source: Caselaw Access Project

author: KARL, Justice. SUNDBERG, Justice,

license: Public Domain

text:
    In the Interest of Linda Faye HUTCHINS, a child.
    No. 48306.
    Supreme Court of Florida.
    March 24, 1977.

      Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., for appellant.
    Virgil Q. Mayo, Public Defender, and Lewis M. Peacock, Asst. Public Defender, for appellee.
   KARL, Justice.

This is a direct appeal from an order of the Circuit Court in and for Calhoun County declaring Chapter 75-48, Section 15(11), Laws of Florida, relating to ungovernable children, to be unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

Linda Faye Hutchins, the appellee, was abandoned by her parents when she was twelve years old. By Order of Commitment to Fosterage entered August 30, 1972, she was placed in the care, custody and supervision of the Division of Family Services as a dependent child. On August 11, 1975, an order was entered, pursuant to the statute before us, finding that Linda Faye, then age fifteen, continued to be a dependent child and that she was ungovernable due to her uncontrollable behavior. Two weeks later, a petition was filed seeking a second adjudication of ungovernability. At this time, counsel was appointed by the court to represent her, and he promptly filed motions attacking the statute and the validity of the first adjudication of ungo-vernability.

The statute in question, Chapter 75-48, Section 15(11), now appears as Section 39.-01(11), Florida Statutes, and provides:

“ ‘Ungovernable child’ means a child who persistently disobeys the reasonable and lawful demands of his parents or other legal custodians and is beyond their control. For the purposes of this act, the first time a child is adjudicated as ungovernable, he may be defined and treated as a dependent child, and all the provisions of this act relating to dependency shall be applicable. For the second and subsequent adjudications for ungoverna-bility, the child may be defined and treated as a delinquent child, and all the provisions of this act relating to delinquency shall be applicable. If necessary the court may order placement of the child in secure shelter care pending disposition.”

In his order granting the motion to dismiss, the trial judge found that Section 39.01(11) is vague and indefinite in its entirety and that the failure of the statute to include provisions for counsel in the adjudicatory hearings on ungovernability constituted a failure to accord procedural due process as required. The order held the statute to be unconstitutional and invalidated the earlier ungovernability adjudication.

The first question for our determination is the constitutionality vel non of Section 39.01(11), Florida Statutes.

Although the Florida Juvenile Law, Chapter 39, Florida Statutes, is not a penal statute, a child may be found to be delinquent under its provisions and committed until the age of twenty-one. Such a statute, when challenged for vagueness, should be subjected to the same test that is applied to penal laws.

This test was well defined in this court’s decision in State v. Llopis, 257 So.2d 17 (Fla.1971), and reiterated most recently in State v. Wershow, et al., 343 So.2d 605 (Fla.) filed February 25, 1977, as follows:

“When exercising its power to declare an offense punishable, the Legislature must inform our citizens with reasonable precision what acts are prohibited. There must be provided an ascertainable standard of guilt, a barometer of conduct must be established, so that no person will be forced to act at his peril. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947); State [ex rel. Lee] v. Buchanan, 191 So.2d 33, 336 (Fla.1966).”

Before a person subject to the act can be adjudicated an ungovernable child and thereafter be defined and treated as a dependent child, he must have persistently disobeyed the reasonable and lawful demands of his parents or custodians and be beyond their control. There must be a second or subsequent such adjudication before the definition and treatment of the ungovernable child equates with delinquency. We find the language of that portion of the statute to be sufficiently definite to withstand the attack of vagueness.

Furthermore, we do not agree with the trial judge’s conclusion that the statute is fatally defective for failure to include provisions requiring counsel for every juvenile alleged to be an ungovernable child. The right to counsel in delinquency proceedings is required by the Fourteenth Amendment of the United States Constitution. In re Gault, supra. That right accrues to the child regardless of the fact that it may not be written into the statute, and therefore, absence of a statutory provision requiring counsel in such proceedings does not negate the validity of the questioned statute.

Since we conclude that Section 39.01(11), Florida Statutes, is constitutional, we have for disposition the question of whether a juvenile alleged to be an ungovernable child is entitled to counsel at every hearing delineated in Section 39.01(11), Florida Statutes.

The United States Supreme Court, in In re Gault, supra, set forth the procedure required to be followed in adjudicatory proceedings relative to the right of the juvenile to counsel, as follows:

“[T]he Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.”

Section 39.01(12) defines a delinquent child as “a child who commits a violation of law, regardless of where the violation occurs, except the child who commits a juvenile traffic offense and whose case has not been transferred to the circuit court by the court having jurisdiction.”

A child becomes a delinquent child as a result of a hearing and adjudication. Thereafter, the court has the power to make disposition of the matter in various ways, including a commitment to the Division of Youth Services until he reaches the age of twenty-one. In a hearing on a petition in which it is alleged that the child is delinquent, the evidence must establish the status of the child beyond a reasonable doubt. Any child alleged to be a delinquent child under Chapter 39, Florida Statutes, is entitled to the due process protection specified in In re Gault, supra. Cf. State v. Steinhauer, 216 So.2d 214 (Fla.1968).

Section 39.01(11) provides that, for the second and subsequent adjudications for un-governability, the child may be defined and treated as a delinquent child and all provisions of the act relating to delinquency shall be applicable. That portion of the act establishes an additional basis for a child to acquire the status of delinquent child. Delinquency by the process of adjudications of ungovernability has the same effect on the child and his liberty as any other procedure leading to delinquency.

The parties agree that, at a second or subsequent adjudicatory hearing on ungo-vernability, the juvenile has the right to counsel since the adjudication may result in the child being defined and treated as a delinquent. But, it is argued, the first adjudication may only result in dependency status, and therefore, the right to counsel need not be accorded at that time.

This court has held that the federal constitution does not require counsel in every dependency case and that whether the standards of due process in delinquency proceedings must be applied will depend upon the relevant circumstances in each case. Potvin v. Keller, 313 So.2d 703 (Fla.1975).

Under the provisions of Chapter 39, Florida Statutes, the status of dependency may be established by a preponderance of evidence, the powers of the court and the Division of Family Services are limited, and only delinquent children may be committed to the Division of Youth Services for custody, care, training and treatment.

The first hearing on ungovernability is not necessarily a first step in the adjudication of delinquency. The hearing and the resulting care, custody or supervision by the Division of Family Services may correct any existing problems the child may have and be the last of the child’s experiences with the juvenile authorities. In such cases, the constitutional right to counsel is not mandatory. Potvin v. Keller, supra; Cleaver v. Wilcox, 499 F.2d 940 (9th Cir.1974).

If, however, the first ungovernability adjudication is to be used in a subsequent proceeding in which the child’s status may change from dependency to delinquency because of two or more adjudications of ungo-vernability, the first such adjudicatory hearing is a critical first step in the delinquency determination and the child is entitled to all due process rights at each step in the procedure.

Determining that a juvenile was placed in jeopardy at an adjudicatory hearing, the object of which was to determine whether he had committed certain proscribed acts, the United States Supreme Court, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), said:

“We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was ‘put to trial before the trier of the facts,’ ibid., that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U.S. [377] at 388, 95 S.Ct. 1055, [43 L.Ed.2d 265.]”

We conclude that it is constitutionally impermissible to base an adjudication of ungovernability for the second time on a previously conducted hearing in which the child was not instructed as to his right to counsel or provided counsel if an indigent.

We reject the argument that such a requirement will convert all of the proceedings to determine ungovernability into criminal type proceedings with both state attorney and defense counsel present in an adversary atmosphere. If the appropriate authority believes that the ungovernability hearing will suffice, there is no reason why it cannot be held as any other dependency proceeding. But if the conduct of a child is such that there is doubt about the effectiveness of the proceeding and that such proceeding will likely mature into a delinquency proceeding, the child must be given the opportunity to have counsel. If this right is not afforded the juvenile, the first adjudication may not be used in the delinquency hearing.

In the case sub judice, Linda Faye Hutch-ins has been a dependent child since 1972. Three years after being placed in that status and while still within the jurisdiction of the court, she was the subject of a detention order. Almost immediately, a petition was filed alleging that she was an ungovernable child. The petition described a consistent course of conduct which resulted in several changes in her foster homes. Two weeks later, the petition for a second adjudication of ungovernability was filed, and it included the statement that “Division of Family Services has no foster home able to cope with Linda Faye Hutchins’ problem.” The request was that Linda Faye be adjudicated for a second time and be placed under the Division of Youth Services. There she would be defined and treated as a delinquent.

It is apparent from the petition and the supporting material that, when the first petition for adjudication of ungovernability was filed, the officials involved had reason to believe that further proceedings might be necessary. Had Linda Faye been provided counsel in that critical first step as well as at her second hearing, her rights, in that respect, would not have been violated. The proceedings were held without according her due process in the first hearing, which is not objectionable per se, but it forecloses the use of that first adjudicatory hearing as the basis for the delinquency proceedings.

