author:
KARL, Justice.
      ENGLAND, Justice,

text:
    Robert A. SULLIVAN, Gary E. Alvord and Learie L. Alford, Appellants, v. Reubin O’D. ASKEW, etc., et al., Appellees.
    No. 51276.
    Supreme Court of Florida.
    June 30, 1977.
    Rehearing Denied July 26, 1977.

      Andrew A. Graham of the Law Offices of Charles M. Holcomb, Cocoa, and Tobias Simon and Elizabeth Du Fresne, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., and Eleanor A. Mitchell, Asst. Gen. Counsel, Tallahassee, for appellees.
   KARL, Justice.

We have for review by direct appeal an order of the Circuit Court, in and for Leon County, granting appellees’ motion to dismiss and deny appellants’ petition for temporary injunctive relief, in which the court construes provisions of the Constitution of Florida, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Sullivan, Alford and Alvord, all convicted of capital felonies and sentenced to death (which convictions and sentences have been affirmed on appeal), filed a complaint for declaratory and injunctive relief and alleged that the Governor, along with three concurring members of the Cabinet, has the authority under Article IV, Section 8, Florida Constitution, to commute the death sentences by granting clemency; that a hearing is required; that minimal due process, including a fair and impartial tribunal, the right to be heard in person and by counsel, and written standards or guidelines setting forth factors to be considered in granting clemency, is required; and that the scheduled hearings deny due process. The trial court granted appellees’ motion to dismiss the complaint on the basis that it lacked jurisdiction over appellees pursuant to Article II, Section 3, and Article IV, Section 8, Florida Constitution, and lacked jurisdiction of the cause, pursuant to the same constitutional provisions, and that the complaint failed to state a cause of action.

The Parole and Probation Commission conducted investigations into each of appellants’ cases and made a negative recommendation relative to commutation.

Preliminarily, we consider the decision of the trial judge expressly finding that the court lacks jurisdiction over the parties and the subject matter. Article V, Section 5, of the Florida Constitution vests the circuit courts with plenary power and the jurisdiction to construe all sections of the Constitution. Cf. Curtis et al. v. Albritton, 101 Fla. 853, 132 So. 677 (1931). It is a judicial responsibility to interpret and construe provisions of the Constitution when there are ambiguities or conflicts. The court may determine constitutional intent to assist in the decision of whether a given responsibility lies exclusively with one branch, whether that branch has been granted restricted or unrestricted power to perform such duties and whether the constitutional provision fixing the responsibility is self-executing. Moreover, the Court may determine whether any constitutional grant of power is being exercised according to the specific grant and in a manner that does not violate any other provision of the Constitution. The trial judge was in error when he held that the court was without jurisdiction, but because, as explained below, the clemency power is exclusively in the executive branch, he was correct in determining that the complaint fails to state a cause of action.

The clemency power, which is the power to suspend collection of fines and forfeitures, to grant reprieves, to grant full or conditional pardons, restore civil rights, commute punishments, and to remit fines and forfeitures for offenses, reposes exclusively in the Chief Executive.

Historically, the pardoning power was a part of the royal prerogative in England. Defining a pardon, Chief Justice Marshall, in United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640, stated:

“A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.”

This power flows from the Constitution and not from any legislative enactment, Advisory Opinion of the Governor, In Be: Administrative Procedure Act: Executive Clemency, 334 So.2d 561 (Fla.1976). The United States Supreme Court, in Schick v, Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), concluded:

“A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution, The plain purpose of the broad power conferred by § 2, cl 1, was to allow plenary authority in the President to ‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable, If we were to accept petitioner’s contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i. e,, that parole must be available to petitioner because it is to others. That such an interpretation of § 2, cl 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutations which he sought.” (Emphasis supplied.)

We quote with approval the following excerpt from American Jurisprudence:

“An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the courts have no concern with the reasons which actuated the executive. The constitution clothes him with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. Whatever may have been the reasons for granting the pardon, the courts cannot decline to give it effect, if it is valid upon its face, and no court has the power to review grounds or motives for the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be manifest usurpation of authority, no matter how flagrant the breach of duty upon the part of the executive, unless granted the power by competent authority or unless fraud has entered into the case.”

Article IV, Section 8, Florida Constitution, provides:

“(a) 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.
“(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.”

By this self-executing constitutional provision, the people of this state chose to vest sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace. This Court, in In Re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla.1975), explained:

“We find that the well established principle of expfessio unius est exclusio alter-ius applies sub judice. The people of this state through adoption of Article IV, Section 8, Florida Constitution expressed their will that the power of pardon and restoration of civil rights vest in the executive. As aforestated, this Court has previously determined that this method is exclusive. As this Court expressly declared in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, 256 (Fla.1927):
‘The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Holland v. State, 15 Fla. 455, text 523. See, also, Grantham v. Board of Public Inst., 11 Fla. 540, 82 So. 52. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. [Cases cited.]’ ”

Article II, Section 3, Florida Constitution, divides government into three separate and distinct branches of government and provides that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

Holding that an attempt on the part of the Legislature to exercise any part of the pardoning power would be in conflict with the Constitution, this Court, in Singleton v. State, 38 Fla. 297, 21 So. 21 (1896), opined:

“ . . .we are of the opinion that the pardoning power, after conviction, conferred by this section upon the board of pardons designated, is exclusive, and that the legislature cannot exercise such power. The constitution of Missouri vested the pardoning power in the governor, and it was decided in State v. Sloss, 25 Mo. 291, that such power belonged exclusively to the executive department, and could not be exercised by the legislature. The constitution of the United States confers upon the president the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, and Judge Story says (2 Const. § 1604) that ‘no law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases.’ It was held, in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 866, that the pardoning power conferred on the president was not subject to legislative control. . . . ”

Cf. In Re Advisory Opinion of Governor Civil Rights, supra.

Responding in the negative to the question of whether the requirements of Chapter 120, Florida Statutes, the Administrative Procedure Act, apply to the constitutional power of the Governor to extend executive clemency, this Court explicated:

“This Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government. Merely because the 1968 Constitution has given the Governor the initiative to institute certain acts of clemency and expanded the number of cabinet officers eligible to participate with him in the exercise of these powers, we see no reason to depart from our previous view that the Legislature may not intrude into this area of constitutional authorization. For that reason, and without regard to the absence of an express exemption in the Administrative Procedure Act for members of the cabinet, we believe that the acts of approval by members of the cabinet are also beyond the scope of the Act.” Advisory Opinion of the Governor, In re: Administrative Procedure Act, supra.

This prohibition against legislative encroachment upon the executive’s clemency power is equally applicable to the judiciary. Article II, Section 3, Florida Constitution. Declaring a legislative enactment, Chapter 16810, Acts 1935, unconstitutional and void as being in conflict with and in derogation of the constitutionally established execution power of clemency, in Ex parte White, 131 Fla. 83, 178 So. 876 (1938), this Court, in analyzing the separation of powers and exclusivity of this executive function, quoted the following excerpt from Cooley on Constitutional Limitations, Vol. 1 (8th Ed.), pp. 213-221.

“It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.” (Emphasis supplied.)

In the exercise of the exclusive power to grant or withhold clemency, the executive has adopted procedures that accord with the specific constitutional grant in Article IV, Section 8, Florida Constitution, and do not impose constitutionally objectionable conditions.

For the foregoing reasons, this Court will not intrude on the proper execution of the executive power, and the complaint that prays for such relief is without merit.

Accordingly, the order of the trial court, insofar as it holds that it is without jurisdiction, is reversed. We affirm that portion of the order finding that the complaint fails to state a cause of action and ordering that the complaint be dismissed.

It is so ordered.

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

ENGLAND, J., concurs in result only with an opinion.

ENGLAND, Justice,

concurring specially.

