author: PEARSON, Judge. HUBBART, Judge

text:
    DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. The Honorable H. Paul BAKER, Circuit Judge in and for the Eleventh Judicial Circuit of Florida, and the Honorable Bennett H. Brummer, Public Defender of the Eleventh Judicial Circuit of Florida, Respondents. The STATE of Florida, Plaintiff, v. Hernando AHUMADA, Defendant.
    No. 78-765.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Stuart L. Simon, County Atty., for petitioner.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Bennett H. Brummer, Public Defender, for respondents.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

Dade County, as petitioner, seeks certio-rari review of an order of the circuit court (1) granting a motion of the Public Defender for leave to withdraw as the legal representative of a named indigent defendant (Hernando Ahumada) in all appellate proceedings and (2) appointing a special assistant public defender to represent the defendant. We issued an order to show cause pursuant to Fla.R.App.P. 9.100(f); response was filed and argument heard. We hold that the granting of the motion upon the facts presented to the court by the Public Defender was a departure from the essential requirements of law and quash the order.

In order to clarify the issue presented so that the appeal of Hernando Ahumada may not be thwarted, the County has agreed to pay the costs and the fees of the special assistant public defender for the Ahumada appeal, pending disposition of this cause. This stipulation by the County is approved by this court and is accepted as in the interests of justice. The stipulation shall be without prejudice to the position of the County on its petition.

It is important to recognize that the trial judge has statutory authority to appoint a special assistant public defender. Section 27.53(2), Florida Statutes (1977), provides:

“In addition, any member of the bar in good standing may be appointed by the court to, or may register his or her availability to the public defender of each judicial circuit for acceptance of, special assignments without salary to represent insolvent defendants. Such persons shall be listed and referred to as special assistant public defenders and be paid a fee and costs and expenses. Such fee and costs and expenses shall be fixed by the trial judge and shall be paid in the same manner as counsel fees are paid in capital cases or as otherwise provided by law. In addition, defense counsel may be assigned and paid pursuant to any existing or future local act or general act of local application.”

Although not raised by the respondents in their response, the first question that occurs is whether the County has standing to bring this petition. We hold that such standing does exist because it is clear that the County will be required to pay the fees of the special assistant public defender. The Constitution of the State of' Florida and the statutes enacted pursuant thereto provide for a state-controlled and a state-financed judicial system. See Article V, Section 1, Florida Constitution; and Section 27.54, Florida Statutes (1977). Especially noted is Section 27.54(2), Florida Statutes (1977), which provides:

“No county or municipality shall appropriate or contribute funds to the operation of the offices of the various public defenders.”

The County has appropriated money to pay for special assistant public defenders when appointed pursuant to Section 27.53(3), Florida Statutes (1977), which provides:

“If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff, it shall be his duty to move the court to appoint one or more members of The Florida Bar who are in no way affiliated with the public defender in his capacity as such, or in his private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict, and said attorney may, in the discretion of the court, be paid a fee and costs and expenses as is provided in subsection (2).”

If the substantial costs of furnishing special assistant public defenders in other cases is to be transferred to the County, then the County has standing to bring a petition for writ of certiorari to review the order effecting the transfer. Cf. Dade County v. Strauss, 246 So.2d 137 (Fla.3d DCA 1971); and Dade County v. Carr, 231 So.2d 844 (Fla.3d DCA 1970).

The gist of the present petition is that although the circuit court judges have authority to appoint special assistant public defenders in those cases where exceptional circumstances are involved, see Dade Coun ty v. Strauss, supra; and Gant v. State, 216 So.2d 44 (Fla.1st DCA 1968), they do not have authority to appoint special assistant public defenders upon the motion of a public defender that he is overworked and, therefore, not able to do his job. The ground of the Public Defender’s motion which was granted by the order under review is set out in the following paragraphs of the motion:

“3. The caseloads assigned to the assistant public defenders of the Appellate Division of the Office of the Public Defender far exceed the maximum caseloads promulgated by the National Advisory Commission on Criminal Justice Standards and Goals, and the Guidelines of the Florida Governor’s Commission. * *
“4. The ' excessive caseloads have caused substantial delays in the filing of briefs on behalf of defendants in the District Court of Appeal, Third District. * * As a result of the delays, numerous appeals have been dismissed by the District Court for failure of the Office of the Public Defender to timely file briefs. These delays are harmful to the integrity of the judicial system and threaten the confidence of the public in the judicial system.
“5. Unless permitted to withdraw, the Office of the Public Defender will be in jeopardy of impeding the defendant’s right to speedy access to the courts as guaranteed by Article I Section 21 of the Constitution of the State of Florida which provides: ‘The courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay.’ The defendant cannot be constitutionally forced to compromise his constitutional right to undelayed review of his conviction in order to protect his right to effective counsel on appeal.
“6. Due to the excessive caseloads of the appellate assistant public defenders, effective representation to the defendant as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I Section 16 of the Constitution of the State of Florida is not possible. The prejudice suffered by the defendant may render the appellate review subject to attack alleging ineffective representation on appeal.”

The County’s position is that the Public Defender’s motion did not set forth a permitted ground for his withdrawal. It is asserted by the County in its petition, and not denied by the Public Defender’s response, that the Public Defender has filed a substantial number of similar motions upon the same asserted ground and intends to file other motions upon the same ground as a part of a plan to reduce his office’s caseload. It is pointed out that the Public Defender is an elected public official charged with the statutory duty to represent, without additional compensation, any person who is determined to be insolvent and who is under arrest for, or is charged with, a felony. See Section 27.-51(1), Florida Statutes (1977).

The Public Defender responds that:

* * * * * *
“The motion to withdraw alleged that the excessive caseloads of the assistant public defenders of the Appellate Division of the Office of the Public Defender precluded effective representation of the defendant, Hernando Ahumada, on appeal.”

Thereupon, it is argued that because the excessive caseload would leave an individual defendant without effective representation, the circuit court had a duty to appoint a special assistant public defender. Respondents rely upon two orders of the Supreme Court of Florida in Palmes v. State, case no. 52,045 (Fla.1978), and the opinion of the District Court of Appeal, First District, in State ex rel. Escambia County v. Behr, 354 So.2d 974 (Fla.1st DCA 1978).

The respondents have furnished us with a conformed copy of a motion and two orders of the Supreme Court of Florida filed in Palmes v. State, supra. These orders have not been published. We doubt that the Supreme Court intended them as a determination of the issue involved in the present petition and response. We have examined the exhibits and find that they are not determinative in this proceeding.

