text:
    William L. DAVIS, Appellant, v. R. J. BROWN, Appellee.
    No. 53866.
    Supreme Court of Florida.
    Dec. 15, 1978.
   Based on petitioner’s letters of December 1 and December 6, 1978, this case is hereby reinstated.

Upon consideration of the record and papers before it, this Court has determined it is without jurisdiction and this cause is dismissed.

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


source: Caselaw Access Project

author: HATCHETT, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. William BARNETT, Glenn DeVore, Ronnie Long, Edward Salem, John Sheppard, and Robert Tolar, Appellees.
    Nos. 51664 to 51669.
    Supreme Court of Florida.
    Dec. 21, 1978.

      See also, Fla.App., 344 So.2d 863.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Robert R. Hagaman of Schryver, Haga-man & Aaron, Naples, for William Barnett.
    Julian Clarkson and Frank C. Alderman, III, Fort Myers, for Glenn DeVore and Edward Salem.
    E. G. Couse of Grace & Couse, Fort Myers, for Ronnie Long, John Sheppard and Robert Tolar.
   HATCHETT, Justice.

The State of Florida seeks review of an order of the trial court dismissing the infor-mations in this case on the ground that Section 849.25(3), Florida Statutes (1975), is unconstitutionally vague. This court has jurisdiction pursuant to Article V, Section 3(b)(1). We determine that the statute is constitutional, and remand the case to the trial court.

The defendants in this case were charged by statewide grand jury with bookmaking. The trial court dismissed these initial indictments determining that the indictments did not affirmatively show that the statewide grand jury had jurisdiction to act. Subsequently, new indictments were returned. Again the trial court granted motions to dismiss concluding that the indictments were vague. The state filed an appeal in the district court to review the dismissal of these indictments, and also filed a motion to toll the speedy trial time pending the appeal, which the trial court denied. The appellate court, prior to considering the case on the merits, entered an order finding that the trial court should have tolled the speedy trial time, and ordered that the speedy trial time period should be extended until 90 days after the issuance of the mandate of the appellate court. Ultimately, the district court affirmed the trial court’s order, agreeing that the indictments were vague and indefinite. The state did not file a petition for certiorari in this court, but rather, returned to the trial court and filed new informations against each of these defendants. The defendants filed new motions to dismiss which the trial court granted on three grounds: (1) that Section 849.25(3), Florida Statutes (1975), is unconstitutionally vague; (2) that the informa-tions were facially insufficient; and (3) that the speedy trial time had expired.

Section 849.25(3), Florida Statutes (1975) states:

(3) Whoever engages in bookmaking to the extent that in any one day he receives or accepts more than five bets or receives bets totaling more than $500, or engages in a common bookmaking scheme with three or more persons, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084. Any person who, having been convicted of violating this section, thereafter violates this subsection is guilty of a felony of the second degree, punishable as provided in s: 775.082, s. 775.083, or s. 775.084.

The term “bookmaking” as used in the statute is defined in Section 849.25(1), Florida Statutes (1975), which reads:

(1) As used in this section, the term “bookmaking” shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of . skill, speed, power, or endurance of man, beast, fowl or motor vehicle.

The trial court did not set forth its reasons for finding the statute to be unconstitutional, but apparently based its order on uncertainty as to the meaning of “common bookmaking scheme.” However, we hold that this term is sufficiently clear from the language in the statute, and requires proof that the accused engaged in a joint plan with three or more persons to take or receive wagers upon the result of those kinds of contests set forth in the statute. The language and intent of the statute is sufficiently clear to meet the strict test applied by this court when examining whether the language of a penal statue is sufficiently definite to apprise our citizens as to what conduct is prohibited. State v. Wershow, 343 So.2d 605 (Fla.1977).

The new informations in this case charge that each defendant:

. On January 1, 1976 and January 18, 1976 and upon diverse days intervening between those days in the county and state aforesaid did unlawfully and feloniously engage in a common bookmaking scheme with three or. more persons involving the taking or receiving of bets or wagers on the result of college or professional games .

The trial court found these informations to be insufficient upon the authority of State v. Whisnant, 80 So.2d 611 (Fla.1955), and State v. Barnett, 344 So.2d 863 (Fla. 2nd DCA 1977). When the state filed these new informations, it had attempted to cure the defects previously noted by the district court, specifically alleging that the wagers were received on the results of college or professional games; that the crimes were committed on various days during a two week period; and that the crimes were committed in Lee County. The trial court in its order did not state the specific manner in which the new informations were insufficient. The defendants argue that, although certain defects may have been cured, the state failed to name three or more persons with whom each defendant engaged in a bookmaking scheme. Further, they argue that if such persons are unknown, that fact should be specified in the information.

Clearly, under this statute, the state must allege and prove at trial that each defendant engaged in a common bookmaking scheme with three or more persons. However, it is not essential for the state to prove the identity of these other persons. A conviction under this statute may be met by the introduction of sufficient direct or circumstantial evidence to prove the defendants engaged in a common bookmaking scheme with three or more other persons. If the names of these other persons are known to the state, the defendants may obtain this information through a bill of particulars or through discovery pursuant to Fla.R.Crim.P. 3.220. We therefore hold that the informations charging the defendants in the present case with a violation of Section 849.25(3), Florida Statutes (1975), are sufficient to inform them of the nature of the crime with which they are charged.

The final and most difficult question concerns whether the trial court properly discharged the defendants from prosecution on the ground that the speedy trial time limit had expired. The dates pertinent to the resolution of this question are as follows: the defendants were taken into custody for the alleged criminal acts charged in the information on March 26, 1976; on July 8, 1976, the state filed a motion to toll the speedy trial time limits pending the appeal of the order dismissing the indictments; the trial court denied this motion on July 14, 1976; the appellate court’s order, which determined that the trial court should have extended the speedy trial time, was entered on September 21,1976; the mandate of the district court affirming the trial court’s dismissal of these indictments was received by the trial court on March 16, 1977; the present informations were filed on April 1, 1977; the defendants filed motions to dismiss these informations on April 15, 1977; and the order dismissing the informations and discharging the defendants from prosecution under the speedy trial rule was entered April 28, 1977.

The speedy trial rule was adopted by this court in order to promote the efficient operation of the criminal justice system in this state as well as to minimize the hardships imposed on accused persons resulting from lengthy delays while awaiting trial. State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976). Fla.R.Crim.P. 3.191(d)(2) expressly contemplates the extension of the speedy trial limits during the pendency of an appeal by the state of an interlocutory order of the trial court. Since questions arose as to whether this section included appeals by the state from orders dismissing indictments or infor-mations, this court clarified the rule so as to specifically include such appeals. The Florida Bar, Re: Florida Rules of Criminal Procedure, 343 So.2d 1247, 1256 (Fla.1977). Fla.R.Crim.P. 3.191(d)(2) as amended states:

RULE 3.191. SPEEDY TRIAL
(d)(2) When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of. signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, for an appeal by the State from an order dismissing the case, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.
Committee Note
An appeal by the State from an order dismissing the case constitutes an interlocutory appeal, and should be treated as such. The additional phrase removes any ambiguities in the existing rule.

This court in State v. Williams, 350 So.2d 81 (Fla.1977), recently noted that this section provides for the extension by the trial court of the speedy trial limit for a period of time necessary to complete appellate procedures. In that case, the 180 day time limit was extended by the trial court so as to exclude the period beginning on the day the trial court granted the state’s motion for extension of the speedy trial time limits until the date the trial court received the mandate of the appellate court. Once the mandate was received, the speedy trial time recommenced to run, and required the state to bring the case to trial within the time remaining of the original 180 days.

In Williams, this court indicated that under 3.191(d)(2), the speedy trial time periods are not automatically tolled by the filing of an interlocutory appeal by the state. Rather, these time limits may be extended only by an order of the trial court. In Williams the trial court had properly granted the state’s motion for an extension of time, and therefore, we did not need to consider the issue, which we must address here, as to the effect of a trial court’s improper denial of a motion by the state for extension of time. The district court resolved that question in this case by merely granting an additional 90-day period from the date of its mandate. However, we de-termine that such an extension by the appellate court is not within the contemplation of the speedy trial rules. We conclude that an extension of the speedy trial time under this section may be granted only by the trial court, subject to review by the appellate court. If the state files a motion to extend the time limit under this rule on the ground that it has filed a proper interlocutory appeal, or an appeal from an order dismissing the case, a trial court must grant this extension for the period necessary to complete the appellate proceedings, unless it makes a factual determination that the appeal is being taken for the purpose of delay; upon grounds which are frivolous and not fairly debatable. If the appellate court, upon an examination of the trial court’s order and the circumstances of the case, determines that the trial court improperly denied the extension of time, it shall reverse the trial court’s order, remanding the case to the trial court with instructions to enter an order of extension commencing from the date of the state’s motion.