The order of the trial judge in invalidating Linda Faye’s first hearing on ungovern-ability cannot be affirmed because the hearing was valid for the purpose of placing her in the dependency status. However, if Linda Faye Hutchins is to be adjudicated a delinquent child as a result of being twice adjudicated an ungovernable child, the proceedings must conform to the procedural mandate announced herein.

We have considered whether a child’s Fourteenth Amendment rights would be protected if all of the facts upon which each of the ungovernability adjudications was based were proved de novo and beyond a reasonable doubt at the second or subsequent ungovernability hearings. Such a procedure would not provide adequate safeguards. The fact of the first adjudication would remain an essential element, and it would have been settled without the required protection and by a simple preponderance of the evidence.

For the foregoing reasons, we hold that Section 39.01(11), Florida Statutes, is constitutional and that the adjudication of Linda Faye Hutchins as an ungovernable child on August 11, 1975, was a valid proceeding for the purpose of placing her in the status of a dependent child.

Accordingly, the order of the trial judge is reversed, and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

SUNDBERG, J., concurs in part and dissents in part with an opinion, with which ENGLAND and HATCHETT, JJ., concur.

SUNDBERG, Justice,

concurring in part, dissenting in part.

I concur in the result reached by the majority with respect to the constitutionality of Section 39.01(11), Florida Statutes (1975). I also agree that there was no necessity for the juvenile to be represented by counsel at the hearing on “ungovernability” held on August 11, 1975. I dissent from the conclusion that counsel will or will not be required at a first hearing for adjudication of ungovernability based upon whether the juvenile authorities believe a second hearing will be necessary. In the first place, I believe the test is unworkable. In addition, I do not believe the statute comprehends the procedure assumed by the majority.

The majority seems to say that the first hearing is a “critical first step” any time there is the necessity for a second hearing on ungovernability. But how can we expect juvenile authorities to know when the first hearing will remedy the situation without the necessity for further proceedings and when it will not? Without clairvoyance they cannot make this determination. The rule announced by the majority places a premium upon hindsight, which, concededly, is always 20-20. The majority concedes that the first hearing may very well “correct any existing problems the child may have and be the last of the child’s experiences with the juvenile authorities.” But how can one know going in? I suggest one cannot. Therefore, the rule announced in the majority opinion will lead inexorably to a full blown adversary hearing at each initial effort to adjudicate ungovernability. This result is not only an unwarranted and wasteful expenditure of judicial resources, it is not in the best interests of the child. I am absolutely convinced that initial proceedings for adjudication of ungovernability should be carried on in an informal atmosphere calculated to rehabilitate the juvenile without all the trappings of adversary judicial proceedings.

I submit that the correct and more practical construction of Section 39.01(11), Florida Statutes (1975), is readily discernible from a plain reading of the statute. After a definition of “dependent child” and before a definition of “delinquent child” is set forth, Section 39.01(11), Florida Statutes (1975), defines an “ungovernable child.” In addition to defining the conduct which constitutes ungovernability, this section outlines certain consequences which may flow from an adjudication of ungovernability. Upon the first adjudication of ungoverna-bility, the child “may be defined and treated as a dependent child, and all of the provisions of this act relating to dependency shall be applicable. ” Upon the second or subsequent such adjudication, the child “may be defined and treated as a delinquent child, and all the provisions of this act relating to delinquency shall be applicable. ” (Emphasis ours)

It is clear that neither an initial nor a subsequent adjudication of ungovernability constitutes an adjudication of dependency or delinquency. To “define and treat” one as a dependent or delinquent child must mean something different from adjudication of that status. I suggest that it means simply that after such definition by the court, the child becomes a potential candidate for proceedings which can result in an adjudication of dependency or delinquency pursuant to Sections 39.05-39.11, Florida Statutes (1975). This construction is reinforced by the phrases in Section 39.01(11) “and all the provisions of this act [§§ 39.05-39.11, Fla.Stat.] relating to [dependency] [delinquency] shall be applicable.” In short, an adjudication of ungovernability may form the basis for a petition under Section 39.05, Florida Statutes (1975), for dependency absent any of the elements recited in Section 39.01(10), Florida Statutes (1975). But the proceedings for adjudication of dependency must be in accordance with the provisions of Sections 39.05-39.11, Florida Statutes (1975). The same is true with respect to proceedings for adjudication of delinquency after two or more adjudications of ungovernability. In each instance, the procedural safeguards prescribed by Chapter 39, Florida Statutes (1975), as amplified by decisional law, will apply. In such proceedings the adjudication or adjudications of ungovernability merely provide a predicate for a petition under Section 39.05, Florida Statutes (1975). At any such hearing on a petition for adjudication of dependency or delinquency, proof of the former adjudication or adjudications of ungo-vernability will provide prima facie evidence of such fact. However, because I deem representation by counsel at ungo-vernability hearings not to be required, the juvenile shall be entitled to present evidence to rebut any of the facts upon which the ungovernability adjudication was based. Whereupon the burden will be upon the petitioner to prove de novo by the requisite quantum of proof the facts justifying the adjudication of ungovernability. Expressed another way, the adjudication of ungovern-ability will be open to collateral attack at any hearing upon a petition filed pursuant to Section 39.05, Florida Statutes.

I submit that the foregoing interpretation of Section 39.01(11), Florida Statutes, obviates the critical first step assertion of the appellee and fully comports with the dictates of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

ENGLAND and HATCHETT, JJ., concur.

      . Section 39.001, Florida Statutes, provides:
      “Purposes.—The purposes of this chapter are:
      (1) To protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of children who violate the laws; . . .”
      See also Section 39.10(5), Florida Statutes, In re Gault, 387 U.S. 1 at 14 and 15, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and State v. D. H., a juvenile, et al., Fla., 340 So.2d 1163 (1976).

      . Section 39.11(2)(c), Florida Statutes.

      . Section 39.09, Florida Statutes.

      . Section 39.10, Florida Statutes.

      . Section 39.11(2), Florida Statutes.

      . Section 39.11(2)(c), Florida Statutes.

      . Section 39.09(1)(b), Florida Statutes.

      . Section 39.09(1), Florida Statutes.

      . Section 39.11, Florida Statutes.

      . Ibid.

      . § 39.01(10), Fla.Stat. (1975).

      . § 39.01(12), Fla.Stat. (1975).


author: KARL, Justice.

text:
    In the Interest of C. F., a juvenile.
    No. 50729.
    Supreme Court of Florida.
    March 24, 1977.
    Rehearing Denied May 26, 1977.
    Robert L. Shevin, Atty. Gen., and Clarence Holmes, Asst. Atty. Gen., for plaintiff.
    Bennett H. Brummer, Public Defender, and Irv J. Lamel, Asst. Public Defender, Miami, for defendant.
   KARL, Justice.

We have for consideration a certified question from the Circuit Court, Juvenile-Family Division, of the Eleventh Judicial Circuit, relating to the authority of the public defender to represent indigent juveniles in proceedings under Section 39.01(11), Florida Statutes. It appears that the question presented herein is determinative of this cause and that it is without controlling precedent in this state. We have jurisdiction to answer the certified question. Florida Appellate Rules, Rule 4.6, 32 F.S.A., Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963); Boyer v. City of Orlando, 232 So.2d 169 (Fla.1970).

The circuit judge appointed the public defender for the Eleventh Judicial Circuit in and for Dade County to represent C. F., a juvenile, in proceedings based on a petition entitled “First Ungovernable Petition.” The public defender objected and maintained that Section 27.51, Florida Statutes, authorizes the public defenders of Florida to represent only indigent children alleged to be delinquent and not those alleged to be ungovernable. The court certified the following question of law:

“WHETHER THE PUBLIC DEFENDER IS AUTHORIZED BY THE FLORIDA STATUTES TO REPRESENT INDIGENT JUVENILES AGAINST WHOM A FIRST UNGOVERNABLE PETITION HAS BEEN FILED.”

This court, in In the Interest of Hutchins, a child, 345 So.2d 703 (1977), filed March 24, 1977, held Section 39.01(11), Florida Statutes, to be constitutional. Determining that the first hearing on ungovernability may be a critical first step in the procedure leading to delinquency, we said:

“The first hearing on ungovernability is not necessarily a first step in the adjudication of delinquency. The hearing and the resulting care, custody or supervision by the Division of Family Services may correct any existing problems the child may have and be the last of the child’s experiences with the juvenile authorities. In such cases, the constitutional right to counsel is not mandatory. Potvin v. Keller, supra; Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974).
“If, however, the first ungovernability adjudication is to be used in a subsequent proceeding in which the child’s status may change from dependency to delinquency because of two or more adjudications of ungovernability, the first such adjudicatory hearing is a critical first step in the delinquency determination and the child is entitled to all due process rights at each step in the procedure.
“We conclude that it is constitutionally impermissible to base an adjudication of ungovernability for the second time on a previously conducted hearing in which the child was not instructed as to his right to counsel or provided counsel if an indigent.”