The cited opinion in State ex rel. Escambia County v. Behr, supra, is on point. The case holds that where the record before the court reveals that the caseload of the Public Defender’s office far exceeds the workloads recommended, it is proper for the trial court to allow the Public Defender to withdraw. However, in our present case, we decline to follow the holding of our sister court in its broad application of the law.

An additional factor in the present case is the assertion by the County that the Public Defender for the Eleventh Judicial Circuit has announced a policy by which he will request the trial courts to relieve his office of responsibility in all non-capital felony appeals in the Eleventh Judicial Circuit. In response, the Public Defender says that he

“. . . does not seek to ‘Dump his Entire Non-Capital Appellate Caseload.’ * * * Rather, withdrawal has been sought only from non-capital felony appeals. The public defender is not seeking to withdraw from appeals from juvenile court or county court, capital appeals, Monroe County appeals or any of his pending appeals. Withdrawal from these appeals has been sought as a temporary stopgap measure to avoid further delays and dismissals of appeals which must presently be prosecuted. In permitting withdrawal, the trial court has exercised its statutory discretion to afford the Office of the Public Defender an opportunity to cope with its already excessive pending caseload.”

We hold that the motion of the Public Defender to be relieved of a part of his duties as an elected public official does not state a lawful ground for the appointment of a special assistant public defender and that the trial court departed from the essential requirements of law when it acceded to the Public Defender’s plan. We are influenced in this decision by the fact that there are many offices of the judicial branch which consider themselves overworked. The proper remedy for such a situation is a revision of the established judicial duties rather than a judicially-approved stopgap measure which, in the individual case, may or may not be justified according to the views of the judicial official affected. Cf. the principles of law in Dillman v. Dillman, 105 So.2d 33, 35 (Fla.2d DCA 1958); and also cf. American Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777 (Fla.lst DCA 1968); and United States Casualty Co. v. Town of Palm Beach, 119 So.2d 800 (Fla.2d DCA 1960).

The County has advanced several other reasons for granting certiorari relief. We note the reasons advanced and hold that they do not state grounds for the issuance of a writ of certiorari.

Accordingly, the order appealed is quashed and a stay of the effect of our decision is granted in order that the issue which we find to be one of great public importance may be decided by the Supreme Court of Florida.

It is so ordered.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would deny the petition for writ of certiorari on the ground that the trial court did not depart from essential requirements of law in entering the order from which this petition is taken.

Briefly stated, the issue presented for review by the petition and response filed herein is whether a showing of a “lawful ground” or “special circumstances” is necessary under Sections 27.53(2), 925.035, Florida Statutes (1977), before a trial court may (1) appoint a member of the Florida Bar in good standing as a special assistant public defender to represent an insolvent defendant on appeal in a felony case, and (2) thereafter fix a reasonable attorney’s fee, costs and expenses for the special assistant public defender to be paid by the county. In my judgment, the above statutes contain no provisions which require the showing of a “lawful ground” or “special circumstances” before a trial court may so appoint such a special assistant public defender and award him such reasonable attorney’s fees, costs and expenses. Consequently, I find it unnecessary to determine, as the court herein does, that an excessive workload on the part of the public defender does not state a lawful ground for the appointment of the special assistant public defender. The trial court in no sense departed from essential requirements of law in appointing the special assistant public defender herein.

A

The controlling statute upon which the decision in this case rests is Section 27.53(2), Florida Statutes (1977). The trial court made its appointment of the special assistant public defender pursuant to such statute and its authority to do so is governed entirely thereby. This statute was part of the original Public Defender Act passed after considerable debate by the Florida Legislature in 1963 following the United States Supreme Court decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and has been in effect without substantial amendment for over fifteen years. Compare § 27.53(2), Fla.Stat. (1963). It provides in pertinent part as follows:

“In addition, any member of the Bar in good standing may be appointed by the court to, special assignments without salary to represent insolvent defendants. Such persons shall be listed and referred to as special assistant public defenders and be paid a fee and costs and expenses. Such fee and costs and expenses shall be fixed by the trial judge and shall be paid in the manner as counsel fees are paid in capital cases or as otherwise provided by law.” § 27.53(2), Fla.Stat. (1977).

The above statute provides that attorney’s fees, costs and expenses for a special assistant public defender shall be fixed by the trial court in the same manner as counsel fees are paid in capital cases. Section 925.035, Florida Statutes (1977), governs the manner in which counsel fees are paid to court appointed counsel in capital cases, and is, therefore, incorporated by reference in Section 27.53(2), Florida Statutes (1977). Section 925.035, Florida Statutes (1977), provides in pertinent part as follows:

“(1) If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint an attorney to represent the defendant. If the court appoints an attorney other than the public defender, the attorney shall be allowed reasonable compensation for representing the defendant, as determined by the court. In addition to such compensation, a reasonable amount shall be allowed for the cost of investigation and preparation of the case. [Emphasis added.]
“(4) If the death sentence is imposed, and affirmed on appeal to the Supreme Court, the appointed attorney shall be allowed reasonable compensation, not to exceed $1,000, for attorney’s fees and costs incurred in representing the defendant as to an application for executive clemency, such compensation to be paid out of general revenue from funds budgeted to the Department of Offender Rehabilitation.
“(6) All compensation and costs provided for in this section, except as provided in subsection (4), shall be paid by the county in which the trial is held, unless the trial was moved to that county on the ground that a fair and impartial trial could not be held in another county, in which event the compensation and costs shall be paid by the original county from which the cause was removed.” [Emphasis added.]

It is clear from a plain reading of the above statutes that a trial court has the authority to appoint a member of the Florida Bar in good standing to represent an insolvent defendant in a criminal proceeding as a special assistant public defender. The trial court also has the authority to fix an attorney’s fee, costs and expenses for the special assistant public defender which are to be paid in the same manner as counsel fees are paid in capital cases. Counsel fees in capital cases, and therefore under this statute, must be reasonable and are payable by the county.

The First District Court of Appeal in Gant v. State, 216 So.2d 44 (Fla. 1st DCA 1968), has held that Section 27.53(2), Florida Statutes (1977) means as follows:

“A literal interpretation of subsection (2) of the above-quoted statute [§ 27.53, Fla.Stat.] would indicate, and we so hold, that if a member of the bar in good standing is appointed by the court to represent an indigent defendant charged with a crime, and in doing so to act in the capacity of a special assistant public defender, a mandatory duty rests upon the court to fix and award a fee to the attorney so appointed for the services rendered on behalf of the county in which the charge originated.” Id. at 46.

