author: HATCHETT, Justice.

text:
    VOLUSIA COUNTY, a political subdivision of the State of Florida, et al., Appellants, v. DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, a body politic and corporate under the laws of the State of Florida, and International Speedway Corporation, a Florida Corporation, Appellees.
    No. 49115.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Rehearing Denied Feb. 9, 1977.

      William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for Volusia County; Robert L. Shevin, Atty. Gen., and David M. Hudson, Asst. Atty. Gen., for J. Edward Straughn, appellants.
    Thomas T. Cobb of Cobb, Cole, Sigerson, McCoy, Bell & Bond, Daytona Beach, for Daytona Beach Racing and Recreational Facilities Dist.; S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for International Speedway Corp., appellees.
   HATCHETT, Justice.

This is the latest in a long series of lawsuits marking the history of the Daytona International Speedway, and beginning even before the racetrack was built. In 1955, by special act, the legislature created appellee Daytona Beach Racing and Recreational Facilities District (the District). The District leased 374 acres of land from the City of Daytona Beach and subsequently acquired an additional 74 acres in fee simple. The original plan was to finance construction of a racetrack on this land by means of revenue bonds. The circuit court entered a decree validating the proposed bonds and this Court affirmed the decree on appeal, 89 So.2d 34 (Fla.1956), but the bonds were never issued. Instead the District leased all 448 acres to appellee International Speedway Corporation (the Corporation), which undertook to construct a racetrack facility at its own expense, as the principal consideration for the leasehold.

In 1960 and 1961, the Volusia County Tax Assessor assessed the city-owned portion of the land, which was leased by the Corporation from the District, as nonexempt realty. The Corporation, the District, and the City of Daytona Beach sued to enjoin collection of this tax. The trial court’s dismissal of their complaint was affirmed by the District Court of Appeal, First District, Daytona Beach Racing & Rec. Fac. Dist. v. Paul, 157 So.2d 156 (Fla. 1st D.C.A.1963), but this Court quashed that decision in an opinion reported at 179 So.2d 349 (1965). On remand, the plaintiffs prevailed and the judgment of the trial court was affirmed. Paul v. Daytona Beach Racing & Rec. Fac. Dist., 208 So.2d 653 (Fla. 1st D.C.A.1968) cert. den. 224 So.2d 299 (Fla.1969).

Before the present litigation began, the City of Daytona Beach conveyed to Volusia County its interest in the land leased to the District. The people of Florida adopted a new Constitution effective January 1, 1969. The legislature enacted the Tax Reform Act, now codified for the most part in Chapter 196, Florida Statutes; and thereafter enacted Chapter 73-647, Laws of Florida. In light of these developments, appellant Tax Assessor of Volusia County assessed the Corporation’s leasehold as nonexempt property, whereupon the District and the Corporation filed suit against Volusia County, the tax assessor, the tax collector and the executive director of the department of revenue. The trial court entered judgment for the plaintiffs, enjoining the “assessing, levying or attempting to collect ad valorem taxes on the leasehold.” Appeal was taken to the District Court of Appeal, First District, and transferred here. Because the trial court “initially and directly pass[ed] on the validity of a state statute [Chapter 73-647, Laws of Florida],” Article V, Section 3(b)(1), we have jurisdiction.

The trial court ruled that Chapter 31343, Laws of Florida 1955, operates to exempt the District’s leasehold from ad valorem taxation, notwithstanding the legislature’s subsequently expressed intention “that any facilities of said district be taxed in the same manner as any other property in Vol-usia County.” Chapter 73-647, Laws of Florida. Even if this grudging interpretation of the specific repealer could be sustained, the trial court’s judgment is incompatible with the general repealer embodied in Chapter 71-133, § 14, Laws of Florida. Straughn v. Camp, 293 So.2d 689 (Fla.1974). In light of the repealer statutes and other substantial changes in Florida law since the District’s tax exempt status was first litigated, the earlier decisions are not determinative of the present controversy. Straughn v. Camp, supra; Wagner v. Baron, 64 So.2d 267 (Fla.1953). We are concerned here, moreover, with a leasehold and not with a fee simple interest in real estate.

The Constitution of 1885 provided that property owned by corporations “shall be subject to taxation unless . . . used exclusively for religious, scientific, municipal, educational, literary or charitable purposes.” Article 16, Section 16, Florida Constitution 1885. The phrase “municipal . purposes” was broadly interpreted to include any “public” purpose; under the Constitution of 1885, this Court decided that simply holding a proprietary interest in “a community recreational asset and business stimulant,” Daytona Beach Racing & Rec. Fac. Dist. v. Paul, 179 So.2d 349, 353 (Fla.1965), like the speedway served a “municipal purpose.” Id. Perceiving decisions of this kind as creating inequities in the tax structure, the draftsmen of the Constitution of 1968 limited the municipal purpose exemption to “property owned by a municipality and used exclusively by it for municipal or public purposes.” Article VII, Section 3(a), Florida Constitution 1968. The present Constitution further provides that where any project financed by revenue bonds “is occupied or operated by any private corporation . . . pursuant to . lease . . . the property interest created by such . . . lease shall be subject to taxation to the same extent as other privately owned property.” Article VII, Section 10(c), Florida Constitution 1968. Paralleling this constitutional provision, Section 196.001, Florida Statutes (1975) makes “[a]ll leasehold interests in property ... of the state,. or any political subdivision, municipality, agency, authority, or other public body corporate of the state” subject to taxation unless otherwise exempted.

Other statutory provisions exempt privately held leaseholds of governmental property from taxation “ortjy when the lessee,” Section 196.199(2)(a), Florida Statutes (1975), “is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit, or . which would otherwise be a valid subject for the allocation of public funds.” Section 196.012(5), Florida Statutes (1975). The lessee in the present case does not serve a governmental purpose. The Corporation’s operation of the speedway “is purely proprietary and for profit.” Williams v. Jones, 326 So.2d 425, 433 (Fla.1975) (reh. den. 1976). The Corporation exists in order to make profits for its stockholders and uses the leasehold to further that purpose. This use is determinative: “It is the utilization of leased property from a governmental source that determines whether it is taxable under the Constitution.” Straughn v. Camp, supra, at 695.

The burden is on the claimant to show clearly any entitlement to tax exemption. “The rule is that all property is subject to taxation unless expressly exempt and such exemptions are strictly construed against the party claiming them. State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958).” Williams v. Jones, supra, at 435. Mr. Justice Sundberg, writing for the Court in Williams v. Jones, supra, delineated the scope of the exemption at issue here in the following words:

The exemptions contemplated under Sections 196.012(5) and 196.199(2)(a), Florida Statutes, relate to “governmental-governmental” functions as opposed to “governmental-proprietary” functions. With the exemption being so interpreted all property used by private persons and commercial enterprises is subjected to taxation either directly or indirectly through taxation on the leasehold. Thus all privately used property bears a tax burden in some manner and this is what the Constitution mandates.
At 433.

Operating an automobile racetrack for profit is not even arguably the performance of a “governmental-governmental” function.

In the trial court, appellees also maintained that their leasehold enjoyed tax exempt status as a matter of contractual right. This position does not square with the rule that “a subsequent legislature has the unquestioned authority to repeal prior tax exemption statutes.” Straughn v. Camp, supra, at 694. But appellees do not even claim that the legislature entered into a contract, only that the City of Daytona Beach agreed to

levy no tax upon the improvements constructed by the [District] or upon the leasehold estate . . . created [by the lease between the City and the District], so long as the same is held by . [a] public body.

The City of Daytona Beach is without authority to bind the legislature, and the lease between the City and the District evinces no attempt to exercise such authority ultra vires. The leasehold adverted to in appel-lees’ complaint, moreover, was created by the lease between the City of Daytona Beach as lessor and the District as lessee. On the other hand, the leasehold which has been assessed as nonexempt was created by the lease between the District as lessor and the Corporation as lessee. Finally, a privately held corporation organized and operated for its stockholders’ profits is not a “public body” within the meaning of the agreement between the City and the District.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

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

ROBERTS and ADKINS, JJ., dissent.

      . Chapter 31343, Laws of Florida 1955 (repealing Chapter 29590, Laws of Florida 1953). Section 13 of this special act provides:
      Exemption from Taxation. — As the economic welfare of the inhabitants of the District is dependent to a substantial degree on tourist business brought to the District because of the recreational facilities and opportunities afforded therein, and as the acquisition or construction of racing and recreational facilities hereunder will promote the economic, commercial and residential development of the District, and as the exercise of the powers conferred by this Act to effect such purposes constitutes the performance of essential public functions, and as the racing and recreational facilities will constitute public property used for public purposes, no taxes or assessments shall be levied upon any such racing and recreational facilities or upon the income therefrom and any bonds issued under the provisions of this Act, their transfer and the income therefrom (including any profit made on the sale thereof), shall at all times be free from taxation within the state.

      . Chapter 71-133, Laws of Florida. Section 14 of the Tax Reform Act has not been codified in Florida Statutes. In pertinent part, Chapter 71-133, § 14, Laws of Florida, provides:
      All special and local acts or general acts of local application granting specific exemption from property taxation are hereby repealed to the extent that such exemption is granted

      .Chapter 73-647 provides, as follows:
      WHEREAS, facilities of the Daytona Beach racing and recreational facilities district have been exempt from taxation and assessment, and
      WHEREAS, the ever-increasing cost of government in Volusia County requires that additional funds be derived from taxation of property in the county, and
      WHEREAS, the removal of such exemption will result in certain facilities in Volusia County providing their pro rata share of the cost of government, and
      WHEREAS, the legislation intends that any facilities of said district be taxed in the same manner as any other property in Volusia County, NOW THEREFORE

        Be It Enacted by the Legislature of the State of Florida:

      Section 1. Section 13 of chapter 31343, Laws of Florida, 1955, is hereby repealed.

