author: OVERTON, Chief Justice. ADKINS, Justice

text:
    J. K. NICHOLAS, Individually, and d/b/a J. K. Nicholas & Co., Petitioner, v. MIAMI BURGLAR ALARM CO., INC., Respondent.
    No. 46058.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Dec. 9, 1976.

      Jonathan L. Alpert, Miami, for petitioner.
    Robert C. Lane and Robert C. Lane, Jr., of Lane & Lane, Miami, for respondent.
    Wayne W. Pomeroy, of Pomeroy & Betts, Fort Lauderdale, as amicus curiae.
    Stephen D. Marks, Law Offices of Less-ing E. Gold, Beverly Hills, Cal., for National Burglar and Fire Alarm Association, amicus curiae.
   OVERTON, Chief Justice.

Upon rehearing we vacate the opinion rendered August 12, 1975.

This cause is before us on petition for writ of certiorari to review the decision of the Third District Court of Appeal reported at 297 So.2d 49. It conflicts with Cooper v. IBI Security Service of Florida, Inc., 281 So.2d 524 (Fla.3d DCA 1973), and we have jurisdiction.

Respondent installed and maintained a burglary alarm system in petitioner’s tobacco warehouse, which is located in a high crime rate area. An unauthorized entry into the warehouse would trigger an audible alarm and a silent one that would be transmitted over telephone lines to an answering service. Also, if for any reason there occurred a voltage drop across the lines, a “trouble signal” would be relayed to the answering service. A “trouble signal” might indicate just a problem with the telephone lines rather than a possible burglary. The answering service in turn would notify respondent of.the .signal it had received. Respondent allegedly assumed the duty to notify the police or petitioner upon notice of either an “alarm” or a “trouble signal,” even though the contract between petitioner and respondent requires such action only upon notice of an “alarm.”

Petitioner alleged that on July 30, 1970, respondent’s employee received notice of a “trouble signal” when two of the alarm’s telephone wires were cut by burglars. No “alarm” signal was received. In accordance with company policy, the employee notified the telephone company, but he did not call the police or petitioner as respondent allegedly said he would in an oral conversation with the petitioner. The burglars apparently worked uninterrupted, knocking a two-foot square hole in the concrete wall of the warehouse and passing through it over $15,000 worth of cigarettes.

Petitioner sued respondent for compensatory and punitive damages on four counts. The trial court dismissed all of them. The Third District Court of Appeal affirmed, holding that the dismissal of the three counts claiming compensatory damages was proper because there was no proximate cause. Each count was grounded in negligence despite being styled actions for breach of contract, breach of warranty, and negligence. The District Court identified the burglary as an intervening criminal act and applied the rule that such an act,

“. . . breaks the chain of causation, and therefore the original negligence of the defendant cannot be the proximate cause of the damage resulting from the intervening criminal act . . See Bryant v. Atlantic Car Rental, Inc., Fla.App.1961, 127 So.2d 910; Lingefelt v. Hanner, Fla.App.1960, 125 So.2d 325.” Nicholas v. Miami Burglar Alarm Co., 266 So.2d 64, 66 (Fla.3d DCA 1972).

On the fourth count which included' a demand for punitive damages based on allegations of wanton negligence, the Third District reversed and remanded. The District Court held this cause of action was not precluded by the intervening criminal act, and,

“Where the allegations of a complaint show the invasion of a legal right, the plaintiff may recover at least nominal damages, and a motion to dismiss by the defendant should be denied.” Id. at 66.

On remand, petitioner attempted to obtain both compensatory and punitive damages. The trial court ruled that compensatory damages were not available and that punitive damages could be awarded only upon a showing of gross negligence. The trial court then directed a verdict for respondent because its actions did not amount to gross negligence. Petitioner appealed and the Third District affirmed, reiterating that there could be no recovery of damages sustained in the burglary and holding that the gross negligence necessary to a claim of punitive damages had not been established. Nicholas v. Miami Burglar Alarm Co., Inc., 297 So.2d 49 (Fla.3d DCA 1974).

Judge Haverfield dissented stating:

“The majority opinion in this case is based upon this court’s determination of appellant’s prior appeal in Nicholas v. Miami Burglar Alarm Company, Fla.App. 1972, 266 So.2d 64, wherein the court adopted the principal [sic] of law that a burglar alarm company is not liable for a burglary even though its system fails to function properly. I do not quarrel with this principal [sic] of law, but rather I believe that it was applied incorrectly to the facts of the instant action. In the case sub judice, the wires to the alarm system were severed and thereupon, as the system was supposed to function, a trouble signal was transmitted to and received by the defendant company. There facts conclusively demonstrate that this cause of action does not involve a system malfunction or spontaneous failure and, therefore, the above principal [sic] of law is not pertinent.” Id. at 50.

Judge Haverfield further reasoned that since the burglary was foreseeable, it was not an intervening cause of petitioner’s losses which would bar recovery. He would have remanded to jury trial the action for compensatory damages.

We agree with Judge Haverfield. Florida recognizes the general rule that though a person’s negligence is a cause in fact of another’s loss, he will not be liable if an act unforeseeable to him and independent of his negligence intervenes to also cause the loss. See, e. g., Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 So. 732 (1908). From this rule some have concluded that a burglar alarm company is not liable for a burglary if its equipment malfunctions, for normally the occurrence of the theft at that moment would be both unforeseeable and independent of the breakdown. This derivative rule has no place in determining liability in the instant case.

In Cooper v. IBI Security Service of Florida, Inc., supra, a life insurance premium collector was shot when an armed guard failed to accompany him into a dangerous area as provided for in a contract between the collector’s employer and a security service. The trial court dismissed with prejudice the collector’s complaint for damages. In the trial court’s view, the defendant’s negligence or breach of contract could not have been the proximate cause of plaintiff’s injury. In this decision, the Third District Court of Appeal held that the attack on the collector was sufficiently foreseeable to disqualify it as a superseding cause, and “the defendants’ motion to dismiss should have been denied.” Id. at 526. The Third District distinguished its first Nicholas decision on the facts, saying that the degree of foreseeability of loss in that case was small.

We agree with the principle expressed in Cooper. In our opinion the foreseeability in the instant case was sufficient to withstand a motion to dismiss for lack of proximate cause. We hold a burglar alarm company under contract to monitor an alarm system may be negligent for failure to inform the police or the warehouse owner of a trouble signal which its employees had received. In the instant case there was no system malfunction or spontaneous failure. The monitoring employees followed company policy and directions in handling this telephone circuit disruption trouble signal in only notifying the telephone company. Whether the company was negligent in. the policy it prescribed to handle the trouble signal is a jury issue.

On the issue of punitive damages, we hold that the District Court correctly affirmed the directed verdict for respondents. The allegations do not establish an intentional wrong that amount to an independent tort, nor do they establish the entire want of care or attention to duty that would allow a jury to impute malice to the burglar alarm company. Petitioner contends, however, that Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957), requires reversal. We disagree. In that instance, the employee wilfully failed to carry out his assigned duties.

Punitive damages are not recoverable for breach of contract, irrespective of the' motive of defendant except where the acts constituting a breach of contract also amount to a cause of action in tort, in which event there may be a recovery of punitive damages upon proper allegations and proof. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence the extent of which amounts to an independent tort. American International Land Corporation v. Hanna, 323 So.2d 567 (Fla.1975); Griffith v. Shamrock Village, supra.

The decision of the District Court is approved in part and disapproved in part. The cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

ROBERTS, BOYD, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

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

ADKINS, Justice

(dissenting in part and concurring in part).

This is an action wherein petitioner, hereinafter referred to as plaintiff, seeks to recover a loss from a burglary resulting from the alleged failure of the respondent, hereinafter referred to as defendant, to take affirmative action after receiving a trouble signal from the plaintiff’s tobacco warehouse. Such failure is alleged to have permitted a burglar to escape with merchandise valued at $15,000. Additionally, plaintiff seeks punitive damages.

The trial court dismissed all four counts of the complaint. The District Court affirmed the dismissal of the first three counts which alleged the loss was due to the failure of the burglar alarm system to perform properly, but reversed as to the dismissal of the fourth count, wherein plaintiff sought to recover the loss from the burglary on the ground that defendant failed to take affirmative action after receiving a trouble signal.