I concur in the majority’s preliminary conclusion that the trial court had jurisdiction to entertain petitioners’ lawsuit, and its ultimate conclusion that petitioners should not prevail. I do not agree with the majority’s conclusion that the complaint fails to state a cognizable cause of action, however. Petitioners have convinced me that the clemency process recently used by the Governor and cabinet to determine if these petitioners should live or die is reviewable for minimal due process standards; they fail only in persuading me that the process actually applied has run afoul of any constitutional minima so as to entitle them to the relief they have requested.

To make my position as clear as I can at the outset, I do not hold the view that the Governor and three concurring cabinet members must exercise their discretion to grant or deny clemency in any specified or particular fashion, formal or informal. I do believe, however, that a basis for our judicial review is provided in this case because (i) the seven heads of Florida’s executive branch of government have, of their volition, created a formal administrative agency for death sentence review, (ii) the procedures they have established for this agency purport to provide minimum due process beyond what the Constitution itself prescribes, and (iii) having willingly clothed this aspect of their clemency power in non-constitutional garbs the Governor and cabinet cannot now declare themselves invisible to the judiciary so as to prohibit this Court from testing their procedures for fundamental fairness.

To understand my perceptions of this case it is necessary to identify a critical facet of petitioners’ complaint which the majority opinion does not describe — the clemency process established by the Governor and cabinet for death sentence review. A copy of the procedure to which these officials willingly pledged themselves appears as an appendix to this opinion, with the critical provisions appearing as Rule 7. The majority’s omission of any description of this process leaves the erroneous impression that petitioners are simply dissatisfied with their failure to receive clemency in a particular way. I do not understand that to be their complaint. I view their dissatisfaction as emanating from a special process which must, to be understood, be compared with the traditional processes for clemency.

Where a single executive has been assigned clemency powers, the usual process (which has generally avoided judicial scrutiny) is perhaps best exemplified by President Ford’s pardon of former president Richard Nixon or President Carter’s pardon of convicted Watergate burglar G. Gordon Liddy. Acting under the authority of Article II, Section 2 of the United States Constitution, the President in each case simply sat down, penned a pardon, and publicly announced that he had done so. No hearings were held, no one was required to be consulted or to concur, and no reasons were required to be given. The discretion to initiate and to grant these pardons was conferred by the Constitution, and it was exercised when, for whom and however the executive chose. By judicial precedent this “process” has remained unreviewable because any review at all would necessarily be a review of the discretionary power to initiate or to grant clemency.

Where the clemency power has been assigned to more than one member of the executive branch, as in Florida, the process of initiating or evaluating clemency applications can vary. For example, a recent exercise of clemency powers by the Governor and members of the Florida cabinet involved both joint and individual initiatives. In considering prospective pardons for convicted murderers Freddie Lee Pitts and Wilbert Lee, each pardon authority separately investigated the clemency candidates as a prelude to their joint meeting to receive public testimony. Each then individually exercised his discretion to sign or refuse to sign a pardon which the Governor first signed and left on file with the Secretary of State. In this format, any attempt to review the “process” of pardon would necessarily have immersed the judiciary in the rationale of the decisionmakers, for the process itself had no substance or form beyond their individual investigations and decisions.

In contrast to these “processes”, the newly devised death sentence review process operates very much like all other administrative processes in the executive branch of Florida's government. The rules adopted for this purpose establish an “Office of Executive Clemency” headed by a “coordinator" and staffed by assistants. A “proper record” of all proceedings is maintained. Precise steps for review are prescribed, channeled by precise time frames, and the process once triggered requires (i) a hearing examiner to take written or oral testimony, (ii) an informal evidentiary proceeding, (iii) a required report to be filed by the hearing examiner within 60 days, (iv) a required hearing before the Governor and cabinet, (v) notice to applicants’ attorneys and to counsel for the state, (vi) authority for both counsel to file “exceptions, briefs or memo-randa” concerning the examiner’s report, (vii) a prohibition against direct communications to the Governor or any cabinet member during the pendency of the proceedings, and (viii) a public explanation for granting or not granting clemency.

From this set of procedures, then, and not from the “traditional” process of clemency, petitioners assert their claim for fundamental fairness. The most ingenious of their arguments proceeds in this fashion:

(1) we have always had the constitutional power to review clemency processes for procedural fairness, although we have traditionally declined to exercise that authority;

(2) at least since Furman v. Georgia the ability of any state to execute its convicted criminals has become a unique constitutional problem;

(3) the Fourteenth Amendment to the United States Constitution imposes a continuing obligation on state supreme courts to guard against the exercise of arbitrary discretion in state executions, by assuring that due process minima are met at all critical pre-execution stages; and

(4) the unique clemency process recently established in Florida in fact conflicts with the minimum standard required by Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) and Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

This syllogism cannot be ignored, for it is beyond dispute that the rules established for death sentence review permit Gardner-prohibited material to enter into the deci-sional process. Section 7B of the rules expressly describes the parole commission’s report as “similar to a pre-sentence investigation report ... a portion [of] which shall remain confidential.” Gardner, of course, appears to preclude the use of that data in the mathematics of a life-death equation.

The issue inherent in petitioners’ challenge to Florida’s new death sentence review procedure asks this- ultimate question: may the state, through its executive branch of government, take a human life after conducting an adversary proceeding in which the potential victim has been denied access to some of the data on the basis of which the decision was made, notwithstanding that the data need not have been considered, that the proceeding need not have been adversary, and that the proceeding need not have been established in the first instance? I would answer this critical question by saying that the Gardner decision does not clearly require a negative answer.

In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), our death penalty statute was upheld on the authority of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In Gregg the United States Supreme Court very clearly indicated that its constitutional concern regarding the imposition of death is the judicial process alone, and not the discretionary stages which precede (prosecutorial discretion) or succeed (clemency) the judicial processes of trial and appellate review.

“The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.”

The Court’s focus on the “imposition” of a death sentence in a judicial proceeding was reiterated in Gardner. Nothing yet said by the United States Supreme Court suggests that the discretionary decision whether or not to allow a judicially-approved death sentence is subject to the same due process strictures as are required for any judicial process employed to impose such a sentence. For that reason, and for the further reason that I would not engraft these due process requirements on the clemency powers conferred in Florida’s Constitution, I conclude that the use of confidential materials in clemency proceedings is permissible. .

In sum, whatever may constitute constitutionally impermissible clemency processes, the defects asserted by these petitioners are not of that magnitude and their complaint should, as the majority concludes, be dismissed.

APPENDIX A

EXECUTIVE CLEMENCY

I. Statement of Policy

Executive Clemency is a power vested in the Governor by the Florida Constitution of 1968. Article IV, Section 8(a) of the 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.

Clemency is an act of grace proceeding from the power entrusted with the execution of the laws and exempts the individual upon whom it is bestowed from all or any part of the punishment the law inflicts for a crime committed.

2. Office of Executive Clemency

In order to assist in the orderly and expeditious exercise of this executive power, the Office of Executive Clemency is created to process those matters of Executive Clemency requiring approval of three members of the Cabinet. These rules are created by mutual consent of the Governor and Cabinet and nothing contained herein can or is intended to limit the authority given to the Governor or the Cabinet in the exercise of this' constitutional prerogative.

The Governor with the approval of three members of the Cabinet shall appoint a Coordinator who shall appoint all assistants. The Coordinator and assistants shall comprise the Office of Executive Clemency. The Coordinator shall keep a proper record of all proceedings, and shall be the custodian of all records.

3. Paroles

The Governor and Cabinet have no jurisdiction on questions of parole and probation and such matters will not be entertained by the Governor and Cabinet.

4. Persons Incarcerated

Persons incarcerated, other than those sentenced to death, will not be considered for any form of Executive Clemency, unless a waiver is granted in accordance with Rule 14 or Clemency is recommended by the Secretary of the Department of Offender Rehabilitation or by the Chairman of the Parole and Probation Commission. See Rule 7 for commutation of death sentences.