        Section 2. This act shall take effect January 1, 1974.

      . The trial court summed up its reasoning in these words:
      In this case the Legislature saw fit to repeal the specific grant of a tax exemption, but did not repeal the declaration of public purpose. If the Legislature does not repeal the public purpose declaration as set forth in Chapter 31343 and which has been upheld as a valid declaration by the Supreme Court of Florida, there can then be no ad valorem taxation of the leasehold interest of the Plaintiffs’ property. Chapter 73-647, Laws of Florida is therefore void insofar as it is used to provide the basis for the assessment and levy of ad valorem taxation of the property owned by Plaintiff, Daytona Beach Racing and Recreational Facilities District, or leased by it to Plaintiff, International Speedway Corporation.
      The Court rejected precisely these arguments in Straughn v. Camp, 293 So.2d 689 (Fla.1974), in holding that the leaseholds involved there were not exempt from ad valorem taxation. The dissent protested in vain that “while the Legislature has eliminated the tax exemptions . it did not repeal . [the] declaration] that the development . . . was a public purpose" and that this Court had previously considered “the validity of this legislative declaration of public purpose and expressly upheld it.” At 696 (McCain, J., dissenting).

      . Section 196.001, Florida Statutes (1975) supersedes the statutory provisions considered in Dade County v. Pan American World Airways, Inc., 275 So.2d 505 (Fla.1973).


source: Caselaw Access Project

author: PER CURIAM. ENGLAND, Justice

license: Public Domain

text:
    In re FLORIDA BOARD OF BAR EXAMINERS (two cases). In re ADMISSION OF PREVIOUSLY-CONVICTED FELONS. In re George KASTENBAUM.
    Nos. 48500 and 48731.
    Supreme Court of Florida.
    Nov. 24, 1976.
    Rehearing Denied Jan. 27, 1977.
    Joseph J. Gersten, Chairman, Miami, and C. Graham Crothers, Tallahassee, for petitioner — Florida Board of Bar Examiners.
    George Kastenbaum, in pro per.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for the State of Florida.
    Richard C. McFarlain, Asst. Executive Director, for The Florida Bar.
    Tobias Simon and Elizabeth duFresne, Miami, for David A. Morrison.
   PER CURIAM.

The Florida Board of Bar Examiners has by petition requested certain information for its guidance in determining the admissibility of applicants to The Florida Bar.

The following questions have been submitted by the Bar with request for this Court’s answers:

“1. Does Section 9A of the rules promulgated by the Governor and the Cabinet validly and automatically restore a previously convicted felon’s civil rights so that he may be considered for admission to The Florida Bar?
“2. Does a conditional pardon as defined in Section 4B of the rules promulgated by the Governor and the Cabinet restore a previously convicted felon’s civil rights in such a manner that he may be considered for admission to The Florida Bar?
“3. If such a conditional pardon does allow admission to The Florida Bar, what happens if the applicant breaches the condition?”

Additionally, we have for consideration the petition of George Kastenbaum, formerly a member of The Florida Bar, who was convicted of a felony in federal court and was consequently disbarred from The Florida Bar on June 29, 1972. The Florida Bar v. Kastenbaum, 263 So.2d 793 (Fla.1972). Kastenbaum seeks review of the refusal by the Board of Bar Examiners to accept and consider his application for admission to The Florida Bar on the basis that his civil rights have not been restored.

Several similar questions have previously been propounded to this Court by The Florida Board of Bar Examiners. In response to the question as to whether the fact that an applicant has been deprived of his civil rights, in and of itself, bars that applicant from the practice of law in this State, this Court opined:

“. . . where an applicant has been deprived of his civil rights upon conviction of a felony or infamous crime, but such civil rights shall have been subsequently restored by the granting of a full pardon by the Board of Pardons as authorized in Article IV, Section 12, of the Constitution, such prior conviction as shall have been pardoned will not bar such applicant from the practice of law in the State of Florida if he otherwise meets the qualifications for so doing. Provided, however, that any such conviction and loss of civil rights may be considered by the Board in the overall measurement of the general character of the applicant. The deprivation of civil rights for conviction of the offenses listed in Article VI, Section 5 of the Constitution of Florida, in the absence of a full pardon and restoration of civil rights by the Board of Pardons, would bar the applicant from the practice of law in the State of Florida except, unless and until such full pardon and restoration of civil rights shall have been granted.” In re Florida Board of Bar Examiners, 183 So.2d 688, 690 (Fla.1966).

Subsequently in a letter by this Court dated November 25, 1970, directed to inquiry made by the Florida Board of Bar Examiners and questions posed thereby, this Court expressed the views that a conviction under a federal statute which provides that violation thereof shall constitute a felony so long as the federal violation is equivalent to a state felony does deprive an individual of his civil rights,, that in order to be eligible for admission to The Florida Bar, an applicant convicted of a federal offense constituting a felony equivalent to a felony under state law is required to have his civil rights restored by the Governor and three members of the Cabinet or by Presidential Pardon, and that an applicant convicted of a federal felony equivalent to a felony under state law need not obtain a Presidential Pardon to be eligible for admission to The Florida Bar if his civil rights are restored in Florida pursuant to Article IV, Section 8, Florida Constitution.

Article IV, Section 8(a), Florida Constitution, provides:

“Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.”

By mutual consent of the Governor and Cabinet, the Rules of Executive Clemency were adopted September 10, 1975. Section 9(A) of Rules of Executive Clemency of Florida, effective November 1, 1975, provides for the automatic restoration of civil rights, as follows:

“When a person receives final release from the Florida Parole and Probation Commission, Department of Offender Rehabilitation or county jail, his civil rights shall be automatically reinstated, except the right to possess or own a firearm shall be specifically withheld.”

Section 4, Rules of Executive Clemency of Florida, provides:

“Where in the discretion of the Governor a case merits consideration for executive clemency for any reason, the Governor with the approval of three Cabinet members may bestow the following acts of grace:
“A. A FULL PARDON unconditionally releases from punishment, forgives guilt and entitles an applicant to all of the rights of citizenship enjoyed by him before his conviction. It freely and unconditionally absolves the offender from all legal consequences of the crime and conviction.
“B. A CONDITIONAL PARDON releases from punishment, forgives guilt of any applicant and entitles him to all of the rights of citizenship enjoyed before his conviction, only so long as the applicant fulfills certain conditions, precedent or subsequent, which are specified by the Governor with the approval of three Cabinet members. A violation or breach of the conditions may remove the conditional pardon and place the recipient in the status prior to receiving same.
“C. COMMUTATION OF SENTENCE changes the applicant’s penalty to one less severe, but does not restore civil rights. Persons incarcerated, on parole or probation will not be considered for commutation of sentence unless a waiver is granted in accordance with Rule 13 or commutation is recommended by the secretary of the Department of Offender Rehabilitation.
“D. REMISSION OF FINES AND FORFEITURES suspends or removes fines or forfeitures.
“E. RESTORATION OF CIVIL RIGHTS restores to the applicant all or some of the rights of citizenship enjoyed before conviction in the State of Florida or restores all or some civil rights in this State for persons convicted under the laws of another state or government.”

We now refer to the three questions proposed by the Florida Board of Bar Examiners.

1. Section 9A of the Rules promulgated by the Governor and Cabinet providing for automatic restoration of a convicted felon’s civil rights on its face is sufficient to return full citizenship to the felon, but we feel constrained to comment that the constitutionality vel non of this Rule has not yet been presented to the Court as an alleged violation of Article IV, Section 8, Constitution of Florida.

2. A conditional pardon is not a full restoration of citizenship and is not sufficient to lift the objection to his admission to The Florida Bar.

3. In view of our answer to question two, we find it unnecessary to deal separately with question three.

It appears that the petitioner Kas-tenbaum was convicted in a federal court of violating Section 1951, Title 18, United States Code, which relates to interference with commerce by threats or violence. Accordingly, prior to consideration for readmission, it will be necessary for the petitioner Kastenbaum to obtain a full pardon or restoration of his civil rights either from the President of the United States or the Governor of Florida with three members of the Cabinet concurring.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCH-ETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice

(dissenting).

In 1966 this Court held that persons convicted of any crime enumerated in Article VI, Section 5 of the Florida Constitution (1885) could not be admitted to the bar until his or her civil rights were restored by a full pardon. That provision required the Legislature to “enact the necessary laws to exclude from every office of honor, power, trust or profit, civil or military . all persons convicted” of certain listed offenses. Implicitly the Court determined that, as an “officer of the court”, a person admitted to the bar should have the same qualifications as a holder of public office, and thereby gave recognition to the policy expressed in the Constitution.

In 1968 the Constitution was amended to provide in Article VI, Section 4 that:

“No person convicted of a felony . shall be qualified to vote or hold office until restoration of civil rights . . .”

The intent of the new provision was to bar voting privileges and the holding of a public office. I do not believe that Article VI, Section 4 of the 1968 Constitution has any effect whatsoever on the exercise of this Court’s exclusive power to regulate admission to the legal profession in this state.

We recently held that, although attorneys are properly viewed as “officers of the court”, they do not hold public office for the purposes of financial disclosure legislation affecting public officeholders. We there explained that the legal profession serves functions necessary to the efficient operation of the judicial system, and that the existence of a responsible legal profession provides the historical foundation upon which an attorney’s special status as an “officer of the court” has been based. Nonetheless, we noted the distinction between historic court “officers” and constitutionally or legislatively controlled public officials. The United States Supreme Court has also said that “a lawyer is engaged in a private profession.”