Upon remand, the trial court informed the plaintiff that compensatory damages, i. e., the losses from the burglary, were not recoverable and that recovery was limited to punitive damages requiring a showing of gross, wanton and willful negligence. The trial court directed a verdict for the defendant on the ground that defendant’s action did not amount to gross, wanton or willful negligence. The District Court affirmed, holding that there can be no recovery for damages sustained in a burglary and that punitive damages could not be awarded since gross negligence or willful disregard of a duty had not been established. Judge Haverfield, in his dissent, did not quarrel with the principle of law announced in the first appeal, to-wit: that a burglar alarm company whose system fails to function is not liable for the loss from a burglary, but concluded that the said principle was inapplicable to the facts of the case in the second appeal since there was evidence in the record that the system functioned properly. Since the receipt of a trouble signal makes the burglary foreseeable, and since a foreseeable intervening criminal act does not supersede the original negligence, Judge Haverfield felt that the cause should be remanded for a jury trial.

Since the trial court entered a directed verdict for the defendant, the District Court was required to view the evidence in the light most favorable to the plaintiff. Viewing the evidence in this manner, the following facts were established: On July 30, 1970, defendant received a trouble signal in its central station. Defendant failed to notify the police or the owner, both of whom the defendant promised would be contacted immediately upon receipt of any trouble signal. Had the police been notified they woúld have arrived at the tobacco warehouse in approximately a minute and a half; that over 8,888 cardboard cartons of cigarettes were removed by the burglars through a two foot by two foot hole made in the concrete wall of the plaintiff’s warehouse; and that the burglary could not have been completed within an hour and a half.

The plaintiff argues that the cause should have been submitted to the jury for its determination as to whether the defendant’s breach of contract was the proximate cause of the plaintiff’s loss. The defendant contends that it cannot be liable as a matter of law for the burglary loss since the loss was the result of an intervening criminal act. The defendant maintains that since it cannot be liable as a matter of law, the District Court did not err in upholding the trial court’s entry of a directed verdict.

A person’s negligence is not the proximate cause of a loss that results from the intervention of a new and independent cause that is not reasonably foreseeable. Benedict Pineapple Co. v. Atlantic Coast Line Railroad Co., 55 Fla. 514, 46 So. 732 (Fla.1908). Since a person usually has no reason to foresee the criminal acts of another, it has been generally held that an intervening criminal act breaks the chain of causation, and therefore the original negligence of the defendant cannot be the proximate cause of the damage resulting from the intervening criminal act. Bryant v. Atlantic Car Rental, Inc., 127 So.2d 910 (Fla.2d DCA, 1961); Lingefelt v. Hanner, 125 So.2d 325 (Fla.3d DCA 1960). However, when the intervening criminal act, or the loss therefrom, is foreseeable, then the original actor’s negligence may be considered the proximate cause of the loss, and he may be liable, notwithstanding the intervening criminal act. Cooper v. I. B. I. Security Service of Florida, Inc., 281 So.2d 524 (Fla.3d DCA 1973).

In those cases dealing with the liability of a burglar alarm company whose system fails to function, it has consistently been held that the burglar alarm company is not liable for the loss, upon the theory that the burglary was an unforeseeable intervening criminal act breaking the chain of causation. Nirdlinger v. American Dist. Tel. Co.,

245 Pa. 453, 91 A. 883, Ann.Cas.1915D 1184 (1914); Silverblatt v. Brooklyn Tel. & Messenger Co., 150 App.Div. 268, 134 N.Y.S. 765 (1912); Vastola v. Connecticut Protective System, 133 Conn. 18, 47 A.2d 844, 165 A.L.R. 1251 (1946). Such was the holding of the District Court in the first appearance before it of this cause.

Defendant contends the District Court held in the first appeal that a burglar alarm company could never be liable for a burglary loss, and that plaintiff’s failure to seek review of that decision forecloses his right to attack it collaterally in a later appeal. Since the District Court’s first decision held that a burglar alarm company whose system fails to function is not liable for a loss from a burglary, and since that principle was inapplicable to the facts as presented before the trial court, and the District Court in the second appeal, we should reject defendant’s argument that plaintiff is collaterally attacking the earlier decision from which no review was sought. Of course, no review was available unless the decision conflicted with a prior decision of this Court or a District Court of Appeal.

Where evidence was introduced to show that the loss was caused by the negligent manner in which the burglar alarm company responded to a trouble signal, it has consistently been held that the issue of proximate cause was for the jury. Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N.Y.2d 57, 271 N.Y.S.2d 937, 218 N.E.2d 661 (1966); Better Foods Mkts., Inc., v. American Dist. Tel. Co., 40 Cal.2d 179, 253 P.2d 10 (1953); Missouri Dist. Tel. Co. v. Morris & Co., 243 F. 481 (8th Cir. 1917), cert. den. 245 U.S. 651, 38 S.Ct. 11, 62 L.Ed. 531. The reason being that a burglary, and the loss therefrom, is foreseeable following the receipt of a trouble signal by a burglar alarm company. In Better Foods Mkts., Inc. v. American Dist. Tel. Co., supra, involving facts similar to the case at bar, the Supreme Court of California held:

“Under the circumstances of this case it would have been reasonable to conclude that the defendant had a duty to call the police as well as its own guards to the plaintiff’s premises. Promptness being the essence of the defendant’s obligation, its delay in acting would reasonably be found to be an omission to render the agreed service and a failure of performance of the contract.
“There is evidence upon which it could have been found that the loss was the proximate result of the defendant’s delay in responding to the alarms. [t]here is reason to believe that the agreement between the parties was entered into with the intention of providing for the apprehension of such a person before he left the premises. The time and distance factors indicate that this particular burglar may have been caught had the police and guards been called to the premises a few minutes earlier, and that the delay of nine minutes after the safe had been opened permitted the escape. Such probabilities are to be weighed in the light of common experience in such matters and present a triable issue of fact. There was substantial evidence from which a jury could have found that the plaintiff’s loss was the proximate result of the defendant’s breach of its contract. Therefore it was error for the trial court to order judgment for the defendant on its motion for a directed verdict.”

I agree and would hold that evidence as to the probable time needed for the burglars to complete their act, the police response time, and the amount of the loss are admissible to aid in the jury’s determination whether the defendant’s breach of contract was the proximate cause of the plaintiff’s loss.

In Cooper v. I. B. I. Security Service of Florida, Inc., supra, a protective agency failed to comply with its contract to provide armed guard protection for a person known to be collecting cash premiums for an insurance company in a high crime area. Just as it was held that the agency can be liable for the injuries sustained by that person when attacked by criminals, I believe that a burglar alarm company, which fails to comply with its contract to call the police and the subscriber immediately upon receipt of a trouble signal from a high risk tobacco warehouse in a burglary prone area, can be liable for the loss from a burglary.

The next issue is whether the District Court erred in holding that the plaintiff failed to establish a proper predicate for the award of punitive damages. The plaintiff contends that the refusal of the defendant to take any action which could prevent the burglary loss after receiving a trouble signal from a high risk tobacco warehouse in a burglary prone area evinces an entire want of care amounting to gross, wanton and willful negligence for which the jury could impute wantonness and malice to the defendant and assess punitive damages against the defendant. I agree.

As a general rule, punitive damages are not recoverable for breach of contract. However, punitive damages are recoverable when the breach amounts to a cause of action in tort based upon an intentional wrong, insult, abuse or gross neglect of duty evincing an entire want of care or a want of slight care by defendant to the duty it assumed toward the plaintiff. Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957). Malice, moral turpitude or wantonness must be associated with the tort; however, they may be imputed to the defendant because of the nature of his act.

Griffith v. Shamrock Village is the landmark case on the award of punitive damages for breach of contract. Therein a clerk of the defendant landlord received a telephone call from the brother of the plaintiff-tenant, asking to speak to the plaintiff. The clerk responded that the plaintiff had checked out and left no forwarding address. All the clerk had to do was turn his head to examine a revolving file placed nearby for the registration cards bearing the names of tenants residing there, and he would have found that the plaintiff was a resident. As a consequence of the action of the clerk, plaintiff was never informed of, and therefore missed, the wedding of his brother. The Court held that there was evidence on which the jury could have found that there was an entire want of care by the defendant to the duty it had assumed toward the plaintiff, for which the jury could impute malice to the defendant and assess punitive damages against it. Since all the agent of the defendant had to do in the case at bar, upon receiving the trouble signal from the high risk tobacco warehouse in the burglary prone area, was to turn his head and call J. K. Nicholas, whose number he had available, or the police, it is apparent that the District Court reached a conclusion conflicting with that in Griffith v. Shamrock Village, when it held that the evidence was insufficient to support a verdict of punitive damages. I would adhere to the holding in Griffith :

“There was evidence on which the jury could have found that there was an entire want of care or a want of slight care or attention by defendant to the duty it had assumed toward plaintiff. From this the jury could have imputed malice to the defendant. The evidence could have supported a verdict of punitive damages.”

