first degree to those crimes the court has passed on a question of great public interest.

Section 775.087(2), Florida Statutes (1975), prescribes a three year minimum term of imprisonment for any person convicted of robbery (and other enumerated crimes) “who had in his possession” a firearm. Petitioner was sentenced under this provision after a conviction for armed robbery “not predicated on her personal possession of the firearm but rather on her active and knowing aid to him who did possess it”. The district court affirmed her sentence on the basis that vicarious possession of a firearm is punishable under Section 775.087(2).

Petitioner’s challenge to her sentence is predicated on an asserted ambiguity in the phrase “in his possession”. She suggests that the phrase may or may not include vicarious possession, and argues that for this precise reason we are obliged to construe the statute strictly — to exclude vicarious possession — in favor of the accused. She basically relies on Section 775.021(1), Florida Statutes (1975), and on State v. Wershow, 343 So.2d 605 (Fla.1977). In Wershow we reiterated the principle expressed in Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927):

“ ‘The statute being a criminal statute, the rule that it must be construed strictly applies. Nothing is to be regarded as included within it that is not within its letter as well as its spirit; nothing that is not clearly and intelligently described in its very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms i >i

We agree that the term “possession” does not clearly encompass vicarious possession, and we agree that petitioner is entitled to the benefit of the doubt. The Legislature has not unequivocally expressed an intention to require three year minimum sentences for all persons who participate in one of the enumerated criminal adventures. Accordingly, petitioner’s sentence is vacated and the case is remanded to the district court with instructions to remand to the trial judge for an appropriate sentence in accordance with this opinion.

It is so ordered.

OVERTON, C. J., SUNDBERG and HATCHETT, JJ., concur.

KARL, J., dissents.

      . Earnest v. State, 342 So.2d 1024 (Fla. 1st DCA 1977).

      . § 775.087(2), Fla.Stat. (1975).

      . We accept jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const.

      .342 So.2d at 1025.

      . § 775.021(1), Fla.Stat. (1975), states:
      “The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”

      . 343 So.2d at 608.

      . Cases which have construed the term “possession” on review of marijuana and other drug possession convictions have no direct bearing on our construction of the term for purposes of this sentencing statute. See, for example, State v. Eckroth, 238 So.2d 75 (Fla.1970); Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

      .We note that the statute as originally enacted provided a minimum sentence for conviction of certain felonies “involving” a firearm. § 775.-087(2), Fla.Stat. (Supp.1974). That language was changed to “possession” of a firearm at the next session of the Legislature. Ch. 75-298, Laws of Florida.


text:
    THE FLORIDA BAR, Complainant, v. Alton S. BEASLEY, Respondent.
    No. 50313.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Rehearing Denied Dec. 5, 1977.
    Sherman N. Smith, III, Bar Counsel, Vero Beach, Michael C. Whittington, Asst. Staff Counsel, Tampa, and James P. Holla-way, Asst. Staff Counsel, Tallahassee, for the Florida Bar, complainant.
    Philip G. Butler, Jr. of Foley, Colton & Butler, West Palm Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding against Alton Beasley, a member of The Florida Bar, is before us on complaint of The Florida Bar, report of the referee, petition for review filed by Beasley and cross-petition of The Florida Bar.

After considering the pleadings and evidence, the referee made the following findings:

“That prior to June 22, 1975, the Respondent, ALTON S. BEASLEY, was retained by one Joyce Van Landingham to represent her in a dissolution of marriage proceeding. That on or about June 22, 1975, Mrs. Van Landingham met the Respondent at his ranch in Okeechobee County, Florida, and asked him to supply her with quaaludes, a substance controlled by Chapter 893, Florida Statutes. That Respondent at the meeting of June 22, 1975, indicated to Mrs. Van Landing-ham that he could arrange for the delivery of a quantity of quaaludes to her.
“That on or about June 24, 1975, the Respondent and Mrs. Van Landingham met at the Respondent’s office in Fort Pierce, Florida, at which meeting the Respondent advised her that he could arrange for the delivery of a quantity of marijuana to her, marijuana being a substance controlled by Chapter 893, Florida Statutes. That at the meeting of June 24, 1975, the Respondent made a phone call to arrange for the introduction of Mrs. Van Landingham to a certain person or persons whom Respondent represented would be in a position to supply her with drugs. That relying upon the directions of the Respondent, Mrs. Van Landingham contacted one Don Raulerson and did on or about June 26, 1975 purchase approximately four pounds of marijuana from said Don Raulerson. That the Respondent was subsequently found guilty of delivery of cannabis on August 20, 1975 in Case No. 75-253-C in the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, and on September '23, 1975 received a judgment and sentence of one year in the County jail. The Respondent has appealed the judgment.”