In the above case and in subsequent cases, the Florida courts have consistently recognized the validity of special assistant public defender appointments by a trial court and fee awards thereunder to be paid by the county when each of the above-stated statutory criteria are present. State ex rel. Escambia County v. Behr, 354 So.2d 974 (Fla. 1st DCA 1978); Dade County v. Strauss, 246 So.2d 137 (Fla. 3d DCA 1971). See also MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973). In addition, two unpublished orders of the Supreme Court of Florida and two Attorney General’s opinions have reached similar conclusions. Palmes v. State, case no. 52,045 (Fla.1978); 1972 Op.Att’y Gen.Fla. 072-404 (November 16, 1972); 1967-68 Op.Att’y Gen.Fla. 068-107 (December 12, 1968).

B

It is undisputed that Carl Howard Lida is a member of the Florida Bar in good standing. It is also undisputed that the defendant which Mr. Lida was appointed to represent on appeal is insolvent and is charged in a criminal felony proceeding. As such, all the statutory requirements have been met for the appointment of Mr. Lida as a special assistant public defender herein and for a later award by the trial court of attorney’s fees, costs, and expenses for Mr. Lida to be paid by the county.

The sole, relevant ground upon which the appointment of Mr. Lida is resisted in this case is that there was no showing made before the trial court of “special circumstances” or a “lawful ground” upon which the trial court could relieve the public defender of representing the insolvent defendant herein and thereafter appoint a special assistant public defender. Much has been argued by both parties as to whether such “special circumstances” or “lawful ground” was shown for such appointment because of an alleged excessive, appellate caseload by the public defender. The court has resolved this dispute by holding that an excessive caseload by the public defender is not a “lawful ground” for the appointment of a special assistant public defender and has therefore upset the order under review.

I find it unnecessary to reach any of these questions because there is no provision in Section 27.53(2), Florida Statutes (1977), which can even remotely be interpreted to require a showing of “a lawful ground” or “special circumstances” before a trial court can appoint a special assistant public defender and thereafter fix attorney’s fees, costs and expenses to be paid by the county. It is therefore irrelevant, in my view, to determine whether an excessive caseload by the public defender constitutes a lawful ground for the appointment of a special assistant public defender and if so, whether such a ground was established in this case. For the court to read into Section 27.53(2), Florida Statutes (1977), a requirement of a “lawful ground” as a predicate for its holding in this case is, in all due respects, to amend the statute by finding language therein which is not there.

It is the established law of this state that the courts are not authorized under the guise of statutory interpretation to alter or amend a statute in order to achieve a result thought desirable. That is the sole prerogative of the legislature. Where a statute is plain and unambiguous, no interpretation thereof is necessary and the statute should be enforced according to its plain terms. Fine v. Moran, 74 Fla. 417, 429-30, 77 So. 533, 536 (1917); State ex rel. Washington v. Rivkind, 350 So.2d 575, 577 (Fla. 3d DCA 1977); American Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968); United States Casualty Co. v. Town of Palm Beach, 119 So.2d 800 (Fla. 2d DCA 1960); Dillman v. Dillman, 105 So.2d 33, 35 (Fla. 2d DCA 1958). In this connection, I am in complete agreement with the court that the proper remedy, if any, to the situation posed in this case is a revision of the applicable statutory law, not judicially-approved stopgap measures. Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960).

In addition to the plain language of Section 27.53(2), Florida Statutes (1977), the legislative history behind the passage of the Public Defender Act in 1963 supports the conclusion that no showing of a “lawful ground” or “special circumstances” is necessary in order for a trial court to appoint a special assistant public defender under such statute. The Public Defender Bill while it was still pending in the Senate Judiciary Committee on April 24, 1963, provided in substance “for what is called the classification of special assistant public defenders, who would not be paid a salary, but would be available for appointment by the trial court, where necessary, because of the inability of the public defender or his assistant to handle a case because of the pressure of other work or other good cause.” B. K. Roberts, “Judicial Council Sponsors Public Defender Legislation,” 37 Fla.Bar J. 381, 382 (1963). For whatever reason, the legislature chose not to include the underscored language in any form in Section 27.53(2), Florida Statutes (1963), upon final passage. It is therefore my view that the courts should not read into the current statute [§ 27.53(2), Fla.Stat. (1977)] a “lawful ground” requirement which is not only not there, but which in substance was deleted by the legislature from the original bill.

Based on the above authorities and reasoning, it is not surprising that we are cited to no prior case in this state which has superimposed a requirement of a “lawful ground” or “special circumstances” onto Section 27.53(2), Florida Statutes (1977). Indeed, the existing statutory and decisional law in this state is quite to the contrary as previously indicated. And to the extent that certain administrative orders entered by the Chief Judge of the Eleventh Judicial Circuit of Florida purport to repeal, amend, or limit Section 27.53(2), Florida Statutes (1977), the orders are of no force and effect. See State v. Furen, 118 So.2d 6 (Fla.1960). It is therefore difficult to understand how the trial court could in any sense have departed from essential requirements of law by following the plain meaning of Section 27.53(2), Florida Statutes (1977), as previously interpreted by the Florida courts.

C

The court relies on what it considers to be the public defender’s statutory duty to represent the defendant herein. I cannot agree. It is clear that Chapter 27.50, Florida Statutes (1977), does not impose an exclusive statutory duty on the public defender to represent all insolvent defendants in all criminal proceedings. The statute, in fact, creates a dual system for delivering defense services to the insolvent poor in criminal cases. The public defender may be appointed by the court to represent an insolvent defendant in felony cases and in certain misdemeanor, municipal or county ordinance, and juvenile delinquency cases. If so appointed, it becomes the public defender’s duty to represent such defendant. The court also has the option of appointing a member of the Florida Bar in good standing to represent an insolvent defendant in a criminal proceeding pursuant to either Section 27:53(2) or 27.53(3), Florida Statutes (1977). In a capital case, the court has the additional option of appointing private counsel under Section 925.035, Florida Statutes (1977). If so appointed, it becomes private counsel’s duty to represent such defendant.

Section 27.51(1), Florida Statutes (1977) imposes upon the public defender the duty of representing “any person who is determined to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony.” It does not impose a sole exclusive duty upon the public defender to represent all insolvent defendants charged with a felony. The statute must be read in pari materia with the other sections of the statute which clearly give the trial court the discretionary authority to appoint members of the Florida Bar to represent insolvent defendants in criminal proceedings. As the First District Court of Appeal in State ex rel. Escambia County v. Behr, 354 So.2d 974 (Fla. 1st DCA 1978), has accurately stated:

“Section 27.51(1), Florida Statutes (1975), requiring ‘. . . the public defender . . . represent, without additional compensation as provided in S.925.035, any person who is deemed to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony . . .’, must be read in pari materia with other relevant statutes and standards. Section 27.53(2) allows the trial court the discretion to appoint as special assistant public defender any member of the Bar to represent insolvent defendants.” Id. at 975.