In exercising our exclusive power to admit to the practice of law in Florida persons previously convicted of a felony we could obviously require a restoration of civil rights by full or conditional pardon. I would decline to do so, however. The pardon power and the power to restore civil rights in Florida are vested exclusively in the Governor and Cabinet. The equivalent power at the federal level is vested in the President of the United States. If we were to condition the admission of an ex-felon to the practice of law only when the executive branch chooses to exercise its discretion under the federal or the state constitution, we would dilute to that extent the exclusive power over bar admissions which the Florida Constitution assigns to this Court. Such a delegation of our responsibility is neither appropriate nor wise.

The extent to which the executive branch either has or has not exercised its discretionary power to pardon or restore civil rights has no relation to the fitness of a particular person to practice law. In addressing a similar issue, the Supreme Judicial Court of Massachusetts held that it could not be presupposed that an attorney disbarred as a result of a conviction for perjury was beyond rehabilitation.

“Time and experience may mend flaws of character which allowed the immature man to err. . . . There is always the potentiality for reform . . . .”

I agree with that view.

The commission and conviction of a crime by a person seeking admission to the practice of law raises serious questions as to moral fitness. It does not, however, always and necessarily mean he is permanently unfit. It requires in each case an inquiry into the gravity of the offense, the length of time since conviction, and a host of other factors relating to the person’s character and current fitness to enter the legal profession. It may be that an ex-felon will be able to show rehabilitation sufficient to meet the character requirements for admission to the Bar only in rare cases, but those who do should not be denied admission solely because the executive branch has declined to perform a discretionary political act.

For these reasons, I would recede from earlier decisions of this Court, direct the Board to accept and process the applications of persons previously convicted of felonies in accordance with the rules relating to admission to the bar and in doing so consider the conviction, as well as other relevant events in the applicant’s history, as bearing on the applicant’s present fitness to practice law.

      . In re Florida Board of Bar Examiners, 183 So.2d 688 (Fla.1966).

      . Article V, Section 15, Florida Constitution (1972); Article V, Section 23, Florida Constitution (1968).

      . In re The Florida Bar, 316 So.2d 45 (Fla.1975).

      . Cammer v. United States, 350 U.S. 399, 405, 76 S.Ct. 456, 458, 100 L.Ed. 474 (1956).

      . Art. IV, § 8(a), Fla.Const. (1968). See also In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla.1975).

      . U.S.Const, art. II, § 2.

      . Article II, Section 3 of the Florida Constitution provides that “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

      .The total abdication of individualized decision-making to non-particularized executive rules produces absurd results. A restoration of civil rights under Section 9(a) is automatic upon release from jail although there is no element of forgiveness in the executive’s decision. Time alone provides absolution, without regard to conduct or rehabilitative efforts while in jail. The majority approves bar admission under these circumstances. Not so with a conditional pardon (necessarily the product of a more deliberative decision-making process by the executive) which not only expressly forgives guilt but which could have as the sole condition a rehabilitative or socially desirable requirement such as a precedent restitution to the felon’s victim.

      . The pardon power is not always free from political considerations appropriate to the executive branch but wholly unsuited to the duties of the judiciary. For example, see Pardon Is Assured for Pitts and Lee, Miami Herald. Sept. 17, 1975, at p. 1.

      . In re Hiss, Mass., 333 N.E.2d 429, 434 (1975).


author: ADKINS and BOYD, Justices.

text:
    Elzada W. CROMARTY, etc., Petitioner, v. FORD MOTOR COMPANY, etc., et al., Respondents.
    No. 47159.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied Feb. 10, 1977.

      William C. Pierson, Gainesville, and Robert W. Morrison, Tampa, for petitioner.
    William M. Howell of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, and Joe C. Willcox and L. William Graham of Dell, Graham, Willcox, Barber, Rappe-necker, Ryals & Henderson, Gainesville, for respondents.
   ADKINS and BOYD, Justices.

We are reviewing this case by writ of certiorari because the decision of the District Court of Appeal, 308 So.2d 159 (Fla.1st DCA 1975), conflicts with Wale v. Barnes, 278 So.2d 601 (Fla.1973) and LaBarbera v. Millan Builders, Inc., 191 So.2d 619 (Fla.1st DCA 1966). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

Suit was brought by petitioner to collect damages against respondents arising from the accidental death of her husband from drowning in a pond near Gainesville, Florida, after the Ford automobile which he was driving ran off the road into the pond. The question for determination here is whether the evidence submitted to the jury constituted a sufficient basis for the verdict rendered by the jury against the defendant and for the plaintiff. The verdict was based upon testimony of expert witnesses who had examined the automobile after it was removed from the lake. Petitioner’s expert witness discovered the automobile had lost its steering because of a fractured adjuster nut which had permitted the worm gear to back out of the control box in the steering mechanism and further testified that, in his opinion, the adjuster nut fracture could not have been caused by impact in the accident, rather it must have been due to defective design. There was additional evidence of metallurgical and engineering testing to support opinions of the experts. There was conflicting testimony by expert witnesses for respondents that the damage to the steering mechanism was caused by the impact of the wreck when the car left the road. We perceive it was the jury’s duty to weigh and evaluate all testimony in reaching a verdict. All witnesses personally examined the physical mechanical steering device and based their opinions on their findings.

Although the jury reached the verdict for the petitioner the trial court issued judgment for the defendants, notwithstanding the verdict, and the District Court of Appeal affirmed the action of the trial court on the theory that the testimony by the experts was so speculative and so filled with conjecture that it was not sufficient to constitute a basis for rendering the judgment.

We well agree with the District Court of Appeal that verdicts should not be based upon speculative and conjectural expert testimony with no basis in evidentiary fact. However, the expert opinion, that the automobile lost its steering before the accident, was based on the evidentiary fact that the adjuster nut was fractured and the conclusion that, since impact of the accident could not have caused the fracture, it must have been due to defective design. The controlling law in Florida is expressed in Wa7e, supra, where this Court reversed a District Court affirmance of a directed verdict for a defendant in a medical malpractice suit. The defendant was sued for damages stemming from subdural hemato-mas caused by his use of forceps in the birth of the plaintiff. The court saw error in taking the decision as to liability away from the jury when an expert had testified that the hematomas were caused by the defendant and that opinion was grounded on the fact that the defendant had used the wrong type of forceps. It has been held that an expert opinion may support a jury verdict, so long as it is grounded in fact, even though it involves a conclusion as to causation, in other opinions, as well. LaBarbera, supra, and Zack v. Centro Espanol Hospital, Inc., 319 So.2d 34 (Fla.2d DCA 1975).

Applying these standards to the case before us, it is our view that there was sufficient evidence before the jury to support the entry of the verdict which should not have been vacated by the court. The growing complexity of mechanical devices, including transportation equipment, renders it more necessary as time passes to rely upon expert opinions as to the causes of accidents. We are of the view that expert opinions, when supported by scientific and factual data, must be relied upon in reaching the ends of justice and that the need for such reliance continues as a society becomes more complex.

It is asserted that the amount of damages to be assessed was arrived at by a quotient verdict wherein each juror stated the amount of damages he considered proper, the sum was computed, and divided by the number of jurors to determine the amount of the verdict. The trial judge found that the jurors agreed in advance to be bound by the results of such procedure. It has long been held in this jurisdiction that this is improper and constitutes a ground for new trial. Marks v. State Road Department, Fla., 69 So.2d 771 (1954). We agree that quotient verdicts are still not permitted in Florida.

However, in order to invalidate a verdict as a quotient verdict, it is insufficient to show merely that the jurors used the quotient'process at some stage of their deliberations and that their verdict corresponded exactly or approximately to the amount of the quotient. Rather, it is essential and vital to show that the jurors agreed prior to obtaining the quotient that they would be bound by it and accept it as their verdict. See 76 Am.Jur.2d Trial § 1135 at 108.

The jury deliberations took place in the latter part of November 1972 and the jurors were recalled for interrogation on June 7, 1973, approximately six months after their deliberation. The following form question was asked the jurors at that time by the trial judge:

“[A] quotient verdict is a verdict that is arrived at by each juror agreeing in advance to be bound by a figure, which is the average of six figures submitted by each juror, totalled, then divided by six, with the resulting verdict amount being the final average figure arrived at. Was your verdict in this case a quotient verdict?”

The jury foreman Miller answered the form question in the affirmative. He then stated that each juror had submitted a figure; these figures were totaled and then divided by the number of jurors. When he was asked if the jurors had agreed beforehand, he replied:

“Before we did it, we agreed that would be the way to arrive at that verdict.” (Emphasis supplied.)

The trend of the jurors’ testimony was that they had disagreed as to the amount and were seeking a method to reach an agreement or compromise so that a verdict could be returned. There was no proof of the existence of an agreement by the jurors to be bound by whatever amount would result, with the exception of juror Webb who answered each question with the word “yes" without explanation. Each question was leading, so that the affirmative answers do not constitute any substantial proof.

Juror Hudson answered the form question in the affirmative but when inquiry was made as to the length of time the jurors discussed the figure after reaching it by the quotient method, the juror said:

“I would say we talked about it for about ten minutes, if I recall — maybe more or less, I don’t remember, it’s a long time ago. There was discussion as to whether or not we all agreed that was an equitable amount and to whether or not we all thought that the way it was calculated was equitable.” (Emphasis supplied.)