5.Clemency

In the discretion of the Governor, if a case merits consideration of Executive Clemency for any reason, the Governor with the approval of three Cabinet members may bestow the following acts of grace:

A. FULL PARDON

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 conviction of an offense under Florida Law.

B. CONDITIONAL PARDON

A Conditional Pardon releases from punishment, 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 return the recipient to his status prior to receiving same.

C. COMMUTATION OF SENTENCE

Commutation of Sentence changes the applicant’s penalty to one less severe, but does not restore civil rights. See Rule 7 on commutation of death sentences.

D. REMISSION OF FINES AND FORFEITURES

Remission of Fines and Forfeitures suspends or removes fines or forfeitures.

E. RESTORATION OF CIVIL RIGHTS

Restoration of Civil Rights restores to the applicant all or some of the rights of citizenship enjoyed before felony conviction(s) 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 of the United States.

(1) RESTORATION OF CIVIL RIGHTS is granted to an applicant convicted in a Florida court of more than one felony. Automatic restoration of civil rights is granted to an applicant convicted of one felony who otherwise qualifies under Rule 6.

(2) RESTORATION OF CIVIL RIGHTS IN THE STATE OF FLORIDA is granted to an applicant convicted of a felony in another jurisdiction, including another state, federal or military court.

F. RESTORATION OF RESIDENCE RIGHTS

Restoration of Residence Rights restores to the applicant, who is not a citizen of the United States and has no civil rights, any and all rights enjoyed by him as a resident of Florida which were lost as a result of a felony conviction under the laws of the State of Florida, any other state, or the federal government. The applicant must have been a bona fide resident of the State of Florida for at least one year next prior to making application for the restoration of residence rights.

G. SPECIFIC AUTHORITY TO OWN, POSSESS OR USE FIREARMS

Specific Authority to Own, Possess or Use Firearms restores to the applicant the right to own, possess or use firearms after the applicant’s civil rights or residence rights have been restored. Pursuant to the Federal Gun Control Act of 1968, a person who has been convicted of a felony and has been granted restoration of civil rights with authority to own, possess or use a firearm, must apply to the Regional Director, Bureau of Alcohol, Tobacco and Firearms, Post Office Box 2994, Atlanta, Georgia, 30301, in order to meet federal requirements.

6. Automatic Restoration of Civil Rights

A.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 for his right to own, possess or use a firearm.

B. Any person released from the Florida Parole and Probation Commission, the Department of Offender Rehabilitation, county jail or released from probation by the court prior to the effective date, November 1, 1975, of this rule may upon application have his civil rights automatically reinstated, except for his right to own, possess or use a firearm.

C. This rule shall not apply to a person who has an outstanding detainer based upon a state, an out-of-state or federal felony charge or conviction or who is incarcerated based on a felony conviction, or a person who has a previous or subsequent felony conviction. In such cases a person may seek restoration of civil rights by applying to the Office of Executive Clemency.

D. The authority to own, possess or use a firearm may be specifically granted by the Governor with approval of three members of the Cabinet. Therefore, in cases where specific authority to own, possess or use a firearm is sought, a person shall make application to have his request considered by the Governor and Cabinet.

E. Notwithstanding automatic restoration of civil rights, a person who has received final release from the Department of Offender Rehabilitation by expiration of sentence or who has been convicted of a felony and has been released from a county jail in Florida is not exempt from the registration requirements of Florida Statute 775.13 unless the Governor with approval of three members of the Cabinet has restored the person’s civil rights with specific authority to own, possess or use a firearm.

7. Commutation of Death Sentences

All Rules of Executive Clemency are inapplicable to cases of inmates sentenced to death, except Rules 1, 2, 3 and 17.

A. In capital punishment cases, the Clerk of the Court shall prepare and send, pursuant to Section 922.09, F.S., a certified copy of the conviction and sentence to the Governor within thirty (30) days after the Circuit Court’s receipt of the Florida Supreme Court’s mandate or the dissolution of any stay of the mandate. The Governor or any member of the Cabinet, after reviewing a certified copy of the conviction and sentence, may request the Florida Parole and Probation Commission to make an appropriate investigation, inquiring into any factors relevant to commutation. The Commission shall designate a person to receive the written or oral statements of testimony from any interested persons who wish to make their views on the inmate’s commutation known to the Governor and Cabinet and from the inmate who may have legal counsel present. Statements or testimony shall be taken in a non-adversary proceeding, without interrogation of witnesses, except for the limited purposes of identifying witnesses and clarifying statements. A report of the Commission’s investigation, including a transcript of the statements or testimony, shall be provided to the Governor and members of the Cabinet within sixty (60) days after request for investigation. Along with the report, the Governor or any member of the Cabinet may request a recommendation from the Commission. Any report submitted by the Secretary of the Department of Offender Rehabilitation shall be included in the Commission’s report.

B.Due to the nature of the information presented to the Governor and Cabinet by the Florida Parole and Probation Commission during review of capital cases for purpose of consideration of Executive Clemency, the confidentiality of certain of the material must be maintained. The report of the Commission, similar to a pre-sentence investigation report, will contain a portion which is public and a portion which shall remain confidential. The portion of the report designated confidential by the Commission shall include those documents as required to be so by law, by agency or court rule, or by the source. The confidential portion shall not be made public and shall be available only to the following persons under the following stated conditions:

(a) To the Governor and Cabinet members to assist in determining the Clemency request; and

(b) To the attorneys for each side absent a compelling interest to the contrary, as determined by the Governor. Any information so disclosed to one party shall be disclosed to the opposing party.

C. After the Commission’s report is received by the Governor and Cabinet, the Coordinator shall place the name of the inmate on the agenda for the next Executive Clemency meeting or a specially called meeting of the Governor and members of the Cabinet, but not sooner than thirty (30) days after receiving the Commission’s report including the transcript of statements or testimony. The Coordinator shall also give immediate notice of the time, date and place of the meeting to the appropriate State Attorney and the Attorney for the inmate, advising each of the availability of the Commission’s report including the transcript of the statements or testimony. Each Attorney may file with the Coordinator, for distribution to the Governor and Cabinet members, any written exceptions, briefs or memoranda on the case up to ten (10) days prior to the date of the meeting.

D. At the meeting to consider Executive Clemency, the Attorneys may present oral arguments not exceeding thirty (30) minutes for each side.

E. After the meeting, no arguments for or against commutation shall be presented to the Governor and Cabinet members individually. Any person with relevant information or comments must submit the same in writing to the Office of Executive Clemency for reproduction and distribution to the Governor and Cabinet members. The transcript of oral arguments will be distributed to the Governor and Cabinet members.

F. If commutation is ordered by the Governor with the approval of three (3) or more Cabinet members, the Coordinator shall prepare the order for their signatures, file the order with the Secretary of State, and notify the Attorneys for each side. When the order of Executive Clemency is filed or the decision not to grant Executive Clemency is made, the positions of the Governor and Cabinet members shall be made public.

G. If commutation is not granted, the Governor will request the Attorney General to review the record, determine its legal sufficiency for the issuance of the warrant, and notify the Governor of any pending judicial proceedings involving the inmate. The Coordinator shall prepare the warrant for the Governor’s signature, secure the seal and signature of the Secretary of State, mail the warrant to the Superintendent of Florida State Prison, and immediately notify the Attorneys for each side of the issuance of the warrant.

H. At the next Executive Clemency meeting, the Coordinator shall report on the status of any capital cases still pending before the Governor and Cabinet and on any subsequent disposition of capital cases heard at the preceding Clemency meeting.

8. Application Forms

Forms to be used in making application for Clemency will be furnished by the Coordinator upon request. AH 'correspondence regarding application should be addressed to Coordinator, Office of Executive Clemency, Room 442, Larson Building, Tallahassee, Florida 32304.