In a recent survey, public defenders in Florida reported that the courts appoint private counsel in 10.1% of the insolvent criminal cases on a state-wide basis. The court in its opinion recognizes the existence of such a working dual system by conceding that the trial court does have the statutory authority to appoint special assistant public defenders. Indeed, such a dual system has received strong state and national approval. If such dual system is now to be substantially altered or changed after over fifteen years of successful operation, it should be done by the legislature and not the courts.

It is certainly true that the Public Defender Act [ch. 27.50, Fla.Stat. (1977)] read as a whole contemplates that the courts rely primarily, although not exclusively on the public defender in appointing counsel to represent insolvent defendants in criminal cases. B. K. Roberts, “Judicial Council Sponsors Public Legislation”, 37 Fla.Bar J. 381 (1963). As previously indicated, the courts in Dade County and throughout the state have certainly been true to that spirit by appointing the public defender to represent the vast majority of insolvent criminal defendants. I see nothing in this record to indicate that the trial court herein departed from this overall legislative scheme.

The order under review permits the public defender to withdraw as counsel, and appoints a special assistant public defender to represent a particular insolvent defendant on appeal in a single felony case. It does not allow the public defender to withdraw en masse from all his insolvent criminal appeals arising out of Dade County and appoint private counsel to take over such cases. Nor is there any showing on this record that this has been accomplished in whole or in part in prior cases. If it did, an entirely different question would be presented. To east this case in such dramatic terms is to ignore the plain language of the order under review.

D

The court also relies on what it considers to be the thrust of Article V of the Florida Constitution and statutes enacted thereunder, namely, to set up a state-controlled and state-financed judicial system apart from any county funding. Generally, that is an accurate statement and I certainly agree that Dade County has standing to bring this petition. The statement, however, is subject to important exceptions which are relevant here. Section 27.54(3), Florida Statutes (1977), requires the counties to support the offices of the various public defenders with office space, utilities, telephone service and custodial services at a certain minimum level of funding. Also the counties are required to pay for reasonable attorney’s fees, costs and expenses as fixed by trial upon the court’s appointment of private counsel for an insolvent defendant in a criminal case under Sections 27.53(2), 27.-53(3) and 925.035, Florida Statutes (1977), or for an insolvent respondent in an involuntary hospitalization proceeding (as to reasonable attorney’s fees) under Section 394.-473, Florida Statutes (1977). (Baker Act). Such statutes cannot be altered, amended or limited by what the courts consider to be the overall thrust of judicial reform in this state. The fact remains that the county is required by statute to fund part of the delivery of legal services to the poor in criminal cases.

Pursuant to the above statutes, Dade County has admirably met its responsibilities over the years to the criminal justice system in Dade County. Indeed, it has set up a specially appropriated fund for court-appointed counsel in insolvent criminal cases and has been more than accommodating to the public defender herein as to office space, utilities, telephone service, custodial services and other court costs. The specially appropriate fund is not limited to private counsel appointments under Section 27.53(3), Florida Statutes (1977), as the court suggests, but extends as well to private counsel appointments under Sections 27.53(2) and 925.035, Florida Statutes (1977). Dade County represents that payments from such fund have been made in the past to court-appointed counsel under each of the above statutes.

It is therefore my view that the trial court’s order herein does no violence to the letter or spirit of Article V of the Florida Constitution and the statutes enacted thereunder. Indeed, the statute under which this order was entered requires Dade County to pay reasonable attorney’s fees, costs and expenses as fixed by the court for the special assistant public defender appointed herein.

For the above-stated reasons, I would deny the petition for writ of certiorari.

      . This case was subsequently modified by the Florida Supreme Court on grounds not germane here.

      . The order of March 22, 1978, reads:
      “The motion to withdraw and for appointment of private counsel to represent appellant on appeal is granted and the Public Defender of the Second Judicial Circuit is hereby permitted to withdraw as counsel for appellant and it is further
      “ORDERED that Ken Vickers, Esquire, and Steve Rohan, Esquire, are hereby appointed to represent Timothy Charles Palmes in this appeal.”
      The order of April 14, 1978, reads:
      “Motion for Amended Order, filed in the above styled cause, is hereby granted. The trial court is hereby directed to fix attorneys fees and to provide the amount and the manner of payment of the attorneys fees.”
      The motion upon which the two above orders were entered contains the following paragraph:
      “8. It is the considered judgment of this attorney [the Public Defender for the Second Judicial Circuit] that the limit has been reached in the number of capital cases that can be handled competently by his staff at the present time and that appointment of other counsel to represent appellant on this appeal is necessary.”

      . The trial court’s order of appointment under review reads in pertinent part as follows:
      “The Public Defender’s motion to withdraw from any and all appellate representation of the [d]efendant herein is granted. The [cjourt hereby appoints Carl Howard Lida as special assistant public defender to represent the indigent [defendant in this case in further appellate proceedings pursuant to Section 27.53(2), Florida Statutes.”
      We have no occasion to determine whether the appointment herein was valid under Section 27.53(3), Florida Statutes (1977), as the appointment was not predicated on that statute.

        . In point of fact, Dade County makes a strong showing that the public defender herein is not so overworked that he has no lawyer on his staff who can represent this defendant on appeal without compromising the defendant’s right to effective assistance of counsel. All agree, however, that the public defender has a heavy workload by any standard; and that factor was properly considered by the trial court in exercising its discretion to appoint the special assistant public defender in this case. Whether the court was required on this record to appoint the special assistant public defender herein is a question we need not decide and about which I have grave doubts.

      . It should also be noted that the trial court, in involuntary mental hospitalization proceedings under the Baker Act, has the option of appointing the public defender or private counsel to represent an insolvent respondent. If private counsel is appointed, the court may award reasonable attorney’s fees for such counsel to be paid by the county in which the respondent is hospitalized. § 394.473, Fla.Stat. (1977).

      . “In a recent survey by the Governor’s Commission on Criminal Justice Standards and Goals, public defenders reported that private defense attorneys were assigned to represent indigents 10.1% of the time on the average.” Florida’s Criminal Justice Standards and Goals 385 (Dept, of Admin.1976).