Section 27.51, Florida Statutes, specifies the conditions under which the public defender shall undertake the representation of a juvenile alleged to be a delinquent child. Whether the proceedings are conducted in a county having a population in excess of 390,000 or in any other county, the court may, if the statutory conditions are fulfilled, appoint the public defender to represent the child in delinquency proceedings. It follows, therefore, that, if the first ungovernable petition is filed in contemplation of it being the first step in delinquency proceedings, the court must instruct the child as to his right to counsel or provide counsel if the child is indigent, and in such case, the public defender may represent the child as in other delinquency proceedings.

Accordingly, the certified question is answered in the affirmative.

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

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


author: PER CURIAM.

text:
    Tom Morris HUTCHINS, Petitioner, v. STATE of Florida, Respondent.
    No. 47820.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied May 31, 1977.
    William T. Lassiter, Jr., of Lassiter & White, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ, Fla.App., 314 So.2d 646. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.

BOYD and HATCHETT, JJ., dissent.


author: ROBERTS, Justice (Retired). ENGLAND, Justice, BOYD, Justice,

text:
    Clifford VINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 48476.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied May 31, 1977.
    Robert E. Pyle, of Pyle & Barber, Lake Alfred, and Frank C. Alderman, III, Fort Myers, for petitioner.
    Joseph P. D’Alessandro, State’s Atty.; Louis S. St. Laurent, Chief Asst. State’s Atty., Fort Myers and James R. Thompson, Asst. State's Atty., for respondent.
   ROBERTS, Justice (Retired).

We review here by conflict certiorari a decision of the District Court of Appeal, Second District, reported at 320 So.2d 50 (Fla., DCA 2d, 1975), reversing a decision of the trial court which discharged the defendant. We have tentative jurisdiction because of apparent conflict with State v. Febre, 156 Fla. 149, 23 So.2d 270 (1945).

Petitioner Vinson, defendant at the trial level and a physician, was charged with unlawful delivery of a controlled substance as proscribed by Chapter 893, Florida Statutes, 1973, known as the Florida Comprehensive Drug Abuse Prevention and Control Act. Dr. Vinson entered a plea of not guilty but later, after what appeared to be some form of plea bargaining, withdrew his plea of not guilty and entered a plea of nolo contendere. The trial judge ordered an evi-dentiary hearing on the plea. The State objected contending that upon the tender of such a plea the sole responsibility and authority of the Court was to accept (or reject) the plea and, if accepted, to impose sentence. Over the State’s objection, the trial court proceeded to receive into evidence five exhibits and heard six witnesses, such witnesses being at times questioned from the bench. Several weeks later, the trial judge entered an Order finding Dr. Vinson not guilty of both counts and discharging him. The State appealed the decision to the District Court of Appeal, Second District, contending that the action of the trial judge in conducting the hearing and discharging the defendant was without authority of law and in effect a nullity and, therefore, did not prevent further prosecution of the case. The decision of the District Court in reversing the trial court appears as State v. Vinson, 320 So.2d 50 (Fla., DCA 2d, 1975). The controlling question now presented is whether or not the action of the trial court was sufficient to bar further prosecution against a defense of former jeopardy.

The District Court properly determined that the trial judge was without authority at all to consider as viable the issue of guilt or innocence and explained:

“We hold, therefore, while not precluding a trial judge in his discretion from making inquiry into a factual basis for a nolo contendere plea, there being no express requirement therefor under Rule 3.170 RCrP, that if the trial judge indeed makes such inquiry or if, for one reason or another, he thinks that the underlying facts of the case do not establish the defendant’s guilt, he nevertheless has no authority to enter a judgment of not guilty.”

Preliminarily, we find that Rule 3.170, Florida Rules of Criminal Procedure, does not require that an inquiry be made into the factual basis for a plea of nolo conten-dere. This rule expressly provides:

“(j) Responsibility of Court on Pleas. No plea of guilty or nolo contendere shall be accepted by a court without first determining, in open court, with means of recording the proceedings stenographically or by mechanical means, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty." (emphasis supplied)

Although this rule requires a determination by the trial court that the circumstances surrounding the plea reflect a full understanding of the significance of the plea of nolo contendere or guilty and its voluntariness, as evidenced by the explicit language contained therein, an inquiry must be made into the factual basis of a guilty plea but not a plea of nolo contendere.

A plea of nolo contendere admits the facts for the purpose of the pending prosecution. It raises no issue of law or fact under the accusation. The United States Circuit Court of Appeals, Seventh Circuit, in a note to its decision in Tucker v. United States of America, 196 F. 260 (CA 7 Cir., 1912), described the nature and purpose of such a plea, as follows:

“The plea of nolo contendere (I will not contest it) is used in criminal cases where the accused, though unwilling to confess his guilt, does not wish to go to trial, and desires the court immediately to impose sentence.
The early records of this ancient plea state the fact to be that the defendant is unwilling to contest the question with the Crown, and therefore throws himself upon the mercy of the court. Non vult contendere cum domina regina etponit se in gratium curice. 2 Hawk. P.C. chap. 21; Reg. v. Templeman, 1 Salk. 55; Chitty, Crim. Law, chap. 10 (which is quoted at length in the opinion of the reported case). The effect in practice was that there was nothing left for the court to do, except to impose sentence.
In State v. La Rose, 71 N.H. 435, 52 Atl. 943, the plea is thus characterized: ‘The plea is in the nature of a compromise between the state and the defendant, — a matter not of right, but of favor. Various reasons may exist why a defendant conscious of innocence may be willing to forego his right to make defense if he can be permitted to do so without acknowledging his guilt. Whether, in a particular case, he should be permitted to do so, is for the court.’
And in Doughty v. De Amoreel, 22 R.I. 158, 46 Atl. 838, it was said: ‘Doubtless it is often used as a substitute for a plea of guilty, but it simply says that the defendant will not contend. This is not a confession of guilt, because an accused person might find himself without witnesses to establish his innocence, from their death, absence, or other cause, and hence waive a fruitless contest.’ ”

The Supreme Court of the United States in Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347, analyzed the historical background of the plea:

“The use of the plea in the Federal courts and the propriety of imposing a prison sentence upon it are recognized by the Probation Act; March 4, 1925, chap. 521, 43 Stat. 1259, [Comp. Stat. § 10,5644/5, Fed.Stat.Anno.Supp.1925, p. 172]. Section 1 of that Act provides for the suspension of sentence and the release of the prisoner on probation ‘after [453] conviction, or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment.'
“The plea of nolo contendere was known to the common law, and is referred to, although not by name, by a modern English text-writer. See Arch-bold’s Pleading, Evidence & Practice in Criminal Cases, (26th ed. 1922) 379. But no example of its use in the English courts has been found since the case of Queen v. Templeman, decided in 1702, 1 Salk. 55 [91 Eng. Reprint, 54], where, although a fine was imposed, the question now under consideration was neither decided nor discussed.
“The view of the court in the Tucker [v. United States, 7 Cir., 196 F. 260], Case that a prison sentence may not be imposed on the plea of nolo contendere rests upon no more substantial basis than a possibly ambiguous phrase in a passage from Hawkins, Pleas of the Crown, 8th ed. book 2, chap. 21, 466. The author prefaces the chapter, ‘Of Confessions and Demurrer,’ with the remark, ‘And now I am to consider what is to be done to a prisoner upon his confession; which may be either Express or Implied.’ In §§ 1 and 2 he points out that a confession of guilt ‘carries with it so strong a presumption of guilt, that an entry or record, quod cognovit indictamentum, etc., in an indictment of trespass, estops the defendant to plead ‘not guilty’ to an action brought afterwards against him for the same matter.’ He then says:
“ ‘Sec. 3. An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king’s mercy, and desiring to submit to a small fine: in which case, if the court think fit to accept of such submission, and make an entry that the defendant posuit se in grantiam regis, without putting him to a direct confession, or plea (which in such cases seems to be left to discretion), the defendant shall not be estopped to plead not guilty to an action for the same fact, as he shall be where the entry is quod cognovit indictamen-tum.’
“[454] This passage appears in all the earlier editions of Hawkins. It has been handed down from generation to generation of text writers in substantially the same form with occasional glosses, but researches rarely went further. Similarly, judicial study of the history of the plea halts with Hawkins.
* * * * * *
“But even if we regard the implied confession as a petition which in Hawkins’s time had to be accepted as tendered, in modern practice it has been transformed into the formal plea of nolo contendere. Like the implied confession this plea does not create an estoppel, but like the plea of guilty, it is an admission of guilt for the purposes of the case. Section 3, it is true, speaks of the defendant’s yielding to mercy and his desire ‘to submit to a small fine,’ but even if we assign to these words the more comprehensive meaning suggested, they do not say that the court is bound to yield to the prisoner’s petition in fixing sentence, nor do they suggest that the court by accepting a formal plea which admits guilt for the purposes of the case would be bound to yield to its implied appeal for mercy.
* * * # * *
“Undoubtedly a court may, in its discretion, mitigate the punishment on a plea of nolo contendere, and feel constrained to do so whenever the plea is accepted with the understanding that only a fine is to be imposed. But such a restriction made mandatory upon the court by positive rule of law would only hamper its discretion and curtail the utility of the plea.”