Accordingly, the court should have submitted the issue of punitive damages to the jury. Whether or not the elements are present to warrant punitive damages is for the jury to determine in light of all the evidence.

The decision of the District Court should be quashed.

      . Art. V, § 3(b)(3), Fla.Const.


source: Caselaw Access Project

author: ADKINS, Justice. ROBERTS, Justice

license: Public Domain

text:
    In re the ADOPTION OF PROPOSED LOCAL RULE 17 OF the CRIMINAL DIVISION OF the CIRCUIT COURT OF the ELEVENTH JUDICIAL CIRCUIT of Florida.
    No. 48666.
    Supreme Court of Florida.
    Oct. 21, 1976.

      Allan Milledge and Richard L. Horn of Milledge, Horn & Hermelee, Miami, for Sunbeam Television Corporation, WCKT, Miami; Wometco Enterprises, Inc., WTVJ, Miami; Post-Newsweek Stations, Florida, Inc., WPL6, Miami; and Coral Television Corporation, WCIX-TV, Miami, Interve-nors.
   ADKINS, Justice.

The Chief Judge of the Eleventh Judicial ■ Circuit has requested that we approve proposed Local Rule 17 of the Criminal Division of the Circuit Court, as required by Fla.R.Civ.P. 1.020(e). We have jurisdiction. Article V, Section 2, Florida Constitution.

The proposed Local Rule 17 reads as follows:

“Broadcasting, televising, recording or taking photographs of any kind are prohibited on any floor of the Metropolitan Justice Building on which proceedings before the Circuit Court, Criminal Division are conducted.”

In his petition, the Chief Judge gave a history leading to the approval of the Rule by the judges of the Circuit Court.

There was considerable difficulty among the judges with television lights and noise in the corridors and halls of the Metro Justice Building. Photographers were shooting pictures through the doors and into the courtrooms. The Administrative Judge of the Criminal Division issued an administrative directive on February 3, 1975, which he said was “a similar directive as that in force by the local United States District Court.” The directive provided that,

“[Ujntil further notice, no photographic equipment of any kind, including television cameras, shall be permitted on the fourth floor of the Justice Building or within 25 feet of any Courtroom on any other floor of the Justice Building when such Courtroom is being used as a Circuit Courtroom.”

The Administrative Judge explained that he had “persistent and consistent difficulties” enforcing Fla.R.Crim.P. 3.110, which reads as follows:

“The taking of television pictures or other photographs in or of the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.”

After a conference with the news media in Dade County, the Administrative Judge issued an amended directive which reads as follows:

“The press may freely photograph on the fourth floor of the Justice Building and other portions of the Justice Building used by the Circuit Court, under the following restrictions:
“1. No photographing will take place if such causes sounds which are audible within the courtroom or produces bright lights that are visible from within the courtroom and which disturbs the operation of the Court in any way. “2. Photographers or reporters will not obstruct or impede in any way the progress of persons on their way to or from the courtrooms.”

The directive expressly provided that it should not be construed as a waiver by the press of any of its rights concerning photographing in or about the courtroom.

The Chief Judge had a conference with the news media on November 13, 1975, and, following general discussion, prepared and circulated a list of ten guidelines concerning photographs and reporters in the Metro Justice Building. These guidelines, which seem to be appropriate, read as follows:

“1. Photographers or reporters will not obstruct or impede in any way the progress of persons on their way to or from the courtroom.
“2. There will be no shouting, running or pushing in halls or corridors.
“3. Interviews, where and when possible, will be photographed and conducted in the vacant area behind the reception/information desk on each floor.
“4. Proper respect will be accorded the dignity of persons in trouble and those associated in their problems.
“5. Photographing and interviewing will be done in such fashion as to cause minimum noise , and light disturbance in the halls, corridors and courtrooms. A sincere attempt will be made to confine these activities to the area in front of the elevators.
“6. Photographers will give vigilant consideration to the privacy of courtrooms and the necessity for the restrained use of lights in their immediate area.
“7. Efforts will be made to cover the panel glass over the wooden, inner courtroom doors and consideration will be given to carpeting the main public corridor.
“8. Each station will conduct a continuous training and instruction program with its personnel so that all are aware of rules and procedures in effect.
“9. All reporters will recognize, and acknowledge with compliance, the lawful orders of any Judge respecting order or control of persons in the halls or corridors.
“10. Violations of these guidelines, or acts which cause disturbances in the operation of the courts, will be reported to those causing same and to their employers so that corrective action can be taken and blanket sanctions will not have to be imposed.”

On December 3, 1975, the Chief Judge met with the judges serving in the Criminal Division. It was then decided that the adoption of the proposed Local Rule 17 would be the best solution to the problem. The Local Rule was approved by the judges and has been submitted to this Court for approval.

Four television stations were allowed to intervene and oppose the adoption of the Rule.

Canon 3A(7) of the Code of Judicial Conduct provides:

“A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions,

The news media argue that the proposed ban affects a broad area beyond the courtroom itself and interferes with their right to gather news. It is fundamental that news gathering qualifies for First Amendment protection, for a ban upon news gathering could effectively destroy freedom of the press. See Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The news media relies upon United States v. Columbia Broadcasting System, Inc., 497 F.2d 102 (5th Cir.1974), where an order of a District Court prohibiting both in-court sketching and the publication of sketches of courtroom scenes was set aside. The Circuit Court of Appeals held that both aspects of the order were unconstitutionally overbroad. In its opinion the Court said:

“[B]efore a prior restraint may be imposed by a judge, even in the interest of assuring a fair trial, there must be ‘an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.’ Craig v. Harney, 1947, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. See also Wood v. Georgia, 1962, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569; Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.
“We entertain no doubt that the publication ban in the case before us must be measured in the terms of this high standard. If there was ever any question that the free-press guarantee encompassed more than the written word, it was dispelled by the decision in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, which extended First Amendment protection to motion pictures. The prior restraint standard cannot be avoided by the Government’s suggestion that this case involves only a ‘minor restriction prohibiting the publication of certain sketches.’ True, we are not confronted with the kind of blanket restraint condemned in cases such as New York Times v. United States, 1971, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, or Dickinson, supra [United States v. Dickinson, 5 Cir. 1972, 465 F.2d 496], but we know of no authority for the proposition that First Amendment standards can be ‘tempered’ according to the degree of the restraint imposed.
s|c sf: * s|« $
“Even if we were to determine that sketching presented a danger sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can be no broader than necessary to accomplish the desired goal. See e. g., Shelton v. Tucker, 1960,364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Dorfman v. Meiszner, 7 Cir. 1970, 430 F.2d 558.
“In the matter sub judice, even though the district court was legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, we conclude that the total ban on the publication of sketches is too remotely related to the danger sought to be avoided, and is, moreover, too broadly drawn to withstand constitutional scrutiny. We hold, therefore, that the portions of the district court's orders which ban the publication of sketches are unconstitutional.” 497 F.2d at 104-106.

Any direct restraint by government upon First Amendment freedoms of expression and speech must be subjected by the courts to the closest scrutiny, and the government carries a heavy burden of showing a justification of its imposition. See Columbia Broadcasting System, Inc. v. Young, 522 F.2d 234, 238 (6th Cir.1975).

This Court in Brumfield v. State, 108 So.2d 33 (Fla.1958), recognized the general proposition that freedom of the press includes photographic media.

The comment to the proposed Rule states that the sole reason for its enactment is essentially to define the term “areas immediately adjacent thereto” as contained in Canon 3A(7) of the Code of Judicial Conduct so that the Canon may be administered by the Criminal Division of the Court. The judges state that it is impossible to specify any areas on the floor of the Metro Justice Building where courtrooms are located which are not, in fact, areas immediately adjacent to the courtrooms. The comment then contains the following:

“The Court is of course mindful of its concomitant duties to preserve the dignity of the judicial process and the rights of those who appear before it. It is similarly mindful of the constitutional rights of members of the public to information concerning the judicial process and of the rights and duties of all the media responsibly [sic] to present that information to them. The balancing of these sometimes competing interests is a delicate and difficult task. In our State, however, as in virtually every other, that process, as undertaken by the Supreme Court of Florida, has resulted in the enactment of the Canon in question. Even if the personal views of members of this Court were otherwise, the Court has no choice but to enforce, through means it deems fair and effective, this provision of the law.”