In the present case, a period of 105 days of the 180 days available under the speedy trial rule had already elapsed between the date the defendants were arrested and the date that the state filed its motion for extension of time during the pendency of its appeal. From that date until the mandate was received by the trial court affirming the dismissal of the indictments, the speedy trial time periods should have been tolled. Upon receipt of this mandate on March 16, 1977, the state had 75 days left within which to file new informa-tions and bring the defendants to trial. The state filed new informations on April 1, 1977. On April 15, 1977, the defendants, filed motions to dismiss the informations which the trial court granted on April 28, 1977, holding the bookmaking statute to be unconstitutional, determining the informa-tions to be facially insufficient and discharging the defendants from prosecution for violation of their speedy trial rights. However, the trial court’s order of discharge was erroneous since the speedy trial time limit did not expire until May 30,1977.

Unfortunately, our determination that the trial court improperly granted the defendants’ motions for discharge for violation of their speedy trial rights does not resolve the problems presented by this difficult case. We must also answer the additional question of whether or not it is necessary for the state to apply for an extension of the speedy trial time limits when it wishes to take an appeal from an erroneous order of the trial court granting the discharge of a defendant under the speedy trial rule. In the present case, no application to the trial court for an extension during the pendency of the appeal to this court appears in the record, nor has the state made any motion for extension in this court. The Fourth District Court of Appeal in State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976), noted that the speedy trial rules are silent with respect to the effect of the filing of a notice of appeal from an order discharging the defendant because of the expiration of the speedy trial limits. The district court held that, as with any other interlocutory appeal taken by the state in a criminal case, the state must also file a motion for extension of the speedy trial time limits with the trial court in order to toll the running of the 180 day period during the pendency of that appeal. We agree with the district court that the speedy trial rules are silent with regard to whether the state must apply for an extension when it wishes to appeal an erroneous order of the trial court discharging a criminal defendant from prosecution under the speedy trial rule. However, we find that there are sufficient policy considerations distinguishing ■appeals taken by the state following a trial court’s order discharging a defendant under the speedy trial rule provisions from all other types of appeals taken by the state in criminal cases. Generally, a motion for discharge will be filed immediately prior to the commencement of trial. In most cases, there will be little or no time left under the original 180 days, so that any extension of time would be meaningless. Further, the delay caused by such an erroneous discharge has in no way been predicated upon some error or misjudgment made by the prosecution. The speedy trial time limits are not automatically tolled upon the filing of an interlocutory appeal by the state under other circumstances because we do not wish to encourage prosecutors to file interlocutory appeals solely for the purposes of delay.

Rather, the state must also file for an extension of time, and prove to the trial court that such an appeal is not frivolous, nor taken solely for the purposes of delay. This policy consideration is inapplicable to appeals taken by the state from erroneous orders discharging defendants from prosecution.

In the present case, the trial court improperly granted the defendants’ motions for discharge. Therefore, we remand the case to the trial court for a trial of these defendants for bookmaking. In order to allow the trial court to have sufficient discretion in setting a convenient trial date, without undue disruption of its docket calendar, we order that the defendants be brought to trial within a reasonable time of receipt of our mandate, not to exceed 90 days.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ., concur.

ADKINS, J., concurs in result only.

The Petitions for Rehearing are hereby denied.

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

ADKINS, J., dissents.

      . Appellee Barnett’s dismissal was reversed in State v. Barnett, 339 So.2d 1159 (Fla. 2nd DCA 1976), but only after the state had obtained a new indictment against appellee for the same crime.

      . State v. Barnett, 344 So.2d 863 (Fla. 2nd DCA 1977).

      . The trial court believed that the 90 day extension ordered by the district court was applicable only if the state prevailed in its appeal.

      . In State v. Barnett, supra, the Second District Court of Appeal upheld the trial court’s dismissal of the prior indictments charging the defendants with these same offenses, on the grounds that they were so vague as to prejudice the defendants in their ability to prepare a proper defense. The district court noted (1) that the indictments failed to specify the nature of the contests upon which wagers were received; (2) that they failed to allege the crimes were continuing over a period of time between the dates specified in the indictment; and (3) they failed to allege sufficient venue.

      . We note that there has developed an apparent conflict on this issue among the district courts of appeal. See State v. Pearce, 336 So.2d 1274 (Fla. 1st DCA 1976); State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976).

      . Although the recently adopted Appellate Rule 9.140(c) does not expressly contemplate an appeal by the state from a trial court’s order denying such an extension, the appellate court may review such an order as a matter pendent to the appeal itself. See, Fla.R.App.P. 9.110(h) which provides for discretionary appellate review of any ruling occurring prior to filing a notice of appeal. This extension of the speedy trial limits during the pendency of appellate proceedings is similar to the provisions in Fla. R.App.P. 9.310, authorizing stays pending appellate review.

      . The extension should be granted from the date of the state’s motion for a continuance until the receipt by the trial court of the appellate mandate. Although the speedy trial rule does not state that such an extension should be computed from the date of the state’s motion, we believe it unfair to the state to allow the time limits to continue running during the trial court’s consideration of that motion, usually necessitated by opposition to the extension by the defendant. We did not need to consider this issue in State v. Williams, 350 So.2d 81 (Fla.1977) since the trial court granted the motion for extension on the same day it was filed. Of course, trial courts should rule on these motions for extension as quickly as possible.

      . As with any other pre-trial motion, the trial court may grant sua sponte or upon motion by the state an extension of the speedy trial limits under Fla.R.Crim.P. 3.191(d)(2) for a reasonable time in order to conduct a hearing on the merits of the defendant’s motion for discharge. Therefore, the court can insure that the speedy trial limit does not expire during the pendency of a determination on the defendant’s motion for discharge.

      . If prosecutors wait until the last minute to file informations or indictments, they may later regret the short time remaining within which to bring a defendant to trial following the receipt of the mandate from the appellate court following an interlocutory appeal of an adverse ruling on a defendant’s pre-trial motion.

      . We determine that these circumstances are comparable to those contemplated in Fla.R. Crim.P. 3.191(d)(3) which states:
      If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days,
      and Fla.R.Crim.P. 3.191(g) which states:
      A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.
      Both of these provisions provide for extra 90 day periods because of the likelihood that the original speedy trial time limits have been exhausted, and because the added delay is not attributable to actions by the prosecution.

      .Our decision here is consistent with the flexible approach taken by this court most recently in Tucker v. State, 357 So.2d 719 (Fla.1978) in which we declined to discharge a defendant by retroactively applying an express clarification of Fla.R.Crim.P. 3.191(d)(2). There, the state and the district court had relied upon a reasonable but mistaken interpretation of that speedy trial provision concerning its applicability to orders dismissing indictments and informa-tions. In the present case, a somewhat different approach has been taken, because the prosecution properly applied for an extension of the speedy trial limits during the pendency of appellate proceedings. The rights granted to criminal'defendants under our speedy trial rule are based upon this court’s constitutional rule making power, rather than strictly upon our state and federal constitutional speedy trial provisions. Therefore, this court may modify and construe these rules in a more flexible manner in order to better achieve the public policy goals for which they were created.


author: BOYD, Justice. ALDERMAN, Justice,

text:
    John Murry JOHNSON, Petitioner, v. STATE of Florida, Respondent. Dale McCLAIN, Petitioner, v. STATE of Florida, Respondent.
    Nos. 50592, 51218.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for Johnson.
    Karen M. Gottlieb, Asst. Public Defender, Miami, for McClain, petitioners.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., Miami, and Ira N. Loewy, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

The two instant cases are here on certio-rari granted to review the decisions of the District Court of Appeal, Third District, in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1977) and McClain v. State, 341 So.2d 1075 (Fla. 3d DCA 1977). Since these decisions conflict with our holding in Cone v. State, 285 So.2d 12 (Fla.1973), we have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

Both petitioners were convicted of the crime of robbery and the crime of display of a firearm during the commission of a felony under Sections 813.011 and 790.07(2), Florida Statutes (1973), respectively. McClain in addition was convicted of breaking and entering a dwelling. Johnson was sentenced to two concurrent five-year terms. McClain was sentenced to three concurrent eight-year terms.

Petitioners then each appealed to the district court, arguing that the trial courts erred in imposing separate sentences for robbery and display of a weapon during the commission of a felony, on the ground that these were in each case different facets of a single criminal transaction. In Johnson, the district court acknowledged our decision in Cone, above, which held that where the crimes of robbery and display of a firearm were facets of the same criminal act, sentence may be imposed only for the more serious offense. But the court concluded that Cone has been effectively overruled by the holdings of this Court in Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975) and State v. Ray, 331 So.2d 316 (Fla.1976). In McClain the court upheld the separate sentences, citing only Estevez and Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976).

In both cases the record indicates and the evidence showed that the display in question took place in the course of the robbery itself and in fact constituted the element of force, assault, violence, or putting in fear by which the robbery was accomplished. The issue now presented to us is whether one who is convicted under such circumstances both of robbery and display of a firearm during the commission of that robbery can be separately sentenced for each offense. In Cone we answered this question in the negative and we now reaffirm that holding. The decisions in Estevez, Jenkins and Ray indicate that the scope of the “single transaction rule” is quite narrow. But none of these decisions has undermined the authority of Cone in reference to the state of facts dealt with here.