The following excerpt from 21 Am. Jur.2d, Criminal Law Section 497, supported by much decisional authority, is pertinent:

“Generally; nature and purpose of plea. Recent years have brought about the renaissance of the plea of nolo con-tendere in criminal proceedings after such plea was on its way to oblivion. The plea raises no issue of law or fact under the accusation, is not one of the pleas, general or special, open to the accused in all criminal prosecutions, and is allowable only on leave and acceptance by the court. It is not a plea in the strict sense of that term in the criminal law, but rather an unwillingness to plead and present a defense. It is a formal declaration by the accused that he will not contend with the prosecuting authority under the charge.”

A plea of nolo contendere does not admit the allegations of the charge in a technical sense but only says that the defendant does not choose to defend. U. S. v. Weirton Steel Co., 62 F.Supp. 961 (D.C.W.Va.1945). It is merely a formal declaration that the accused will not contest the charges with the prosecutor and is in the nature of a compromise between the state and the accused. Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 193 P.2d 656 (1948).

Wharton’s Criminal Procedure, Volume 4, p. 772, § 1903, describes the plea of nolo contendere, as follows:

“The plea of nolo contendere admits the facts for the purpose of the pending prosecution and to that extent has the same effect as a plea of guilty, but unlike a plea of guilty it cannot be used against the defendant in a civil suit as an admission of the facts charged in the indictment when accompanied by a protestation of the defendant’s innocence.
“The plea of nolo contendere cannot be put in without leave of court. It is discretionary with the court to receive such a plea, and usually it is allowed, if at all, only in inferior misdemeanors. This plea is ordinarily not permitted in a capital case, and in some jurisdictions is not permitted in any case.”

It is defined by Black’s Law Dictionary, as follows:

“NOLO CONTENDERE. Lat. I will not contest it. The name of a plea in a criminal action, having the same legal effect as a plea of guilty, so far as regards all proceedings on the indictment, and on which the defendant may be sentenced. U.S. v. Hartwell, 26 Fed.Cas. 196, No. 15,318, 3 Cliff. 221.”

A plea of nolo contendere has been determined to be equivalent to a guilty plea only insofar as it gives the court the power to punish. Peel v. State, 150 So.2d 281 (Fla.2d DCA, 1963), State v. Thomas, 236 N.C. 196, 72 S.E.2d 525 (1952).

An annotation on the effect of the plea of nolo contendere as an admission and waiver of defects, 152 A.L.R. 277, explains:

“Since under a plea of nolo contendere, the allegations of the indictment stand as impliedly admitted, no issue of law or fact is raised. Consequently, after a plea of nolo contendere is entered, a stipulation of facts is ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or - innocence.
“By pleading nolo contendere, the defendant thereby waives all formal defects in the proceedings of which he could have availed himself by a plea to the merits, a plea in abatement, a demurrer, or a motion to quash, and also his right to go to trial. Thus, it has been said that the defendant who has entered a plea of nolo contendere has no standing to argue that he did not have a fair trial, or that a jury trial was unconstitutionally denied to him. The implied waiver of trial by the defendant interposing a plea of nolo con-tendere may also preclude him from filing a bill of exceptions where the statute provides that a defendant is permitted to file such a bill only after conviction, or after the denial of his motion for a new trial.
“It has been said that the plea, like a demurrer, admits, for the purpose of the case, all the facts which are well pleaded, and only those. In accordance with this statement, the court will, generally speaking, refuse to go behind the indictment or to turn its proceedings relative to the imposition of sentence into a trial of the case, provided the plea was entered into ‘knowingly, voluntarily, and intelligently.’ Once the plea is entered, unless retracted by leave of court, defendant’s only avenue of escape is by motion in arrest of judgment, based, of course, upon some inherent, fatal defect apparent in the record, such as that the indictment charged no offense, or that it was defective, or that it showed on its face that the offense charged was barred by the statute of limitations. These are the same objections the defendant would equally be entitled to raise after a plea of guilty. However, if such inherent defect exists, the court is authorized in proper circumstances, to strike on its own motion the plea of nolo contendere from the record and dismiss the information in order to protect the defendant against his own ignorance.”

The court in Peel v. State, supra, confronted, inter alia, with the issue of whether the court could accept a plea of nolo contendere to a capital case, the District Court of Appeal, Second District, opined:

“We have found no case where a defendant has been sentenced to a death penalty on a plea of nolo contendere. Logically, we see no reason why a plea of nolo contendere in a capital case should not be upheld even when the death penalty has been imposed, considering the present development of the law as to the use of the plea. It is apparently true that under the historical development of the law in England a person could not plead nolo contendere or non vult to a capital crime. Apparently he could not plead guilty to a capital crime either.”

Therein, the District Court found that the plea of nolo contendere had the same effect as a guilty plea as to the case in which it is entered, i. e., waiver of all formal defects in the proceedings of which he could have availed himself.

As is quoted in the instant decision of the District Court of Appeal, Second District, and appropriately applicable to the facts before us, the Supreme Court of the United States in United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930), explicated:

“In the face of an indictment good in form and substance, and of a plea thereto of nolo contendere, which, although it does not create an estoppel, has all the effect of a plea of guilty for the purposes of the case (citing cases), the stipulation was ineffective to import an issue-as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence. . . . After the plea, nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record. Regarded as evidence upon the question of guilt or innocence, the stipulation came too late, for the plea of nolo contendere, upon that question and for that case, was as conclusive as a plea of guilty would have been.
“The court was no longer concerned with the question of guilt, but only with the character and extent of the punishment (citing authority). The remedy of the accused, if he thought he had not violated the law, was to withdraw, by leave of court, the plea of nolo conten-dere, enter one of not guilty, and, upon the issue thus made, submit the facts for determination in the usual and orderly way.” (emphasis supplied)

We agree with the District Court sub judiee under the facts presented that the trial court had no authority to enter a judgment of not guilty.

As to the double jeopardy argument presented by petitioner, we find it to be without merit. The District Court correctly declared:

“While ordinarily jeopardy attaches upon the entry of a plea of guilty or nolo contendere and its acceptance by the court, double jeopardy sanctions come to fruition only after the court properly acts thereon in a manner within its jurisdiction and authority. We have held herein that the trial court exceeded that authority when he entered the finding of not guilty and discharged respondent. Therefore, the matter is still pending. Stated otherwise, this is not a second or subsequent prosecution of the respondent on the charge herein, rather, this is still the first and same prosecution which was simply prematurely and improperly terminated by the court without jurisdiction or authority.”

Insofar as this decision may appear to be in conflict with State v. Febre, supra, the Febre decision rendered in 1945 prior to the adoption of Florida Criminal Procedure Rule 3.170, is modified to conform with this view.

In summary, we hold that the decision of the trial court discharging the defendant was without authority or jurisdiction and is a nullity. The choices of the trial court under Rule 3.170 and the facts of this case were: (1) to accept the plea and enter judgment and sentence thereon or (2) to reject the plea, enter a plea of not guilty for the defendant after which the defendant would have a choice of entering a plea of guilty or nbt guilty and then proceeding with the trial.

Accordingly, the decision of the District Court, being without error, is approved, and the writ of certiorari heretofore issued is hereby discharged.

It is so ordered.

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

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

BOYD, J., dissents with an opinion.

ENGLAND, Justice,

concurring.

The reasoning of the majority with respect to Vinson’s double jeopardy contention is both logical and consistent with prior constitutional decisions. The double jeopardy provisions of the Florida Constitution and the United States Constitution implicate two distinctive inquiries. The first is whether jeopardy has “attached” at all in the proceeding. The second is whether, if jeopardy has in fact attached, reprosecution is nonetheless permitted by reason of “manifest necessity” or to meet the “ends of public justice”. This case involves only the first consideration.

We have held that jeopardy attaches when an unconditional guilty plea is or should have been “accepted”. The United States Supreme Court has held that jeopardy attaches in a non-jury proceeding called for trial when the trial judge begins to hear evidence. Neither of these positions lend credence to the suggestion that a defendant can force a premature attachment of jeopardy simply by tendering a “no contest” plea to the trial judge. Obviously some form of acceptance is required before defendants can claim a constitutional right to prohibit reprosecution. The situation on tender of a no contest plea is identical to the situation on tender of a conditional guilty plea, as to which we have held that jeopardy attaches only when the plea is accepted.