A few representatives of the news media have abused their First Amendment constitutional rights so as to interfere with the dignity of the judicial process and the rights of those who appear before the Court. However, the misconduct of a few does not authorize the imposition of a ban upon the entire media. Before such a ban is imposed there must be “an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” United States v. Columbia Broadcasting System, Inc., supra, quoting Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). There being no immediate peril, the proposed Rule infringes upon First Amendment rights.

Also, the proposed Rule is too broad in that there are available reasonable alternatives which have a lesser impact on First Amendment freedoms.

We recognize the efforts of the judges in the Criminal Division of the Eleventh Judicial Circuit Court to preserve the dignity of the judicial processes, as well as the First Amendment rights of the news media. They have assumed this awesome responsibility with fairness and good motives, but alternatives should be sought so that the necessity for determining violators will not require numerous hearings. Accordingly, proposed Local Rule 17 is not approved.

It is so ordered.

OVERTON, C. J., and BOYD, ENG-' LAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS, J., dissents with an opinion.

ROBERTS, Justice

(dissenting).

I have long been committed to the protection of the constitutional rights of press freedom and have authored more opinions for this Court supporting that view than any other member of the Court as now constituted. See: Ross v. Gore, 48 So.2d 412 (Fla.1950); Jacova v. Southern Radio & Television Co., 83 So.2d 34 (Fla.1955); Abram v. Odham, 89 So.2d 334 (Fla.1956), and Florida Publishing Co. v. Fletcher, Fla., 340 So.2d 914, opinion filed. October 7, 1976. Those four opinions clearly express my support of a free press. However, it was not then and is not now my view that news reporters are above the law. In my opinion, they have the same obligation to respect the law as any other citizen. Furthermore, I belong to the old fashioned school that decorum in the courtroom is essential to the administration of justice and that the presiding judge has a wide discretion in maintaining order and decorum. The majority opinion gives some idea of the flagrant abuses being imposed upon some of the courts in Dade County and which require some form of corrective measures. The facts set forth in the majority opinion defeat the wisdom of the judgment.

The vast majority of news reporters are courteous, cooperative and willing to comply with reasonable rules of decorum but as to. those few who are not, the trial court should have, in my opinion, the authority to take such steps as are necessary to maintain decorum in the courtroom and a fair trial for the defendant. Since the majority view, in my opinion, puts the right of a few noisy reporters above the right of a defendant to a fair trial, I am unable to agree with it.


author: PER CURIAM.

text:
    Gordon G. OLDHAM, Jr., etc., et al., Appellants, v. J. W. DOOLEY et al., Appellees.
    No. 50471.
    Supreme Court of Florida.
    Oct. 27, 1976.
    Gordon G. Oldham, Jr., State’s Atty., and Larry Collins, Asst. State’s Atty., for appellants.

      Andrew G. Pattillo, Jr., of Pattillo, MacKay & McKeever, Ocala, for J. W. Dooley, and R. Dewey Burnsed of McLin, Burnsed, Austin & Cyrus, Leesburg, for Bd. of County Commissioners of Lake County, appellees.
    Wilson W. Wright and William J. Roberts, Tallahassee, for State Ass’n of County Commissioners, amicus curiae.
   PER CURIAM.

The judgment of the trial court is affirmed on the authority of State ex rel. Himes v. Culbreath, 128 Fla. 210, 174 So. 422 (1937) and Board of County Commissioners of Palm Beach County v. Hibbard, 292 So.2d 1 (Fla.1974).

ROBERTS, Acting C. J., and ADKINS, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 47533.
    Supreme Court of Florida.
    Oct. 28, 1976.

      John F. Howard, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Andrew W. Lindsey, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is a direct appeal from a murder conviction and death sentence. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.

Appellant was convicted of murder in the first degree, robbery, assault with intent to commit murder, and possession of a firearm during commission of a felony. For these crimes he was sentenced respectively to (1) death, (2) life imprisonment, and (3) two consecutive terms of 15 years imprisonment.

At 8:00 p. m. on the night of November 6, 1974, the appellant and another man entered the Jr. Food Store in Perry, Florida. Appellant drew a gun on Dianne Allen, the cashier, while his companion grabbed Lloyd Walker, a 16-year-old boy who had been talking to Miss Allen before the two men entered. Miss Allen gave the appellant approximately $35 from the cash register. The robbers marched Allen and Walker to the bottle storage room, where the victims were forced to lie on the floor on their stomachs. Several shots were fired; Lloyd Walker died from his wounds six days later, but Dianne Allen survived her wounds and testified for the State at trial. She was unable to say that appellant Meeks actually fired the shots, although she identified him as the man with gun at the time the cash register was emptied.

At trial the prosecution produced witnesses who identified the decedent from a photograph marked for identification as “Exhibit No. 2.” Then a pathologist testified for the State that he had performed the autopsy on the body identified to him as Lloyd Walker, and the doctor proceeded to identify the exhibit as a picture of a person upon whom he had performed the autopsy. This photograph, along with two others marked for identification as State’s Exhibits 3 and 4, respectively, was then admitted into evidence over defense objection that a proper predicate had not been laid. The trial court also denied a request to strike testimony of another witness to the effect that he had learned of the fact and time of Lloyd Walker’s death “from Tallahassee.”

After the jury verdict of guilty on all four counts was returned, the second phase of the bifurcated trial mandated by Section 921.141, Florida Statutes (1975), was entered. Counsel for defendant objected to the prosecutor’s use of conviction on the other three counts as constituting aggravating circumstances, but this objection was overruled by the court. Another statement of the prosecutor referring to creating a great risk of death to many persons, even though there were only two victims in the instant crime, was objected to and overruled as well. The jury came back with a recommendation of the death penalty, and the judge announced the sentences discussed above.

On this appeal Meeks raises four points which he contends require reversal of his conviction for first degree murder. The only issue which we find to merit any discussion is his allegation that the corpus delicti of the crime was not proven by competent evidence.

Appellant argues that there was no testimony of the death of Lloyd Walker by any person who knew of his own independent knowledge of that event. The fact of the victim’s death was sought to be established only through photographs and through the testimony of the pathologist as summarized above. No “chain of identification” was ever established. Appellant contends that the State’s efforts in this area were inadequate under Jefferson v. Sweat, 76 So.2d 494 (Fla.1954), which states that the corpus delicti cannot be established by presumption.

There are three elements of the corpus delicti in homicide cases: (1) the fact of death, (2) the criminal agency of another person, and (3) the identity of the deceased. Lee v. State, 96 Fla. 59, 117 So. 699 (1928); Sims v. State, 184 So.2d 217 (Fla.2d DCA 1966). In Trowell v. State, 288 So.2d 506 (Fla. 1st DCA 1973), the Court set out nine methods by which the fact of death and the identity of the deceased could have been proven. Two of these means of proof are:

“4. A photograph could have been taken of the cadaver which was autopsied which could later at trial have been identified by any person who knew him in his lifetime;
“5. A picture properly identified as Raymond Jones when alive could have been identified at trial as the person upon whom Doctor Klein performed the autopsy;”

At trial in the instant case a police officer testified that he personally knew the victim, had seen him on the date of the crime with a bullet hole in the back of the head, and identified the decedent from the photographs marked for identification as State’s Exhibit No. 2. Another witness gave identical testimony. The pathologist gave the testimony summarized above and also identified individual wounds, reproduced in other photographs entered into evidence by the State as exhibits numbered 3 and 4, as belonging to the individual described to him as Lloyd Walker. A state law enforcement officer testified that he attended the autopsy on the person in the photograph, noting further that that person had a wristband identifying him as Lloyd Walker. In view of the foregoing, the State clearly satisfied the criteria of Lee, Sims and Trowell, supra, and proved the existence of corpus delicti beyond all reasonable doubt.

Appellant raises three points challenging the trial court’s imposition of the death penalty. First, he suggests that the entire jury should have been polled as to whether a majority had recommended that sentence. This argument fails when it is realized that defense counsel specifically approved the procedure utilized by the court:

“CLERK: Advisory sentence recommending the death sentence, a majority of the Jury advise and recommend to the Court that it impose a sentence of death on Douglas Ray Meeks, the Defendant. Dated this 12th day of March, 1975 at Perry, Florida, signed Lester J. DeBusk, foreman of the Jury.
“MR. WILLIS [prosecuting attorney]: The State prays judgment, Your Honor.
“MR. HOWARD [defense attorney]: Your Honor, can we have the Jury polled as to the decision? •
“MR. WILLIS: I have no objection to asking the foreman if seven of his number, if this is the advisory recommendation of seven of his number. I don’t think the individual members should be polled, it would be an invasion of secrecy of their deliberations.
“COURT: Do you have anything else?
“MR. HOWARD: I don’t want them to reveal their individual vote, as long as it is a majority.
“COURT: Mr. Foreman, do seven or more of your members of your Jury agree to the verdict that has just been rendered in open Court?
“FOREMAN: Yes, sir, they do.
“COURT: Does that answer your question?
“MR. HOWARD: Yes, Your Honor. “COURT: The Defendant will rise.