In Estevez, the appellant had been convicted of the crime of breaking and entering with intent to commit a felony, to-wit: grand larceny and the crime of grand larceny. Both crimes were part of- the same criminal episode. We held that the two crimes were separate offenses, not “facets” of the same transaction, and that two separate sentences were proper. This decision cannot have overruled Cone even by implication, since the factual dissimilarity calls for the application of a different rule of law. In Estevez the crimes were “separate and distinct.” This fact is illustrated by the temporal distinction: the crime of breaking and entering with the requisite criminal intent was complete before the as-portation of any property. The crime of grand larceny was commenced thereafter.

In Jenkins the petitioner was convicted of the wrongful possession of two different controlled substances and was separately sentenced for each statutory violation. The two crimes arose out of the same transaction in the sense that they were committed simultaneously, i. e., the two illegal drug substances were possessed simultaneously. This Court held the separate sentences to be proper since the statutory violations were separate and distinct. Under the facts of the situation, either of them could have been committed completely independent of the other.

In Ray, the two crimes charged were breaking and entering with intent to commit a felony, to-wit: sexual battery, and attempted sexual battery. As in Estevez, the temporal distinction demonstrated the separate and distinct nature of the two crimes. Ray cannot have overruled Cone any more than Estevez or Jenkins did.

The holdings in Estevez and Jenkins were “reaffirmed” by our decision in Williams v. State, 346 So.2d 67 (Fla.1977). We there adopted the decision of the district court of appeal, 337 So.2d 1038 (Fla. 1st DCA 1976), and specifically overruled Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). The two offenses in Panzavecchia were first degree murder and possession of a firearm by a convicted felon. The district court had held that the convictions were facets of the same transaction and the appellant could only be sentenced for the more grievous offense.

In Williams, the evidence showed that the appellant had shot a store clerk and later the same day, following an argument with another individual, had fired a gun at the individual within an occupied building. He was convicted of assault with intent to commit murder, shooting a firearm within an occupied building, and possession of a firearm by a convicted felon. The appellant argued that he should not have received a separate sentence on the possession charge, on the ground that it was a mere facet of the two criminal transactions. The district court held, at 1038-39:

The crime of possession of a firearm by a convicted felon was completed when appellant, a convicted felon, came into possession of a firearm. The other two offenses for which appellant was convicted, assault with intent to commit murder and shooting within an occupied building, necessitated proof of the use of the firearm, which is something more than mere possession.

The petitioners argue that the decisions of this Court dealing with the single transaction rule have established a “temporal distinction” test for determining whether separate sentences are proper where two or more convictions are obtained based on a single criminal episode. For example, in State v. Heisterman, 343 So.2d 1272 (Fla.1977), the respondent had been convicted both of assault with intent to commit murder and of shooting a gun into an occupied dwelling. The two crimes charged clearly arose out of a single criminal transaction, as the defendant, standing outside a dwelling, yelled at the occupants, “Come on out, I’m going to kill you,” and then fired at the windows of the house with a pistol. This Court held, at 1273:

The acts constituting assault under the statute were completed when respondent verbally threatened the Simmons, pointed a pistol in their direction, and put them in fear. This crime was proved without evidence that any shots were fired. . Respondent’s other conviction was based on adequate evidence that several shots were in fact fired into the house around the window area, (citations omitted.)

The state points out that petitioners’ “temporal distinction” test does not satisfactorily explain all of the instances where the “single transaction” rule is held applicable. For example, the crimes of possession and sale of the same single quantity of a controlled substance can be temporally distinguished, but convictions thereof have nevertheless been held not separately punishable. Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).

On the other hand, there is not necessarily a temporal distinction where one is convicted of the simultaneous illegal possession of two or more distinct controlled substances. As discussed above, however, such separate violations are separately punishable. Jenkins, above.

The state suggests a different test. The inquiry should be, it argues, into whether the proof of one of the offenses charged requires the proof of some fact in addition to what is required to prove the other offense. If so, then the crimes should not be considered mere facets of the same transaction, and should be separately punishable. The state would utilize this type inquiry and argues that since the crime of robbery can be committed either with or without a firearm, the use or display of a firearm is a separate fact which must be proved, in addition to proving all the elements of the crime of robbery, in order to prove display of a firearm during the commission of a felony. The state argues further that the intent of the Legislature controls whether crimes are separately punishable and it is to be assumed that all legislative enactments are to have purpose and effect. The crime of use or display of a firearm during the commission of a felony is always committed in connection with some other crime. The Legislature must not have intended to establish a criminal offense which could never be punished.

What the state’s argument neglects to consider is that under the facts of the situation we consider, as shown by the evidence in each ease, the act of displaying the firearm itself constituted the necessary element of force, violence, assault, or putting in fear, needed to prove the crime of robbery. The Cone decision did not say that use or display of a firearm during the commission of a felony could never be separately punished because it would always be involved with another felony. It merely said that the facts proven there showed the “display” offense to have been an element of the other crime charged, robbery. The cases at bar are factually identical and are governed by Cone.

In addition to arguing that the rule of Cone should control their cases, the petitioners also maintain that double punishment principles under the Fifth Amendment to the United States Constitution require that this be so, so that arguments as to legislative intent should be of no avail to the state here. An enactment of the 1976 Legislature, now codified as Section 775.-021(4), Florida Statutes (1977), specifically provides for separate sentencing when a person, having committed “an act or acts,” is convicted of the violation of two or more criminal statutes in the course of one transaction or episode. This provision went into effect on October 1, 1976. Since our disposition of these cases under Cone makes it unnecessary for us to reach petitioners’ Fifth Amendment claims, we will not address these constitutional issues until they are properly presented under the new statute.

The decisions of the district court upholding separate sentences for the offense of display of a firearm during the commission of a felony are quashed and the cases are remanded to the district court for a mandate to the trial court directing that the sentences for display of a firearm during commission of a felony be vacated.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

Defendants were convicted of the crime of robbery under Section 813.011, Florida Statutes (1973), and the crime of display of a firearm under Section 790.07, Florida Statutes (1973). I dissent from the majority opinion and agree with the District Court of Appeal’s decision which upholds separate sentences for, what I find to be, two separate and distinct offenses arising out of the same incident.

It is clear from a reading of Sections 813.011 and 790.07 that the Legislature intended to create two separate offenses leading to two separate convictions and separate sentences. Cf. Estevez v. State, 313 So.2d 692 (Fla.1975); Norwood v. Mayo, 74 So.2d 370 (Fla.1954). See also United States v. Crew, 538 F.2d 575 (1976), in which the United States Court of Appeals, Fourth Circuit, held that, under federal law, it is permissible to impose separate sentences for the offenses of armed bank robbery and the unlawful carrying or use of a firearm during the commission of the robbery.

Section 775.021(4), Florida Statutes (1977), will resolve this question in future cases. This statute provides:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be 'served concurrently or consecutively.

Cf. State v. Munford, 357 So.2d 706 (Fla.1978).

Although, in my opinion, the constitutional question argued by the defendants is without merit, I would not reach this question since it was raised for the first time in these proceedings in the petition for writ of certiorari. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). See also Simmons v. State, 305 So.2d 178 (Fla.1974).

Accordingly, I would recede from Cone v. State, 285 So.2d 12 (Fla.1973), approve the decisions of the District Court of Appeal, Third District, and uphold the separate sentences.

      . Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942), was an early statement of the “single transaction rule.” It was there stated that where one is convicted of two or more offenses based on various counts of an indictment or information presenting different aspects of the same criminal transaction, there should be one sentence, for the most serious offense. It was held that assault with intent to commit rape and attempting to have carnal intercourse with an unmarried female under the age of eighteen of previous chaste character, were different aspects of the same transaction. The language of different “facets” is found in Wheeler v. State, 72 So.2d 364 (Fla.1954), which held that five counts of violating the lottery statute reflected five facets of one transaction. See also Norwood v. State, 86 So.2d 427 (Fla.1956). Different “aspects” of one transaction were held separately punishable where the crimes were breaking and entering and grand larceny, in Steele v. Mayo, 72 So.2d 386 (Fla.1954).

      . Norwood v. Mayo, 74 So.2d 370 (Fla.1954).

      . Estevez, above. Adkins, J., concurring, at 695.

      . The state points out that in Jenkins the Court said, at 479, “We recede from'our decision in Foster v. State, [286 So.2d 549 (Fla.1973)], to the extent that it conflicts with this opinion.” In Foster, appellant had been convicted and separately sentenced for breaking and entering with intent to commit a felony and for possession of burglary tools. The only evidence of the crime of possession of burglary tools was a simple screwdriver on the accused’s person when he was apprehended. There was also evidence of its use in the burglary. Because the possession charge could only have been made under the circumstances of the screwdriver having been used in the perpetration of the burglary, we held that the possession charge presented a mere facet of a single criminal transaction and that separate sentences were improper. Foster did not hold that one can never be punished separately for two crimes merely because they were committed simultaneously. It is conceivable for separate sentencing to be proper for the two crimes involved in Foster, even when their commission is simultaneous or overlapping in time, because it is possible for them to be “separate and distinct.” Jenkins recognized this possibility, but receded from Foster only “to the extent that it conflicts with this decision.” Limited to its peculiar facts, Foster is still good law. See generally State v. Kirkland, 322 So.2d 480 (Fla.1975).


author: PER CURIAM. ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Dale ZYGADLO, Respondent.
    No. 51205.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove and Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for petitioner.
    Margaret Good, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. Johnson v. State, 366 So.2d 418 (Fla.1978); McClain v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973).