The referee recommends that respondent be found guilty of violation of D.R. 1-102(A)(3), D.R. 1-102(A)(6) and Rule 11.-02(3)(b), Article XI, Integration Rule of The Florida Bar, and not guilty of violation of D.R. 1-102(A)(4).

Having carefully reviewed the record and briefs, we approve the findings and recommendations of the referee as to guilt.

As to the disciplinary measure to be imposed, the referee recommends that respondent be suspended from the practice of law for a period of twenty-four months and thereafter until he shall prove his rehabilitation.

The Bar suggests that, under the circumstances, the recommended penalty is too lenient since a lawyer who is willing to forsake his client for his own personal goals demonstrates a lack of moral character and fitness required of a member of the Bar. We would agree with the Bar and find that disbarment is warranted.

Accordingly, respondent, Alton S. Beasley, is hereby disbarred. The disbarment shall be effective on October 3, 1977, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a petition for rehearing shall not alter the effective date of this disbarment. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $1,051.26.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Paul C. MUELLER, Respondent.
    No. 50867.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Rehearing Denied Dec. 5, 1977.

      Paul A. Gross, Bar Counsel, Miami and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Paul C. Mueller, of Mueller & Hunt, Fort Lauderdale, in pro. per.
   PER CURIAM.

This matter is before us on complaint of The Florida Bar against Paul C. Mueller, a member of The Florida Bar, report of the referee and petitions for review of Mueller and The Florida Bar.

Respondent was charged by complaint of The Florida Bar with eleven counts of misconduct, including six counts of improper dual representation in the sales of employment agency franchises, two counts of filing a false affidavit with The Florida Bar alleging personal improprieties committed between two of his former partner’s secretaries and the former partner, one count that respondent solicited a client away from his former law partner, one count of false accounting to a client, and one count of improper plea bargaining and improper representation in the handling of two separate clients in criminal cases.

The referee, after considering the voluminous record of pleadings and evidence before him, found as follows:

“As to Count I
“1. That John C. Queen agreed to employ the respondent as his attorney even though the uncontroverted testimony indicated that the respondent was, and had been previously employed by Pauline Win-gate in the purchase-sale transaction of an employment agency.
“2. That Queen had told respondent that he (Queen) would hire his own attorney and that in response thereto, the respondent told Queen that he (the respondent) could-represent him in the transaction ‘and save money’. Respondent told Queen that he could represent both sides in good faith and that the fee would be paid by each equally. Queen did pay respondent V2 of the quoted fee of $285.
“3. That at first Queen was advised by respondent that the seller (Wingate) would have to hold 10% of the stock of the sale of the corporation known as Ter Systems Inc.’; that thereafter respondent advised Queen that Wingate would have to hold 51% of the corporate stock, all of which indicated at that time the apparent lack of knowledge of the respondent as concerned the purchase/sale of the employment agency in question.
“4. That during the period of time that respondent ‘represented’ Queen (June of 1971 to November of 1971 when Queen retained the services of attorney John Kruse of Fort Lauderdale), respondent knew or should have known that Wingate was having trouble with the Secretary of State office as concerned her private employment agency license; that in respondent’s dual representative capacity he should have made this fact known to Queen but he did not.
“5. Although Count I of the Complaint of The Florida Bar alleged (Para. 5) that Per Systems Inc. was to be the actual employment agency, this was not in fact the case. Wingate and Queen entered into an ‘Independent Agency Employment and Purchase Agreement’ on June 17, 1971. (Bar Exh. 5) It did not involve the corporation in question.
“6. That respondent should not have represented both parties (Queen and Win-gate) in this transaction. He could not give adequate, proper, impartial representation to Queen because his ‘real’ client was Pauline Wingate and it was obvious that his independent professional judgment was affected by this to the prejudice of Queen.
“7. That it is uncontroverted that the respondent represented Pauline Wingate in her suit against Queen in this business transaction wherein the respondent originally represented both Wingate and Queen. (Cplt.Exh. 16) The respondent’s defense is that Queen raised no objection to his (the respondent’s) representing Wingate in that action. That was the respondent’s only defense. The Referee finds it unacceptable even though the case was ultimately dismissed for want of prosecution on the Court’s own Motion.
“As to Count II
“1. That Frank J. Keena saw an ad in the local newspaper placed by Pauline Win-gate for the sale of an employment agency. Keena and Wingate met at the law offices of the respondent. A contract was prepared between Wingate and Keena. The testimony of witness Keena did not indicate who prepared same. Mueller witnessed the contract but on his direct examination he denied preparing same. (Cplt.Exh. 21)
“2. That the total consideration paid by Keena for the purchase of an ‘employment agency’ was $10,000, $5,000 of which was paid by Keena to respondent’s Trust Account on August 6, 1971.
“3. That at the contemplated closing time and place of this purchase/sale transaction, Keena brought a letter from Attorney Ted Sobo; that prior to the closing Keena had consulted with Mr. Sobo and apparently outlined the sum and substance of the transaction; that Sobo because of press of other business could not appear at the closing but prepared a letter (Cplt.Exh. 24) outlining what he (Sobo) felt was necessary; that respondent told Keena it was ‘O.K. to close’ and that he (Mueller) represented him (Keena) as well as Wingate; that Keena called Sobo and then came back into respondent’s office and agreed to close on or about August 6, 1971.
“4. That it was uncontroverted that Keena then looked upon the respondent as his Attorney and the respondent considered Keena as his client; that Keena in fact did pay one-half of the fee charged by respondent in this transaction to respondent. (Cplt.Exhs. 26 and 27)
“5. That Keena testified (and it is believed by this Referee) that he thought he was buying a ‘going business’; that respondent knew or should have known that the transaction did not involve a ‘going business’ and if respondent did know this (which Referee believes he did) he (the respondent) failed to advise his ‘client’ Keena.
“6. Keena became disenchanted with the operation of the business and advised Wingate and the respondent that he (Kee-na) ‘wanted to get out from under’; that thereafter Mueller drew up an agreement giving Keena an option to sell the ‘business’ back to Wingate for $10,000. (Cplt.Exh. 30) On September 22,1971 Keena exercised this option; that respondent testified that in his opinion ‘equitable title passed immediately to Wingate’. (Underscoring mine); that the return sale/purchase to Wingate was apparently concluded on November 29,1971 when a Bill of Sale (Cplt.Exh. 33) Absolute was acknowledged by a Notary Public alleged by respondent not to be known to him; that respondent testified he did not prepare the instrument. The records of these proceedings are silent in that regard except as testified to by respondent; that prior to the consummation of this repurchase of Keena’s interest by Wingate, Win-gate did receive a check dated November 20, 1971 from one Willard J. Sullivan for the sum of $10,000 (Cplt.Exh. 39) representing a partial payment on an agreed selling price of $15,000.