Second, appellant argues that Section 921.141(5)(b) — setting forth as an aggravating circumstance the fact that “[t]he defendant was previously convicted of another capital felony or of a felony involving the use or threat of -violence to the person” —should not be interpreted so as to include concurrent felony convictions; e. g., the convictions for robbery, assault to commit murder, and possessing a firearm during commission of a felony in the instant case. During the second phase of the trial, the state attorney referred to these convictions as previous convictions under Section 921.-141(5)(b), Florida Statutes (1975), and also argued that the instant crime created a great risk of death to many persons, an aggravating circumstance under Section 921.141(5)(c). Meeks contends that these statements were improper and inflammatory-

The actual exchange at this point in the trial follows, with the prosecutor in the process of enumerating the aggravating circumstances under the death penalty statute:

“ ‘B,’ the Defendant was previously convicted of another capital felony or of a felony involving the use of threat of violence to the person.
“That is not applicable in this case. He was not convicted of another capital felony or a felony involving the use of threat of violence, except you just convicted him of robbery. You just convicted him of assault with intent to commit murder on Dianne Allen. You just convicted him of the use of a firearm during the commission of a felony, which is a threat of violence to another person. So as to your deliberations at this point, judgment of verdicts of guilty have been returned against him for those three offenses that are not murder.
“MR. HOWARD: At this time I move that the remarks of the prosecutor be stricken. This is previous. We are talking about something happened at this time. The murder verdict was rendered first, which would therefore make the others subsequent and not previous. He is misinforming the Jury as to that particular aggravating circumstance. It should be stricken.
“MR. WILLIS: The advisory sentence is not rendered. It is previous to the advisory sentence.
“COURT: One moment.
“(Pause)
“COURT: Overruled.
“MR. WILLIS: So he has been found guilty by you of other felonies.”

The State points out that, while the prosecutor noted that the three other felony convictions did occur prior to the jury’s rendering the advisory sentence, he specifically stated that subsection (b) did not apply in this case. Although it is true that contemporaneous convictions do not qualify as an aggravating circumstance vei non under Section 921.141(5)(b), Florida Statutes (1975), we agree that the effect here could not have been prejudicial. The fact that the murder was committed in the course of a robbery was fair subject for comment, because this aspect of the crime demonstrated the existence of the aggravating, circumstances enumerated in subsections (5)(d) (capital felony occurred while in commission of robbery) and (5)(f) (capital felony committed for pecuniary gain). In any event, the prosecutor did not inject new information into the jury’s deliberations, because the jurors knew that they had returned the verdicts of which he spoke. Finally, the trial judge confirmed the prosecutor’s initial statement by expressly finding in his order that subsection (5)(b) did not apply.

While we question the accuracy of the prosecutor’s remarks to the effect that the jury could find the existence of an aggravating circumstance under Section 921.-141(5)(c), Florida Statutes (1975), we reject any contention that this argument was prejudicial to the appellant. The trial court order, as reproduced infra, clearly and expressly found this aggravating circumstance to be inapplicable to the instant case.

Appellant’s final point on appeal is an argument that the Florida death penalty statute is unconstitutional under the principles enunciated in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We adhere to the position taken in State v. Dixon, 283 So.2d 1 (Fla.1973), and in numerous subsequent cases that the statute is in fact constitutional.

Pursuant to Section 921.141(4), Florida Statutes (1975), and Florida Appellate Rule 6.16(b), we have reviewed the record in this case in its entirety. We adopt as our own the analysis of the able trial judge as to aggravating and mitigating circumstances:

“This Court finds that the facts of this case do not support the aggravating circumstances in Fla.Stat. 921.141(6), subsections (á), (b) and (c) in that this capital felony was not committed by a person under sentence of imprisonment nor had the defendant previously been convicted of a capital felony nor did the defendant knowingly create a great risk of death to many person [sic],
“The Court does find, as an aggravating circumstance, that the capital felony, the murder of Lloyd Walker, was committed as a part of another dangerous and violent felony, the robbery of Diane Allen at gunpoint and in flight after committing that felony, Fla.Stat. 921.-14«6)(d).
“The Court also finds, as an aggravating circumstance, that the capital felony was committed with the motive of avoiding and preventing arrest, was committed for pecuniary gain and to hinder the enforcement of laws. Fla.Stat. 921.-141(6)(e)(f)(g).
******
“Turning to mitigating circumstances, the Court finds that the defendant has no prior significant history of criminal activity. Fla.Stat. 921.141(7)(a) and therefore this fact has been considered as a mitigating circumstance.
“Under Fla.Stat. 921.141(7) subsections (b) and (f), the Court finds that the defendant was suffering from no extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.
“The defendant moved for appointment of psychiatrists to examine him ‘ . to substantiate the insanity of the Defendant at the time of the crime and subsequently thereto. . . . ’ (Prior to trial defendant’s counsel moved to withdraw the motion alleging insanity). Doctors Barnard and Carrera were appointed and reported the results of their examination. Their report is devoid of any evidence of mental or emotional disturbance of the defendant. Doctor Carr-era’s report shows that the defendant stated that ‘ . . . I just did it . . . after it was all over I just felt like myself . . . I wasn’t scared or upset . . . no change in myself ... I wasn’t angry with any one that day.’ According to the report, the defendant had whiled away the hours of the day of the offense, attending a portion of a football game immediately prior to the offense. The psychiatrists both conclude that the defendant was sane at the time of the examination and at the time of the offense.
“Doctor Carrera’s report has been received and read by the undersigned but has not been filed. Insofar as the Court is now aware, it has never been seen by counsel for the State or the defendant. The report recites, however, that defense counsel was present during the psychiatric examination of the defendant which forms the basis of the report. Doctor Carrera’s' report includes a history taken from the defendant. In this history, the defendant told Doctor Carrera that he and his accomplice discussed robbing the store. The accomplice told the defendant that the girl in the store knew the accomplice. The accomplice also said that, if they robbed the store, he didn’t want anyone talking on him, so it would be necessary for them to shoot her. According to the report, the defendant’s response was that it was all right with him and that it seemed like a good idea to shoot the store employee so that in that way nobody would recognize them and blame them for it.
“This fact has been considered under Fla.Stat. 921.141(7)(e). The Court rejects it as a mitigating circumstance and finds that Meeks was not under the duress or domination of his accomplice at the time he committed the capital felony.
“On the contrary, this fact supports the finding that the capital felony was committed under the aggravating circumstances hereinabove outlined with respect to avoiding arrest and to hinder the enforcement of law.
“Further, the Court finds that the victim certainly was not a participant in nor consented to the criminal conduct, Fla. Stat. 921.141[(7)](c)(e) and that the defendant, even if found to be an accomplice, did play a major part in the capital felony. Fla.Stat. 921.141(7)(d). No mitigation exists under either of these subsections.
“Finally, the age of the defendant has been considered as required by Fla.Stat. 921.141(7)(g). The defendant is 21. The report of Doctor Barnard contained his medical judgment that the defendant was of dull-normal intelligence.
“The Court finds the combination of the defendant’s youthful age and his intelligence to be a mitigating factor.
“Upon consideration, it was at the time of sentencing and is now, some hours later as the sentence of death is justified in writing, the inescapable conclusion of the undersigned that sufficient aggravating circumstances exist in the facts to justify the death penalty. The murder of the victim by the defendant was for the express purpose of executing the victim to prevent his identifying the defendant, so that the defendant could flee after having committed robbery at gunpoint for pecuniary gain which robbery was witnessed by the victim and to prevent the lawful arrest of the defendant and thus this conscienceless murder was designed to hinder the enforcement of laws.
“The mitigating circumstances of a young age and no prior history of criminal conduct on the part of the defendant are entirely insufficient to and do not outweigh the aggravating circumstances.”