It is so ordered.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I dissent for the reasons stated in my dissent in Johnson v. State and McClain v. State, 366 So.2d 418 (Fla.1978). I would quash the decision of the District Court insofar as it vacates part of defendant’s sentence.


author: BOYD, Justice.

text:
    Richard D. FISKE, Appellant, v. STATE of Florida, Appellee.
    No. 50796.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Peter L. Nimkoff and Rosemary J. Michael of August, Nimkoff & Pohlig, Miami, and John W. Emerson of Treadwell, Emerson & Elkins, Naples, Florida, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

This is a direct appeal from a felony conviction in Collier County Circuit Court. The court directly passed on the validity of a state statute’s application. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Richard Fiske, appellant, was arrested as he emerged from a field in Collier County. Found near him was a bag of wild mushrooms. The mushrooms were taken into the custody of the Collier County Sheriff’s Department. After tests, a chemist concluded that they contained psilocybin, a substance controlled by the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes.' Appellant was tried by jury for possession of the psilocybin, a felony of the third degree, and found guilty. Adjudication of guilt was withheld and he was placed on probation.

Appellant raises a number of issues, both constitutional and related to errors in his trial. We address only one, raised by him initially in a pre-trial motion, because it is dispositive of the appeal. The issue is whether his conviction under the present statute violates the Due Process Clauses of the federal or Florida Constitutions. We hold that it does.

Section 893.03, Florida Statutes (1975), gives the standards and schedules of substances controlled by the Drug Abuse Act. Subsection (1) is denominated Schedule I. The subsection recites that substances listed in Schedule I have high potential for abuse and no currently accepted medical use in the United States. Section 893.03(l)(c)(15), part of Schedule I, controls any material which contains a quantity of the hallucinogenic substance “psilocybin.” Section 893.-13(l)(a)(2) makes possession of psilocybin a felony of the third degree. The statute makes no mention of psilocybic mushrooms or, for that matter, of any other psilocybic organic form that grows wild. If the statute were to specify that psilocybin was contained in certain identifiable mushrooms and were to name those mushrooms, thereby apprising a prospective defendant that possession of those mushrooms is unlawful, it would not be unconstitutional as applied. The statute as presently framed, however, gives no information as to what plants may contain ' psilocybin in its natural state. More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute, therefore, may not be applied constitutionally to appellant. It does not give fair warning that possession of the mushrooms possessed by appellant is a crime. See Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); State v. Winters, 346 So.2d 991 (Fla.1977).

There is no vagueness problem with the statute on its face. It explicitly controls any material which contains psilocybin and makes possession of the material a felony. In capsule, pill or similar form the statute may be applied constitutionally for people will be wary of the criminal liabilities of possession of nonprescribed drugs in their common medicinal forms and will not ordinarily possess them innocently or without knowing of their content.

The state points to evidence of scien-ter in the record. The statement made by appellant when confronted by law enforcement agents is ambiguous and susceptible of innocent explanation as well as being indicative of criminal knowledge. Ambiguities in criminal proceedings are resolved in favor of the accused.

The statute is held to have been applied unconstitutionally in this case. Appellant’s conviction is reversed.

It is so ordered.

ADKINS, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., and OVERTON and SUNDBERG, JJ., dissent.


author: PER CURIAM.

text:
    Larry Gene MERIDITH, Petitioner, v. Debbie Ewing MERIDITH, Respondent.
    No. 51858.
    Supreme Court of Florida.
    Dec. 21, 1978.
    F. D. McKnight of Yergey, Yergey & McKnight, Orlando, for petitioner.
    James N. Powers, Orlando, for respondent.
   PER CURIAM.

We have jurisdiction of this cause because the decision of the District Court, Meridith v. Meridith, 352 So.2d 72 (Fla. 4th DCA 1977) conflicts with Cummings v. Cummings, 330 So.2d 134 (Fla.1976), among other cases. Article Y, Section 3(b)(3), Florida Constitution.

In Cummings the parties in a marriage dissolution proceeding owned their home as a tenancy by the entireties. Upon dissolution the usual course would have been for the parties to hold the home as tenants in common. Section 689.15, Florida Statutes (1975). Instead, the court awarded the marital home to the wife as lump sum alimony and the District Court affirmed. We quashed the affirmance because there was no positive showing of necessity on the wife’s part. As was stated in Judge Dow-ney’s dissent, there was no such showing to support the award to the wife of the marital home, held jointly by the parties, in this case, either.'

The decision of the District Court is quashed and the dissenting opinion of Judge Downey is adopted as the decision of this Court. The cause is remanded with directions to enter the mandate suggested by Judge Downey.

It is so ordered.

ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, C. J., and OVERTON and ALDERMAN, JJ., dissent.


text:
    In re the ESTATE of Philip SIEGEL, Deceased.
    No. 52833.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Richard A. Daar, Miami Beach, for petitioner.
    Lawrence J. Meyer, of Meyer, Leben, Fixel & Cantor, Hollywood, for respondent.
   PER CURIAM.

We issued a writ of certiorari in this case based upon an alleged conflict between the decision in this case reported at 350 So.2d 89 (Fla. 4th DCA 1977) and Connor v. Elliott, 79 Fla. 513, 85 So. 164 (1920), or Thomson v. Kyle, 39 Fla. 582, 23 So. 12 (1897). After full consideration of the briefs, the record, and principles discussed at oral argument, we are convinced that there is no conflict between the decision in this case, involving ownership interests in movables, and the decision in any other case.

Accordingly, certiorari should not have been granted, and the writ is discharged.

It is so ordered.

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


author: OVERTON, Judge.

text:
    STATE of Florida, Petitioner, v. William E. FREBER, Respondent.
    No. 53037.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Robert L. Shevin, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for respondent.
   OVERTON, Judge.

This cause is before the Court on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 352 So.2d 106 (Fla. 4th DCA 1977). That decision conflicts with Willis v. State, 217 So.2d 106 (Fla.1968), and Williams v. State, 350 So.2d 842 (Fla. 1st DCA 1977). We have jurisdiction.

The issue is whether evidence of a prior out-of-court identification is admissible when the witness is unable to identify the defendant at trial. We hold that if the original identifying witness testifies at trial concerning a prior identification, testimony of a witness who observed the identification is admissible as substantive evidence of identity.

The respondent Freber was charged by information with breaking and entering a dwelling house with intent to commit a misdemeanor. Three witnesses testified for the State: Mrs. Etta Hayes, owner of the house, and Thomas Thompson and John Carroll, deputy sheriffs.

Mrs. Hayes was a nurse’s aide and occasionally had welfare patients live with her. On the morning of the burglary she was awakened by the sound of running water and went to investigate. She found a stranger in the bathroom who said he had mistakenly entered the wrong house and fled despite her attempt to restrain him.

Mrs. Hayes testified that later on the morning of the burglary the deputies brought a suspect to her home. She testified that she identified the suspect as the burglar at that time and that she had no doubt that at the time she made the identification she had been correct. When asked to identify the burglar in the courtroom, Mrs. Hayes stated that although the respondent Freber resembled the man, she could not be certain because his hair was a different length.

Deputy Thompson testified that he had arrested a suspect and transported him to the scene of the burglary. He indicated at the trial that Freber was the man he had brought to the Hayes’ home that morning. Thompson was asked whether Mrs. Hayes had identified Freber as the burglar. Over defense counsel’s objection, he was allowed to testify that she had made the identification.

Deputy Carroll also testified that he was present when Freber was shown to Mrs. Hayes and that she identified Freber as the man who had been in her home.

Freber was found guilty by a jury. On appeal, the District Court of Appeal, Fourth District, reversed, relying upon Laws v. State, 356 So.2d 7 (Fla. 4th DCA 1977), and the fact that the respondent had objected to the testimony in a timely fashion.

Both the State and Freber rely upon this Court’s decision in Willis v. State, supra, to support their contentions. The trial court in Willis had admitted testimony by a police officer that two identification witnesses made prior extrajudicial identifications of the defendant. The First District Court of Appeal affirmed the resulting conviction, stating:

From our study of these decisions we are of the view that the better rule, and the one more consistent with the orderly administration of the criminal law, holds that such testimony is admissible and not objectionable on the ground of hearsay. All courts seem to be agreed, however, that such testimony cannot be considered by a jury as original or substantive evidence as to the identity of the accused as a guilty party, but may be considered in corroboration of the testimony of the identifying witness at the trial. Willis v. State, 208 So.2d 458, 459 (Fla. 1st DCA 1968).