“7. That respondent know [sic] of this transaction and did in fact participate in it, well knowing that Keena had not at that time concluded his ‘sell-back’ transaction with Wingate.
“As to Count III
“1. That complaining witness Willard J. Sullivan did answer Pauline Wingate’s ad in a local newspaper as concerns the sale of an employment agency on or about November 16, 1971; that in any event Wingate and Sullivan signed a deposit receipt contract (Cplt.Exh. 38) on November 20, 1971; that Sullivan gave Wingate a check for $10,000 on November 20, 1971 (Cplt.Exh. 39); that Sullivan and Wingate signed a franchise agreement on November 20, 1971; that both instruments were admittedly prepared by the respondent (Cplt.Exh. 40).
“2. That at that time (November 20, 1971) Wingate did not own the business that was ‘sold’ to Sullivan; that the ‘business’ in question was still owned by Frank J. Keena, the Complainant referred to in Complainant’s Count II; that Keena did not sell the business back to Wingate until November 29,1971 (the date of the Bill of Sale signed by Keena to Wingate; Cplt.Exh. 33).
“3. That although Sullivan had earlier indicated to the respondent that he (Sullivan) wanted to hire his ‘Chicago Attorney’, that Sullivan testified that the respondent told him he would not have to ‘bother’ with a ‘Chicago Attorney’ and that he (the respondent) offered to be Sullivan’s Attorney. Sullivan’s testimony which was unrefuted was that he paid the respondent $285 for legal fees.
“4. That the respondent knew that at the time of the sale of the business in question to Sullivan that Wingate really did not own it. (See paragraph 2 above).
“5. That Wingate appeared before a State examining board representative on November 24, 1971 to show cause why her agency employment license should not be suspended; that respondent appeared personally with Wingate at that hearing; that respondent knew or should have known that Wingate had these problems and should have made this known to ‘his client’ Sullivan of these ‘problems’; that respondent testified that he would have told this to Sullivan ‘if he had asked’.
“6. That by reason of the findings of the examiner at the hearing on November 24, 1971, Sullivan’s ‘employment agency’ was closed down on January 18,1972 by order of the Department of State.
“7. That the ‘buyer’s’ closing statement involving Sullivan and Wingate was dated December 6, 1971 (Cplt.Exh. 42) indicating the payment by Sullivan to Wingate of the sum of $5,285 (Cplt.Exh. 41) which included respondent’s ‘fee’.
“8. Respondent admits filing suit against Sullivan on February 27,1972 (Cplt. Exh. 44) on behalf of client Wingate; that respondent insisted that he considered it quite proper unless Sullivan would have ‘objected’. The Referee finds this reasoning untenable.
“As to Count IV
“1. That complaining witness Elmer Perry answered an ad in a local newspaper of Wingate in August of 1971 as concerned the sale of an ‘employment agency’; that shortly thereafter Wingate introduced Perry to the respondent in the respondent’s law office and he told Perry that he (respondent) would represent him (Perry) in this sale/purchase transaction.
“2. That a deposit receipt contract was signed by Perry and Wingate in Respondent’s office on August 20, 1971 (Cplt.Exh. 47); that it can be presumed that subject contract was prepared by respondent since it was on his printed letterhead.
“3. That thereafter Perry and Wingate signed an ‘agency agreement’ on August 30, 1971 in respondent’s office; that this ‘agreement’ was prepared by respondent (Cplt.Exh. 48).
“4. That respondent knew or should have known of the constant and continuous problems involving his ‘client’ Wingate in getting these agencies in operation and of the failure of Wingate to work with his respective ‘clients’ (Quinn, [sic] Keena and Sullivan) and yet failed to advise his ‘client’ Perry of these problems.”
As to Count V
Upon motion of The Florida Bar, this count was dismissed by the referee.
“As to Count VI
“1. On September 30, 1973, one Sol Kleinman and Pauline Wingate entered into an agency agreement (Cplt.Exh. 55) which was prepared by respondent. The agreement provided that Wingate was to get $3,000 ‘to buy equipment’; that in addition thereto Kleinman paid $4,500 to respondent which was placed in his Trust Account (CpltExh. 57). This second sum was to be used to purchase additional equipment. Although respondent testified the $3,000 was to go to Wingate for her services, Kleinman denied this. Kleinman testified that the $3,000 was to be used for obtaining the leasehold, furniture, etc. I so find from the evidence and testimony.
“2. Kleinman testified that in the beginning he did not consider respondent as his Attorney until respondent (according to Kleinman) insisted that his fees be paid out of the sum paid to his escrow account. Kleinman testified that he did then consider respondent to be his Attorney. Although respondent denied vigorously that he never [sic] considered Kleinman as his client, I recommend a finding that there definitely developed between the parties (Kleinman and respondent) an Attorney-client relationship.
“3. That during all these proceedings Wingate did not have any agency employment license nor any type of ‘employment’ license; that it had been suspended by the Secretary of State on September 15th, 1973 and this was known by the respondent; that respondent knew this and admitted knowing this; that respondent insisted in his testimony that this was not material as long as Kleinman got an ‘agency employment license’. I disagree. It was the duty of respondent to advise Kleinman of the license status of Wingate. Kleinman received a letter from respondent dated February 1, 1975 (Cplt.Exh. 67) that his law firm had extended office hours, addressed to ‘our clients’.