The Court then asked juror Hudson the following question and received the following response:

“Q. Now, I want you to reflect back to that day of November 30th, 1972, prior to the time that the figures were submitted. In your discussions before the figures, were submitted, totalled, then divided, did you agree that you would be bound by the average of all six figures, of what everybody individually thought?
“A. I can’t really recall that. I doubt it. I doubt that I personally would have agreed with a thing like that. I can’t really recall whether we did or not. I doubt — I know that there was a discussion as to exactly how we were going to arrive at the amount — you know, how do you do that between six people, the exact figure everybody agrees on. I remember there was discussion that way. As far as whether or not we all said, yes, no matter what we came up with we would agree on it, I don’t know for sure, but I doubt that.” (Emphasis supplied.)

Juror Barwick answered the form question in the affirmative, but the subsequent interrogation contains the following:

“Q. And had you agreed before you did that that whatever sum came out, by doing that, that you would be bound by that and that would be your verdict?
“A. I don’t think that definition was ever given to us that way. From what I understood in the jury room, we each gave a figure, what it would be, and then the average was taken, but whenever you estimated it, you know, what you thought, you doubled what your estimation would be, because Mrs. Cromarty for instance would only get the original figure. I have a feeling I am not doing so well.”

Juror MacGregor denied that it was a quotient verdict, in the following interrogation:

“Q. Was your verdict in this case a quotient verdict?
“A. No, sir, I don’t think so. I particularly don’t think so, because you said a quotient verdict calls for an agreement to the figure before the fact, and I personally did not feel bound to any figure we arrived at in that manner. So for that reason, I say, no, it wasn’t.”
***** *
“Q. Was there deliberation and discussion in respect to the verdict after that figure had been arrived at?
“A. As I recall, after we arrived at the figure, each person in turn was asked if he then agreed with that figure, something simple, such as “This is the figure, do you agree”, around the table.” . . . When the figure came in — when we got the figure, I felt it was a reasonable compromise between what I felt was the figure and what I felt the other people felt was a fair figure. Had I not felt it was a fair compromise, I would not have agreed to it, and I felt I had the opportunity to disagree. That is why I don’t feel I was bound beforehand.”

Juror Hudson answered the form question in the affirmative but the interrogation revealed the following:

“Q. And somebody suggested adding up those figures. Now, before you added them up, had you agreed that whatever came out, that that then would be the figure the jury would arrive at in its verdict?
“A. I think we suggested that this would be the way to arrive at it, since we were so widely spread in the amount of money some people thought, as opposed to others.” (Emphasis supplied.)

The proof was clear and convincing that during their deliberation the jurors had varied widely in the amount of damages to be assessed. In order to reach some fair figure upon which they could agree, the jurors decided to use the quotient process. This was not for the purpose of being bound by the resulting figure, but for the purpose of reaching an equitable and just amount. Certainly, from the above statements, it is clear that the jurors intended to discuss it further and did not feel that they were bound by the resulting figure.

This Court, in Jackson Grain Company v. Hopkins, 75 So.2d 306 (Fla.1954), recognized that the method of aggregating and averaging is a significant circumstance to be considered in determining whether there was, in fact, a quotient verdict. The Court condemned such a method when the jury deliberated for only “a little more than an hour after retirement.”

Also, in Malone v. Marks Brothers Paving Co., 168 So.2d 753 (Fla.3d DCA 1964), the District Court of Appeal criticized the reaching of a verdict by aggregating or averaging. In Malone, just as in Jackson, there was other evidence of an agreement to be bound after the average was taken.

The record fails to show that the amount of damages to be assessed was arrived at by a quotient verdict. All of the jurors did not agree in advance to be bound by the results of such procedure.

Accordingly, the decision of the District Court of Appeal, First District, is quashed and the cause is remanded for the purpose of a further remand to the trial court with instructions to reinstate the verdict of the jury and enter judgment accordingly.

It is so ordered.

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

ROBERTS, J., dissents.


author: BOYD, Justice.

text:
    Mary J. RODGERS et vir., Petitioners, v. W. T. GRANT COMPANY, etc., Respondent.
    No. 48989.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied Jan. 27, 1977.

      Luke G. Galant of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for petitioners.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, ackson-ville, for respondent.
   BOYD, Justice.

After Mary J. Rodgers gave a check for $5.14 to W. T. Grant Company, in payment for merchandise, she closed a special bank account on which the check was drawn and opened a new checking account at the same bank. When she discovered that the check had not cleared the old account she advised the Company. In turn, the store manager told Mrs. Rodgers that if her telephone number was on the check she would be notified when the check was returned so that payment could be made. Unknown to the Company, Mrs. Rodgers had unwittingly transposed two of the digits in her telephone number when writing it on the check. When the check was returned, another employee tried unsuccessfully to telephone Mrs. Rodgers and without attempting to reach her at the home address correctly written on the check, he complained under oath to Justice of the Peace Motes that she had knowingly issued a worthless check.

Process was served on Mrs. Rodgers by a Constable. At the same time, he advised her that she could dispose of the matter by paying the amount of the check and approximately $22.00 in court costs. Mrs. Rodgers returned to the store and offered to pay the amount of the check and any bank charges resulting from its return. After calling the office of the Justice of the Peace, the store manager advised Mrs. Rodgers that “they have informed me I cannot accept the money,” whereupon Mrs. Rodgers left cash in the amount of the check, plus $2.00 to cover bank costs, on the counter.

Justice of the Peace Motes was apprised of these facts by Mrs. Rodgers, and her attorney, at the preliminary hearing on the worthless check charge. Without instigation apparent from the record, the Justice of the Peace announced that the charges would be dismissed if Mrs. Rodgers would give the Company a release from liability. When Mrs. Rodgers’ attorney declined, the Justice of the Peace replied, “The court doesn’t want to put either side in jeopardy, for that matter, so we will bind this over to criminal court on a proper bond.” The State Attorney dismissed the charges without further proceedings.

In this action for malicious prosecution brought by Mrs. Rodgers and her husband against the Company, the trial court entered a summary final judgment in favor of the Company because the action of the Justice of the Peace in committing Mrs. Rodgers to criminal prosecution determined that “want of probable cause,” an element of malicious prosecution, did not exist. The trial court was following the rule of Galluc-ci v. Milavic, where this Court held that a committal order gives rise to a presumption of probable cause, which may be rebutted by allegations and proof that the complainant secured the order by fraud or improper means. The presumption was unrebutted because the Rodgers’ complaint did not contain the necessary allegations. Although a motion for leave to amend was granted, the complaint was not amended.

The District Court of Appeal, First District, affirmed. On rehearing the court noted that ordering Mrs. Rodgers bound over to criminal court is the type of conduct which fosters disrespect for the judicial process. Nevertheless, bound by the Gal- lucci rule, the court reluctantly again affirmed the order of summary judgment. Because it felt its decision gives conclusive effect to a committal order which was an apparent instrumentality of injustice, the court certified the following question as one of great public interest:

Does the committal order of a magistrate import probable cause to prosecute and thus bar a subsequent malicious prosecution action, notwithstanding that the motive for its entry was to bar that action?

The District Court urges that we reconsider the Gallucci rule. We do not think reconsideration is necessary because this case is not governed by Gallucci. It simply does not fit within the standard Gallucci situation, as shown by the following portion of the preliminary hearing transcript:

“THE COURT: In the interest of not letting something like this go on to Criminal Court, and it will cost everybody, — if she is willing to pay this check this court at this time will withdraw the charges on the check, if you want to do it that way.
“MR. GALANT: Well, she is willing to pay it, Your Honor. She has already paid it if they will take her money, and then I would like to have the charges dismissed.
“THE COURT: If the charges are dismissed, at that time are you willing to give her clearance to give this lady [Grant’s office manager] a release from any future—
“MR. GALANT: I don’t think we are prepared to do that at this time, Your Honor.
“THE COURT: If we can’t clear this up today, — I mean, the court’s interest in this thing was clearing the whole thing up today. If we can’t clear it up today, I am going to bind it over to Criminal Court.
“MR. GALANT: Well, Your Honor, this matter of a release is utterly immaterial to these proceedings and has nothing to do with it. I submit there’s absolutely no intention — there is obviously no intention on the part of this lady to have—
“THE COURT: The only way, Mr. Ga-lant, that we can take care of this now is with the complainant withdrawing the charge because the thing would have been taken care—
“MR. GALANT: She has already— “THE COURT: The court doesn’t want to put either side in jeopardy, for that matter, so we will bind this over to Criminal Court on a proper bond.”

It is clear the Magistrate did not order the committal because he found probable cause to exist. Therefore, this committal order does not bar the action for malicious prosecution and the summary judgment in favor of the Company should be reversed. Our holding that the action should not be barred by the committal order in this case effectively answers the certified question. The opinion of the District Court of Appeal, First District, is quashed and the cause remanded for trial for further proceedings consistent with this opinion.

It is so ordered.

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

      . 100 So.2d 375 (Fla.1958).

        . 326 So.2d 57 (Fla. 1st DCA 1975).

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


author: ADKINS, Acting Chief Justice. ENGLAND, Justice, BOYD, Justice,

text:
    Inquiry concerning a Judge, No. 74-14. In re Stewart F. LaMOTTE, Jr.
    No. 49982.
    Supreme Court of Florida.
    Jan. 4, 1977.
    Rehearing Denied Feb. 7, 1977.

      John R. Asbell of Asbell, Hains & Doyle, Naples, for Judicial Qualifications Commission, complainant.
    J. B. Patterson of Patterson, Maloney & Shankweiler, and Marshall G. Curran, Jr., of Spear, Deuschle & Curran, Fort Lauder-dale, for Stewart F. LaMotte, Jr., respondent.
   ADKINS, Acting Chief Justice.