We denied certiorari but, in doing so, approved the above quotation from the First District Court of Appeal decision as an accurate expression of the prevailing law.

The respondent in the instant case contends that Willis requires an in-court identification by a witness before testimony about a prior out-of-court identification may be admitted, and then only as corroboration of the identification in the courtroom. If no in-court identification occurs, the respondent asserts that the testimony is hearsay and inadmissible.

The State asserts that the Willis decision does not require an in-court identification, rather, it simply mandates that the identifying witness be present in court and available for cross-examination. The State takes the view that when a witness states that an out-of-court identification was made, any testimony regarding a prior identification is merely corroborative.

We hold that the testimony in the instant case was admissible despite its hearsay characteristics. Hearsay testimony is generally inadmissible for three reasons. First, the declarant is not testifying under oath. Second, the declarant is not in court for the trier of fact to observe his or her demeanor. Third, and of prime importance, the declarant is not subjected to cross-examination in order to test the truth of the statement. 5 Wigmore, Evidence § 1362 (Chadbourn rev. 1974); McCormick, Evidence § 245 (2d ed. 1972). In the instant case, Mrs. Hayes took the stand and testified concerning her prior identification. Therefore, the defendant was allowed an opportunity to confront and cross-examine the hearsay declarant, Mrs. Hayes, and the prime dangers of hearsay testimony were avoided.

There is an additional factor that persuades us that this evidence should be admissible. In our view, an identification made shortly after the crime is inherently more reliable than a later identification in court. The fact that the witness could identify the respondent when the incident was still so fresh in her mind is of obvious probative value. See State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975), cert. discharged, 337 So.2d 780 (Fla.1976). It is certainly not unusual for the appearance of a defendant to change in some way between his apprehension and trial. A holding not allowing this sort of testimony as substantive evidence of identity would encourage defendants to change their appearance before trial to avoid being identified in court. Without this proof that the person previously identified by the witness was the defendant, conviction would in some instances be impossible.

The modern trend to admit evidence of a prior out-of-court identification as substan-five evidence of identity is illustrated by its adoption in several other jurisdictions. See Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977); State v. Taylor, 99 Ariz. 151, 407 P.2d 106 (1965) (dictum); People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); People v. Pew, 543 P.2d 86 (Colo.App.1975); Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965); Commonwealth v. Torres, 367 Mass. 737, 327 N.E.2d 871 (1975) (dictum); People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883 (1974) (construing N.Y.Crim.Proc. Law § 60.25); State v. Fennell, 7 Or.App. 256, 489 P.2d 964 (1971); Lucas v. State, 160 Tex.Crim.R. 443, 271 S.W.2d 821 (1954); Niblett v. Commonwealth, 217 Va. 76, 225 S.E.2d 391 (1976).

We recognize that Willis v. State, supra, restricted this type of testimony to a corroborative function. It is our view, however, that this restriction regarding a prior identification is unnecessary. The prior identification is reliable evidence of identity, and the declarant’s presence in court and availability for cross-examination eliminate the usual danger of hearsay testimony. For these reasons, we hold that testimony of a prior extrajudicial identification is admissible as substantive evidence of identity if the identifying witness testifies to the fact that a prior identification was made. To the extent that Willis conflicts with this decision, it is overruled.

The decision of the District court is quashed and the matter remanded with instructions to reinstate the conviction.

It is so ordered.

ENGLAND, C. J„ and ADKINS, BOYD • and SUNDBERG, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.

      . This is particularly so because of constitutional safeguards surrounding the identification process. The United States Supreme Court held in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that an identification may be attacked as a denial of due process of law where the circumstances of the identification were unnecessarily suggestive and conducive to irreparable mistaken identification. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Dell v. State, 309 So.2d 52 (Fla.2d DCA 1975); Hamilton v. State, 303 So.2d 656 (Fla.2d DCA 1974).

      . The new Florida Evidence Code, which takes effect July 1, 1979, provides that this testimony is admissible as non-hearsay if the declarant testifies at trial and is subject to cross-examination concerning the identification. § 90.-801(2)(c), Fla.Stat. (1977). Several other jurisdictions have also codified this rule, Fed.R. Evid. 801(d)(1)(C); Cal.Evid,Code, § 1238 (Deering); N.Y.Crim.Proc. Law § 60.25, and the leading commentators have approved. 4 Wig-more, Evidence § 1130 (Chadbourn rev. 1974); McCormick, Evidence § 251 (2d ed. 1972).


text:
    Calvin WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 52844.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Michael J. Minerva, Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for respondent.
   OVERTON, Judge.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 350 So.2d 842, because it conflicts with Laws v. State, 356 So.2d 7 (Fla. 4th DCA 1977), and Freber v. State, 352 So.2d 106 (Fla. 4th DCA 1977). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Because we have resolved this conflict in State v. Freber, 366 So.2d 426, Supreme Court Case No. 53037, 1978, the writ must be and is hereby discharged.

It is so ordered.

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


author: OVERTON, Justice.

text:
    CITY OF ST. PETERSBURG, Florida, and City of Clearwater, Florida, municipal corporations, Petitioners, v. Paula F. HAWKINS, Chairman, William T. Mayo, Commissioner, and William H. Bevis, Commissioner, as and constituting the Florida Public Service Commission, Respondents.
    No. 53238.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Thomas Bustin, City Atty. and Richard A. Luce, Asst. City Atty., St. Petersburg, for petitioners.
    Prentice P. Pruitt, Legal Director and Donald R. Alexander, Staff Counsel, Tallahassee, for respondents.

      W. Gray Dunlap, City Atty.' and Leslie M. Conklin, Asst. City Atty., Clearwater, for Pinellas County.
    John W. McWhirter, Jr., Tampa, for International Minerals & Chemical Corp.
    Wilfred C. Varn and C. Everett Boyd of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Swift Agricultural Chemicals Corp. and Gardinier, Inc.
    J. Brent Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for Stauffer Chemical Co.
    John Radey of Holland & Knight, Tallahassee, for Occidental Chemical Co.
   OVERTON, Justice.

This cause is before us on a petition for writ of certiorari to review an order of the Florida Public Service Commission, which in effect requires those power customers living within a municipality to absorb the entire cost of franchise fees paid by Florida Power Corporation to the municipality. We have jurisdiction pursuant to Article V, Section 3(b)(7), Florida Constitution.

The petitioners before us are cities who are parties to franchise agreements with Florida Power. These agreements provide the power company with easements and rights-of-way in return for franchise fees. The cities contend that Florida Power should be granted permission to use the “spread method” which would permit the power company to treat these fees as operating expenditures and pass them on to all customers, including those living in unincorporated nonfranchise areas. The cities assert that because the power company supplies electricity through a single integrated system, all customers benefit from the franchise agreements which avoid the more costly alternatives of lease agreements or condemnation proceedings. The opposing view is that the franchise agreements bear no relationship to the benefits provided to customers living in unincorporated nonfran-chise areas. The Commission recognized the merits in both positions and determined' from the evidence that the direct method rather than the spread method was the more equitable and reasonable method of cost distribution.

We hold that the findings of the Commission are supported by competent substantial evidence and comply with our directives in City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976), and Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla.1976).

Accordingly, the petition for certiorari is denied.

It is so ordered.

ENGLAND, C. J„ and SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    HARTMAN TRANSPORTATION, INC., d/b/a Central Florida Bus Lines, Petitioner, v. Paula F. HAWKINS, William T. Mayo, and Robert T. Mann, Respondents.
    No. 53613.
    Supreme Court of Florida.
    Dec. 21, 1978.

      David B. Erwin of Woods, Johnston & Erwin, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, and M. Robert Christ and Paul Sexton, Staff Counsels, Tallahassee, for respondents.
   PER CURIAM.

By petition for writ of certiorari, we have for review an Order of the Public Service Commission which holds that petitioner, Hartman Transportation, Inc., is not authorized to originate charter bus service at McCoy Jetport in Orlando. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We agree with the Public Service Commission’s holding and deny the petition.

Petitioner relies on this Court’s earlier decision in Hartman Transportation, Inc. v. Bevis, 293 So.2d 37 (Fla.1974), as authority for the position that it is authorized to originate charter service at McCoy Jetport. In Hartman Transportation, Inc., supra, we held that this same petitioner had authority, as a matter of right, to conduct charter operations over the “closed door” portion of its regular certificate routes between Melbourne and Kennedy Space Center. Hartman Transportation, Inc., supra, is distinguishable because in the present case McCoy Jetport is not a point on petitioner’s regular certificate route between Pine Hill Shopping Center at Orlando and Gate 3 of the Kennedy Space Center, and thus, petitioner is not authorized, pursuant to Section 323.14(1), Florida Statutes (1969), to originate charter bus service at McCoy Jetport.

Accordingly, the petition is denied.

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


text:
    THE FLORIDA BAR, Petitioner, v. Henry G. MORALES, Respondent.
    No. 53724.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Michael J. Satz, State’s Atty., and Ralph J. Ray, Jr., Chief Asst. State’s Atty., Fort Lauderdale, for petitioner.
    Nicholas R. Friedman, Asst. Staff Counsel, Miami, for The Florida Bar, amicus curiae.