“4. That respondent knew or should have known from his past dealings with Wingate that she was irresponsible and did not live up to her agreements; that respondent admitted receiving many complaints from Queen, Keena, Sullivan and Perry but nevertheless continued his representation of her and simultaneously represented all of the previous complainants.
“As to Count VII
“1. That Rosemary Keyte LaChance, the complaining witness in this Count, was employed by respondent’s former law partner, Joel Miller, from September of 1969 to November of 1969; that according to her un-controverted testimony she quit ‘because she got a job that paid more.’
“2. That respondent submitted a sworn affidavit dated September 30, 1971, to The Florida Bar (Cplt.Exh. 68, at page 12) that in effect stated that Miller asked the witness if she would agree to have sexual relations with him; this was vigorously denied by the witness who was the subject matter of that affidavit.
“3. That she admitted seeing respondent only on occasion thereafter and even spending a weekend with him in the Tampa area but s denied any improprieties therein.
“4. That Joel Miller testified that he never made any ‘advances’ towards the witness.
“5. That the respondent testified in answer to the question ‘What precipitated your making these charges against Miller?’, respondent replied; ‘He (Miller) was taking pot shots at me’. The respondent testified that he had no personal knowledge of this except for ‘conclusions’ he reached from inferences and innuendoes in his conversations with the witness.
“6. That there was no basis whatsoever for the respondent to draw such a ‘conclusion’ from his own testimony and certainly from the testimony of witnesses LaChance and Miller.
“As to Count VIII
“1. Florida Bar complaining witness Eloise Fox Young testified that she worked for Joel Miller, respondent’s former law partner, as a secretary in Fort Lauderdale from 1963 to May of 1964, for eight or nine months.
“2. That in response to the questions ‘Did Joel Miller ask you to have sexual relations?’ and ‘Did he (Miller) ever threaten you?’ she answered ‘No’ in each instance.
“3. That Joel Miller testified that he never asked her (Young) to have sexual relations nor ever having threatened her [sic].
“4. That witness Young further testified that respondent called her by telephone in 1970 or 1971 (which was admitted by respondent in his own testimony) at which time respondent said to her T heard you hate Miller’s guts’. She denied hating him. Respondent then asked her if Miller had ever made any ‘advances’ towards her and ‘chased her’. She denied this and said T would have killed him or I would have succumbed’.
“5. That there was no truth whatsoever to these charges brought by respondent against Miller in his affidavit to Florida Bar (Cplt.Exh. 68, page 12) and the respondent knew this.
“6. That not any of the testimony of the respondent on his direct examination indicated that he had any reason whatsoever to make such a charge and that it was strictly a figment of his imagination.”
As to Counts IX and X
As to these counts, the referee recommends a finding of not guilty.
“As to Count XI
“1. That George Naze II was an Assistant County Solicitor of Broward County, Florida, on or about January 28, 1971; that he was employed in that capacity from December of 1970 to June of 1971.
“2. That prior to January 28, 1971 the respondent represented one Henry Lee Powell in a criminal charge filed against him (Powell) in Broward County as concerned a felony charge of aggravated assault.
“3. That also prior to January 28, 1971, the respondent represented a client known as Dr. Bernston in a criminal charge filed against him (Bernston) in Broward County as concerned a misdemeanor charge of simple assault; that the ‘simple assault’ concerned the complaint of a neighbor that Bernston had turned a garden hose upon said neighbor, getting him (the neighbor) all wet from the water discharged from the hose.
“4. That on or about January 28, 1971, the respondent met witness George Naze II in the Broward County Courthouse, Fort Lauderdale, Florida, and did, in fact, offer to plead his client (Powell) guilty of the crime of aggravated assault if the charge against his client Bernston was dismissed.
“5. That the said George Naze II did not report this incident to anyone, but did, sometime later, advise Attorney Howard M. Zeidwig of this conversation; that Zeidwig knew Attorney Joel Miller and that Zeidwig in fact had law offices in the same building where Miller had law offices; that Zeidwig in turn passed this information to Joel Miller who in turn filed a complaint concerning these allegations with the Florida Bar.
“6. That it is obvious from the records, files, proceedings and exhibits of these entire proceedings that there is and has been extreme animosity between Miller and Mueller and that these persons have had extensive litigation in the local Courts wherein they personally sued each other for accountings, damages and ‘what have you’.
“7. That although respondent admitted the meeting in question with Naze, he denied making such a ‘plea bargaining’ proposition; that the respondent did admit that he attempted ‘plea bargaining’ but that the ‘plea bargaining’ did not involve any agreement to use one client’s interest against the other client’s interest; that I find Naze’s testimony to be true and do not believe the respondent.
“8. That ultimately the charge against Powell was nol prossed, then later refiled and later the charge was dismissed apparently because the complaining witness could not be located.
“9. That Bernston’s charge of simple assault (or assault and battery) was ultimately dismissed.”