It is illogical to suggest that the process by which a trial judge decides whether to accept or reject a plea — either by informal discussion with counsel for both sides or by requiring the presentation of evidence — can determine whether a defendant has been put in “jeopardy” — that is, in a position of being subject through state action to the embarrassment, expense and ordeal of multiple conviction attempts. It follows that the majority has correctly concluded that this case presents no constitutional difficulty under the Florida or United States Constitution.

ROBERTS (Retired), J., concurs.

BOYD, Justice,

dissenting.

Petitioner Vinson, a physician licensed to practice medicine in Florida, was charged by information with two counts of unlawful delivery of controlled substances contrary to Section 893.13, Florida Statutes. The information alleged that Dr. Vinson had issued written orders prescribing controlled substances outside the course of his professional practice. After Dr. Vinson withdrew his plea of not guilty and entered a plea of nolo contendere, the trial judge ordered an evidentiary hearing on the plea. At the hearing, above the protestations of the State that the purpose of the hearing was limited solely to determine the sentence to be imposed, the trial judge announced, “. . . it is necessary that an Evidentia-ry Hearing be held, in order for the Court to determine the guilt or the innocence of the man and the truth of the matter, which is what we are after . . . .” The State then introduced five exhibits into evidence and presented six witnesses who testified to a complete version of the circumstances which led to the charge. Over objection by the State a brief cross-examination of one of the witnesses, interspersed with questions from the bench, was conducted by the defense. Less than one month later the trial judge rendered an order finding Dr. Vinson not guilty of both counts and discharging him from the case.

The State appealed to the District Court of Appeal, Second District. In its decision reported at 320 So.2d 50, the court held the following: (1) While a trial judge is not precluded from making inquiry into a factual basis for a nolo contendere plea, at the conclusion of such inquiry he has no authority to enter a judgment of acquittal. If he thinks that the underlying facts do not establish guilt, he may afford the accused an opportunity to withdraw the plea, or, in the alternative, refuse to accept the plea and enter a plea of not guilty. (2) Such a decision does not run afoul of the prohibition against double jeopardy. Jeopardy had attached. However, entry of the judgment of acquittal was an act beyond the jurisdiction of the trial court, so that the matter awaited proper disposition through trial to be conducted on remand.

We have jurisdiction because of conflict with State v. Febre, 156 Fla. 149, 23 So.2d 270 (1945).

The main issue for our decision is whether Dr. Vinson may now be tried consistent with the prohibitions against double jeopardy contained in the Fifth Amendment to the U.S Constitution and Article I, Section 9 of the Florida Constitution.

The basic premise underlying the prohibition against double jeopardy is that a defendant should not be twice tried or punished for the same offense. U.S. v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). From this premise it follows that in nonjury proceedings jeopardy attaches when the judge begins to hear evidence on the issue of guilt, State v. Bernard, 254 So.2d 38 (Fla.3d DCA 1971), Serfass v. U.S., 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and that the constitutional prohibition has no application until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge. U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

It is clear that the judge in this case began to hear evidence on the issue of guilt so that jeopardy attached. The question remains whether the evidentiary hearing before the judge amounted to a trial, thereby preventing a retrial of Dr. Vinson.

In State v. Budnick, 237 So.2d 825 (Fla.2d DCA 1970), the Court held that the word “trial” contemplates a hearing on a plea of nolo contendere before a court seeking to determine guilt or innocence. In State v. Febre, supra, the accused was charged with first degree murder and pleaded nolo con-tendere. The judge heard testimony and entered a judgment of conviction for the lesser offense of aggravated assault. The State appealed to this Court where it was held that the State was as bound by the judgment as if it had been entered pursuant to a jury verdict. I think that the State is just as bound by the judgment acquitting Dr. Vinson as if a jury had acquitted him, and I agree with Budnick that an evidentia-ry hearing on a plea of nolo contendere constitutes a trial. To retry Dr. Vinson would violate the prohibition against double jeopardy.

The majority relies upon Rule 3.170, Florida Rules of Criminal Procedure, which provides:

“(j) Responsibility of Court on Pleas. No plea of guilty or nolo contendere shall be accepted by a court without first determining, in open court, with means of recording the proceedings stenographically or by mechanical means, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty.”

The rule requires courts in each case before accepting a guilty plea to find a factual basis for the plea, but no such requirement is made for a plea of nolo contendere. Since both are usually treated by criminal courts as guilty pleas, equal justice requires the courts to find a factual basis for accepting a nolo contendere plea as if it were a guilty plea. The court was therefore authorized to make the inquiry here.

The fundamental purpose of criminal courts is to convict the guilty and to acquit the innocent. Rules of criminal procedure should not be applied mechanically, but courts should exercise discretion in each case. The court here was not satisfied with what had been made known in the initial presentation and made a lengthy examination of facts from State witnesses and exhibits. After entering the nolo contendere plea petitioner was upon the mercy of the court. If an error occurred it should not be charged against petitioner.

The Constitution of the United States is an elastic, living instrument capable of solving problems of society without violent revolution. Constitutional rights should be jealously guarded by all courts.

No constitutional right is more precious than the prohibition against trying the same person for the same crime after being acquitted.

I respectfully dissent.

      . Although it does not affect the outcome of this case, it is noteworthy that this Court on February 10, 1977, amended this rule to read as follows:
      “(a) Before accepting a plea of guilty or nolo contendere the trial judge shall satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.”
      and to become effective July 1, 1977.
      Also interesting is that Federal Rule 11 parallels more closely Florida’s Rule of Criminal Procedure 3.170 as it existed prior to February 10, 1977. The Federal Rule provides:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo conten-dere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
      In the report of the American Bar Association Project on Minimum Standards for Criminal Justice, the annotators, on page 34 of the volume identified as “Pleas of Guilty”, said:
      “Consistent with the position taken in the recent revision of Federal Rule 11, inquiry into accuracy is not required when the defendant enters a plea of nolo contendere. The Advisory Committee’s note to Rule 11 states: ‘For a variety of reasons it is desirable in some cases to permit entry of judgment upon a plea of nolo contendere without inquiry into the factual basis for the plea. ■The new* third sentence is not, therefore, made applicable to.pleas of nolo contendere.’ For one thing, the risk of inaccuracy when a nolo plea is tendered is relatively slight, as in such cases there is usually a sophisticated defendant (very often a business enterprise) who has been fully advised by retained counsel. Moreover, the advantages to be gained from such a plea might be diminished or lost if there were a subsequent inquiry into the underlying facts.”
      And so it is that Federal Rule 11 and the revised rule replacing Florida Criminal Procedure Rule 3.170 present different views as between the Federal and State Systems.

      . Article I, Section 9 of the Florida Constitution provides that “no person shall ... be twice put in jeopardy for the same offense.

      .The Fifth Amendment has been made applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

      . Ray v. State, 231 So.2d 813 (Fla.1969).

      . Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).

      . Troupe v. Rowe, 283 So.2d 857 (Fla.1973).

      . Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

      . Art. V. § 3(b)(3), Fla.Const.


author: SUNDBERG, Justice.

text:
    Gregory Lewis LOMAX, Petitioner, v. STATE of Florida, Respondent.
    No. 48547.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied May 31, 1977.

      Jack 0. Johnson, Public Defender, Tenth Judicial Circuit, Judge C. Luckey, Jr., Public Defender, and Ellen Condon, Asst. Public Defender, Thirteenth Judicial Circuit, for petitioner.
    Robert L. Shevin, Atty. Gen., William I. Munsey, Jr., Richard G. Pippinger, Raymond L. Marky, George R. Georgieff and Richard Wilson, Asst. Attys. Gen., for respondent.
   SUNDBERG, Justice.

Petitioner seeks certiorari review of the decision of the District Court of Appeal, Second District, which affirmed his conviction of robbery. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 322 So.2d 650, conflicts with State v. Terry, 336 So.2d 65 (Fla.1976); Lightfoot v. State, 331 So.2d 388 (Fla. 2d DCA 1976); Bracy v. State, 299 So.2d 126 (Fla. 4th DCA 1974); Lewis v. State, 269 So.2d 692 (Fla. 4th DCA 1972); and Miles v. State, 258 So.2d 333 (Fla. 3d DCA 1972).

According to the District Court opinion, petitioner Lomax robbed a motel clerk at gunpoint and at the time of his arrest was carrying a paper bag full of cash and a suitcase containing a pistol. At petitioner’s trial for robbery, defense counsel requested instructions on attempted robbery, assault with intent to commit robbery, grand larceny and petit larceny. While the trial court instructed on robbery, grand larceny and petit larceny, it refused to give an instruction on assault with intent to commit robbery and attempted robbery.

The District Court of Appeal, Second District, held that it was error for the trial court to refuse to give the requested instructions, but held the error to be harmless. In reaching this conclusion, the court stated:

“In short, we hold that the failure to give an instruction of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasonably have found that only the lesser crime was committed.” (Emphasis in the original) 322 So.2d at 651.