      Henry G. Morales, in pro. per.
   PER CURIAM.

The court here reviews a Circuit Judge’s report in disciplinary proceedings brought against Henry Morales, also known as Hen-rifer Morales-Macedo. The State’s Attorney for the Seventeenth Judicial Circuit of Florida, participating under our disciplinary rules, and The Florida Bar, acting as amicus curiae, urge approval of the circuit judge’s findings of fact, determinations of guilt, and imposition of punishment. ' Morales contends that the proof against him is not clear and convincing as required by law, and he contends that he has been denied due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and the Constitution of the State of Florida.

The facts, the circumstances, and the considerations supporting the punishment are amply stated in the trial judge’s order, which provides:

2. That respondent, a member of The Florida Bar, was retained by one Harry Lee Martin on or before March 14, 1977 to defend Martin on a charge of Robbery in Case No. 77-1911 CFA, of the Seventeenth Judicial Circuit.
3. That he conferred with Martin and his wife and mother on at least four occasions prior to trial.
4. That he negligently and incompetently failed to inform himself of the status of the accusatory pleadings in Case No. 77-1911 and its partial predecessor Case No. 77-599.
5. That he negligently and incompetently failed to make full use of all discovery procedures for the benefit of his client.
6. That he negligently and incompetently failed to attempt suppression of the alleged weapon involved and of the Pre-Trial identification by the alleged victim.
7. That he negligently and incompetently failed to interview or subpoena two witnesses advanced by his client as favorable witnesses.
8. That, according to his own testimony (although denied by his client), allowed his client to testify so as to commit perjury.
9. That after conviction and sentence, he negligently and incompetently failed to perfect an appeal for his client although his client requested him to do so.
10. That he negligently and incompetently failed, prior to the date of trial, to file a written Motion for Continuance because of his total lack of preparation of a life-sentence felony.
The sum total of the above items, plus others not enumerated above but contained in the record, have led the presiding judge of the Martin trial, Honorable M. Daniel Futch, Jr., and two qualified criminal defense attorneys, Joseph Varón and Ray Sandstrom, to label respondent’s handling of this case as negligent and incompetent. This Court finds that such representation as afforded Mr. Martin by respondent was in fact so negligent and incompetent so as to constitute ineffective assistance of counsel, which in turn resulted in the necessity of granting a new trial by Judge Futch.
Respondent is therefore guilty and this Court adjudges him guilty of serious and gross violations of Disciplinary Rules 6-101(A)(2) and 6-101(A)(3) and 7-102(A)(7), of the Code of Professional Responsibility.
Another most serious charge revolves around the attempted extraction of a “fee” of $10,000 by respondent from Mr. Martin and his family. The Court finds, by clear and convincing evidence that:
11. Respondent attempted to extract such fee from Martin, holding out the promise that defendant would be sentenced to probation instead of State Prison time. (He was subsequently sentenced to 20 years in the State Prison after conviction.)
12. Such fee would be used by respondent to reach Judge Futch and/or someone close to Judge Futch (presumably the prosecutor in the case) to influence those persons in any sentencing.
13. Part of such fee would also be used to see that certain witnesses, including co-defendant Poochie, would not testify at time of trial.
14. Such attempted extraction persisted after trial and conviction, holding out the false hope of a lenient sentence.
This sordid pattern of conduct on the part of the respondent was and is contrary to honesty, justice or good morals and constitutes a good and proper cause to discipline respondent in accordance with the mandate of Rule 11.02(3)(a) of the Integration Rule of The Florida Bar. The Court further finds such conduct to be in direct violation of Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), and 9-101(C) of the Code of Professional Responsibility.
Finally, this judgment would not be complete without the observation that the respondent testified in his own behalf concerning the charges in this matter and that such testimony was shifty, shoddy, evasive, and, for the most part, unworthy of belief. Such testimony certainly does not comport with high standards expected from an officer of this court or demanded by the sanctity of the oath of a witness generally. It is sad to note that three distinguished attorneys of this circuit have testified that respondent’s general reputation for truth and veracity is “not good” or “poor.”
For all of the above reasons, and in accordance with Article XI, Rule 11.14 of the Integration Rule of The Florida Bar, it is
ORDERED and ADJUDGED that the respondent, Henry G. Morales, be, and he is by this judgment, disbarred from the further practice of law in the State of Florida.

Our review of the record indicates that there is competent, clear and convincing evidence for the findings of fact made by the trial judge. Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). The findings are not clearly erroneous or lacking in evidentiary support. State ex rel. Florida Bar v. Bass, 106 So.2d 77 (Fla.1958). We find, respondent’s allegations of constitutional deprivations during the disciplinary proceedings to be without merit. The respondent is guilty of violating Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 6-101(A)(2), 6-101(A)(3), 7-102(A)(7), and 9-101(C) of the Code of Professional Responsibility. The punishment is appropriate.

Accordingly, The Florida Bar is ordered to strike Henry G. Morales, also known as Henrifer Morales-Macedo, from the list of attorneys permitted to practice law in Florida. Morales is ordered to pay the costs of these proceedings. This order shall be effective immediately upon its filing.

It is so ordered.

OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. George J. BLAHA, Respondent.
    No. 53999.
    Supreme Court of Florida.
    Dec. 21, 1978.

      George A. Stelogeannis, Bar. Counsel, Ocala, David G. McGunegle and John A. Boggs, Asst. Staff Counsels, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding against George J. Blaha, a member of The Florida Bar, is before us on complaint of The Florida Bar and Report of Referee. The referee’s report and record were duly filed with this Court pursuant to Florida Bar Integration Rule, Article XI, Rule 11.06(9)(b). No petition for review has been filed. On September 7, 1978, this Court entered an order directing the parties to submit briefs on the suitability of the referee’s recommended disciplinary action. Respondent Blaha has failed to comply with this order.

The findings of fact and the recommendations of the referee are as follows:

II. Finding of Fact as to Each Item of Misconduct of which the Respondent is charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:

As to COUNT I

5B-75-8

By clear and convincing evidence Respondent George J. Blaha:

1. Was at all times relevant thereto a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. The Florida Bar had standing to file the Complaint and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, were fulfilled.

3. On a date prior to August 28, 1974, Respondent was retained by Angeline Do-bak to assist her in establishing a guardianship for her husband, George Dobak, whom she believed to be incompetent.

4. On August 28, 1974, Respondent represented by letter to Angeline Dobak that the guardianship for her husband had been established and approved by the court when, in fact, nothing had ever been filed or approved.

5. On or about October 11, 1974, a contract for sale of property jointly owned by Angeline and George Dobak was executed by Angeline Dobak in her own behalf and as legal guardian for George Dobak.

6. On October 15, 1974, Respondent wrote to Angeline Dobak requesting information about George Dobak which would have been necessary for establishment of his guardianship which Respondent had represented had been completed prior to August 28, 1974.

7. On October 16, 1974, pursuant to the above stated contract of sale, Angeline Do-bak wrote the real estate broker in the transaction, informing broker that Respondent would represent the Dobaks in the transaction and that Angeline Dobak was George Dobak’s legal guardian in Florida and that Respondent could confirm the guardianship.

8. On October 20, 1974, Angeline Dobak responded to Respondent’s letter to her of October 15, 1974, with the requested information, and asked that Respondent forward to her a copy of the court order establishing the guardianship for George Dobak.

9. An escrow closing was held on October 30,1974, wherein the purchase proceeds were placed in Respondent’s escrow account.

10. On October 30, 1974, Respondent sent to Angeline Dobak a guardian’s deed for the sale which she was to execute for herself and in behalf of George Dobak as his legal guardian when, in fact, the guardianship for George Dobak has never been established.

11. On or about November 5, 1974, Respondent transmitted his check in the amount of $1,250.00 to Mrs. Elizabeth Tucker, Strout’s Realty, U.S. Highway 41 South, Brooksville, Florida, as a real estate commission despite the fact that the transaction had not been finalized.

12. After considerable delay, Respondent discovered he could not establish the guardianship for George Dobak which he had previously represented to Angeline Do-bak that he had in fact established.

13. After complaints from Angeline Do-bak and further delays, Respondent on or about February 9, 1975, did send to Angeline Dobak another deed — this time a warranty deed — with instructions that both she and George Dobak execute the deed in their own behalf, despite the fact that George Dobak’s competency to handle his own affairs was in serious doubt and that Respondent was aware of same.

14. This warranty deed was executed by both Angeline and George Dobak on or about February 10, 1975, and returned to Respondent, yet said warranty deed was not recorded until March 7, 1975.

15. No proceeds from the transaction were transmitted by the Respondent to the Dobaks until March 31, 1975, — some five months after the escrow closing and receipt by Respondent of the sale proceeds.

16. On or about March 31,1975, Respondent transmitted to Angeline Dobak a check in the amount of the sale proceeds ($19,662.25) due the Dobaks, payable solely to Angeline Dobak, despite the fact that George Dobak had been a joint owner of the sale property and Respondent well knew that no guardianship had been established for him.