Mindful of our unique role in the process by which justice is done in capital cases, we have considered the disposition of Meeks’ accomplice in the instant case, Homer Hardwick. Hardwick was tried for murder some six weeks after appellant’s trial. Meeks testified for the State, recalling and recounting this incident consistently with the story he told the psychiatrist at the examination to which the trial judge referred in the excerpt of the court order quoted above. Hardwick testified that Meeks compelled his participation in the crime by threatening him with a gun, that Meeks fired all shots into the bodies of Lloyd Walker and Dianne Allen, and that he himself ran from the store after Meeks fired the third shot and did not see the appellant until the next day. Hardwick was found guilty on all counts, but the jury recommended a life sentence. The circuit judge, who had tried Meeks six weeks earlier, sentenced Hardwick to life imprisonment.

We are extremely sensitive to the demands of equality before the law in cases in which we must consider whether a sentence of death should be upheld. Our reading of Furman, supra, convinces us that identical crimes committed by people with similar criminal histories require identical sentences. It is this uniformity and predictability of result which Section 921.141, Florida Statutes (1975), seeks to accomplish. But there was evidence, discussed above, from which the jury in Hardwick’s trial could have concluded that Meeks was the dominant figure in this criminal episode. This is a bona fide mitigating circumstance under Section 921.141(6)(d) and (e), Florida Statutes (1975). The presence of such testimony, accompanied by Hardwick’s youth, sufficiently differentiates the cases of the two men so that Furman’s dictates are not violated by the imposition of different penalties.

In conclusion, the aggravating and mitigating circumstances surrounding the appellant’s commission of this truly senseless crime convince us that the death penalty is justified.

The judgment and sentence are affirmed.

OVERTON, C. J., ROBERTS, ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., and RUDD, Circuit Court Judge, concur.

      . The U. S. Supreme Court reached the same conclusion in Proffitt v. Florida, - U.S. -, 96 S.Ct. 2960, 49 L.Ed.2d 913, Opinion filed July 2, 1976.

      . The trial court order refers to aggravating and mitigating circumstances as appearing under subsections (6) and (7), respectively, of § 921.141, Fla.Stat., rather than under subsections (5) and (6), respectively.

      . We note in. passing that Hardwick’s conviction was recently affirmed by the First District Court of Appeal. Hardwick v. State, 335 So.2d 307, Fla. 1st DCA, opinion filed June 30, 1976.


author: HATCHETT, Justice.

text:
    GATOR FREIGHTWAYS, INC., et al., Petitioners, v. William T. MAYO et al., Respondents.
    No. 47878.
    Supreme Court of Florida.
    Oct. 28, 1976.
    Lawrence D. Fay of Glickstein, Cren-shaw, Glickstein, Fay & Block, Jacksonville, for petitioners.
    Prentice P. Pruitt and Jerry M. Johns, Tallahassee, for respondents.
    Ansley Watson, Jr., and David C. G. Kerr of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Smalley Transportation Co., in-tervener.
   HATCHETT, Justice.

Petitioners seek to have reviewed those certain orders of the Florida Public Service Commission, being Order No. 12072, dated April 30, 1975, and Order No. 11210, dated July 14, 1975. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.1.

After full review of the record, we are not convinced that the orders are illegal, unauthorized, or failed to accord with the essential requirements of the law controlling the matter under review. Accordingly, petition for writ of certiorari is denied.

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


text:
    STATE of Florida, Petitioner, v. George DRAYTON, Respondent.
    No. 48171.
    Supreme Court of Florida.
    Oct. 28, 1976.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for petitioner.
    Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, for respondent.
   PER CURIAM.

This case is here on petition for writ of certiorari to the District Court of Appeal, Second District. Article V, Section 3(b)(3), Florida Constitution.

We issued our order allowing certiorari and dispensing with oral argument because of a conflict between the Second District Court’s opinion in this case, reported at 320 So.2d 23, and principles enunciated in Estevez v. State, 313 So.2d 692 (Fla.1975).

Respondent Drayton was convicted of two crimes: (1) assault with intent to commit rape, and (2) breaking and entering a dwelling house with intent to commit a felony, to-wit: rape and committing an assault upon a person lawfully therein. The trial court sentenced respondent to a 5-year prison term on the first crime and to a term of 25 years for the second crime. Drayton was given credit for time served, and the sentences were made concurrent.

On September 17,1975, the District Court of Appeal, Second District, affirmed the judgments of guilt but remanded the sentencing to the trial court: Finding that assault was an essential element of both charges and was a facet of the same criminal transaction, the District Court vacated the sentence imposed for the assault conviction on the authority of Trousdale v. State, 287 So.2d 721 (Fla. 2d DCA 1974).

Since entering our earlier order in the case at bar, this Court has filed State v. Ray, 331 So.2d 316 (Fla.1976). In Ray, we approved the imposition of separate sentences for attempted sexual battery and breaking and entering a dwelling house with intent to commit a felony, to-wit: sexual battery, where both crimes arose from the same occasion. The Ray case squarely controls the result in the instant petition.

Accordingly, after reading the briefs submitted by the parties, we have determined that the petition for writ of certiorari should be granted and the decision of the District Court of Appeal, Second District, quashed with directions to remand for reinstatement of the original sentences rendered by the Circuit Court in and for Pinel-las County.

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

BOYD, J., dissents.


text:
    SCHOOL BOARD OF BROWARD COUNTY and Pacific Indemnity Company, Petitioners, v. Virginia L. SURETTE, etc., Respondent.
    No. 48757.
    Supreme Court of Florida.
    Oct. 28, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl, and James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.
    Edward A. Perse, of Horton, Perse & Ginsberg, Miami, and Robert Sussman, of Sepler & Sussman, Hialeah, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ of Certiorari must be and is hereby discharged.

It is so ordered.

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

ADKINS, ENGLAND and HATCHETT, JJ., dissent.


author: MOORE, Circuit Judge.

text:
    Arthur Lee HUNTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 46839.
    Supreme Court of Florida.
    Nov. 4, 1976.

      Richard L. Jorandby, Public Defender, and Richard Lubin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for appellee.
   MOORE, Circuit Judge.

This cause is an appeal transferred to us from the Fourth District Court of Appeal because the trial judge directly held invalid Section 921.231, Florida Statutes (Supplement 1974). This statutory provision mandates a presentence investigation report for all felony defendants. We have jurisdiction.

The appellant was charged by information with breaking and entering with intent to commit grand larceny. He was tried by a jury and found guilty. No presentence investigation was ordered although requested by defense counsel because the appellant had a record of eight felony convictions for similar offenses. Appellant contends that Section 921.231, Florida Statutes (Supplement 1974), requires the trial judge to order a presentence investigation report in every felony case. The trial judge specifically ruled that Section 921.231 was not binding upon him and that Rule 3.710, Florida Rules of Criminal Procedure, which makes the report discretionary, is controlling. Appellant was adjudicated guilty as charged and sentenced to fifteen years imprisonment.

The main contention of the appellant is that the trial court was required by Section 921.231, Florida Statutes, to order the pre-sentence investigation.

We hold that Section 921.231, Florida Statutes, properly directs the Parole and Probation Commission to prepare pre-sentence investigation reports for use by the court. We further hold that the means to assure the informed exercise of judicial discretion in sentencing is a procedural matter properly determined by court rules. See In Re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973). Our Rule of Criminal Procedure 3.710 makes the presentence investigation optional with the trial judge in all cases where he has discretion in sentencing with the exception of a first offender and an offender under 18 years of age. That rule was predicated upon an understanding that trial judges have a superior vantage point relative to the circumstances of an offense and have information of an offender’s prior criminal record readily available to them. To the extent that Section 921.231 attempts to make the presen-tence investigation report mandatory in all felony cases, we hold that section unconstitutionally invades the rule making province of this Court. We do not, however, declare the statute unconstitutional in its entirety but hold that it is directory only.

The trial judge’s refusal to order a presentence investigation report did not prejudice the appellant, it appearing that he had sufficient knowledge of the appellant’s personal history including a record of eight prior criminal felony convictions. We hold the trial judge did not err in failing to require a presentence investigation report under the circumstances of this case. Accord, Johnson v. State, 308 So.2d 127 (Fla. App. 1st 1975); Rhynes v. State, 312 So.2d 520 (Fla.App. 4th 1975).

In summary, we hold the rule and statute must be read together, but to the extent the statute mandatorily requires a presentence investigation it conflicts with the rule making power of this Court.

We have carefully considered appellant’s other contentions and find them to be without merit.

The judgment of the circuit court is affirmed.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const.