9. Necessary Documents to be Filed with Application

A. The following necessary, documents shall be filed with the application:

(1) A certified copy of the charging instrument (indictment, information or affidavit) and certified copy of judgment and sentence of each felony conviction within the State, out-of-state or federal. The Clerk of the Court, is requested to furnish such documents without expense upon request.

(2) An affidavit showing that a copy of the application was furnished to the Prosecuting Attorney of the court in which the applicant was convicted and to the presiding Judge of said Court.

B. All supporting information or character references that the applicant desires to present with his application must be filed with the Coordinator at least thirty (30) days before the Clemency meeting.

C. The Governor may require that an applicant file a stenographic report of the testimony given at his trial, if such a report is available. It will not be necessary for an applicant to file such stenographic report unless specifically notified to do so by the Coordinator.

D. It is the responsibility of the applicant to keep the Office of Executive Clemency advised of any change of address.

10. Time for Filing Application

A. Application for full pardon, conditional pardon, restoration of civil rights with specific authority to own, possess or use a firearm, residence rights of non-U.S. citizens, commutation of sentence, remission of fines or forfeitures with above enumerated attachments must be filed with the Coordinator on a standard form at least sixty (60) days before the date set for the Clemency meeting at which the application is to be heard.

B. Application for restoration of civil rights in the State of Florida which were lost by reason of a conviction under the laws of another state or government of the United States and which would have constituted a felony under Florida law, with aboye enumerated attachments, must be filed with the Coordinator on standard form at least 90 days before the date set for the Clemency meeting at which the application is to be heard. The applicant must have been a bona fide resident of the State of Florida for at least one year next prior to making application for restoration of civil rights.

11. Procedure for Consideration of Applications

The Coordinator shall place upon the agenda for consideration by the Governor and Cabinet at the next Clemency meeting all applications:

A. That are referred to the Coordinator by written notification of the Governor.

B. That are timely filed, that are complete and include all necessary supporting papers required by these rules, and reflect that the applicant meets the following criteria:

(1) The applicant has been discharged from probation, mandatory conditional release, or parole with no outstanding detain-ers.

(2) The applicant has paid the pecuniary penalty or has been released from incarceration by the expiration of sentence with no outstanding detainers.

C. That the Florida Parole and Probation Commission has made a thorough investigation and study of the case, and made a recommendation to the Governor and Cabinet, fully advising of the facts upon which such recommendation is based, concerning clemency either

(1) on its own motion; or

(2) when the Secretary of the Department of Offender Rehabilitation - has presented to the Florida Parole and Probation Commission the names of persons released from prison at the expiration of their sentences and such other cases of merit that have come to his attention of inmates who have no means to prepare their cases and applications for presentation to the Governor; or

(3) when it has investigated any inmate who is sentenced to life imprisonment, who has actually served ten years, has sustained no charge of misconduct, has a good institutional record, and who has been recommended by the Secretary of the Department of Offender Rehabilitation for a commutation of sentence.

12. Reapplication

Any person who has been granted or denied any form of Executive Clemency may not apply for further Executive Clemency for at least one year, unless a waiver is granted under Rule 14.

18. Failure to Meet Requirements of Rules

If any application does not meet the requirements of these rules, it may be returned to the applicant.

14. Waiver of the Rules

When an applicant cannot meet the requirements of the rules and wishes to have an application for Clemency considered, the applicant may petition the Governor and Cabinet by letter for a waiver of the rules. A waiver may only be granted by the Governor with the approval of three members of the Cabinet. Upon receipt by the Coordinator of written notification from the Governor and three members of the Cabinet, the Coordinator shall place on the agenda the application for clemency.

15. Referral to the Florida Parole and Probation Commission

Every application which meets the requirements for consideration, on its face, may be referred to the Florida Parole and Probation Commission for investigation, report and recommendation. Those whose applications have been submitted are required to comply with reasonable requests of the Florida Parole and Probation Commission in order to facilitate and expedite investigation of their case.

16. Agenda

The Coordinator shall prepare an agenda which shall include all cases to be presented at the Clemency meeting for consideration. The agenda shall be distributed to the Governor and Cabinet seven days before the meeting.

17. Governor and Cabinet Cases

Nothing contained herein shall prevent the Governor or any member of the Cabinet from proposing a case for Executive Clemency. Any such case may be acted upon by the Governor with approval of three members of the Cabinet and nothing contained herein shall limit the exercise of that power.

18. Presentation of Cases

The Governor and Cabinet will meet in the Capitol on the first Wednesday after the second Monday in the months of March, June, September and December of each year, or at such other times as may be designated by the Governor. An applicant need not be present at the meeting. There will be no special sessions except to consider an emergency upon the call of the Governor. Cases proposed in accordance with Rule 17 may be acted upon by circulation of a proposed order and without necessity of a meeting.

A. In the presentation of cases being heard before the Governor, not more than 20 minutes shall be allotted the applicant and not more than 20 minutes shall be allowed the protestants.

B. All oral arguments to be presented either for or against an application shall be presented at the Clemency meeting and not to the Governor and Cabinet members individually except as provided by Rule 14.

C. Subsequent to the meeting, the Coordinator shall prepare orders granting clemency as directed, certify after being signed, mail, and file the original copies with the Secretary of State. A letter will be directed to each party concerned, officially stating disposition of his application. A Seal is not used by the Office of Executive Clemency.

19. Continuance of Cases

Continuance of cases filed will be allowed on application of interested parties if based on sufficient grounds. Cases held under advisement for further information desired by the Governor with approval of three Cabinet members will be marked “continued” and noted on each subsequent agenda until disposed of, taking regular position with other cases on the agenda.

20. Withdrawal of Cases

Withdrawal of cases filed will be allowed on application of interested parties if based on good grounds. Cases that are “withdrawn” from the agenda will not be considered again until the application is refiled. Failure to comply with these rules will be sufficient cause to refuse, without notice, to place an application on the Agenda.

21.Effective Dates

History. — Adopted September 10, 1975, Rule 6 (formerly Rule 9) effective November 1, 1975; Rule 7 adopted December 8, 1976; Rule 6 amended December 8, 1976, effective February 15,1977; revised February 15, 1977.

      . This case does not involve the exercise of a constitutional prerogative in the manner prescribed in the Constitution, as was the situation which concerned the Court in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253 (1927), quoted in the majority’s opinion.

      . “The President . . . shall have power to grant reprieves and pardons for offences against the United States . .

      . Both presidents did, of course, explain why they had acted.

      .Not all constitutional powers of the President are similarly immune from procedural requirements imposed by statute, or from judicial review. As to the former, see the Federal Register Act of 1935, 1 C.F.R. § 19.2(a)(1974). As to the latter, see United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). For a more complete treatment of the subject, see Levinson, Presidential Seif-Regulation Through Rulemaking: Comparative Comments on Structuring the Chief Executive's Constitutional Powers, 9 Vand. J. Transnat’l L. 695 (1976).

      . Executive Order No. 75-49 (Sep’t. 11, 1975), filed with the Department of State on September 19, 1975.

      . While this set of procedures is not asserted to bring death sentence review under the state’s administrative procedure act, see Advisory Opinion to the Governor, 334 So.2d 561 (Fla. 1976), the parallel between the two processes is striking. Compare ch. 120, Fla.Stat. (1975). And see my dissenting advisory view, stated at 334 So.2d 563.

      . I do not find the other aspects of asserted unfairness (denial of an impartial tribunal, lack of pre-articulated decisional standards, and a denial of allocution) to be constitutionally required in clemency matters. See Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).

      . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). “Five members of the Court have now expressly recognized that death is a different kind of punishment than any other which may be imposed in this country.” Gardner v. Florida, 430 U.S, 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 401 (1977).

      . “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393, 402 (1977).

      . 428 U.S. at 199, 96 S.Ct. at 2937.