As to Count I, the referee recommends that respondent be found guilty of violating Disciplinary Rule 5-105(A), in that he represented one of the parties to the transaction (Wingate) in a law suit against the second party (Queen) to the transaction, and violating D.R. 5-105(B), in that his representation of Wingate adversely affected his representation of the second client (Queen). As to Count II, the referee recommends that respondent be found guilty of violating D.R. 5-105(A), in that he represented both parties in the transaction and in that his representation of Keena was prejudicial to Keena because of his continued representation of Wingate, and violating D.R. 5-105(B) because representation of Wingate adversely affected representation of Keena. The referee recommends that respondent be found guilty of Count III for having violated D.R. 5-105(A), in that he represented one of the parties to this transaction (Wingate) in a law suit against a second party (his client, Sullivan) in the transaction and in that respondent’s testimony would be material, and for having violated D.R. 5-105(A) and (B) by failing to advise Sullivan that Wingate’s license was in jeopardy. Relative to Count IV, the referee recommends that respondent be found guilty of violating D.R. 5-105(A), in that he represented both parties to the transaction resulting in prejudice to Keena because of continued representation of Win-gate and of violating D.R. 5-105(B) because his representation of Wingate adversely affected his representation of Keena. Count V was dismissed upon motion of The Florida Bar. The referee recommends that respondent be found guilty of Count VI in violating D.R. 5-105(A) and D.R. 5-105(B) for representing Kleinman when such representation adversely affected Kleinman’s interest because of respondent’s close relationship with Wingate, and in violating D.R. 1-102(A)(3), (A)(4) and (A)(6) by engaging in illegal conduct involving moral turpitude, dishonesty, fraud, deceit and misrepresentation and which reflects adversely on his fitness to practice law. The referee granted respondent’s motion for summary judgment as to Count IX and recommends that he be found not guilty of Count IX and Count X. As to Count XI, the referee recommends a finding of guilty of violating D.R. 1-102(A)(5) and 5-105(B), in that respondent engaged in conduct prejudicial to the administration of justice and adverse to the interests of his client Powell.

In conclusion, the referee recommends suspension for thirty months and, thereafter, until respondent shall prove his rehabilitation, and for an indefinite period until he shall pay the costs of these proceedings ($8,426.00) plus whatever additional costs may be incurred.

The Bar petitions for review of the recommended disciplinary measure and requests disbarment. Respondent requests review of the findings of the referee and rulings on certain pretrial orders.

Having carefully reviewed the record in light of respondent’s fifty-two points for review, we hereby approve the findings and recommendations of the referee as to guilt, with the exception of his finding and recommendation as to Count XI, which charge we find to be barred by laches.

However, with respect to the appropriate disciplinary measures to be imposed on respondent, The Florida Bar suggests that respondent’s conduct warrants disbarment rather than the thirty month suspension recommended by the referee. We agree.

Accordingly, Paul C. Mueller is disbarred. The disbarment shall be effective on October 3, 1977, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a petition for rehearing shall not alter the effective date of this disbarment. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $8,426.00.

It is so ordered.

OVERTON, C. J„ and ENGLAND, HATCHETT and KARL, JJ., concur.

ADKINS, J., dissents.