17. By reason of the foregoing findings, I find that Respondent George J. Blaha has violated Disciplinary Rules 1-102(A)(4); 1-102(A)(6), 6-101(A)(l), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3) and 9-102(B)(4) of the' Code of Professional Responsibility and Rules 11.02(3)(a) and 11.-02(4) of Article XI of The Florida Bar’s Integration Rule. (Referee finds there was a typographical error in paragraph 19 of the Complaint in alleging that Disciplinary Rule 9-101(B)(4) had been violated when in fact no such Rule number exists and that said typographical error was cured by the service of the Request for Admissions on Respondent with the correct Rule number 9-102(B)(4), no response to said Request for Admissions having been timely filed by Respondent.)

As to COUNT II

5B-76-3

By clear and convincing evidence Respondent George J. Blaha:

1. Was at all times relevant thereto a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. The Florida Bar had standing to file this Complaint and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, were duly fulfilled.

3. On or about April 24, 1974, Respondent was retained by one Gloria Palmer to assist her in securing the return to her of certain personal property from her ex-husband as ordered by the final judgment in her dissolution of marriage.

4. At the time he was retained by Gloria Palmer, Respondent accepted from her a payment of $100.00.

5. On October 10, 1975, Respondent represented to Gloria Palmer that a suit had been filed against her husband in her behalf on April 1, 1974, when, in fact, it was not filed until October 7, 1974.

6. Instead of following the correct procedure of petitioning the circuit court for relief or filing a motion for an order of contempt with the circuit court pursuant to the final judgment of dissolution of marriage, Respondent filed a complaint against Gloria Palmer’s ex-husband Walter England in county court, which complaint as prepared by Respondent failed to. state a cause of action recognized by law and evidenced lack of knowledge and failure by Respondent to educate himself in the matter. This complaint was dismissed by the County Court of Hernando County on the basis that it sought inappropriate relief.

7. Respondent failed to take further action to obtain relief for Gloria Palmer in the matter.

8. By reason of the foregoing paragraphs 1 through 7, I find Respondent has violated Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 6-101(A)(l), 6-101(A)(2), 6-101(A)(3) and 7-101(A)(2) of The Florida Bar Code of Professional Responsibility and Rule 11.02(3)(a) of Article XI of The Florida Bar’s Integration Rule.

As to COUNT III

5B-76-6

By clear and convincing evidence Respondent George J. Blaha:

1. Was at all times relevant thereto a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. The Florida Bar had standing to file this Complaint and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, were fulfilled.

3. During September, 1974, Respondent was hired by Gateway Furniture, Inc. (hereinafter referred to as “Gateway”), to represent it in a matter concerning apparent delinquent payments on furniture purchased on an open account from Gateway by Don Koenig and Renette Koenig, his wife.

4. Shortly before September 17, 1974, Respondent filed an action for replevin of the above mentioned furniture' in the Circuit Court of Citrus County, Florida, against the Koenigs on behalf of Gateway.

5. On or before the date Respondent filed the replevin action against the Koe-nigs, Respondent knew that the furniture involved had been sold on open account and that Gateway had perfected no security interest in the furniture which would support a replevin action.

6. Prior to filing the above stated re-plevin action against the Koenigs, Respondent knew that Florida Statute Chapter 78 relating to replevin procedures had been altered significantly, and on that date, pursuant to Florida Statute Section 78.045 and 78.067, required a hearing and an order of a circuit court judge before a writ of replevin could be obtained from the clerk of court. Nevertheless, on or after September 17, 1974, Respondent obtained from the Clerk of Circuit Court of Citrus County, without prior hearing and judicial approval, a writ of replevin and shortly thereafter caused Gateway to remove the furniture from the Koenigs’ home against the Koenigs’ will.

7. On September 18, 1974, the above stated writ of replevin was quashed by order of Judge John W. Booth of the Circuit Court of Citrus County, as being in contravention of the new Florida replevin statutes, and Respondent was ordered by Judge Booth to file appropriate pleadings to obtain a writ of replevin. Respondent informed Thomas Eagan, the president of Gateway, of Judge Booth’s order of September 18, 1974, but advised Eagan that Gateway need not return the furniture to the Koenigs and that Respondent would initiate curative proceedings.

8. On October 9, 1974, Respondent filed a motion for default in the original replevin action against the Koenigs with the Circuit Court of Citrus County, and the clerk of court entered default on the same date.

9. On or shortly after October 9, 1974, Respondent obtained from Judge Ernest C. Aulls, Jr., of the Circuit Court of Citrus County, a final judgment in favor of Gateway in the replevin action against the Koe-nigs, without informing Judge Aulls of Judge Booth’s order of September 18,1974.

10. On March 11, 1975, Judge Aulls granted the Koenigs’ motion to vacate the final judgment he had previously entered in the replevin action brought by Gateway, upon learning of Judge Booth’s order of September 18, 1974.

11. Also, on March 11,1975, Judge Aulls ordered Gateway to refrain from selling or otherwise disposing of the furniture taken by Gateway from the Koenigs’ home.

12. Respondent did not inform Gateway of the orders issued by Judge Aulls on March 11, 1975, and between March 11, 1975, and May 2, 1975, Gateway sold all of the furniture taken by it from the Koenigs’ home.

13. On May 2,1975, Judge Aulls ordered Gateway to return to the Koenigs, within 10 days of his order, all of the furniture Gateway had removed from the Koenigs’ home.

14. Respondent did not inform Gateway of the order issued by Judge Aulls on May 2, 1975.

15. On May 7,1975, Judge Aulls amended his previous order of May 2, 1975, but again ordered Gateway to return to the Koenigs, within 10 days of his amended order, all of the furniture taken by Gateway from the Koenigs’ home.

16. Respondent did not inform Gateway of the amended order issued by Judge Aulls on May 7, 1975.

17. On June 17,1975, Judge Aulls issued an order adjudging Gateway to be in contempt of court for failure to comply with his amended order of May 7,1975, and gave Gateway 30 days in which to purge the contempt by replacing the furniture removed by Gateway from the Koenigs’ home.

18. Gateway was not informed by Respondent of Judge Aulls’ order of June 17, 1975, until well after the 30-day purging period provided for in the order, when Thomas Eagan, vice-president of Gateway, inadvertently discovered the June 17, 1975, order in Respondent’s file while visiting Respondent’s office.

19. On August 29, 1975, a hearing was held before Judge Aulls wherein Gateway was penalized $3,000.00 for contempt of court for failure to comply with Judge Aulls’ previous orders.

20. By reason of the foregoing paragraphs 1 through 19, Respondent violated Rules 11.02(3)(a) and 11.02(4) of Article XI of the Integration Rule of The Florida Bar, and Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3) of The Florida Bar Code of Professional Responsibility.

III. Recommendation as to whether or not the Respondent should be found guilty: As to each count of the complaint I make the following recommendations as to guilt or innocence:

As to COUNT I

I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit:

Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 6-101(A)(l), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3) and 9-102(B)(4) of the Code of Professional Responsibility and Rules 11.02(3)(a) and 11.-02(4) of Article XI of The Florida Bar’s Integration Rule. (Referee finds there was a typographical error in paragraph 19 of the Complaint in alleging that Disciplinary Rule 9-101(B)(4) had been violated when in fact no such Rule number exists and that said typographical error was cured by the service of the Request for Admissions on Respondent with the correct Rule number 9-102(B)(4), no response to said Request for Admissions having been timely filed by Respondent.)

As to COUNT II

I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit:

Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 6-101(A)(l), 6-101(A)(2), 6-101(A)(3) and 7-101(A)(2) of The Florida Bar Code of Professional Responsibility and Rule 11.02(3)(a) of Article XI of The Florida Bar’s Integration Rule.

As to COUNT III

I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit:

Rules 11.02(3)(a) and 11.02(4) of Article XI of the Integration Rule of The Florida Bar, and Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3) of The Florida Bar Code of Professional Responsibility.

IV. Recommendation as to disciplinary measures to be applied: I recommend that the Respondent be disbarred from the practice of law in Florida for the reasons as alleged in the Complaint, the seriousness of the charges, and additionally that Respondent after due notice did not appear or file any response to this Complaint, thus providing further evidence of his lack of interest or competency in the practice of law.

Having carefully reviewed the record, we find the allegations of the complaint and each count thereof to be proved by clear and convincing evidence and, therefore, we approve the findings and recommendations of the referee. See The Florida Bar v. Timson, 257 So.2d 44 (Fla.1971); The Florida Bar v. Taylor, 201 So.2d 449 (Fla.1967).

Accordingly, respondent, George J. Blaha, is disbarred from the practice of law in Florida. The disbarment shall be effective January 22,1979, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a motion for rehearing shall not alter the effective date of the disbarment.

Costs in the amount of $1,510.92 are hereby assessed against the respondent.

It is so ordered.