      . “921.231 Pre-sentence investigation reports.—
      “(1) Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal felony case has been found guilty or has entered a plea of nolo contendere or guilty shall refer, and in misdemeanor cases in its discretion may refer, the case to the parole and probation commission for investigation and recommendation. It shall be the duty of the commission to make a report in writing to the court prior to sentencing at a specified time depending upon the circumstances of the offender and the offense. . ” Florida Statutes (Supplement 1974).
      Section 921.231 was amended by Section 921.231, Florida Statutes (1975), which also requires a presentence investigation in felony cases where the defendant has been found guilty or has entered a plea of nolo contendere or guilty.

      .“Rule 3.710 Presentence Report
      “In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first béen made and the recommendations of the commission received and considered by the sentencing judge.”


author: ADKINS, Justice.

text:
    Rufus ODOMS, Petitioner, v. The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, and Herman Rosenblatt, d/b/a Pony Liquors, Respondents.
    No. 47011.
    Supreme Court of Florida.
    Nov. 4, 1976.

      Neal D. Evans, Jr., of Evans & Stewart, Jacksonville, for petitioner.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for respondents.
   ADKINS, Justice.

Certiorari was granted in this cause to review the decision of the District Court of Appeal, First District (306 So.2d 207) on ground of direct conflict with opinions of this Court and District Courts of Appeal. Article V, Section 3(b)(3), Florida Constitution.

For clarity, the parties will be referred to as in the lower court, i. e.: petitioner was plaintiff and respondent Rosenblatt was defendant. . The defendant Travelers Insurance Company will be referred to as “Travelers.”

Plaintiff, in his complaint, sought compensatory and punitive damages for malicious prosecution based upon the allegation that a criminal proceeding on a charge of forgery had been instituted with malice by defendant, but was subsequently terminated in favor of plaintiff in that it was dismissed at the request of defendant. The second count of the complaint alleged the same facts, but the cause of action was based upon malicious abuse of process.

In accordance with the claim of punitive damages, defendant was required to show his net worth. However, over objection of counsel, the trial court allowed plaintiff to introduce evidence that the policy limits of Travelers’ policy insuring defendant was $300,000. The trial court reasoned that where punitive damages were being claimed, the policy limits should be admissible since the policies were an “asset.”

The jury awarded the plaintiff $20,000 in compensatory damages and ,no punitive damages. Final judgment was rendered pursuant to the verdict and defendant’s post-trial motions were denied.

Upon appeal, the District Court of Appeal reversed, holding that the trial judge erred in allowing the policy limits into evidence and that this factor had resulted in a grossly excessive verdict. The Appellate Court stated that out-of-pocket expenses were only $130, and evidence to support the $20,-000 award for compensatory damages was completely lacking. In its opinion the court said:

“While an appellate court is always reluctant to substitute its judgment for that of a jury in regard to the amount of damages to be awarded, it is the Court’s duty to review the evidence and to reverse if it is found that the verdict and judgment are, as a matter of law, not supported by sufficient evidence or based upon evidence improperly submitted to the jury. It is our view that the verdict rendered in this cause is wholly unsupported by the evidence as disclosed in the record presented to this Court, and that the verdict was a result of the erroneous ruling of the trial court in permitting the appellee to introduce as evidence the policy limits of the policy insuring the appellant in the sum of $300,000.00.
“In consideration of the above, it is our conclusion that the award of $20,000.00 to appellee is wholly unsupported by the evidence and is clearly excessive.” 306 So.2d 207 at 208.
In seeking our jurisdiction plaintiff says:
(1) The District Court of Appeal substituted its judgment for that of the jury and the trial judge in regard to the amount of damages, and such decision conflicts with Brickman v. Garrido, 291 So.2d 26 (Fla.3d DCA 1974); Westerman v. Shell’s City Inc., 265 So.2d 43 (Fla.1972); and Maiborne v. Kuntz, 56 So.2d 720 (Fla.1952); and
(2) In reversing the judgment because of the trial court’s ruling admitting evidence of policy limits, the decision conflicts with Steeher v. Pomeroy, 253 So.2d 421 (Fla.1971); Futch v. Josey, 263 So.2d 240 (Fla.2d DCA 1972); and Millitello v. Guest, 258 So.2d 463 (Fla.2d DCA 1972).

In Maiborne v. Kuntz, supra, a verdict for $10,000 in a malicious prosecution suit was held not to be unreasonable under the circumstances and the order of the trial court requiring a $9,000 remittitur was reversed. In Brickman v. Garrido, supra, $18,000 was awarded as compensatory damages and $2,000 as punitive damages. The out-of-pocket expenses were $960. The court in its opinion said:

“Although the plaintiff’s out-of-pocket expenses were not large ($960.00), the other elements of damage in such action, sustained and suffered by the plaintiff as shown in the evidence, were of the kind for which determination of the amount to be awarded therefor could not be made by mathematical formula, and the valuation to be placed thereon was a matter within the province of the jury. The trial judge declined to reduce the compensatory damage award when importuned to do so. No sufficient reason has been shown for this court to determine otherwise.” 291 So.2d 26.

In Westerman v. Shell’s City, Inc., supra, we held that the District Court of Appeal had obviously re-weighed the evidence in a de novo consideration thereof and re-emphasized the rule that an appellate court cannot substitute its judgment by a re-evaluation of the evidence.

Under the general rule a verdict should not be disturbed on the ground of excessiveness unless it is manifestly so excessive as to shock the judicial conscience, or unless it is so excessive as to be indicative of prejudice, passion or corruption on the part of the jury, or unless it clearly appears that the jury ignored the evidence or misconceived the merits of the case relating to the amount of damages recoverable as, for example, by taking into consideration improper elements of damages. See 9A FlaJur. Damages § 99, pp. 30-31 and authorities cited.

The damages in the case sub judice were unliquidated and not subject to measurement by a particular standard. The jury, therefore, had considerable discretion, but it was within the power of the trial judge to set aside any award that appeared to be grossly or manifestly excessive in amount. He chose not to exercise this power when he denied defendant’s post trial motions. In other words, the amount was not excessive. Even in setting aside the judgment, the District Court of Appeal acknowledged the existence of evidence relating to damages, but held it insufficient, saying:

“The only evidence in support of such a verdict included testimony that appellee suffered some ridicule from his co-workers and friends, he felt badly about his arrest, he had some difficulty securing a job and that the arrest could be a deterrent to appellee in obtaining employment or advancing in a job which required the filling out of an application form which inquired as to whether the applicant had ever been arrested for or charged with a criminal offense.” 306 So.2d 207 at 208.

The District Court of Appeal then delineated evidence which would be inconsistent with the verdict of the jury. It appears on the face of the opinion that, on the question of damages, there was a debatable evidentiary issue of fact upon which reasonable men might differ. This seems to be a guideline which we have followed in determining whether the District Court of Appeal had substituted its judgment for that of the jury and the trial judge. Exchange Bank of St. Augustine v. Florida National Bank, 292 So.2d 361 (Fla.1974). If the reversal of plaintiff’s judgment was based upon the theory that the verdict was “wholly unsupported by the evidence,” the decision is in conflict with those discussed above and should be quashed. If there were no evidence to support the verdict then the decision is not in conflict. We think the District Court re-weighed the evidence.

However, the decision in the case sub judice also points out that the introduction of the policy limits was error and the verdict took into consideration this improper element of damages. In actions for personal injuries based upon negligence, we have held that policy liability limits should not be mentioned to the jury. If such is done, the jury should be instructed to disregard such evidence. However, the mention of policy liability limits is harmless error where it has no adverse effect upon the jury’s verdict. Stecher v. Pomeroy, supra; Josey v. Futch, 254 So.2d 786 (Fla.1971). The trial judge in the case sub judice held that the insurance policy’s liability limits should be considered as an “asset” of the defendant and admitted the evidence on the theory that the policy limits could be considered in assessing punitive damages. This was error, but, under the circumstances of this case the error was harmless.

The record reflects that an appropriate instruction was given to the jury as to the elements to be considered in assessing compensatory damages. A further instruction was given concerning punitive damages and the elements to be considered in assessing those damages. The court instructed the jury that, on the theory of punitive damages, “evidence as to the defendant’s financial ability has been admitted.”

Although the jurors assessed compensatory damages they refused to assess any punitive damages. Therefore, they did not consider the policy limits. It seems illogical and unreasonable to say that evidence of the policy limits increased the amount of the compensatory damages when the jurors specifically found that they were not assessing punitive damages. It would have been quite simple for the jury to assess $5,000 compensatory damages and $15,000 punitive damages. In the latter event the admissibility of evidence of policy limits may well have influenced the size of the verdict in assessing punitive damages.