Petitioner contends that the trial court in failing to give the requested instructions committed reversible rather than harmless error.

The question presented this Court in the case sub judice is by no means one of first impression. We have been asked repeatedly to determine whether a trial court erred in refusing to instruct on a particular lesser-included offense, and if so whether that error was harmless or prejudicial. Initially, a line of case law evolved which supported the proposition that a trial court is not in error in refusing to instruct on lesser-included offenses when that court is of the opinion that, based upon the evidence adduced at trial, no reasonable jury could infer that the crime charged was not in fact committed. This proposition was rejected in Hand v. State, 199 So.2d 100 (Fla.1967). In that case this Court stated:

“In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge.” 199 So.2d at 102.

While Hand held that it was “error” for the trial court to refuse to instruct on a lesser-included offense when that instruction was required, this did not preclude the evolution of a subsequent line of authority that held the error to be harmless if, again, there exists overwhelming evidence that the defendant committed the crime charged. It is this theory that is embraced by the Second District Court of Appeal in the case sub judice. See also Stephens v. State, 279 So.2d 331 (Fla. 2d DCA 1973).

The major flaw underlying this rationale, however, is that it revives the very problem ostensibly remedied in Hand; that is, the trial court is permitted to invade the province of the jury by making a unilateral determination that a lesser-included offense instruction is unnecessary because there is overwhelming evidence to convict the defendant on the crime charged. In such a situation, whether the judge’s failure to instruct properly is deemed harmless error or not error at all is immaterial. In both cases the effect is the same- — the trial judge successfully takes an important evidentiary matter from the proper province of the jury.

Our decision in State v. Terry, supra, responds to this problem and firmly reiterates the principle enunciated in Hand v. State. In Terry, the defendant was charged with assault with intent to commit murder in the first degree, but was convicted of aggravated assault. The trial court refused the defendant’s request for an instruction on assault and battery and bare assault. This Court found that the trial court’s failure to give these instructions constituted prejudicial error even though there was strong evidence that the defendant had committed the offense charged. The Terry decision, presumably based upon the policy concept of “jury pardon,” clearly establishes that a trial court will be reversed if it fails to instruct properly on lesser-included offenses. The decision of the Second District Court of Appeal in Lightfoot v. State, supra, rendered subsequent to the instant ease, acknowledges the Terry rationale.

The principle enunciated in Terry is equally applicable here. Therefore, we reaffirm that decision and hold that when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is thus per se reversible.

Any prior appellate decisions conflicting with the principle announced herein are overruled! Petition for certiorari is granted, the decision of the District Court is quashed, and the cause is remanded for further proceedings not inconsistent herewith.

BOYD, ENGLAND and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.


author: HATCHETT, Justice.

text:
    M. David SIMS, M.D., Petitioner, v. Mildred L. HELMS and Cecil J. Helms, Respondents.
    No. 49393.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied May 31, 1977.

      Edward J. Atkins and George W. Ches-row, Walton, Lantaff, Schroeder & Carson, Miami, for petitioner.
    Leo Greenfield, North Miami, for respondents.
   HATCHETT, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Third District Court of Appeal, reported at 330 So.2d 71. That decision directly conflicts with O’Grady v. Wickman, 213 So.2d 321 (Fla. 4th DCA 1968). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We reverse.

Respondents, Mr. and Mrs. Helms, were the plaintiffs in a medical malpractice action against the petitioner. Mrs. Helms originally consulted the petitioner, a specialist in gynecology, for the purpose of securing treatment for a prolapsed uterus. Upon his recommendation, she consented to a vaginal hysterectomy. During the operation petitioner inadvertently entered respondent’s bladder while attempting to separate it from the uterus. A urologist was consulted, and the incision was surgically repaired by the petitioner. Ten days following respondent’s discharge, during a post-operative examination, petitioner observed a small leak through a vesico-vaginal fistula in the bladder. He referred the respondent to a urologist, and a second operation was performed to close the fistula.

Respondents filed suit, asserting that petitioner’s conduct in performing the hysterectomy fell below the standard of care required of physicians practicing in the community. More specifically, respondents claimed that petitioner negligently entered and repaired respondent’s bladder. Petitioner denied that the operation was negligently performed and submitted depositions and affidavits establishing that the injury sustained by the respondent is one of the ordinary risks involved in hysterectomy surgery. Respondents produced no expert medical testimony to support their allegations of negligence. Based upon an affirmative showing that respondents were without ability to produce such testimony, the trial judge entered a final summary judgment in favor of the petitioner.

On appeal, respondent argued, “that regardless of her inability to produce expert testimony of acceptable medical practice, a jury could find from the application of common knowledge that her bladder was needlessly pierced.” Helms v. Sims, supra. Petitioner maintained that expert medical testimony was required to prove the alleged negligence and that the trial court properly entered a summary judgment based on plaintiff’s inability to produce such testimony. The District Court ruled in favor of the respondents and reversed the order for summary judgment, basing its decision on this court’s opinion in Atkins v. Humes, 110 So.2d 663 (Fla.1959). In that case we dealt with a situation where a physician applied a cast to a child’s arm so tightly that the child’s hand became swollen, cold, and discolored. Although notified of these conditions by the child’s parents, the physician failed to take any action to relieve the pressure and the child contracted Volkmans’s contracture. The child and her parents sued the doctor for medical malpractice but produced no expert testimony to prove that he had acted negligently. The trial court entered a summary judgment in favor of the doctor, and the District Court affirmed on appeal. We reversed and held:

[Jjurors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an approved medical treatment. . . . Atkins v. Humes, supra, at p. 666.

But, we also held that where the method of treatment is challenged, expert testimony is required. In explaining the need for such testimony, we pointed out:

[Ejxcept in rare cases, neither the court nor the jury can or should be permitted to decide, arbitrarily, what is or is not a proper diagnosis or an acceptable method of treatment of a human ailment. . . Atkins v. Humes, supra, at p. 666.

The present case does not involve a charge of negligence based on the careless administration of an approved medical treatment. Respondent challenges instead petitioner’s choice of methods and procedure. In performing a hysterectomy, it is necessary to separate the uterus from the bladder. This can usually be accomplished by the use of a blunt instrument, often the fingers. In respondent’s case, the bladder and uterus were joined by multiple adhesions and petitioner determined that sharp dissection was necessary. It was during this procedure that respondent’s bladder was inadvertently entered. According to the decision below, the issues are whether petitioner “properly proceeded” in an “emergency situation” to separate the uterus and the bladder by use of a sharp instrument and whether he “properly proceeded” to repair a puncture to the bladder. Helms v. Sims, supra. We are convinced that without the assistance of expert medical testimony a lay jury could not have determined, except by pure speculation, whether petitioner chose the correct method of treatment or whether he deviated from accepted medical practice. Negligence cannot be inferred from the fact that the surgery was unsuccessful or terminated in unfortunate results. Bourgeois v. Dade County, 99 So.2d 575 (Fla.1957); Hill v. Boughton, 146 Fla. 505, 1 So.2d 610 (1941); Anderson v. Gordon, 334 So.2d 107 (Fla. 3d DCA 1976).

In O’Grady v. Wiekman, supra, two doctors were sued for essentially the same act with which petitioner is charged. During a hysterectomy operation the patient’s bladder was inadvertently entered. The bladder was repaired, and the patient was discharged from' the hospital. A small leak developed, and a second operation was performed to remedy the damage. During the second operation, several silk sutures were discovered at the site of the fistula and were removed in order to stop the leak. The court held that the plaintiff was required to produce expert medical testimony to determine what skills, means, and methods were recognized as necessary by physicians practicing in the community. The overwhelming weight of authority supports this view. Dazet v. Bass, 254 So.2d 183 (Miss.1971); Halligan v. Cotton, 193 Neb. 331, 227 N.W.2d 10 (1975); Shoberg v. Kelly, 1 Wash.App. 673, 463 P.2d 280 (1969); Odum v. Cejas, 510 S.W.2d 218 (Mo.App.1974); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975).

The only question remaining is whether the trial judge properly entered a summary judgment for the petitioner based on an affirmative showing that respondent was without ability to produce expert medical testimony in support of her allegations of negligence. This issue is resolved by our decision in Holl v. Talcott, 191 So.2d 40 (Fla.1966), where we held that a defendant may show the absence of genuine issues of material fact by “showing conclusively that the plaintiff is unable to present requisite proof of the negligence charged in the pleadings.” Id. at 47.

Accordingly, the decision of the Third District Court of Appeal is quashed and the order of the trial court reinstated.

It is so ordered.