We have before us a recommendation of the Judicial Qualifications Commission for removal of Judge Stewart F. LaMotte, Jr., of the Seventeenth Judicial Circuit, for conduct unbecoming a member of the judiciary. This recommendation has been filed pursuant to Article V, Section 12(f), Florida Constitution.

Judge Stewart F. LaMotte, Jr. assumed the bench as Circuit Judge in Broward County, Seventeenth Judicial Circuit, on March 7, 1968. Shortly after assuming the bench, the Judge received an air travel credit card. During the period of time from that date through the date of the notice of formal proceeding, the Judge incurred approximately $2,000 in personal charges for various trips to Asheville, North Carolina, Atlanta, Georgia, and Jacksonville, Florida. These personal charges are the subject of the instant proceeding.

The Judge admits the use of the credit card in the manner described, but says that he thought the charges would be deducted from his salary. Restitution was made. At the hearing, three circuit judges testified that the judge had “unquestionable integrity, honesty” and that his reputation was “good.” It was stipulated that four additional circuit judges and the President of the Broward County Bar would all testify that the Judge’s reputation for truthfulness and honesty was good.

The report of the Judicial Qualifications Commission contains the following:

“FINDINGS OF FACT
“The Commission, having personally heard the testimony and having had the advantage of observing the demeanor of the Respondent and other witnesses while on the witness stand, their candor or lack of candor while testifying, hereby finds that Respondent, Stewart F. LaMotte, Jr., while a member of the Judiciary occupying the position of Circuit Judge of the Seventeenth Judicial Circuit of Florida, paid for air transportation on trips unconnected with his official duties with air travel credit cards issued by the State of Florida for official use only on the dates and to the destinations alleged in paragraph two of the Notice of Formal Proceedings filed herein contrary to the provision of Sec. 112.061(3)(b) Florida Statutes, which unauthorized charges were in the total amount of one-thousand-eight-hundred-seventy-eight dollars and sixty-two cents ($1,878.62). In charging the costs of said trips to the State of Florida on the official credit card issued to him, Respondent used the credit of the State of Florida for his own personal use contrary to law and knew or is presumed to have known that the cost of such trips would be paid by the State and he had no intention of reimbursing the State for the amount of such costs unless and until the unauthorized character of said charges so made was discovered by the State and demand for reimbursement was made upon him.
“CONCLUSIONS OF LAW
“Judge Stewart F. LaMotte, Jr., in conducting himself in the manner set out in the above Findings of Fact intentionally committed serious and grievous wrongs of a clearly unredeeming nature; has rendered himself an object of disrespect and derision in his role as a judge to the point of ineffectiveness and caused public confidence in the Judiciary to become eroded, that in so doing Respondent is guilty of violating Canons 1 and 2 of the Code of Judicial Conduct as adopted by the Supreme Court of Florida on July 25, 1973, and is guilty of conduct unbecoming a member of the Judiciary.
“RECOMMENDATION OF DISCIPLINE
“It is recommended by the Florida Judicial Qualifications Commission that the Supreme Court of Florida render its Order and Judgment removing Respondent from office for his conduct as herein-above found to have occurred.”

Canon 1, of the Code of Judicial Conduct, reads as follows:

“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

Canon 2, of the Code of Judicial Conduct, reads as follows:

“A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
“B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.”

Our authority rests upon the provisions of Article V, Section 12(f), Florida Constitution, which provides as follows:

“Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the justice or judge be disciplined by appropriate reprimand, or be removed from office with termination of compensation for willful or persistent failure to perform his duties or for other conduct unbecoming a member of the judiciary, or be involuntarily retired for any permanent disability that seriously interferes with the performance of his duties.”

The findings and recommendations of the Judicial Qualifications Commission are of persuasive force and should be given great weight. See In re Kelly, 238 So.2d 565 (Fla.1970). However, the ultimate power and responsibility in making a determination rests with this Court.

The degree of proof required to discipline a judge is analogous to that required in disciplining an attorney. This degree of proof must be “clear and convincing.” There must be more than a “preponderance of the evidence,” but the proof need not be “beyond and to the exclusion of a reasonable doubt.” Zachary v. State, 53 Fla. 94, 43 So. 925 (1907), were this Court reversed a judgement of disbarment entered by a circuit court; State ex rel. Florida Bar v. Bass, 106 So.2d 77 (Fla.1958); Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970).

It is the responsibility of this Court to review the proceedings before the Judicial Qualifications Commission in the light, and under the guidance, of these rules.

The critical question to be determined is whether or not there is clear and convincing proof that the judge “knew or is presumed to have known” that the charges on his air travel card would not be deducted from his salary.

At the time the judge took office a packet of information was forwarded to him. This packet contained a letter stating that he would be sent a copy of the operating procedures’ manual of the Comptroller’s office. This manual stated that only official traveling shall be charged to the state.

The judge began making these charges in November 1968, and they were admittedly of a personal nature. State rules and regulations specifically provide for the filing of vouchers in connection with expenses incurred which are related to official business. There was no audit procedure to verify that charges incurred through the use of the air travel card were related to official duties. In other words, the charges on the air travel card were paid by the state, and there was no auditing procedure by which the state checked disbursements for air travel with vouchers required to be submitted in connection with official business.

As an explanation of the reason for the unauthorized charges, Judge LaMotte stated that the credit card was issued in his name and he believed that he was allowed to make whatever charges he desired, both business and personal, and that any charges which were not related to official business would be automatically deducted from his pay.

The improper charges were discovered by a newspaper reporter. When confronted with these allegations the judge contacted the Judicial Administration Commission and was told that he owed the state $412.32 for travel incurred for the summer of 1975. The judge immediately reimbursed the state in this amount, but did not inform the Judicial Administration Commission of the additional charges made since 1968.

When a complete audit was made disclosing the charges for 1968 and other years, the judge immediately made restitution.

The judge had served with distinction as an Industrial Commission Judge, a County Judge in the Probate Division, and a Circuit Judge. He served with distinction in the Marine Corps during World War II. He has enjoyed an excellent reputation for honesty and integrity during his 45 years’ residence in Broward County. He had income over and above his income as a circuit judge.

The facts are undisputed. We must now determine whether the facts constitute such clear and convincing proof as to justify an inference that the judge “knew or is presumed to have known” that the charges.on his air travel card would not be deducted from his salary.

The Commission says that the explanation is inconsistent with the following:

(1) All deductions from the judge’s pay were listed individually on the face of the monthly pay warrant and included deductions for income tax withholding, social security tax, judicial retirement contributions, and Blue Cross Insurance when appropriate.

(2) The judge, by letter, previously requested that the Blue Cross Insurance he discontinued, stating therein “this will eliminate the ‘miscellaneous deduction’ on my pay check.”

(3)When informed as to the amount he owed the state for travel incurred during the summer of 1975, the judge failed to inform anyone of the additional charges made since 1968. After the additional charges were discovered, the judge admitted their existence.

On the other hand, the judge suggests the following:

(1) He had no reason to believe that such an inadequate accounting system existed in the State of Florida that his personal charges would not be deducted from his compensation. Therefore, he made no effort to examine his monthly check to be sure that such charges had been deducted.

(2) The evidence of seven people, experienced in their dealings with the judge, as to his honesty and integrity, is inconsistent with the finding that the judge knew or is presumed to have known that the charges would not be deducted from his salary.

A judge is required to conduct himself under standards which are much higher than those required of an attorney. Although we use the same measure of proof in considering grievance procedure against a judge as that used against a lawyer, facts requiring the reprimand or removal of a judge may not in all circumstances require reprimand or disbarment of an attorney.

Lawyers are disbarred only in cases where they commit extreme violations involving moral turpitude, corruption, defalcations, theft, larceny or other serious or reprehensible offenses. Judges should be held to even stricter ethical standards because in the nature of things even more rectitude and uprightness is expected of them. Cf. Cincinnati Bar Association v. Heitzler, 32 Ohio St.2d 214, 291 N.E.2d 477, 482 (1972). But they too should not be subjected to the extreme discipline of removal except in instances where it is free from doubt that they intentionally committed serious and grievous wrongs of a clearly unredeeming nature. The judge should observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. He should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

In determining whether a judge has conducted himself in a manner which erodes public confidence in the judiciary, we must consider the act or wrong itself and not the resulting adverse publicity. Otherwise an unpopular, but correct, decision of a judge could be construed as eroding public confidence in the judiciary. On the other hand, if a judge commits a grievous wrong which should erode confidence in the judiciary, but it does not appear that the public has lost confidence in the judiciary, the judge should nevertheless be removed.

The Commission had the opportunity to hear all of the evidence and observe the demeanor and candor of the witnesses, including the judge. The evidence is clear and convincing that the judge intentionally committed serious and grievous wrongs of a clearly unredeeming nature.

The judge asserts that he was denied due process and equal protection of the law guaranteed him under the Fourteenth Amendment to the Constitution of the United States and Sections 2 and 9, Article I of the Bill of Rights, Florida Constitution. It was necessary that the proceedings be concluded as early as possible, but it does not appear that the expeditious consideration of this cause jeopardized the rights of the judge. We find that there was no violation of his constitutional rights.

The findings and recommendations of the Commission are of persuasive force and are given great weight in our determination that the judge should be removed from office.

It is therefore, our opinion that Stewart F. LaMotte, Jr. should be removed from office with termination of compensation for conduct unbecoming a member of the judiciary effective upon this opinion becoming final.

It is so ordered.

ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which ADKINS, Acting C. J., and SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., concurs specially with an opinion, with which ROBERTS (Retired), J., concurs.

NOTICE OF DISQUALIFICATION

At the time of oral argument it became apparent, by reason of my administrative responsibilities that led to the formal charges in this matter, that I should disqualify myself pursuant to Canon 3C(1) of the Code of Judicial Conduct. I thereupon disqualified myself and withdrew from any participation on the merits of this cause.

s/ Ben F. Overton

Ben F. Overton

Chief Justice

ENGLAND, Justice,

concurring.

The outcome of this unfortunate case rests exclusively on facts found by the Commission, the critical one being that Judge LaMotte never intended to repay the state for personal expenses unless and until he was contacted for repayment. Both La-Motte and the Commission agree that removal from office is inappropriate unless that intention was present when the air travel charges were incurred.

LaMotte’s basic contention before the Court is that he was negligent and careless, nothing more. I have to agree with my colleagues, however, that we are essentially bound by the Commission’s finding as a “fact” that LaMotte never intended to repay the state for these expenses unless notified to do so. The record before us contains adequate evidence, although all of it is circumstantial, to support that finding.

Most of LaMotte’s charges were incurred in a regular pattern for summer vacations over a seven year period. A few were charges for the air travel of LaMotte’s son, billed by the airline at student rates. There is no possibility that the charges could have been appropriate business expenditures for a circuit judge, and Judge LaMotte candidly admits that this is so. His defense to the Commission was that he expected the charges to be deducted from his salary, that he did not submit travel vouchers on which the expenditures were claimed as having been officially incurred, that he treated the state’s air travel card as equivalent to any other credit card issued in his name (and was given no reason not to), that he repaid all sums owed when notified that they had not been deducted from his pay, and that he simply never examined his paychecks or his bank deposits at any time to determine whether these personal airfares had in fact been deducted from his monthly paychecks.

The Commission had before it the travel expense records, a 1970 letter from Judge LaMotte requesting an adjustment to his paycheck which reflected a familiarity with the treatment of non-routine deductions on the face of his checks, the air travel card issued by the state which (unlike his other credit cards) bore the markings “ST FL, circuit judge”, documentary evidence that he had received a state manual which paraphrased the state’s law limiting travel expenses to official state business, and some testimony to the effect that other circuit judges serving with Judge LaMotte did not consider using the state’s air travel card for personal travel. Although the totality of this evidence is far from overwhelming to demonstrate that Judge LaMotte knew that these travel expenses had not been deducted from his salary checks and therefore never intended to repay the state unless requested to do so, it does support the Commission’s ultimate conclusion that Judge LaMotte’s claim of mere inattention to detail was simply not believable. The Commission personally heard all of the witnesses, including Judge LaMotte. We have only a transcript of what they said.

It is exceedingly difficult to be responsible for actually removing from office a judge of this state. That duty falls on us, however, and I have concluded that I must accept the Commission’s superior vantage point for making the critical factual determination as to Judge LaMotte’s intent. For that reason, I concur with my colleagues that removal is warranted.

ADKINS, Acting C. J., and SUNDBERG and HATCHETT, JJ., concur.

BOYD, Justice,

concurring specially.

The critical question in this case is whether Judge Stewart F. LaMotte, Jr. intended to defraud the State of Florida by use of his air travel credit card, or used same for personal travel with full intentions of having such amounts deducted from his salary checks.

His pledging of the State’s credit for personal expenses by use of the credit card was improper, regardless of his intentions. If he intended to defraud the State, as found by the Judicial Qualifications Commission, removal from office would be proper, but if he intended to repay the State and believed the amounts charged had been withheld from his salary, it is my opinion that a public reprimand, coupled with his suspension from office for approximately five months, should be ample imposition of discipline. It is a matter of common knowledge that not every monthly pay check for a judge is the same, due to the fact that in certain months greater amounts are withheld than others.

To make a determination of whether Judge LaMotte intended to defraud the State it is necessary to evaluate the entire record, including testimony from several judges and the State Attorney that Judge LaMotte has enjoyed a reputation of integrity. It is also necessary to consider that he served honorably with the United States military forces in the Second World War, practiced law and served as a judge without blemish upon his record until these unfortunate events were disclosed. In making a determination of guilt it seems logical to apply the reasonable man standard of whether a person with Judge LaMotte’s intelligence and education would gamble his future career in the law by cheating the State out of approximately $1,900 worth of travel expenses for personal use over a period of several years. The logical presumption seems to me that no one with his background would assume such a risk. Therefore, it is necessary to overcome this presumption by clear and convincing proof in the record. In the absence of such clear and convincing proof, he should not be removed from office, but if such proof is there removal would be justified.

My examination of the record, including questions of fact and law, does not persuade me that there is clear and convincing proof to establish that Judge LaMotte intentionally and willfully defrauded the State, but I am strongly persuaded that he used poor judgment and violated State regulations and rules of conduct for judges in his use of the credit card for any personal reason.

Therefore, I concur in the Court’s approval of the Judicial Qualifications Commission’s finding of misconduct, but would reduce the penalty to a public reprimand and five months’ suspension from office which he has already experienced.

ROBERTS (Retired), J., concurs.

      . His contention that the Commission’s procedures denied him due process of law is not borne out by the record.

      . Judge LaMotte agreed that “ST FL” probably was an abbreviation for “State of Florida”.

      . Presently Section 112.061 (3)(b), Fla.Stat. (1975).

      .Common sense and an acquaintance with human nature (several members of the Commission are themselves judges) undoubtedly supplied the balance of evidentiary weight, although it must be conceded that a judge could conceivably be as unconcerned with his financial affairs as Judge LaMotte suggests he was.


author: BARKDULL, Chief Judge. PER CURIAM.

text:
    PROCTOR & GAMBLE DISTRIBUTING COMPANY, and General Union Insurance Company, Appellants, v. Bonnie McGLAMERY, Appellee.
    No. 75-1924.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    On Rehearing Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.
    Carey, Dwyer, Austin, Cole & Selwood and Joseph M. Grohman, Miami, for appellants,
    Kuvin, Klingensmith & Lewis, Miami, for appellee.
    Before BARKDULL, C. J, and HAV-ERFIELD, J, and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The appellants, defendants in the trial court, seek review of an order of the trial court granting plaintiffs motion for summary judgment in a negligence action.

The instant action arose from a motor vehicle accident which occurred on U.S. 441 in Hollywood, Florida. At the point of the accident, U.S. 441 had three southbound lanes, the centermost southbound lane being a left-turn lane. There are three northbound lanes, with the extreme outside one being a right-turn lane. The north and southbound lanes are separated by a double yellow line painted on the roadway. To the east of the roadway is a shopping complex, including therein a Treasury store, a post office, and a gasoline station. There are driveway entrances into those establishments located to the east of the outside northbound lane.

On the day in question, one Murphins [who was the driver of the vehicle owned by the appellant, Proctor & Gamble, but who is not a party herein] was driving south in the left-turn lane on U.S. 441; he stopped to make a left turn into the Treasury store. There was considerable traffic in the two inside northbound lanes, which was stopped. A panel truck in the middle northbound lane blocked his view of traffic proceeding north on the eastern northbound lane. The driver in the centermost northbound lane was stopped and waved Murphins on and he executed his turn. Upon crossing the two centermost northbound lanes and entering the right-turn lane, he was struck by the appellee’s vehi-ele. As a result of this-accident, the plaintiff brought the instant' suit. Issue was joined and extensive discovery was completed. Thereupon, the appellee moved for a summary judgment as to liability. After hearing on the motion, the trial court entered the order appealed.

We affirm. See: Cash v. Gates, Fla.App.1963, 151 So.2d 838; Tranter v. Wible, Fla.App.1966, 191 So.2d 595; MacNeill v. Neal, Fla.App.1971, 253 So.2d 263; Walters v. McQueen, Fla.App.1974, 292 So.2d 34. This affirmance is not to be construed as passing any judgment on the negligence, if any, on the part of the plaintiff. The defendant’s answers were not a part of the record in this case and, therefore, we are unable to determine if an issue of comparative negligence was properly presented in the trial court. If it was, then the negligence, if any, of the plaintiff remains to be considered in making any ultimate award. Hoffman v. Jones, Fla.1973, 280 So.2d 431.

This opinion is to be construed only as affirming the trial court’s holding that the defendant was negligent.

Affirmed.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

This court having granted a petition for rehearing in this cause and heard further argument, it appears that the court overlooked the answer filed by the defendants, which raised the question of comparative negligence. The court also overlooked its decision in Cunningham v. Romano, 278 So.2d 631 (Fla. 3rd DCA 1973). Following review of the Cunningham decision, it appears to be analogous to the instant case and, therefore, we reverse the summary judgment here under review and return the matter to the trial court for a full trial on the issues as to the negligence of each of the parties as made by the pleadings.

In Cunningham v. Romano, supra, the following statement is found at page 633:

iji jjc sjt jfc 5¡<
“Having reached the conclusion that there was sufficient evidence of the defendant-driver’s negligence to go to the jury, we must now consider whether the evidence of the plaintiff-driver’s contributory negligence is so clear and un-contradicted that it appears as a matter of law^that the jury must find her con-tributorily negligent. Such a situation is rare in intersectional collision -cases. A holding that a plaintiff is guilty of contributory negligence as a matter of law must be based upon uncontradicted facts. It is admitted that the plaintiff-driver did move into a lane where her view of oncoming traffic was partially blocked. There are inferences which must be drawn from many evidentiary facts in determining the question of contributory negligence here. A jury must determine from all the evidence whether the plaintiff-driver was free from negligence -considering the limited view and the manner in which she entered the lane of traffic. In order to do so, the jury must find from the evidence the size of the opening in traffic, the speed of the defendant-driver, and the care the plaintiff-driver displayed. *' * * ”
>(« ?}i ;jc ‡ ‡ ;¡c

Therefore, the final summary judgment here under review be and the same is hereby reversed, and the matter is returned to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.


author: PER CURIAM.

text:
    Willie Lee ROPER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-674.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

By this appeal, the appellant seeks review of an order revoking probation. The parties and the trial court have diligently attempted to reconstruct the record in the trial court, which would be necessary for a determination of this appeal. By appropriate affidavits, they have demonstrated that this cannot be done.