ADKINS, Acting C. J„ and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. James C. SHEPHERD, Respondent.
    No. 55276.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On October 11, 1978, The Florida Bar filed its Petition alleging:

“1. On October 20, 1976, the Eleventh Circuit Grievance Committee “I” filed its report with The Florida Bar finding probable cause in case number 11174012. In that report the committee found that respondent violated Integration Rule 11.-02(3)(b) in that he wilfully failed to file personal income tax returns for the years 1968, 1969 and 1970 and as an employer he failed to file employer’s tax returns in the year 1970. The committee took notice that respondent had been convicted of a criminal misdemeanor for failure to file income tax returns for the aforementioned years and for failure to file employer’s tax returns for the year 1970.
“2. On March 16, 1977, respondent JAMES C. SHEPHERD, submitted to The Florida Bar his Conditional Guilty Plea. In his plea, respondent agrees to a public reprimand by the Court to be published in the Southern Reporter.
“3. By this plea, Mr. Shepherd admitted that he failed to file his income tax returns for the years 1968, 1969 and 1970 and that he failed to file employer’s tax returns for 1970, which failure constitutes a federal misdemeanor.
“4. On March 17, 1978, the Board of Governors of The Florida Bar approved the Conditional Guilty Plea.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, James C. Shepherd, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $100.00 are hereby taxed against the Respondent.

It is so ordered.

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Milton E. GRUSMARK, Respondent.
    No. 55625.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for petitioner.
    No appearance, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On November 30, 1978, The Florida Bar filed its Petition alleging:

“1. On April 5, 1978, the Eleventh Judicial Circuit Grievance Committee “K” filed its report with The Florida Bar finding probable cause in case number 11K78M78. In that report, the committee took notice that respondent had been convicted of willfully and knowingly failing to file an income tax return for the year 1971.
“2. On April 7, 1978, MILTON E. GRUSMARK executed a conditional guilty plea in which he admitted that he failed to file an income tax return for 1971. The conditional plea is attached as Exhibit “A”.
“3. On November 16, 1978, the Board of Governors of The Florida Bar approved the conditional guilty plea for consent judgment.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent Milton E. Grusmark, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $50.00 are hereby taxed against the Respondent.

It is so ordered.

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Sanford FREED, Respondent.
    No. 55277.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On October 11, 1978, The Florida Bar filed its Petition alleging:

“1. On November 9, 1977, the Eleventh Circuit Grievance Committee ‘K’ filed its report with The Florida Bar finding probable cause in case number 11K75-9. In that report the committee found that respondent engaged in conduct which adversely reflected on his fitness to practice law in that he wilfully failed to file an income tax return for the year 1970. The committee took notice that respondent had been convicted of a criminal misdemeanor for failure to file an income tax return for the aforementioned year.
“2. On November 9, 1977, respondent, SANFORD FREED, submitted to The Florida Bar his Conditional Guilty Plea. In his plea, respondent agrees to a public reprimand by the court to be published in the Southern Reporter.
“3. By his plea, Mr. Freed admitted that he failed to file his income tax return for the year 1970, a federal misdemeanor.
“4. On March 17, 1978, the Board of Governors of The Florida Bar approved the Conditional Guilty Plea.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Sanford Freed, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $100.00 are hereby taxed against the Respondent.

It is so ordered.

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


text:
    Theodore R. BUNDY, Petitioner, v. John A. RUDD, as Circuit Judge of the Second Judicial Circuit in and for Leon County, Florida, Respondent.
    No. 55611.
    Supreme Court of Florida.
    Dec. 22, 1978.

      Michael J. Minerva, Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This case is before the Court on a petition for a writ of prohibition to prevent the respondent from continuing to exercise jurisdiction as trial judge in certain criminal proceedings presently pending against the petitioner in the Leon County Circuit Court. Because the case is one in which a sentence of death might ultimately be’imposed, we have jurisdiction. Art. V, § 3(b)(4), Fla.Const.; see Reino v. State, 352 So.2d 853 (Fla.1977).

By indictment filed on July 27,1978, petitioner was charged with two counts of murder in the first degree, three counts of attempted murder in the first degree, and two counts of burglary of a dwelling. After entering a plea of not guilty, petitioner filed a written motion to disqualify the trial judge, setting forth various incidents which had transpired during the course of the proceedings, and alleging that respondent had exhibited such prejudice as to place petitioner in fear that he would not receive a fair trial. The motion was accompanied by the supporting affidavits of petitioner, of the public defender appointed to represent him, and of four members of the public defender’s staff who had participated in the preparation of petitioner’s defense.

On November 20, respondent entered an order denying the motion for disqualification on the ground that the motion was legally insufficient. The order went on to explain, and in some respects controvert, the specific factual allegations contained in the motion. On the same day, petitioner filed a motion for reconsideration, to which he attached another affidavit of the public defender essentially denying that respondent’s explanatory account of certain events was truthful. When that motion was similarly denied, again with explanation, petitioner instituted the present action in an effort to prevent his impending trial from commencing as scheduled on December 4.

Upon initial consideration, we determined that the petition on its face demonstrated a preliminary basis for relief and entered an order directing respondent to show cause why the motion and supporting affidavits were not legally sufficient. Having now considered all the relevant documents filed in this proceeding, we conclude that petitioner is entitled to the relief requested.

Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.” Fla.R.Crim.P. 3.230(d); see, e. g., Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Suarez v. State, 95 Fla. 42, 115 So. 519 (1928); Theo. Hirsch Co. v. McDonald Furniture Co., 94 Fla. 185, 114 So. 517 (1927). When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case — the creation of “an intolerable adversary atmosphere” between the trial judge and the litigant. See Department of Revenue v. Golder, 322 So.2d 1, 7 (Fla.1975) (On Reconsideration).

Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy. Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1928). Accordingly, the writ of prohibition must issue directing respondent to disqualify himself in all proceedings presently pending against the petitioner. We assume, however, that the formal issuance of the writ will be unnecessary.

The chief judge of the Second Judicial Gircuit shall assign another judge within the circuit to preside over proceedings pending against petitioner, unless he shall deem it appropriate to request the chief justice of the Supreme Court to assign a qualified judge from without the circuit, pursuant to the provisions of Article V, Section 2(b) of the Florida Constitution.

. It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    Robert G. MARINEAU and Theresa Marinean, his wife, Appellants, v. CATERPILLAR TRACTOR COMPANY, INC., a California Corporation, and Kelly Tractor Company, a Florida Corporation, Appellees.
    No. 53232.
    Supreme Court of Florida.
    Jan. 4, 1979.
    Law Offices of Joe N. Unger and Edward A. Sirkin, Miami, for appellants.
    Thomas F. Valerius of Marlow, Shofi, Ortmayer, Smith & Spangler, Miami, for appellee, Kelly Tractor Co.
    Aubrey V. Kendall and Timothy J. Norris of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellee, Caterpillar Tractor Co., Inc.
   PER CURIAM.

Affirmed. Bauld v. J. A. Jones Construction Company, 357 So.2d 401 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Dorothy APPELBAUM, Appellee.
    No. 53828.
    Supreme Court of Florida.
    Jan. 4, 1979.
    Robert L. Shevin, Atty. Gen., and Randy Schwartz, Asst. Atty. Gen., Tallahassee, Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., Miami, for appellant.
    Leonard Robbins, North Miami Beach, for appellee.
   OVERTON, Justice.

This case is before us on direct appeal from the County Court, Dade County, which held that Section 849.093, Florida Statutes (1977), was unconstitutionally vague and overbroad. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

The statute invalidated below regulates the conduct of bingo and guest games. We have recently considered its constitutionality and held that it does not violate the due process and equal protection clauses of the Florida and United States Constitutions. Carroll v. State, 361 So.2d 144 (Fla.1978).

Although not all of the arguments raised by the appellant were discussed in Carroll, supra, we find the additional arguments to be without merit and specifically find the statute is neither vague nor overbroad.

Accordingly, the decision of the court below is reversed and the cause remanded for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents.


text:
    Andrew Thomas DUZINSKI et al., Petitioners, v. AMERICAN BASEBALL CAP, INC., Respondent.
    No. 54468.
    Supreme Court of Florida.
    Jan. 18, 1979.
    W. A. Swann, Jr., Pensacola, for petitioners.
    Alan Thompson of Sale, Bryant, Daniel, Thompson & Kur-vin, Panama City, for respondent.
   PER CURIAM.

This case is before the Court by virtue of certification by the District Court of Appeal, First District, that its decision below passed upon a question of great public interest. Art. V, § 3(b)(3), Fla.Const. In view of the enactment by the legislature of Chapter 73-179, Laws of Florida, codified at section 48.193, Florida Statutes (1977), which now controls the issue presented, we deem that issue to be of insufficient public interest to exercise jurisdiction in this cause. For the same reason, we are persuaded that our jurisdiction based upon asserted conflict of decisions should not be invoked.

Accordingly, the writ of certiorari heretofore issued in this cause is discharged.

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

      . American Baseball Cap, Inc. v. Duzinski, 359 So.2d 483 (Fla. 1st DCA 1978).

      . Oral argument on the question of jurisdiction and the merits has been held.