      . See n. 9 above.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re THE FLORIDA BAR. In re RULES OF CIVIL PROCEDURE.
    No. 49249-B.
    Supreme Court of Florida.
    July 14, 1977.
   PER CURIAM.

In connection with proposed Rules of Medical Mediation Procedure submitted by the Civil Procedure Rules Committee, it was recommended that certain amendments be made to the discovery provisions of the Rules of Civil Procedure. After due consideration the recommendation of the Civil Procedure Rules Committee is adopted and, accordingly, Rule 1.330(a) and Rule 1.340, Florida Rules of Civil Procedure are hereby amended as follows:

RULE 1.330(a) is amended to add subsection (6) which reads as follows:

“(6) If a civil action is afterward brought, all depositions lawfully taken in a medical liability mediation proceeding may be used in the civil action as if originally taken for it.”

RULE 1.340 is amended by adding á subsection (f) which reads as follows:

“(f) USE OF ANSWERS TO INTERROGATORIES PROPOUNDED IN MEDICAL LIABILITY MEDIATION PROCEEDINGS. If a civil action is afterward brought, answers to interrogatories propounded in a medical liability mediation proceeding may be used in the civil action as if originally propounded in it.”

The foregoing amendments shall govern all proceedings within their scope after 12:01 a. m., September 1, 1977. From and after their effective date, all rules and statutes in conflict with such amendments are hereby superseded, and any statute not superseded shall remain in effect as a rule promulgated by the Supreme Court.

It is so ordered.

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


author: SUNDBERG, Judge.

text:
    Vincent COLADONATO, Petitioner, v. STATE of Florida, Respondent.
    No. 50183.
    Supreme Court of Florida.
    July 14, 1977.
    Philip G. Butler, Jr., Foley, Colton & Butler, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen. and Marsha G. Madorsky, Asst. Atty. Gen., for respondent.
   SUNDBERG, Judge.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in Coladonato v. State, reported at 335 So.2d 317 (Fla. 4th DCA 1976), which allegedly conflicts with Kersey v. State, 58 So.2d 155 (Fla.1952), Richardson v. State, 291 So.2d 253 (Fla. 1st DCA 1974), and other decisions standing for the principle that a policeman may not stop a vehicle to question its occupants on a bare suspicion that the law has been violated. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

During early evening hours, petitioner was initially observed by a policeman driving a U-Haul Van with out-of-state plates in the business district of Boca Raton, Florida. A few minutes later, the officer saw the same vehicle and considered stopping it because “it was an unusual vehicle to be in the area at that time of night.” However, the patrolman did not stop petitioner at that time because he was called away on other matters. Approximately one hour later, the officer returned to the business district and spotted the U-Haul Van for a third time. At this point, he elected to stop the petitioner, although he had no reason to do so except his personal suspicion that illegal activity had been or was about to be committed.

Upon approaching the van, the officer looked through the rear window and observed articles of expensive stereo equipment. He then asked petitioner to supply him with some personal identification which petitioner did. After receiving this identification, the officer returned to his vehicle, radioed headquarters to check petitioner’s identity and requested, in addition, a search of the local stereo stores. A few minutes later, police headquarters notified the officer that petitioner was wanted on a New Jersey warrant. Petitioner was then placed under arrest. Subsequent to this arrest, the officer learned that a local stereo store had been burglarized. The van was then impounded, and the stereo equipment seized pursuant to an inventory search.

An information was filed thereafter charging the petitioner with one count of breaking and entering a building with intent to commit a felony, to wit: grand larceny, and a second count of grand larceny. Petitioner filed a motion to suppress which was subsequently denied. On appeal, the District Court of Appeal, Fourth District, affirmed per curiam without opinion (Alderman, J., dissenting).

We agree with petitioner that the District Court erred in affirming the trial court’s order refusing to suppress the stereo equipment obtained when petitioner was detained on a policeman’s bare suspicion that illegal activity was afoot. The dissenting opinion of Judge Alderman satisfactorily expresses the view of this Court. We, therefore, adopt this able dissent as the response of this Court in the instant cause. It is set forth in pertinent part below:

While it is well established that a police officer may stop a vehicle to question its occupants on less than probable cause, e. g., Gustafson v. State, 243 So.2d 615 (Fla.App. 4th, 1971), rev. on other grounds 258 So.2d 1 (Fla.1972), aff. 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), it is equally well recognized .that he may not do so arbitrarily or on a bare suspicion that the occupants are violating the law. Kersey v. State, 58 So.2d 155 (Fla.1952); Gustafson v. State, supra; State v. Ebert, 251 So.2d 38 (Fla.App. 2nd, 1971); Wilson v. Porter, supra; see, Fla. Stat. § 901.151(2) (1975).
I cannot agree that the arresting officer’s opinion that the vehicle was an unusual one to be seen in the area gave rise to the necessary “founded suspicion” in this case. I believe the facts of this case bring it more in line with those cases that have invalidated detentions, see, e. g., Bailey v. State, 319 So.2d 22 (Fla.1975); Thomas v. State, 297 So.2d 850 (Fla.App. 4th, 1974); State v. Rheiner, 297 So.2d 130 (Fla.App. 2nd, 1974); Richardson v. State, 291 So.2d 253 (Fla.App. 1st, 1974), than with those that have upheld them, see, e. g., Gustafson v. State, supra; State v. Ebert, supra; State v. Padilla, 235 So.2d 309 (Fla.App. 3rd, 1970); Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969); and Wilson v. Porter, supra.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and this cause is remanded to the District Court of Appeal, Fourth District, with instructions to remand to the trial court for proceedings not inconsistent with the views expressed herein.

It is so ordered.

ADKINS, BOYD and KARL, JJ., concur.

OVERTON, C. J., dissents.


author: CHARLES CARROLL, Associate Judge. PEARSON, Judge

text:
    Stephen G. OPPENHEIM, Appellant, v. NEWPORT SYSTEMS DEVELOPMENT CORPORATION et al., Appellees.
    No. 76-977.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 21, 1977.
    Rehearing Granted Jan. 25, 1977.
    Original Opinion Adhered to Feb. 11, 1977.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn and Joseph W. Downs, III, Miami, James J. Belcher, Fort Lauderdale, for appellant.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellees.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an interlocutory appeal by the plaintiff below from an adverse partial summary judgment. Plaintiff, an architect, filed a complaint against Newport Systems Development Corporation, Meridian Investment Corporation and others, alleging that the defendants engaged the plaintiff architect to prepare plans and specifications and to perform architectural and structural services on a construction project; that such services were performed, and billed for in the amount of $143,247.62, of which $78,-005.27 was paid, leaving an unpaid balance of $65,252.35; that a timely notice of lien therefor was filed and that there were no amounts owing to subcontractors and were no other outstanding liens.

In Count I the plaintiff sought foreclosure of the lien, against a bond to which the lien had been transferred. Alternatively, by additional counts the plaintiff sought damages for breach of contract. A copy of the claim of lien was attached to the complaint.

The defendants answered. The defendant, Meridian Development Corp., averred it had no ownership interest in the property and had no contractual relationship with the plaintiff.

The defendant Newport averred it had become sole owner. The answer pleaded, as an affirmative defense, that the plaintiff “has failed to allege and, in fact, has failed to meet the condition precedent to a valid lien in that he failed to submit an affidavit indicating all of his subcontractors have been paid”.

Defendants moved for partial summary judgment, without specifying the scope thereof, or the grounds therefor other than to state: “there is no genuine issue as to certain material facts and the defendants are entitled to a partial summary judgment as a matter of law”.

The court entered a summary judgment in favor of Meridian Development Corp., eliminating that defendant from the cause. That ruling is not questioned on this appeal. The court also granted partial summary judgment in favor of the defendants on Count I, for foreclosure of lien, cancelling the plaintiff’s recorded lien, and cancelling the bond filed therefor and discharging the surety on the bond. In the judgment the court reserved for further consideration matters involved in the other counts. The plaintiff appealed therefrom.