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

       Initially, respondent claimed that she had obtained the opinions of two physicians who stated that Dr. Sims had negligently performed the surgery. Both doctors submitted affidavits denying that they had expressed such opinions. In fact, both doctors specifically stated that a, vesico-vaginal fistula is a recognized hazard of all hysterectomies and may occur without any negligence, even when the surgery is performed under ideal conditions, by the most skillful surgeon. Respondent later admitted that neither doctor had actually told her that Dr. Sims was negligent. Supplemental answers to interrogatories, filed by the respondent, indicate that she overheard a conversation between the two doctors from which she inferred that petitioner was negligent.


author: ADKINS, Justice.

text:
    Merritt H. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 49087.
    Supreme Court of Florida.
    April 7, 1977.
    Rehearing Denied May 31, 1977.
    Merritt H. Powell, in pro. per.
    Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., for appellee.
   ADKINS, Justice.

This case is before us on direct appeal from an order of the Orange County Court which denied appellant’s motion to dismiss a traffic offense charge. In denying the motion the county court inherently upheld the constitutionality of Section 316.210, Florida Statutes. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Section 316.210, Florida Statutes, provides in pertinent part as follows:

“316.210 Windshields required to be unobstructed, fixed upright and equipped with safety glass and wipers.
“(2)(b) No person shall operate any motor vehicle upon any public highway, road, or street, on which the rear window is composed of, covered by, or treated with, any material which has a highly reflective or mirrored appearance and which has a total solar reflectance, when applied to automotive glass, greater than 35 percent in the visible light range.
* * * * * *
“(2)(d) No person shall operate any motor vehicle upon any public highway, road, or street, on which the sidewings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with, any material which has the effect of making these glass areas nontransparent in any way or which has a highly reflective or mirrored appearance and a total solar reflectance, when applied to automotive glass, greater than 35 percent in the visible light range.” .

Appellant received a traffic citation in Orange County on January 9, 1976, for violation of Section 316.210(2)(b), (d), Florida Statutes, in that the side windows and the rear window of his vehicle were covered with reflective material. A plea of not guilty was entered before the court and appellant filed a motion to dismiss the charges upon the grounds that the statute in question was unconstitutional and void. The motion was denied by the court, and on March 2,1976, appellant was assessed a fine of $15.00, plus costs of $7.00.

We have sub judice an attack on the constitutionality vel non of the statute. Appellant contends that it bears no reasonable relation to any proper governmental purpose and is overbroad constituting a denial of due process and equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 2 and 9 of the Florida Constitution.

It is a fundamental principle that this Court has the duty if reasonably possible, consistent with protection of constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality, and if reasonably possible a statute should be construed so as not to conflict with the constitution. Tornillo v. Miami Herald Publishing Co., 287 So.2d 78 (Fla.1973). Every presumption is to be indulged in favor of the validity of the statute, and the case is to be considered in the light of the principle that the State is primarily the judge of regulations in the interest of public safety and welfare. - Gitlow v. People of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

The inhibitions of the Constitutions of the United States upon the deprivation of property without due process, or the equal protection of the law by the states, are not violated by the legitimate exercise of legislative power in securing the health, safety, morals, and general welfare. Miami Bridge Co. v. Railroad Comm’n, 155 Fla. 366, 20 So.2d 356 (1945). The use of the police power to such ends, within reasonable bounds, has long been approved by this Court. Youngblood v. Darby, 58 So.2d 315 (Fla.1952).

The purpose of the legislature invoking the police power to prohibit reflective or mirrored materials on the windows of motor vehicles is the promotion of public safety. We hold Section 316.210, Florida Statutes (1975) to be a legitimate exercise of this power as granted by the Constitution.

The judgment of the trial court is affirmed.

It is so ordered.

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


author: BY THE COURT.

text:
    James Michael GORT et al., Appellants, v. STATE of Florida, Appellee.
    No. 50131.
    Supreme Court of Florida.
    April 7, 1977.
    Rehearing Denied May 31, 1977.
    David A. Demers of Demers & Demers, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for appellee.
   BY THE COURT.

This case comes to us on direct appeal from judgments of the Orange County Circuit Court entered on pleas of no contest reserving the right to appeal. Among the issues raised is the denial by the circuit court of motions by the appellants to dismiss charges alleging violations of Section 796.07, Florida Statutes (1975), and upholding the constitutionality of the statute. We have jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution, and we deny the state’s motion to quash the appeal.

After a careful review of the appellants’ brief and the record, we dispense with the filing of a brief by the state and oral argument. The judgments entered below are affirmed. State v. Bales, 343 So.2d 9 (Fla.1977).

It is so ordered.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Penny Lynn Maddox, Petitioners, v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Respondent.
    No. 50210.
    Supreme Court of Florida.
    April 28, 1977.
    R. Fred Lewis, of Kuvin, Klingensmith & Lewis, Miami, for petitioners.
    John A. Murray and Sam Daniels, Miami, for respondent.
   HATCHETT, Justice.

We are called upon to determine whether an order issued by the Eleventh Circuit Court of Florida is a final appealable order. The Third District Court of Appeal held that it was not. State Farm Mutual Automobile Ins. Co. v. American Hardware Mutual Ins. Co., 336 So.2d 624 (Fla.3d DCA 1976). That decision conflicts with S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334 Fla.1st DCA 1966); and Leeward and Hart Aeronautical Corp. v. South Central Airlines, 184 So.2d 454 (Fla.1st DCA 1966). We have jurisdiction.

This case arose from an automobile accident between petitioner, Penny Lynn Maddox, and Mr. and Mrs. Julio Perez. At the time of the accident, petitioner was driving a vehicle owned by and leased from Hallett Pontiac and Day Car, Inc. Petitioner took her own car to Hallett Pontiac for repair work and attempted to lease a vehicle from Day Car, Hallett’s rental company, while hers was in the shop. Because Miss Maddox was a minor (19), Day Car refused to rent her a car. They did rent a car to petitioner’s adult sister, however, with knowledge that petitioner would be the driver of the vehicle.

At all times material to this case, Hallett Pontiac and Day Car were insured under a policy with American Hardware Mutual Insurance Company, but the policy covered only those vehicles rented to customers of the insured while such customers’ vehicles were temporarily left for service, repair, or resale. Petitioner Maddox was insured by State Farm Mutual Automobile Insurance Company.

Mr. and Mrs. Perez filed suit against Maddox, State Farm, Day Car, Hallett Pontiac, and American Hardware alleging that Maddox had negligently operated a motor vehicle owned by Hallett/Day Car and that both State Farm and American Hardware provided liability coverage.

On September 13, 1974, Maddox and State Farm filed a cross claim against American Hardware, alleging that Hallett/Day Car leased the car with full knowledge that Maddox would be the driver; thus, American Hardware should afford primary liability insurance for the accident.

In June, 1975, American Hardware, Day Car and Hallett Pontiac filed a cross claim against State Farm.

On September 11, 1977, a third cross claim was filed by Hallett/Day Car against American Hardware. It was their contention that American Hardware owed them coverage under the insurance policy and under the law of waiver and estoppel.

As the case proceeded to trial, petitioners requested that the issue of insurance coverage be set for separate trial. On September 26, 1975, the trial judge held a hearing:

. upon the severed insurance coverage issues presented by the cross claim filed by State Farm Mutual Automobile Insurance Company and Penny Lynn Maddox, defendants and cross claimants herein, against American Hardware Mutual Insurance Company, defendant and cross defendant herein, and the cross claim filed by Day Car, Inc., Hallett Pontiac, Inc., and American Hardware Mutual Insurance Company, defendants and cross claimants herein, against State Farm Mutual Automobile Insurance, defendant and cross defendant herein..."

Not heard at this time was the September 11, 1975, cross claim by Hallett Pontiac and Day Car against American Hardware.

In an order, styled “Final Judgment Upon Severed Insurance Coverage Issues,” the trial court held in pertinent part:

1. There was no liability coverage for Hallett Pontiac, Inc., and Day Car, Inc., upon the rental vehicle involved in this case, under the aforementioned insurance policy of American Hardware Mutual Insurance Company.
2. There was liability coverage for Hallett Pontiac, Inc., and Day Car, Inc., upon the rental vehicle involved in this cause, under the aforementioned insurance policy of State Farm Mutual Automobile Insurance Company and Hallett Pontiac, Inc., and Day Car, Inc., were and are entitled to a defense in this cause by State Farm Mutual Automobile Insurance Company, in their behalf.
3. The cross claimants, State Farm Mutual Automobile Insurance Company and Penny Lynn Maddox, take nothing by their cross claim and that cross defendant, American Hardware Mutual Insurance Company, go hence without day and recover its costs from cross complainants to be assessed hereinafter.

The trial court reserved jurisdiction upon the cross claim of Day Car, Hallett, and American Hardware against State Farm for the purpose of establishing damages, costs, and fees.

The Third District Court dismissed an appeal taken by petitioners on the ground that the Final Judgment Upon Severed Insurance Coverage Issues was not a final appealable order. It is that decision we review here.