Therefore, the order of revocation here under review be and the same is hereby set aside and vacated. See: Simmons v. State, 200 So.2d 619 (Fla. 1st D.C.A.1967); Yancey v. State, 267 So.2d 836 (Fla.4th D.C.A.1972); Fernandez v. State, 292 So.2d 410 (Fla.3rd D.C.A.1974); Dismukes v. State, 299 So.2d 133 (Fla.3rd D.C.A.1974).

Reversed and remanded for a new hearing on the affidavit of violation of probation.


author: BOARDMAN, Chief Judge.

text:
    The SCHOOL BOARD OF LEE COUNTY, Florida, Appellant, v. Paul MALBON, Appellee.
    No. 76-775.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1977.
    Rehearing Denied Feb. 8, 1977.

      Harry A. Blair, Fort Myers, for appellant.
    F. Kendall Slinkman, Farish & Farish, West Palm Beach, for appellee.
   BOARDMAN, Chief Judge.

Appellant/respondent appeals a peremptory writ of mandamus issued upon the motion of appellee'/petitioner directing appellant to render a final written order.

Appellee, Paul Malbon, was employed by appellant, School Board of Lee County (Board), as a project inspector until he was terminated by the Superintendent of Schools (Superintendent) effective January 31, 1975. Appellee filed a petition for reinstatement, and a hearing was held before an examiner designated by the Board. On May 20, 1975, the examiner recommended that appellee be reinstated because the Superintendent did not have authority to discharge a noninstructional employee absent an emergency. He suggested that if the Superintendent still felt that appellee should be terminated that he could recommend to the Board that appellee be discharged which could be accomplished by the Board with or without cause. The Board filed exceptions to the examiner’s findings of fact and conclusions of law.

Appellee and his attorney were present at the September 2 meeting where by voice vote the Board voted to approve the motion to accept the exceptions and the termination of appellee’s employment. The motion and the vote were recorded in the minutes which were approved at the next regular meeting of the Board on September 16. Upon the request of appellee’s counsel he received on October 23 excerpts of the minutes of the September 2 and 16 meetings and on November 4 received certified copies of the complete minutes of the entire meeting. The minutes reflected that the Board unanimously voted to approve a motion to

accept the Superintendent’s recommendation to approve the Exceptions as filed by the School Board Attorney, Harry A. Blair, and that Mr. Paul Malbon be terminated as of the effective termination date, January 31, 1975.

Appellee initiated this action on January 5, 1976, by filing a petition for an alternative writ of mandamus in the Circuit Court for Lee County.

The new Administrative Procedure Act (APA), effective January 1, 1975, provides for judicial review of final administrative orders by filing a petition for review in the district court of appeal. Florida Statutes, Section 120.68(1), (2). Until the Florida Supreme Court adopts appellate rules specifically applicable to review of final agency action the appellate rules applicable to certiorari as modified by the APA will be followed. See Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975); Shevin v. Public Service Commission, 333 So.2d 9 (Fla.1976); Florida Statutes, Section 120.68(2). Rule 4.5 c(1), F.A.R., requires that an

[application for writ of certiorari shall be by petition filed in the Court within 30 days from the rendition of the decision, order, judgment or decree sought to be reviewed.

The rule is not specifically addressed to time limits on review of administrative action since agency orders and rules are not rendered in the same manner as is a judicial order. See Dubin v. Department of Business Regulation, 252 So.2d 290 (Fla. 1st DCA 1971). Rule 4.5 c(l) has been adapted to typical agency procedures by equating the day of rendition with the day an unequivocal ruling is recorded in the minutes of the administrative body. Public Service Comm’n, supra, at 11. In view of this construction by the supreme court we hold that the petition was untimely because appellee failed to file for relief within 30 days of the recordation on September 2, 1975, of the Board’s ultimate decision regarding appel-lee’s termination from employment.

It is well established that a writ of mandamus will not issue unless there is no other adequate remedy available to the petitioner. The APA provides for review of the issues raised by appellee in this action by filing a petition in the district court of appeal. Florida Statutes, Section 120.68(2). It is true that at the time this action was filed in the circuit court appellee did not have the statutory remedy available to him because he had failed to timely file. Although a mandamus action is not subject to time limitations it cannot be used as a means of extending the period for review. Public Service Comm’n, supra. Furthermore the petition should have been lodged in the district court of appeal not in the circuit court which has limited jurisdiction in agency matters. See Florida Statutes, Section 120.68(2), .73.

An aggrieved party is entitled to review of agency action when the action becomes final, and an order is final when it is reduced to writing. Florida Statutes, Sections 120.52(9), .68(1). We cannot agree with appellee that the rules applicable to review under the APA are abrogated where the agency does not render a written order stating its findings of fact and conclusions of law as directed by Section 120.59(1), Florida Statutes. The court is empowered to order an agency to comply with the procedure outlined in Section 120.68(5). See also Florida Statutes, Section 120.68(6)-(9) (11) — (13). In some instances, for example this appeal, a formal written order may not be needed to effectively dispose of the cause on review. See Public Service Comm’n, supra. The order of the Board in this case may be insufficient in form as is contemplated by Section 120.59(1), but it is sufficient in substance as contemplated by Section 120.68(1).

The order of the trial court is reversed and the peremptory writ of mandamus is quashed.

REVERSED.

GRIMES and SCHEB, JJ., concur.

      . The First District Court of Appeal held in Dubin that a party aggrieved by agency action should be afforded an additional three days in which to file for review to allow for notice of the action to be delivered by mail. The Florida supreme court has neither affirmatively approved nor overruled Dubin. Justice Hatchett stated in Public Service Comm ’n that the Dubin rule was inapplicable to circumstances such as those presented by the case before us where a notice was not mailed and the order was not reduced to formal, written form.

      . In City of Miami v. Southeast First Nat'l Bank, 320 So.2d 836 (Fla. 3d DCA 1975), the court held that it was proper for the circuit court to issue a writ of mandamus requiring an agency to enter a written order to provide a basis for judicial review. We point out, however, that in Southeast Bank the aggrieved party sought relief in the circuit court prior to the effective date of the 1974 revision of the APA. At the present time the district court is authorized by the APA to require an agency to render a written order stating its findings of fact and conclusions of law.


text:
    Frank J. ALTIERI, Appellant, v. Grace ALTIERI, Appellee.
    No. Y-540.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1977.

      George J. Roark, Jr., Pensacola, for appellant.
    James F. McKenzie of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

This is an appeal from an order of contempt entered by the trial court on May 19, 1975, subsequent to the entry of final judgment of dissolution of marriage. The proper procedure for presenting this post-judgment order for appellate review would have been by interlocutory appeal, brought under the provisions of Rule 4.2, Florida Appellate Rules. However, since a full appeal has been taken we, in the exercise of our discretion, treat and consider the appeal as an interlocutory appeal, even though not designated as such in the notice of appeal. See Crepaldi v. Wagner, 128 So.2d 759 (Fla. 1st DCA 1961); Lane v. Exmoor School, Inc., 128 So.2d 773 (Fla. 3d DCA 1961); Small v. Small, 313 So.2d 749 (Fla.1975).

In the final judgment of dissolution of marriage entered by the trial court on December 22, 1971, appellee Grace Altieri, as part of the permanent alimony awarded to her, was awarded the former marital home of the parties. Appellant Frank J. Altieri was ordered to convey his interest in that property to appellee and “to continue to pay the mortgage payments upon the said marital home until the mortgage lien has been liquidated in full”. The final judgment places no further or other obligations upon appellant with respect to the marital home. Further, the final judgment required appellant to keep in full force and effect certain insurance policies on his life, with appellee Grace Altieri as beneficiary. The Internal Revenue Service then levied against the property to satisfy liens totaling $16,534.44 for federal income taxes unpaid from 1967 to 1971. All of those tax liens, except one for 1971 taxes, were recorded before the entry of the final judgment of dissolution.

Appellant borrowed against the life insurance policies, permitted certain policies to lapse for nonpayment of premiums and fell behind in his permanent alimony payments which had been reduced from $75 to $50 weekly on condition that appellant reinstate lapsed policies and restore them to full force and effect. Appellant did not comply with those conditions.

In the order of contempt which appellant now challenges, the trial court required appellant to clear the marital home of the tax liens, directed him to pay appellee $3,700.00 in defaulted alimony or be committed to the county jail for a term of six months “or until he shall purge himself by such payment,” and found that appellant was in contempt because of his borrowings against the life insurance policies.

The order of contempt is deficient in that the trial court made no finding concerning appellant’s ability to pay or, assuming appellant’s inability to pay, that his inability was his own fault. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). That decision has intervened since the circuit court’s decision in this case.