From the briefs and arguments of counsel it is revealed that the partial summary judgment precluding foreclosure of the lien was based on the failure of the plaintiff to have timely given to the owner a sworn statement of the kind referred to above, which is required by the section of the Mechanics’ Lien Law relating to contractors, requiring such sworn statement to be given by a contractor when final payment is due under a direct contract. Section 713.06(3)(d)l, Florida Statutes 1975.

The appellant argues that an architect is not required to give such a sworn statement, and that if the architect was so required he was entitled to foreclose the lien because of the allegation of non-existence of any such unpaid subcontractors or outstanding claims of persons employed by him, and evidence which so established. The appellees contend the failure of the architect to timely give such sworn statement to the owner (and to so allege in the complaint) operated to invalidate the lien, whether or not, in fact, any such other claims are outstanding and unpaid.

On consideration of those positions of the parties, in view of the applicable law, we hold the failure of the architect to give the owner such sworn statement did not render the lien invalid.

In Hardee v. Richardson, 47 So.2d 520 (Fla.1950) a contractor’s complaint to foreclose a mechanic’s lien failed to allege the contractor had given the owner a sworn statement of the kind above referred to. The defendant did not challenge the sufficiency of the complaint by a motion to dismiss based on that circumstance, but filed an answer to the complaint, denying that the plaintiff had complied with the Mechanic’s Lien Law in that respect. The plaintiff sought leave to amend, to allege he had given to the owner such a sworn statement. The trial court entered an order denying the plaintiff’s motion to so amend, and the plaintiff sought review by certiora-ri. The Supreme Court granted certiorari, and remanded the cause with direction that an order be entered permitting the amendment, although it appeared the sworn statement had not been given until after suit was filed.

The reasoning of the Court for so ruling in Hardee, as expressed in the opinion, was that the giving of such a sworn statement “should not be necessary to the acquisition of the lien but should operate to protect the owner against the possibility of paying more than once for the same item of labor or materials”; that while failure of the complaint to allege the giving of such a sworn statement might have been a good ground for moving to dismiss the suit, in view of the answer that defect was not basis for dismissal; and that under the circumstances of the case the amendment should have been allowed.

In Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556, 561 (Fla. 1st DCA 1964) and Eastland Investment Co. v. J. R. Trueman & Associates, Inc., 287 So.2d 365, 367 (Fla.3d DCA 1974) it was held that ordinarily a general contractor must furnish such a sworn statement as a condition precedent to the right to maintain an action to foreclose a mechanics’ lien “unless the complaint alleges facts clearly avoiding the necessity to furnish it, and the circumstances peculiar to each case govern.”

If the requirement for a contractor to give such a sworn statement to the owner was applicable to the architect lien-claimant, then his failure to do so and consequent failure of his complaint to allege compliance with that statutory requirement rendered his complaint subject to dismissal if challenged on that ground by motion to dismiss.

However, when that defect or omission was raised as a defense in answer to the complaint, the architect’s failure to have given the sworn statement was not, ipso facto, ground for dismissal of the action to enforce the lien and was not ground for entry of a summary judgment in favor of the defendant, when the plaintiff alleged that there were no unpaid subcontractors, or other liens against the property, and no evidence to the contrary was submitted by the defendant. Where the evidence as to that issue was lacking or inconclusive on the motion for summary judgment, the issue was one for proof at trial.

This is so because if the plaintiff’s allegation of absence of unpaid subcontractors or other lien claimants should be established at trial, the protection sought to be conferred on the owner in that regard by a preliminary sworn statement to that effect by the plaintiff would be accomplished.

Thus in Brown 160 So.2d at 562 it was held that when a party asserting a lien seeks to be excused from compliance with the statutory requirement to furnish such a sworn statement to the owner, as a condition precedent to the right to maintain an action to enforce the lien, it is a question of law as to whether the facts alleged are sufficient for that purpose, and it is necessary for the claimant of the lien to plead and establish facts excusing compliance with the statutory requirement.

We hold, therefore, that the defendants were not entitled as a matter of law to summary judgment in their favor on the plaintiff’s count for foreclosure of his lien. In so ruling we have proceeded on the assumption, without so holding in this case, that the provision of the Mechanics’ Lien Law requiring such a sworn statement by a contractor is applicable to an architect when seeking to foreclose a lien for professional services, as provided by Section 713.-03 Florida Statutes 1974. But see Eastland Investment Co. v. J. R. Trueman & Associates, Inc., supra, 287 So.2d 365 (Fla.3d DCA 1974).

For the reasons stated, the partial summary judgment entered in favor of the defendants as to Count I of the complaint which sought foreclosure of the plaintiff’s lien, and cancelling plaintiff’s recorded lien and the bond filed to supplant the lien, is reversed, and the cause is remanded for further proceedings.

Affirmed in part, and reversed in part and remanded.

PEARSON, Judge

(dissenting).

I would affirm upon authority of Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); and Potts v. Orlando Building Service, Inc., 206 So.2d 221 (Fla.4th DCA 1968).


author: PER CURIAM. RAWLS, Judge

text:
    Benton MUSSELWHITE et al., Appellants, v. Donald C. RAIMEY et al., Appellees.
    No. DD-139.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    Rehearing Denied Aug. 18, 1977.

      Ernest W. Welch, Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellants.
    D. Michael Chesser, Selby & Chesser, James W. Middleton, Fort Walton Beach, for appellees.
   PER CURIAM.

Affirmed.

BOYER, C. J., and McCORD, J., concur.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

The sole question presented by this interlocutory appeal as framed by appellants is:

Where more than one year passed after recording of lis pendens; and the initial pleading does not show that action is founded on a duly recorded instrument or a mechanic’s lien; and no fraud, misrepresentation, mistake or insolvency of land owner is shown, it was an abuse of discretion for the trial court to deny motion to discharge lis pendens.

I am of the firm conviction that the subject lis pendens should be stricken.

A suit was filed by plaintiffs (appellees) in Okaloosa County, Florida, alleging breach of contract and asking for an accounting along with a declaratory judgment against defendants (appellants). Plaintiffs filed a lis pendens in Gulf County, Florida, on December 28, 1973, by which they asserted an interest in some 920 acres of land located on Cape San Bias. The initial lis pendens was re-recorded by plaintiffs on January 22,1974. Defendant, Cape San Bias Joint Venture, on the following day moved to discharge the lis pendens, which motion was denied. A second amended complaint was filed by plaintiffs on April 7, 1975. Cape San Bias again moved to discharge the lis pendens, which motion was denied on July 26, 1976; hence this appeal.

According to plaintiffs’ second amended complaint, this cause of action was instituted on the basis of an unrecorded agreement executed by defendant, Ralph A. Ritteman, viz:

“For and in consideration of Thirty Thousand and no/100 dollars ($30,000.00), receipt of which is hereby acknowledged, the undersigned hereby sells, transfers and conveys unto Donald C. Raimey, David H. Groark and Wallace P. Conklin, jointly, an undivided ten per cent (10%) interest of all that interest presently held by Ralph A. Ritteman, Benton Mussel-white and Robert A. Burr in a certain tract of land comprised of approximately Nine Hundred Thirty (930) acres located at Cape San Bias, Gulf County, Florida. Thirty Thousand and no/100 dollars ($30,-000.00) refundable from loan proceeds at closing.
WITNESSES:
(names not legible)
Signed: May 24, 1973
/s/ Ralph A. Ritteman
TRUSTEE”

At the time Ritteman borrowed the $30,-000.00, he had a contract to purchase approximately 920 acres of land located on Cape San Bias from Partnership Investments of Florida, Inc. On July 27, 1973, Ralph Ritteman, Trustee; Northwest Florida Investments, Inc. (Ritteman was majority stockholder); George W. Griffith and Cape San Bias, Ltd., formed a joint venture under the name of Cape San Bias Joint Venture, which agreement was recorded in the official records of Gulf County. The property was subsequently purchased by Northwest Florida Realty, Inc., which, on September 27, 1973, by its president, Ralph Ritteman, conveyed by quit-claim deed the subject land to Cape San Bias Joint Venture. Plaintiffs’ second amended complaint alleges that the $30,000.00 loan has not been paid and that they have not received any interest in the property.