      . “Services of a full-time public defender and a coordinated assigned counsel system involving substantial voluntary participation of the private bar, should be available in each jurisdiction to supply attorney services to indigents accused of crimes and to encourage significant voluntary participation by the private bar in the criminal justice system.” Florida’s Criminal Justice Standards and Goals, Standard Ct. 10.05 Method of Delivering Defense Services (Dept, of Admin. 1976). Far from recommending a curtailment of private counsel appointments in criminal cases, the commentary under this standard suggests that private counsel appointments should be increased in Florida. Id. at 385.
      “Services of a full-time public defender organization, and a coordinated assigned counsel system involving substantial participation of the private bar, should be available in each jurisdiction to supply attorney services to indigents accused of crime. Cases should be divided between public defender and assigned counsel in a manner that will encourage significant participation by the private bar in the criminal justice system.” National Advisory Commission on Criminal Justice Standards and Goals, Task Force on the Courts, Standard 13.5 (1973).

      . “The public defenders shall be provided by the counties within their judicial circuits with such office space, utilities, telephone services and custodial services as may be necessary for the proper and efficient functioning of these offices. The office space and utilities to be provided by the counties shall not be less than the standards for space allotment promulgated by the department of general services. The counties shall not provide less of these services than were provided in fiscal year 1972-1973.” § 27.54(3), Fla.Stat. (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Felton AVANT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1250.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Felton Avant, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: LETTS, Judge. ANSTEAD, Judge,

text:
    Michael J. SATZ, State Attorney for Broward County, Florida, Appellant, v. Abe PERLMUTTER, Appellee.
    No. 78-1486.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Rehearing Denied Sept. 27, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellant.
    David A. Hoines, Fort Lauderdale, for appellee Abe Perlmutter.
    Walter G. Campbell, Jr., of Law Offices Krupnick & Campbell, P. A., Fort Lauder-dale, for appellee Nelson Liss, M.D.
   LETTS, Judge.

The State here appeals a trial court order permitting the removal of an artificial life sustaining device from a competent, but terminally ill adult. We affirm.

Seventy-three year old Abe Perlmutter lies mortally sick in a hospital, suffering from amyotrophic lateral sclerosis (Lou Gehrig’s disease) diagnosed in January 1977. There is no cure and normal life expectancy, from time of diagnosis, is but two years. In Mr. Perlmutter, the affliction has progressed to the point of virtual incapability of movement, inability to breathe without a mechanical .respirator and his very speech is an extreme effort. Even with the respirator, the prognosis is death within a short time. Notwithstanding, he remains in command of his mental faculties and legally competent. He seeks, with full approval of his adult family, to have the respirator removed from his trachea, which act, according to his physician, based upon medical probability, would result in “a reasonable life expectancy of less than one hour”. Mr. Perlmutter is fully aware of the inevitable result of such removal, yet has attempted to remove it for himself (hospital personnel, activated by an alarm, reconnected it). He has repeatedly stated to his family, “I’m miserable take it out” and at a bedside hearing, told the obviously concerned trial judge that whatever would be in store for him if the respirator were removed, “it can’t be worse than what I’m going through now.”

Pursuant to all of the foregoing, and upon the petition of Mr. Perlmutter himself, the trial judge entered a detailed and thoughtful final judgment which included the following language:

ORDERED AND ADJUDGED that Abe Perlmutter, in the exercise of his right of privacy, may remain in defendant hospital or leave said hospital, free of the mechanical respirator now attached to his body and all defendants and their staffs are restrained from interfering with Plaintiff’s decision.

We agree with the trial judge.

The State’s position is that it (1) has an overriding duty to preserve life, and (2) that termination of supportive care, whether it be by the patient, his family or medical personnel, is an unlawful killing of a human being under the Florida Murder Statute Section 732.04, Florida Statutes (1977) or Manslaughter under Section 782.08. The hospital, and its doctors, while not insensitive to this tragedy, fear not only criminal prosecution if they aid in removal of the mechanical device, but also civil liability. In the absence of prior Florida law on the subject, their fears cannot be discounted.

The pros and cons involved in such tragedies which bedevil contemporary society, mainly because of incredible advancement in scientific medicine, are all exhaustively discussed in Superintentent of Belchertown v. Saikewicz, Mass., 370 N.E.2d 417 (1977). As Saikewicz points out, the right of an individual to refuse medical treatment is tempered by the State’s:

1. Interest in the preservation of life.
2. Need to protect innocent third parties.
3. Duty to prevent suicide.
4. Requirement that it help maintain the ethical integrity of medical practice.

In the case at bar, none of these four considerations surmount the individual wishes of Abe Perlmutter. Thus we adopt the view of the line of cases discussed in Saikewicz which would allow Abe Perlmut-ter the right to refuse or discontinue treatment based upon “the constitutional right to privacy ... an expression of the sanctity of individual free choice and self-determination.” (Id. 426.) We would stress that this adoption is limited to the specific iacts now before us, involving a competent adult patient. The problem is less easy of solution when the patient is incapable of understanding and we, therefore, postpone a crossing of that more complex bridge until such time as we are required to do so.

PRESERVATION OF LIFE

There can be no doubt that the State does have an interest in preserving life, but we again agree with Saikewicz that “there is a substantial distinction in the State’s insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long and at what cost to the individual [his] life may be briefly extended.” (Id. 425-426.) In the case at bar the condition is terminal, the patient’s situation wretched and the continuation of his life temporary and totally artificial.

Accordingly, we see no compelling State interest to interfere with Mr. Perlmutter’s expressed wishes.

PROTECTION OF THIRD PARTIES

Classically, this protection is exemplified in the case Application of the President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964), where the patient, by refusing treatment, is said to be abandoning his minor child, which abandonment the State as par-ens patriae sought to prevent. We point out that Abe Perlmutter is 73, his family adult and all in agreement with his wishes. The facts do not support abandonment.

PREVENTION OF SUICIDE

As to suicide, the facts here unarguably reveal that Mr. Perlmutter would die, but for the respirator. The disconnecting of it, far from causing his unnatural death by means of a “death producing agent” in fact will merely result in his death, if at all, from natural causes, Saikewicz, Id., 426, fn. 11. The testimony of Mr. Perlmutter, like the victim in the Georgetown College case, supra, is that he really wants to live, but do so, God and Mother Nature willing, under his own power. This basic wish to live, plus the fact that he did not self-induce his horrible affliction, precludes his further refusal of treatment being classed as attempted suicide.

Moreover we find no requirement in the law that a competent, but otherwise mortally sick, patient undergo the surgery or treatment which constitutes the only hope for temporary prolongation of his life. This being so, we see little difference between a cancer ridden patient who declines surgery, or chemotherapy, necessary for his temporary survival and the hopeless predicament which tragically afflicts Abe Perlmutter. It is true that the latter appears more drastic because affirmatively, a mechanical device must be disconnected, as distinct from mere inaction. Notwithstanding, the principle is the same, for in both instances the hapless, but mentally competent, victim is choosing not to avail himself of one of the expensive marvels of modern medical science.