The court erred in requiring appellant to pay outstanding tax liens against the marital home or be held in contempt. As previously noted, the final judgment did not address that issue despite the fact that all but one of the liens were in existence at the time of the entry of the final judgment. A trial court does not possess the power to impose in a post-judgment order new duties not adjudicated in a former decree which has become final and absolute. Mintz v. Ellison, 233 So.2d 156 (Fla. 3d DCA 1970); McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963). The trial court was without authority to alter the respective rights and obligations of the parties which became fixed by the terms of the final judgment of dissolution of marriage.

The trial court was correct in ordering appellant to pay appellee arrearages in alimony which, because appellant failed to comply with conditions imposed for the reduction of weekly alimony payments, continued to accumulate during the period in which appellant’s life insurance policies were lapsed or reduced from full value by his borrowings. We are not here concerned with the propriety of the trial court’s original order concerning those policies, because the final dissolution judgment became final without appeal by either party.

The case will be remanded for determination and findings concerning appellant’s ability to pay at the time of the contempt hearing and for further proceedings consistent with this decision.

AFFIRMED IN PART, REVERSED IN PART.

BOYER, C. J., SMITH, J., and COX, JOHN S., Associate Judge, concur.


text:
    Otto G. KLEIN et al., Appellants, v. Murray M. FRIEDMAN, Individually and as Trustee or his assigns, and Marwin S. Cassel, Appellees.
    No. 76-88.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.

      Miller, Zachman & Balasso, Pompano Beach, for appellants.
    Cassel & Benjamin, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The plaintiffs, who were the contract sellers of a large parcel of property, sued for specific performance of a deposit receipt contract and for damages. The trial court, after a trial without jury, found for the defendants, and this appeal followed.

The trial court found that the defendant purchasers were not in default for having failed to close the transaction due to a discrepancy between the land which the defendants were led to believe they would receive under the contract and the land which the plaintiffs were able to deliver. This finding is supported by substantial evidence in the record. We, therefore, hold that the finding of the trial judge may not be reversed on appeal. See Apeco Marina, Inc. v. St. Paul Fire & Marine Insurance Company, 301 So.2d 136 (Fla.3d DCA 1974).

Affirmed.


author: HENDRY, Chief Judge.

text:
    David Allen WEISS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-106.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Rehearing Denied Jan. 27, 1977.

      Max B. Kogen and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

Appellant, David Allen Weiss, was the defendant in the trial court and appellee, the State of Florida, was the prosecution.

The defendant and a co-defendant, Raymond Russo, both police officers, were charged by information on August 6, 1975, with the crime of aggravated battery, in violation of Section 784.045, Florida Statutes (1973).

The incident for which appellant was charged occurred on July 30, 1975, at a downtown Miami bus station. The victim, Leon McWain, unemployed and an admitted alcoholic, was allegedly beaten by appellant subsequent to his arrest at the bus station for being drunk and disorderly. At the time of the arrest, appellant was off-duty and employed as a part-time security guard at the station.

During the course of the trial, which commenced on December 2,1975, testimony was elicited from various observers concerning the officers’ use of force in restraining the “thrashing and kicking” McWain. The testimony varied but the most damaging appeared to be that of a registered nurse at Jackson Memorial Hospital in Miami, where McWain was taken after his arrest.

The aforementioned testimony was to the effect that upon McWain’s arrival, in the custody of the officers, the nurse asked appellant, “What do we have here?” Appellant responded with the statement, “We have a cop beater,” and thereupon, pulled the handcuffed McWain, feet first from out of the police vehicle, causing the victim to fall face first onto the ground.

The testimony was then that the officers “guided” the allegedly intoxicated McWain, face first, into a closed entrance door, resulting in McWain’s unconsciousness. Next, the testimony was that the officers carried the senseless victim to the Ward D hospital entrance by dragging him, face down, along the ground.

Based upon the above testimony, and other witnesses’ statements, appellant was found guilty of the crime of aggravated battery, as charged. The jury, however, acquitted co-defendant Russo of the charge.

On January 15, 1976, appellant was adjudicated and sentenced to five years imprisonment. This appeal follows.

Appellant, in support of a reversal, raises many points on appeal, including (1) an allegation that the state failed to comply with the discovery rules pursuant to Fla.R. Crim.P. 3.220; (2) the failure of the lower court to grant appellant’s motion for judgment of acquittal in that the state failed to present evidence of injuries consisting of “great bodily harm, permanent disability, or permanent disfigurement” sustained by McWain, which are necessary to support a conviction of aggravated battery pursuant to Section 784.045 Florida Statutes (1973); and (3) the State’s introduction of seventeen color photographs of McWain, showing the victim lying in a hospital bed with various tubes and medical paraphernalia attached to his body, the effect of which appellant argues was cumulative and had an inflammatory effect upon the jurors.

Certainly, comment could be made upon any of the above alleged errors, however, we need not pass upon the validity or invalidity of any of the above in the light of the following.

Appellant additionally cites as error the lower court’s denial of appellant’s motion for mistrial based upon the prosecution’s comment during cross-examination of appellant’s failure to go forward with an exculpatory version of events while under investigation by the Internal Security Division of the Miami Police Department for his alleged activities on the night in question. This comment was repeated and re-emphasized by the prosecution during closing argument to the jury.

The comments in question were as follows:

“Did you, at any time, ever receive an offer or an invitation to come to the State Attorney’s Office and explain your position to us, prior to your arrest?”

and

“Did you at any time before you testified today, sir, give an account of the events that occurred that evening to anyone other than your counsel?”

And again during closing argument:

“He has not talked to anybody other than his attorney even though in the five or six days, in the interim between the time that this incident occurred at Jackson Memorial Hospital and the time that he was arrested, he never bothered to come up and say, T understand you are investigating me. Here is how it happened. I never laid a hand on this man’ .
[H]e does not even bother to tell a soul until some three or four or five months after this happened, here this afternoon. You can form your own conclusion on that.”

We agree with appellant’s conten tion and hold that the above comments concerning appellant’s pre-trial silence were improper, prejudicial and violative of appellant’s fifth amendment right against self-incrimination.

In following his attorney’s advice and refusing to testify or offer any explanation to either the State Attorney or the Internal Security Division prior to his arrest, appellant was simply availing himself of his constitutional guarantee of freedom from self-incrimination. U.S.Const. Amends. V, XIV.

We are therefore of the opinion that the claimed privilege of silence was constitutional in dimension; therefore, it was reversible error not to grant appellant a mistrial when the prosecution attempted to utilize said silence for impeachment of credibility purposes. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975).

In addition, and notwithstanding our aforementioned ruling concerning the applicability of the fifth amendment to the case sub judioe, we hold that even if the above constitutional safeguard was inapplicable here, evidence of appellant’s silence for impeachment purposes, in light of appellant’s attorney’s advice to appellant not to testify during the administrative investigation, lacked any real probative value and was so overly prejudicial to appellant’s case as to constitute reversible error, c. f. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and authorities cited, the judgment and sentence appealed are reversed and remanded to the trial court for new trial.

Reversed and remanded.


author: SACK, MARTIN, Associate Judge.

text:
    Joseph HAUSER, Appellant, v. Neil SCHIFF, as Receiver of Carriage House Apartment Hotel, Appellee.
    No. 76-203.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Ciravolo & Feldman, Miami and Howard Horowitz, Tallahassee, for appellant.
    Smith, Mandler, Smith, Parker & Werner, Joe Unger, Miami Beach, for appellee.
    Before HENDRY, C. J., PEARSON, J., and SACK, MARTIN, Associate Judge.
   SACK, MARTIN, Associate Judge.

In an attempt to perfect personal service of process upon the appellant, one Freddy Carreras went to the office of Fleetwood Insurance Agency, on the 6th floor of 3550 Biscayne Boulevard, Miami. Mr. Carreras, upon his arrival spoke to a secretary and informed her he had come to serve the appellant with a paper. Thereafter, without seeing the appellant, Mr. Carreras left the summons and complaint with the secretary and departed. He did not, at any time, inform the secretary as to the nature of the papers.

Based on the foregoing, the appellant moved to dismiss for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process on the ground that process was not properly served pursuant to Section 48.031, Florida Statutes (1975). By this appeal, the appellant challenges the correctness of the trial court’s denial of the motion to dismiss. We agree with the appellant and hereby reverse.

Section 48.031, Florida Statutes (1975) reads as follows:

“Service of original process is made by delivering a copy [of it] to the person to be served with a copy of the complaint, petition or other initial pleading or paper or by leaving the copies at his usual place of abode with some person of the family who is fifteen years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided by this section.”

Statutes governing substituted service of process must be strictly construed and must be strictly complied with. American Liberty Insurance Company v. Maddox, 238 So.2d 154 (Fla.2d D.C.A. 1970); Atlas Van Lines, Inc. v. Rossmoore, 271 So.2d 31 (Fla.2d D.C.A. 1972). The term “usual place of abode” contained in Section 48.031, Florida Statutes (1975) means where the person is actually living at the time of service. State v. Heffernan, 142 Fla. 496, 195 So. 145 (1940). Furthermore, a “person of the family” may be a visitor for a prolonged period to the abode of the person to be served, but there is no question that the person actually served must be residing in his home. Sangmeister v. McElnea, 278 So.2d 675 (Fla.3rd D.C.A. (1973); Couts v. Maryland Casualty Company, 306 So.2d 594 (Fla.2d D.C.A. 1975).

In light of the foregoing, there is no way this court can construe substituted service of process at a man’s office upon a secretary therein to constitute compliance with the terms of Section 48.031, Florida Statutes (1975). This is so, notwithstanding a failure to show the office in question was in fact the appellant’s office and a conclusive showing that the process server failed to inform the secretary as to the contents of the papers.

. Therefore, the order appealed is hereby reversed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.