The effect of a lis pendens on the owner of property is constraining. For all practical purposes, it would be virtually impossible to sell or mortgage the property, because the interest of the purchaser or mortgagee would be subject to the eventual outcome of the suit. Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972). Recognition by the legislature of the impact of the recording of a lis pendens against land is evident from the clear provisions of Section 48.23(2), Fla.Stat., viz:

“(2) No notice of lis pendens is effectual for any purpose beyond one year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument, or on a mechanic’s lien claimed against the property involved except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.”

Thus, the legislature recognized and distinguished between an instrument such as the one here considered and such an instrument in a form that imposes a lien upon property and other claims. Had plaintiffs at the outset of the instant transaction desired to secure a lien upon the subject property, an instrument subject to the recording statutes could have been prepared and executed.

Clearly plaintiffs’ cause of action was founded on the written contract reciting the loan of $30,000.00. Thus, a lis pendens filed upon this instrument falls within the purview of Sec. 48.23(3), Fla.Stat., viz:

“(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”

In construing this provision, our sister court has recently held in Kirk v. Baumann, 336 So.2d 125 (Fla. 2nd DCA 1976), that where the action is not founded on a duly recorded instrument or mechanic’s lien, a notice of lis pendens may not be filed absent a prior order of the court. The rationale of this conclusion is stated as follows:

“If it were otherwise, one could avoid the requirements of notice, the posting of an adequate bond and showing of irreparable harm as required for injunctions by Rule 1.610, RCP, merely by filing a notice of lis pendens. Neither public policy, the interests of justice nor, indeed, due proe-ess can tolerate such a result.”

Although not necessary in support of my conclusion here, it is my view that the Second District Court of Appeal correctly interpreted the legislative scheme as to the lis pendens procedure.

The trial court, in my opinion, abused its discretion in denying the motion to strike the subject lis pendens for the following reasons: 1) the action was founded upon an instrument not duly recorded and more than one year has elapsed since it was filed, thus, it is now ineffectual; and 2) plaintiffs’ allegations in the second amended complaint do not state facts upon which an injunction could issue, therefore, it does not comply with the statutory mandate that when the initial pleading does not show that the action is founded on a duly recorded instrument, “the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.” (emphasis supplied).

Facts which would justify injunctive relief having not been alleged by plaintiffs in their initial pleading, it is my view that the trial court was required, as a matter of law, to dissolve the subject lis pendens.

      . The contract to purchase recited a purchase price of $3,750,000.00.

      . Plaintiffs assert that, by attaching a copy of the joint venture agreement between Ritteman, et al., to their complaint, one of the documents upon which this action is based is a “recorded instrument” as defined by the statute. Such an argument is specious. Plaintiffs clearly were not parties to the recorded agreement. To construe the statute as plaintiffs urge would only require a party to attach a certified copy of a recorded deed or other instrument between third parties to a complaint.


text:
    STATE of Florida, Appellant, v. Ernest Lee DIXON and Herbert Godbolt, Appellees.
    No. 75-1384.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.
    Rehearing Denied June 10, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C.-Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellee Dixon.
    E. David Tyner, of Sumner, Tyner & McKnight, Dade City, for appellee Godbolt.
   PER CURIAM.

The state has appealed two interlocutory orders granting appellees’ motions to suppress their confessions and to suppress certain other evidence they contend was seized as a result of the “tainted” confessions.

Appellees, Dixon and Godbolt, along with a codefendant Leroy Williams, were suspects in the murder of Gerald “Pops” Brown, for which they were subsequently indicted. They were being held on charges of possession of marijuana which was discovered in the van (owned by the homicide victim) in which the three suspects were found riding shortly after the alleged murder. The arresting officers had probable cause to believe the suspects were involved in the murder and no issue is made herein regarding the stopping or searching of the van.

The suspects were given their Miranda warnings upon arrest, had their initial judicial hearing on the marijuana charges and were appointed the public defender on those charges. The record is silent as to whether any bail was set on those charges but in any case, if it was, they were unable to post it and were detained in the Pasco County Jail for six days. On each of those days the.police sought to interrogate them regarding the homicide. On each such occasion the officers repeated the Miranda warnings and on each occasion, at least as to appellees Dixon and Godbolt, they refused to talk about the homicide without the presence of an attorney. On none of these occasions did the attempted interrogation last more than five to twenty minutes.

On the sixth day deputy sheriff John Willie Stewart, who was not previously officially involved in the homicide investigation but who was aware of it and who was a personal acquaintance of appellee Godbolt (nicknamed “Gator”), sought and received permission from the detective in charge of the investigation to get Gator’s brother Warren and, in the latter’s presence, see if he could get any information from Gator. Deputy Stewart was Warren’s landlord, and he liked and respected Warren and felt that between the two of them they could elicit information from Gator.

The two of them were closeted with Gator in an interrogation room in the jail for approximately three or four hours. Before any interrogation began deputy Stewart read to Gator the Miranda warnings from a card. Deputy Stewart said he did not threaten Gator, did not promise him anything, nor did he hold out any hope of reward. Admittedly, when Gator inquired about possibly getting out on bond, deputy Stewart told him he had nothing to worry about if he wasn’t involved in any homicide, and that if he had nothing to do with it he could probably have bond set by a judge.

Gator talked on and on about the activities of all the suspects on the night of the alleged homicide which took them from Gainesville to St. Petersburg to the Zephyr-hills-Richland area of Pasco County where the homicide allegedly occurred. Gator refused, however, to acknowledge that he knew anything about a homicide or that any of them had assaulted an alleged victim. Deputy Stewart advised him that other detectives were convinced a homicide had been committed but that he, personally, was only concerned with the location of the body; that he only wanted the victim to have a decent burial. While initially Gator avoided any mention of the homicide or location of the body, although he talked freely of the activities of the three suspects on the day in question — in the words of deputy Stewart, “. . . he never did stop talking to me . . .,” — Gator eventually and little by little began giving details of the involvement of all three suspects in the killing of “Pops” Brown, who at least one of them knew and who they picked up in St. Petersburg. Ultimately, he revealed all the details except for the location of the body.

It appears further, that during the course of the conversation with deputy Stewart and his brother Warren, Gator got the impression that his codefendant Leroy Williams, who he later identified as the actual perpetrator of the murder, was trying to pin the homicide on either him or appellee Dixon. Deputy Stewart testified that he made no mention to Gator that Williams was trying to pin it on Gator or Dixon, but that Gator may well have gotten that impression from the fact that all parties to the conversation were well aware that other officers were interrogating Williams separately. Additionally, Gator was aware that friends or relatives of Williams were at the jail that day from which fact, deputy Stewart assumed, Gator concluded that Williams had “copped out”, implicating him and Dixon, and was apparently about to be bonded out through the efforts of his friends and relatives.

Concerning appellee Dixon’s confession, when, at the conclusion of the conversation with deputy Stewart and Warren Godbolt, Gator refused to give the location of “Pops” Brown’s body, deputy Stewart asked Gator if he would reveal the location of the body if Dixon was brought down and if Dixon would agree to it. Gator didn’t say whether he would or wouldn’t but he did say to deputy Stewart, “Bring Dixon down, go get Dixon.” Dixon was brought to the interrogation room where his Miranda rights were read to him. Before the deputy asked Dixon any questions about the crime he related to him all the details of the homicide which Gator had given him, after which Dixon began talking freely. Finally, with Gator and Dixon each suggesting that the other of them tell where the body was (each protesting that he had been confused on the night of the homicide and unfamiliar with the area in Polk County where they had taken and left the body), enough details were revealed that deputy Stewart was able to pinpoint the approximate location of the body.