Petitioners argue that the Final Judgment Upon Severed Insurance Coverage Issues is a final appealable order. It is their contention that, although other issues between other parties may remain, the judgment in this case totally settled all claims or issues between the parties directly affected, Maddox and State Farm on one hand, and American Hardware on the other hand. Respondents argue that several issues remain to be settled. Pending below is the cross claim of Day Car and Hallett Pontiac against American Hardware and plaintiff’s original complaint against American Hardware. In addition, it has never been determined whether American Hardware owes coverage to Maddox.

In S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974), we stated: “[T]he test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” Id. at 99. We have held steadfastly to this definition. Hotel Roosevelt Co. v. City of Jacksonville, supra; Leeward and Hart Aeronautical Corp. v. South Central Airlines, supra. We are not convinced that a change of the rule is necessary although application in some cases is difficult.

After careful review of the judge’s order, we find that he has fully determined the rights of the parties directly affected. He has held that State Farm is responsible for the defense of Hallett/Day Car and that there is no liability coverage for Hallett/Day Car under the policy issued by American Hardware. We note, however, with disapproval, that in reaching his decision, the trial judge passed upon issues not squarely presented by the pleadings called for hearing. The trial judge heard and determined all issues on insurance coverage even though some of those issues were not yet “ripe” for hearing.

The decision of the Third District Court is quashed and the cause remanded with instructions to consider the case on the merits.

It is so ordered.

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

KARL, J., dissents.

       Article V, Section 3(b)(3), Florida Constitution.


text:
    THE FLORIDA BAR, Petitioner, v. James P. MOORE, Respondent.
    No. 51005.
    Supreme Court of Florida.
    April 29, 1977.
    R. Layton Mank, Chairman, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    James P. Moore, in proper person, for respondent.
   BY THE COURT.

We have before us a petition filed by The Florida Bar requesting that we enjoin James P. Moore from the unauthorized practice of law. A stipulation has been filed which reads in material part as follows:

“5. Respondent agrees not to hold himself out as an attorney or a legal practitioner in the State of Florida by correspondence, business cards, advertisements, or otherwise until such time as he may be admitted to The Florida Bar.
6. That Respondent shall not furnish any legal advice or counsel concerning the laws of the State of Florida or of any other state to any person while Respondent is in the State of Florida until such time as he is admitted to The Florida Bar.
7. That Respondent is now familiar with the decisions of the Supreme Court of Florida in The Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379 [83 S.Ct. 1322, 10 L.Ed.2d 428] (1963), and in The Florida Bar v. Larkin, 298 So.2d 371 (Fla.1974), and Respondent will fully and faithfully comply with those decisions.
8.That Petitioner and Respondent jointly move the court to withhold any adjudication of contempt in this matter and as an alternative to enter a permanent injunction against Respondent prohibiting him from engaging in unauthorized practice of law in Florida. Respondent agrees to abide by any injunction prohibiting him from engaging in the practice of law in the State of Florida until Respondent shall first become a member of The Florida Bar.”

We accept the stipulated settlement of this cause and hereby enjoin James P. Moore from engaging in the practice of law until such time as he becomes a member of The Florida Bar. Costs shall be taxed in accordance with the stipulation.

It is so ordered.

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


author: BARKDULL, Judge. PER CURIAM.

text:
    The MIAMI HERALD PUBLISHING COMPANY, and John H. Payne, Appellants, v. Judith M. PAYNE, Appellee.
    No. 76-1167.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied May 12, 1977.
    Steel, Hector, Davis and Joseph P. Klock, Jr., Miami, Francis E. Holden, Jr., Hialeah, for appellants.
    Robert M. Brake, Coral Gables, for appel-lee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

John H. Payne and Judith M. Payne, appellant and appellee herein, were divorced on December 30, 1974. The final judgment of dissolution provided (among other things) for the appellant to pay child support and the appellee’s attorney fees. The appellant failed to comply with these portions of the judgment, and extensive post-judgment proceedings followed seeking enforcement of those provisions, all with limited results. When the appellant failed to comply with the trial court’s last post-judgment order by the March 29, 1976 deadline, appellee’s counsel caused a writ of garnishment to be served upon the appellant, Miami Herald Publishing Company, seeking to garnishee the husband’s wages for the amount of attorney fees awarded in the various orders. The Miami Herald answered the writ, asserting as defenses that pursuant to Section 222.11, Florida Statutes (1971), the husband’s wages were not subject to garnishment and that, pursuant to Yol. 15, Section 1673, U.S.C.A., those amounts in excess of 25% of the husband’s disposable earnings were exempt from garnishment. In response, appellee’s counsel contended neither of the defenses were applicable because the amounts claimed to be due and owing were in fact child support, for which garnishment would lie under Section 61.12, Florida Statutes (1975) and Vol. 15, Section 1673(b)(1), U.S.C.A.

After hearing argument on the petition for writ of garnishment, the trial court found that the debt for which garnishment was sought was in connection with support payments and the husband’s wages were subject to garnishment. Based on that finding and upon oral argument of the husband’s and appellee’s counsel, the trial court directed The Miami Herald Publishing Company (as garnishee) to withhold and to pay unto appellee’s counsel 25% of the husband’s disposable earnings for the pay period from April 19, 1976 up to and including April 27, 1976 and for each pay period thereafter 25% of his disposable earnings, but no less than $90.00, until the total sum of $1,596.40 had been paid.

The appellants have raised the following points by this interlocutory appeal. First, that the trial court is without power to enter a continuing garnishment against future earnings; secondly, that attorney fees do not constitute an exception to Section 222.11, Florida Statutes (1975), as provided in Section 61.12, Florida Statutes (1975), to permit garnishment of wages of the head of a household; and, lastly, that attorney fees do not constitute support payments so as to permit garnishment under Vol. 15, Section 1673, U.S.C.A.

We find the latter two points to be without merit. The parties herein have argued at great length whether or not attorney fees constitute support payments under the facts of this case, so as to permit garnishment of the husband’s wages. It is not necessary to determine this question herein, as Section 61.12, Florida Statutes (1975) provides:

* it* * * * *
“ * * * money or other things due to any person * * * whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person * * * is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; * * * [emphasis added]

Clearly, the award of attorney fees, seeking to be enforced herein, is “ * * * other orders in proceedings for dissolution, alimony, or child support; * * and as such is exempt from the provisions of Section 222.11, Florida Statutes (1975). Any allegation of protection under Vol. 15, U.S.C.A., Section 1673 is equally without merit, in that under the facts herein the order appealed, in providing for garnishment, of 25% of the wage earner’s disposable earnings, fully complies with the requirements of Vol. 15, U.S.C.A., Section 1673, even if the award of attorney fees was not considered support payments.

As to the appellants’ first point on appeal, we agree that future wages cannot be garnished. Chaachou v. Kulhanjian, 104 So.2d 23, (Fla.1958). However, the appellant-husband agreed in open court to have amounts withheld from future earnings for purposes of complying with the previous orders of the court. Said agreement constitutes a valid assignment of wages, to which the employer cannot object. Orkow v. Orkow, 133 Cal.App. 50, 23 P.2d 781 (1933); 6A C.J.S. Assignments § 24; 6 Am.Jur.2d, Assignments, § 46.

Therefore, inasmuch as the judgment appealed is correct under other theories revealed by the record on appeal, this court must affirm. Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th D.C.A.1975); Aetna Insurance Company v. Settembrino, 324 So.2d 113 (Fla. 3rd D.C.A.1975).

Based on the foregoing, the judgment appealed herein is hereby affirmed.

Affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

Following the petition for rehearing in this cause, the court entered the following order:

******
“Upon petition for rehearing, the appellants contend that the conclusion in the opinion in this cause, filed March 8, 1977, that the ‘appellant-husband agreed in open court to have amounts withheld from future earnings for purposes of complying with the previous orders of the Court’, was not supported by the record. “Upon a review of the petition, the record on appeal, and briefs in this cause and being duly advised in the premises, the appellants be and they are hereby directed to establish, within thirty (30) days of the date hereof or within such further time as may be provided following motion to this court, whether the appellant-husband did or did not make such a concession before the trial judge. In the connection see: Gregory v. Gregory, 289 So.2d 468 (Fla. 2nd D.C.A.1974); In re Adoption of A.M.L., 297 So.2d 840 (Fla. 2nd D.C.A.1974).”
******

Thereafter, the trial judge has filed a certified response which reads, in part, as follows:

******
“* * * it is the finding of this Court that the respondent-husband never agreed nor objected to the Court’s suggestion made in open Court to have amounts withheld from future earnings for the purposes of complying with previous orders of this Court; * * *” ******

It appearing that this suggestion was made in open court by the judge, was not objected to by the appellant-husband, and was not objected to by his counsel at the time of the entry of the order under review, the petition for rehearing be and the same is hereby denied.