We cannot say as a matter of law that the disclosure of the policy limits influenced the jury or resulted in the verdict awarding compensatory damages. The error in disclosing policy limits was harmless.

The decision of the District Court of Appeal is quashed and the cause is remanded with instructions to further remand same to the trial court directing the reinstatement of the judgment.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    MYSTAN MARINE, INC. and Aetna Insurance Company, Petitioners, v. C. Shawn HARRINGTON, and Continental Casualty Insurance Company, Respondents.
    No. 47065.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for petitioners.
    F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for respondents.
   ENGLAND, Justice.

We tentatively granted certiorari in this case, and dispensed with oral argument, in order to explore an apparent conflict of decisions. Upon further consideration we conclude that our jurisdiction does not extend to this case and that the writ must be discharged.

C. Shawn Harrington moved for a voluntary dismissal of a negligence suit he had brought against Mystan Marine, Inc. The motion was granted without prejudice to his reinstating the suit, pursuant to Fla.R. Civ.Proc. 1.420(a)(1). Mystan Marine then moved to tax its costs against Harrington, including attorneys’ fees. A hearing was held, as a result of which the trial judge granted part of the motion but denied recovery of attorneys’ fees and certain other costs. Mystan Marine then took a petition for a common law writ of certiorari to the Fourth District Court of Appeal. The district court denied the petition without opinion, after which Mystan Marine petitioned this Court for a writ of certiorari alleging “conflict” jurisdiction under Article V, § 3(b)(3) of the Florida Constitution. The petition here asserts direct conflict between the district court’s order and Royal-Globe Ins. Co. v. Indian River Gas Co., 281 So.2d 380 (Fla. 1st DCA 1973), cert. dismissed on stip., Case No. 44320, filed January 7, 1974 (Fla.).

In Royal-Globe a majority of the First District Court of Appeal held without explanation that attorneys’ fees were taxable as costs following a voluntary dismissal such as occurred in the case before us. In his written order, the trial judge specifically refused to follow Royal-Globe as being contrary to settled law. It is clear, then, that Mystan Marine was denied a financial benefit by the circuit court which a defendant in the identical legal position in Royal-Globe was able to obtain. That does not alone show, however, that the decisions of the two district courts are in direct conflict for purposes of our jurisdiction.

The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Time and again we have noted the limitations on our review and we have refused to become a court of select errors. As was explained in Ansin v. Thurston, Article V uses the words “direct conflict” to manifest a “concern with decisions as precedents as opposed to adjudications of the rights of particular litigants.”

In this perspective, it is seen that the decision of the district court we are now asked to review does not constitute precedent in any form. Its entire opinion consists of the words “certiorari denied”, and there is no means by which we, or anyone else, can determine exactly what action the district court took. It may have been persuaded by the trial judge and decided on the merits of the case that Mystan Marine should not recover attorneys’ fees as costs. It may, alternatively, have decided that there was one of two procedural bars to its jurisdiction since (1) the common law writ of certiorari with which it was presented lies only to determine whether the lower court exceeded its powers or failed to proceed in accordance with the essential requirements of law, and (2) with only limited exceptions the writ is available only to review “final” judgments and decrees where no other remedy exists. As a third alternative, the court may simply have exercised its discretion to refuse to issue the writ.

Admittedly this Court has accepted jurisdiction in at least one case where a district court denied a writ of common law certiorari without disclosing any reason for doing so. Whittemore v. Dade County, 292 So.2d 363 (Fla.1974). In that case, however, the Court did not explain on what basis it discerned jurisdiction. A clear majority of the Court, however, apparently did not adopt the views, espoused in a concurring opinion by Chief Justice Carlton, that (1) a denial of certiorari must be considered as a decision that the trial court did not exceed its jurisdiction or depart from the essential requirements of the law whenever appeal was not available as a remedy, and (2) that if the trial court’s ruling conflicted with any case then the district court’s denial of certiorari would also conflict. We too reject these assumptions.

Obviously the denial of certiorari by a district court without a statement of reasons does not create discord in the decisional law of this state. Since its decision lacks precedential value, the constitutional scope of our jurisdiction prohibits our review. Accordingly, the writ is discharged. •

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

ROBERTS, J., agrees to judgment discharging writ.

HATCHETT, J., concurs in result only.

      . See, for example, Lawyers Title Ins. Corp. v. Little River Bank & Trust Co., 243 So.2d 417 (Fla.1970); Kyle v. Kyle, 139 So.2d 885 (Fla.1962); Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960); Lake v. Lake, 103 So.2d 639 (Fla.1958), overruled on other grounds, Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

      . 101 So.2d 808, 811 (Fla.1958).

      . Saffran v. Adler, 152 Fla. 405, 12 So.2d 124 (1943); Brundage v. O’Berry, 101. Fla. 320, 134 So. 520 (1931).

      . Feiner v. Sun Ray Drug Co., 86 So.2d 891 (Fla.1956); Tart v. State, 96 Fla. 77, 117 So. 698 (1928).

      . Article V, § 4(b)(3) of the Florida Constitution provides: “A district court of appeal may issue writs of certiorari . . (emphasis added). It is also possible, of course, that-the district court viewed the Constitution as prescribing the only forms of its review, thereby precluding the prior remedy of “common law” certiorari.


author: OVERTON, Chief Justice.

text:
    Allie William CAMPBELL et al., Petitioners, v. James W. MAZE, Respondent.
    No. 47118.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for petitioners.
    Horace E. Beacham, Jr., and Franklin G. Callas, Beacham & Callas, Palm Beach, for respondent.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 307 So.2d 234 (Fla.App.4th 1975). The decision reported there conflicts with Royal-Globe Insurance Companies v. Indian River Gas Company, 281 So.2d 380 (Fla.App.1st 1973). We have jurisdiction.

The issue to be decided is whether costs taxable to a plaintiff taking a voluntary dismissal include reasonable attorney’s fees incurred in preparation for trial.

Plaintiff-respondent Maze took a voluntary dismissal of his personal injury action before trial began. Petitioner then moved in the trial court for taxation of costs, including reasonable attorney’s fees (stipulated to be $3,600). The trial court denied the motion as to the attorney’s fees, but ordered payment of the other costs requested. In so doing, it cited as support the dissent of Judge Wigginton in Royal-Globe.

Petitioner sought review in the Fourth District Court of Appeal through common law certiorari. The Fourth District Court agreed with the trial judge and discharged the writ, expressly declining to follow the majority holding of the First District Court of Appeal in Royal-Globe. The majority in Royal-Globe held that it was within the discretion of the trial judge to award attorney’s fees upon voluntary nonsuit as part of the defendant’s costs. The First District cited as authority Troutman Enterprises, Inc. v. Robertson, 273 So.2d 11 (Fla.App.1st 1973) and Goldstein v. Great Atlantic and Pacific Tea Company, 142 So.2d 115 (Fla.App.3rd 1962). In his dissent, Acting Chief Judge Wigginton stated,

“It has long been the law of Florida that except where attorney’s fees may be allowed in equity from a specific fund or property which may be lawfully charged with their payment, attorney’s fees may not be recovered except when specifically authorized by statute or by agreement of the parties. . . . ” 281 So.2d at 381, citing Granoff v. Cherin, 270 So.2d 430 (Fla.App.3rd 1972); Kittel v. Kittel, 210 So.2d 1 (Fla.1967); Thibert v. Thibert, 106 So.2d 918 (Fla.App.3rd 1958).

Judge Wigginton also noted that neither case cited by the First District majority supports taxation of attorney’s fees as costs. In both cases, the costs awarded were solely for payment of expenses incurred in obtaining depositions, photographs, and witnesses, not for payment of attorney’s fees.

We hold attorney’s fees are not recoverable as part of the taxable costs for taking a voluntary dismissal for the reasons expressed by Judge Wigginton.

We affirm the decision of the Fourth District Court of Appeal and discharge the petition for certiorari.

It is so ordered.

ROBERTS, ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., dissents.

      . Art. V, Sec. 3(b)(3), Fla.Const.


text:
    Anita K. HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 47853.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and C. Marie Bernard and Harry M. Hipler, Asst. Attys. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ. Upon further consideration of the matter, we have determined that the writ was improvidently issued. Therefore, the writ is hereby discharged and the petition for certiorari is dismissed.

It is so ordered.

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

BOYD, J., dissents.