The State argues that a patient has no right to refuse treatment and cites several of the familiar blood transfusion cases. However, a reading of these reveal substantial distinctions between them and the case at bar. In the blood transfusion cases, the patient is either incompetent to make a medical decision, equivocal about making it (“he would not agree to be transfused but would not resist a court order permitting it because it, because it would be the court’s will and not his own.”) or it is a family member making the decision for an inert or minor third party patient. By contrast, we find, and agree with, several cases upholding the right of a competent adult patient to refuse treatment for himself. From this agreement, we reach our conclusion that, because Abe Perlmutter has a right to refuse treatment in the first instance, he has a concomitant right to discontinue it.

ETHICS OF MEDICAL PRACTICE

Lastly, as to the ethical integrity of medical practice, we again adopt the language of Saikewicz:

The last State interest requiring discussion is that of the maintenance of the ethical integrity of the medical profession as well as allowing hospitals the full opportunity to care for people under their control. See Georgetown, supra; United States v. George, supra; John F. Kennedy Memorial Hosp. v. Heston, supra [58 N.J. 576, 279 A.2d 670]. The force and impact of this interest is lessened by the prevailing medical ethical standards, see Byrn, supra at 31. Prevailing medical ethical practice does not, without exception, demand that all efforts toward life prolongation be made in all circumstances. Rather, as indicated in Quinlan, the prevailing ethical practice seems to be to recognize that the dying are more often in need of comfort than treatment. Recognition of the right to refuse necessary treatment in appropriate circumstances is consistent with existing medical mores; such a doctrine does not threaten either the integrity of the medical profession, the proper role of hospitals in caring for such patients or the State’s interest in protecting the same. It is not necessary to deny a right of self-determination to a patient in order to recognize the interests of doctors, hospitals, and medical personnel in attendance on the patient. Also, if the doctrines of informed consent and right of privacy have as their foundations the right to bodily integrity, see Union Pac. Ry. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), and control of one’s own fate, then those rights are superior to the institutional considerations. (Id. 426-427, footnotes omitted)

It is our conclusion, therefore, under the facts before us, that when these several public policy interests are weighed against the rights of Mr. Perlmutter, the latter must and should prevail. Abe Perlmutter should be allowed to make his choice to die with dignity, notwithstanding over a dozen legislative failures in this state to adopt suitable legislation in this field. It is all very convenient to insist on continuing Mr. Perlmutter’s life so that there can be no question of foul play, no resulting civil liability and no possible trespass on medical ethics. However, it is quite another matter to do so at the patient’s sole expense and against his competent will, thus inflicting never ending physical torture on his body until the inevitable, but artificially suspended, moment of death. Such a course of conduct invades the patient’s constitutional right of privacy, removes his freedom of choice and invades his right to self-determine.

The judgment of the trial court is hereby affirmed. In addition, all time periods having hitherto been waived, it is required that any petition for rehearing be actually received by this court no later than noon on Tuesday, September 19, 1978. Copies of any such petition shall likewise be simultaneously hand delivered to all parties entitled thereto. As to response, any such shall be delivered to this court no later than noon on Friday, September 22, 1978.

This is unquestionably a matter of great public interest and we have considered certification to our Supreme Court. Although we here carry an unusually heavy burden, and it would be a relief to share it, we feel that the exigencies of this situation dictate our conclusion without certification.

AFFIRMED.

MOORE, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I am in complete agreement with the majority opinion, but I am also of the firm opinion that the question decided today is one of great public interest that should be certified for review to the Florida Supreme Court under the provisions of Article V, Section 3(b)(3), of the Florida Constitution, and I must note my disagreement with my colleagues to the extent that they decline to certify the question for consideration by the Supreme Court.

Without such a certification it is doubtful whether the Supreme Court will have jurisdiction to review this decision. The Supreme Court’s jurisdiction is limited by Article V, Section 3 of the Constitution. Everyone agrees that this is a case of first impression in the appellate courts of Florida. Hence, there is no case in conflict with this decision that would give rise to conflict certiorari jurisdiction in the Supreme Court. It may be that jurisdiction would vest under the provisions of Section 3(b)(1) whereby decisions construing a provision of the state or federal constitution are made reviewable. Our decision today rests primarily on a recognition of a constitutional right of privacy. However, the question presented is a question of great public interest and the framers of our state constitution surely had such questions in mind when providing for review by the Supreme Court of questions so certified by the District Courts of Appeal. While convinced of the soundness of our decision today, I am concerned that the decision may not receive the full review intended under the terms of the Constitution.

      . Application of the President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000 (D.C.Cir. 1964) cert. den., 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); U. S. v. George, 239 F.Supp. 752 (D.Conn. 1965); Powell v. Columbian Presbyterian Medical Center, 49 Misc.2d 215, 267 N.Y.S.2d 450 (Sup.Ct.1965).

      . U. S. v. George, supra, at 753.

        .Superintendent of Belchertown v. Saikewicz, Mass., 370 N.E.2d 417 (1977). In the Matter of Schiller, 148 N.J.Super. 168, 372 A.2d 360 (1977); In the Matter of Melideo, 88 Misc.2d 974, 390 N.Y.S.2d 523 (Sup.Ct.1976); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); In re Osborne, 294 A.2d 372 (D.C.App.1972); In re Estate of Brooks, 32 Ill.2d 361, 205 N.E.2d 435 (1965); Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d 705 (1962); see Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).


text:
    Betty CHANCE, Individually and as Trustee, Appellant, v. Alton Raymond CHANCE, Individually and as Trustee, Appellee.
    No. II-185.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    John Peter Kirtz, Jr., Pensacola, for appellant.
    Joseph Q. Tarbuck, Pensacola, for appel-lee.
   PER CURIAM.

This is an appeal from an order granting motion for judgment on pleadings in an action where appellant alleged that appellee had violated the terms of a trust agreement executed by the parties.

Appellant and . appellee, formerly married, are co-trustees of a trust of family property, both real and personal. Appellant’s complaint alleged that appellee had violated the terms of the trust agreement by (1) not re-investing or dividing equally with appellant net income from investment of trust property, (2) not paying alimony and child support from farming income, (3) not reinvesting or dividing equally income obtained from selling or renting property in the trust corpus, (4) not providing an annual accounting, (5) not paying fire insurance premiums on the home appellant lived in, and (6) selling trust property without appellant’s written consent. Appellee denied all but three of the allegations. He admitted he had refused an accounting, stating that none was necessary as there had never been any trust income; he admitted not paying fire insurance premiums but denied that such was his obligation. He denied not paying alimony and child support.