At that point, both Gator and Dixon agreed to go with the officers to locate the body. Deputy Stewart drove the two suspects and they were accompanied by other officers. The body was in fact located and several items of evidence were found in and about the body and seized. It is these items which are the subject of the second interlocutory order appealed from which suppressed them as having been “tainted” by the confessions, suppressed by the first order.

Following discovery of the body, all parties returned to the Pasco County Jail where, again after having been given their Miranda rights, the suppressed confessions were given separately by each appellee to a court reporter in the presence of three police officers and an assistant state attorney.

The court granted the motions to suppress on the ground that “the state has indeed failed to — to carry its burden to demonstrate that these statements made by Dixon and Godbolt were voluntarily made, and this finding is based on the totality of the testimony. . . .”

The burden of proving that a confession has been freely and voluntarily given rests upon the state. Reddish v. State, 167 So.2d 858 (Fla.1964). On the issue of voluntariness, the court must take into consideration the “totality of circumstances” surrounding the confession. Williams v. State, 188 So.2d 320 (Fla.2d DCA 1966). The trial judge’s determination of the admissibility of a confession is given great weight. See Ebert v. State, 140 So.2d 63 (Fla.2d DCA 1962).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court outlined certain requirements which must be followed before a confession obtained as a result of custodial police interrogation could be considered to be voluntary. The court held that a defendant’s confession could not be introduced into evidence until it is shown that he was first warned .of his constitutional right to remain silent and intelligently decided to waive that right. With respect to waiving the right to remain silent, the majority opinion in Miranda stated:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. ...” 384 U.S. 473—474, 86 S.Ct. 1628.

More recently, the U. S. Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), interpreted Miranda in the following manner:

“A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be- scrupulously- honored . . . .’ 384 U.S., at 479 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 36 Ohio Ops.2d 237, 10 A.L.R.3d 974.] The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning.’ Id., [384 U.S.] at 474, [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 36 Ohio. Ops.2d 237, 10 A.L.R.3d 974.] Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” 423 U.S. 103-104, 96 S.Ct. 326.

In holding that no Miranda violation had occurred in Mosley, the Supreme Court said:

“This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” 423 U.S. 105-106, 96 S.Ct. 327.

Therefore, the question in the instant case can be narrowed to whether there is evidence in the record to support the conclusion that the rights of defendants God-bolt and Dixon “to cut off questioning” were not “scrupulously honored” by the police.

There was nothing wrong in the police having made daily inquiries to see if the appellees wanted to talk. However, deputy Stewart testified that after Godbolt was brought into the interrogation room on the sixth day together with his brother Warren, the following occurred:

“Q. Now, after you read him his Rights, what did you do then?
A. I asked him if he wanted to talk to us about this subject that was supposed to have been killed, the shooting taken place. He said no, he didn’t want to talk about it, and so we kept talking and talking. I said: Well, look, we understand— we heard that there was a man killed and that you probably know where he was, and I asked him if he was going to tell us. He jived around and talked and talked and talked. He said: No, I don’t want to talk.
So, we kept talking, talking. So, Godbolt talk with him a little bit and he come up with this, continuing talking to him.
Q. How long did you talk to him?
A. I guess we was in there three or four hours, could have been.
* * * * * *
Q. Well, at any point did Gator just say: No, I don’t want to talk to you about it?
A. He never did just exactly say he didn’t want to talk. He acted like he didn’t know too much about it. I say: Gator, we have an understanding there was a man dead, but we just can’t find the body, we just want you to tell what happened, and so when he made up his mind to talk, well then, he start.
Q. Well, before he made up his mind, though, he never told you: No, I’m not going to talk; no, I don’t want to talk?
A. (pausing) He didn’t never — I don’t know if he ever say: No, he wasn’t going to talk.
Q. Again referring to this deposition, do you recall on page 24, counsel, relating back to 23 — on line 18 the question was': Who is: ‘we,’ you and Warren Godbolt and the Defendant Godbolt; Answer: Right, Godbolt’s brother, me and both the Godbolt boys. So, we talked and talked. I said: Look, man, we understand there’s a man dead, a man did get killed, and I said: That’s what the detectives told me, he’s dead. I say: At least you could tell me where the man at and let them give him a decent burial, let the family come and bury him, shouldn’t leave him out like that. If you throw’d him in the water, let us know, we try to make arrangements to get him home, anywhere else, just tell us; no sense of leaving him like that. He say: No. He said: No, man, I just ain’t going to talk, I ain't talking.
Do you recall having give that answer to that question during the deposition?
A. Right.
ifc % # * * if!
Q. Is it true he told you: No, man, I just ain’t going to talk, I just ain’t talking? Did he tell you that that night?
A. He could have said it. We talked a long time in there.”

With reference to the questioning of defendant Dixon who had previously refused to talk about the homicide without the presence of a lawyer, deputy Stewart first testified as follows:

“Q. Now, you testified that you advised Mr. Dixon of his Rights, is that correct?
A. I did.
Q. Did he tell you anything about not wanting to talk to you?
A. No, sir.
Q. What did he tell you?
A. Dixon?
Q. Yes, sir.
A. Dixon didn’t say anything right at the time. After I advised Dixon of his Rights, and all, I started talking to Dixon telling him about what Godbolt had told me. . . . ”

However, deputy Stewart later said:

“Q. Referring to page 51 of this deposition, my question: When Dixon came down, isn’t it true you asked him about this and he told you he didn’t want to talk to you about it; Answer: At first he did.
Now, do you recall what he did, whether he told you that he didn’t want to talk to you, or whether he told you he didn’t want to talk?
A. When Dixon first came down I read him his Rights. I asked him — after I read him his Rights, and everything, I asked him did he understood. He say: Yeah. Then I started talking to Dixon. I didn’t ask Dixon no questions. I told Dixon what Godbolt had told me up to the point that we didn’t know where the body was, and I told him we know everything else, that it was a man got killed, what happened in St. Pete, what happened in Gainesville, what happened in Lumberton, and I said: Now, all we’re interested in is finding out where the body at. He say he wouldn’t tell us where the body was because he wanted to be present. I said: That’s the reason I sent for you, and that’s when Dixon said: Well, you tell him, and he said: Well, I don't know — that’s what Herbert said. They kept rattling off and Dixon said — he had his hand back to his head again like that, he said: All I remember is I saw a sign say: Wildwoods (sic) and we started off from there, and Dixon say a little more and then he’d tell Herbert to say something. He’d say: Tell him the rest, Herbert.
Herbert would mention a little more, and so then I taken it up from there after they got up past Wildwoods (sic) and on the Lake-land Road, I started asking them questions because I knew the route, the road out there.”

Thus, it appears that there are some portions of deputy Stewart’s testimony from which it could be concluded that both appel-lees acknowledged that they understood their rights to remain silent and had chosen to waive these rights by beginning to talk. A confession obtained under these circumstances was deemed admissible in Hogan v. State, 330 So.2d 557 (Fla. 2d DCA 1976). On the other hand, there is also evidence that both Godbolt and Dixon indicated an initial desire not to answer any questions in the absence of an attorney but later made incriminating statements only after the interrogation continued.

The totality of the circumstances reflected by the record in this case supports a reasonable finding, which is necessarily implicit in the trial judge’s decision to grant the motions to suppress, that the appellees did not unequivocally waive their right to remain silent and their right to counsel as provided in Miranda and Mosley. See Singleton v. State, 344 So.2d 911 (Fla. 3d DCA 1977). Therefore, the orders of suppression must be

AFFIRMED.

GRIMES, J., and WETHERINGTON, GERALD T., Associate Judge, concur.

McNULTY, A. C. J., dissents.