Upon review of the allegations contained in appellant’s complaint and those in appellee’s answer, we conclude that the lower court erred in granting appellee’s motion for judgment on the pleadings. The test to be applied in determining the propriety of granting a motion for judgment on the pleadings is the same as if the defendant moved to dismiss the complaint for failure to state the cause of action. Butts v. State Farm Mutual Automobile Insurance Co., 207 So.2d 73 (Fla. 3d DCA 1968). Moreover, before granting such motion, the court may not consider matters outside the pleadings. Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965).

Accordingly the order is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: RYDER, Judge.

text:
    Joseph James BARRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 77-904.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant was charged with two counts of burglary, possession of marijuana and sale of marijuana. He pleaded guilty to the charges and was sentenced to a single general sentence of four years. The trial judge did not specify whether the sentence was predicated upon one, some, or all of the charges.

The imposition of a single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper. See Dorfman v. State, 351 So.2d 954 (Fla.1977).

Although the possession and sale conviction arose out of a single transaction, a separate sentence should be imposed upon each. See Fundak v. State, 358 So.2d 1195 (Fla.2d DCA 1978). A separate sentence should also be imposed upon each of the burglary charges.

The cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and SCHEB, J., concur.


author: HOBSON, Judge.

text:
    R. C. G., Jr., a child, Appellant, v. STATE of Florida, Appellee.
    No. 77-1931.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.

      Robert E. Jagger, Public Defender, and Virginia Vetter, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

R. C. G., Jr., a child, appeals an adjudication of delinquency on the charge of vehicular homicide, Section 782.071, Florida Statutes (1977). Appellant argues that the evidence presented by the state was insufficient to show that he operated a motor vehicle “in a reckless manner likely to cause the death of, or inflict great bodily harm to, another.” We agree and accordingly reverse the adjudication of delinquency.

The facts viewed in a light most favorable to the state are as follows:

Early in the evening on the night of the fatal mishap, appellant, a 16-year-old boy, had been drinking with friends. There was testimony that the young men were smoking marijuana although there was no testimony that appellant had participated in that form of intoxication. Appellant left to pick up a friend and after doing so, proceeded on his motorcycle to a pizza parlor. The motorcycle had a defective muffler which attracted the attention of a police officer who stopped appellant and issued him a citation for operating a motor vehicle without a license. This officer and a backup officer testified that appellant had not been operating the motorcycle in a careless manner, that he was polite, cooperative and appeared sober. The officers warned appellant not to operate the motorcycle further and watched appellant and his passenger push the motorcycle to a nearby plaza.

At the plaza, appellant and his friend entered the pizza parlor just at closing time. The owner knew appellant’s father and, learning of the citation, offered to escort the two young men home with his car. Appellant accepted the offer and followed the automobile on the motorcycle. The weather was dry, extremely windy, and the night was very dark. The automobile’s emergency flashers were illuminated as an extra precaution. About 11:30 p. m., the motor vehicles proceeded down a stretch of two-lane road just before appellant’s apartment. At this point, the road turned in a “big, gentle curve” marked by a single, solid center line. The curve was preceded by a straight section of road marked with a single dotted line. The speed limit was 40-45 miles per hour. As the two vehicles approached the curve at 35-40 miles per hour, the motorcycle accelerated, passed the automobile at approximately 55-60 miles per hour, and the passenger turned and waved to the driver of the car. The motorcycle re-entered the right-hand lane at the start of the curve; however, it failed to turn as the road curved and ran off the road, into and out of a ditch, and into some brush. It came to rest only after it careened off two trees and threw its passengers. As a result, appellant suffered severe injuries and his passenger sustained a fatal blow to the head.

An avid motorcycle enthusiast testified that he would be able to negotiate the curve at a speed of 100 miles per hour but would not recommend this for an unlicensed 16 year old operating a lighter motorcycle. This witness also stated that the weight shift resulting from the action of a passenger turning his body to wave might put the motorcycle off balance and send it out of control. The court also received testimony that about two hours after the accident, and after appellant had received as much as 5,000 c.c.’s of fluid into his bloodstream, his blood alcohol level was 0.03.

The question of what conduct constitutes culpable negligence under Section 782.07, Florida Statutes, has been addressed by Mr. Justice Drew in Miller v. State, 75 So.2d 312 (Fla. 1954), and cited with approval by Mr. Justice Sundberg in Filmon v. State, 336 So.2d 586 (Fla. 1976).

“The culpable conduct necessary to sustain proof of manslaughter under Section 782.07, supra, ‘must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” ’

Inasmuch as each case involving proof of culpable negligence must be determined according to its particular circumstances, we apply the criteria in Filmon, supra, and note that appellant:

1. had been drinking with friends pri- or to the accident;
2. was operating a motor vehicle without a license but not in a careless manner when stopped by police earlier in the evening;
3. followed an automobile with emergency flashers activated on the way home;
4. proceeded to a point near his home at a speed below the limit;
5. accelerated to a speed of from 15 to 20 miles per hour over the speed limit immediately prior to the accident.

From these facts, it is clear that appellant’s conduct did not “evince a reckless disregard of human life” nor did it show an “entire want of care.” Thus, it did not rise to the level of reckless behavior demanded by the statute in order to constitute culpable negligence.

In view of the fact that the issue of the sufficiency of the evidence is dispositive of the cause, we do not address appellant’s second point on appeal.

The adjudication of delinquency is hereby reversed and appellant is discharged.

GRIMES, C. J., and DANAHY, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Joseph Edward FRAZER, Appellant, v. STATE of Florida, Appellee.
    No. 78-349.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and Daphne W. Boswell, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant appeals a judgment and sentence on the charge of possession of cannabis Of more than five grams.

Appellant entered a written plea of not guilty and filed a motion to suppress the evidence. After the motion was denied, appellant withdraw his plea of not guilty and entered a plea of nolo contendere, reserving his right to appeal the order on the motion to suppress.

We reverse, based on the following facts as testified to by the arresting deputy sheriff. The deputy was patrolling at approximately 9:00 P.M. in the vicinity of Beverly Drive where he had been informed by his supervisor that a couple of nights before there had been disturbances and possibly gang wars. As he was parked behind a building he observed two vehicles drive down Beverly Drive. Approximately two minutes later when the vehicles had not returned, he proceeded along the same street. He saw the two vehicles parked side by side and no other vehicles were in the general area. One vehicle was a car in which the appellant and a passenger were seated. The other vehicle was a pick-up truck with one occupant who was sitting in the driver’s side. The deputy asked for identification and each person showed him his driver’s license. They were asked to step out of the vehicles when they identified themselves. The deputy further inquired as to their reason for being in the area. He was informed that they were there to meet some friends; however, the deputy noted that there were no other persons or vehicles in the area nor did • any approach while he was questioning them.

Thereupon the deputy checked each person through the computer to see if there were any outstanding warrants. The answer was negative. The deputy then testified that he was not satisfied with their explanation and because he thought there might be some trouble in the area he placed the three against one of the vehicles and conducted a patdown search. He felt a hard round object possibly four or five inches just inside the pants of the appellant and a little below the belt line. Thinking this might be a weapon, he removed it from appellant’s pants. The object was of a plastic material and tightly wrapped. Still thinking this might be a weapon, he unwrapped the plastic object and discovered what appeared to be marijuana. He immediately read the appellant his Miranda rights, after which he asked appellant what the substance was and appellant told him it was marijuana. The deputy then noticed another bulge in the front of appellant’s pants and removed it. It was another tightly-wrapped package containing marijuana. Appellant was then placed under arrest. This deputy was the only witness.

On cross examination the deputy testified he had no report of the kinds of vehicles involved in the disturbances that had occurred previously and he did not recognize these individuals. Prior to the patdown the deputy had not had any indication that they might be carrying weapons, had seen no bulges, nor did the individuals make any statements to the effect that they might be carrying weapons.

Under our “stop and frisk” law, Florida Statute 901.151(2) (1977), it is provided that

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) stated:

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

Under the facts of this case there are no circumstances which would reasonably indicate that the appellant committed, was committing, or was about to commit a crime. Bailey v. State, 319 So.2d 22 (Fla. 1975); McClure v. State, 358 So.2d 1187 (Fla. 2d DCA 1978).

For the foregoing reasons the judgment and sentence are reversed and the appellant is discharged.

SCHEB and RYDER, JJ., concur.


author: GRIMES, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert REDDING, Appellee.
    No. 78-437.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Daphne W. Boswell, Asst. Public Defender, Bartow, for appellee.
   GRIMES, Chief Judge.

The state appeals an order suppressing some packets of a controlled substance seized from the defendant.

At 11:15 p. m. on November 26,1977, two officers of the St. Petersburg Police Department investigated a citizen’s complaint that a nude male was running around a car parked on the street. When the officers arrived at the scene, they discovered the defendant lying on the front seat of a car. He was fully exposed by virtue of being clad only in an unfastened bathrobe. The defendant’s clothes, including his shoes and jewelry, were neatly folded and placed on the back seat of the car. At this point, Brubaker believed that he had probable cause to arrest the defendant for indecent exposure, and he ordered him out of the car.

When the interior light came on as the defendant exited the car, Brubaker could see several small, flat, inch-by-one-quarter-inch tinfoil packets inside the defendant’s shoes. Based upon his long experience with drug arrests as an undercover officer in narcotics, Brubaker believed the packets contained either heroin or cocaine. Brubaker instructed his fellow officer to arrest defendant for indecent exposure and to place him in the back seat of the patrol car. Brubaker then removed the tinfoil packets from the defendant’s shoes on the back seat. The packets contained phencyclidine.

We believe the packets were properly seized under the “plain view” doctrine. Under this doctrine, an officer who has a prior justification for an intrusion can seize contraband or incriminating evidence which is in plain view. Hornblower v. State, 351 So.2d 716 (Fla.1977). When contraband is spotted under circumstances falling within the purview of the plain view doctrine, it may be immediately seized because of its nature. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978). However, if the items in question are innocent by themselves, they may only be seized if the officer has probable cause to believe that what he sees in plain view is incriminating evidence. State v. O’Steen, 238 So.2d 434 (Fla. 1st DCA 1970).

When Officer Brubaker saw the packets, he was in a location where he had a right to be. He knew from his experience in the investigation of drug offenses that narcotics are customarily wrapped in small tinfoil packets. He was aware of the defendant’s bizarre conduct, and he saw the peculiar location of the packets. At the very least, Brubaker had probable cause to believe that the packets contained contraband. This was enough to entitle him to make the seizure.

In upholding the seizure we do not reverse the trial court on a finding of fact. The judge had concluded that the officer did have “reasonable cause” to believe that the packets contained illicit contraband, and he only granted the motion to suppress because he believed the case was controlled by our recent opinion in Carr v. State, 353 So.2d .958 (Fla. 2d DCA 1978). In Carr we held that an officer who observed hand-rolled cigarettes with the ends twisted shut on the dashboard of an automobile could not seize the cigarettes even though he testified that he “knew” they contained marijuana. Our decision in that case was premised on the fact that even today many smokers prefer to “roll their own” rather than to pay the higher price for manufactured cigarettes. Therefore, in the absence of other circumstances to fortify the officer’s belief, his “knowledge” that the cigarettes contained marijuana amounted to no more than suspicion.

Schraff v. State, 544 P.2d 834 (Alas.1975), presents an interesting parallel. There a narcotics investigator was seeking to determine the identification of a man who was in an incoherent state. In the process of looking through the man’s wallet, the officer noticed a folded aluminum foil packet which his past experience led him to believe contained narcotics. In passing upon the propriety of the seizure the court held that, assuming the officer had a right to examine the wallet, his seizure of the packet was lawful under the plain view doctrine. On the other hand, the case of Shepherd v. State, 343 So.2d 1349 (Fla. 1st DCA 1977), which also involved a seizure from a wallet during a search for identification lends some support to the defendant’s position. However, that case appears to turn more on the absence of exigent circumstances, and, except for the existence of an opaque plastic bag, the officer had little else upon which a finding of probable cause could be predicated.

The order of suppression is reversed, and the case is remanded for further proceedings.

SCHEB and RYDER, JJ., concur.

      . Mr. Justice Stewart, speaking only for a plurality in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2.d 564 (1971), would also require that the view come about through inadvertence, but we need not decide whether this is essential to a plain view seizure because the view in this case was clearly accidental. There is also a question as to whether there is a necessity for exigent circumstances, but the likelihood that the drugs would be quickly disposed of here fulfills this requirement — if it is a requirement. See Rickard v. State, 361 So.2d 822 (Fla. 2d DCA, 1978).

      . See United States v. Benn, 441 F.Supp. 1268 (E.D.N.Y.1977), for a comprehensive discussion of the standard of proof necessary to seize harmless evidence in plain view.

      . The case of DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977), highlights the significance of this kind of testimony.


text:
    David Wayne TALBERT, Appellant, v. STATE of Florida, Appellee.
    No. JJ-149.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1978.

      Michael J. Minerva, Public Defender, and Sidney L. Matthews, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; however, the provision in appellant’s sentence that he be imprisoned “at hard labor” is improper. Ussery v. State, 350 So.2d 839 (Fla. 1st D.C.A. 1977); McDonald v. State, 321 So.2d 453 (Fla. 4th D.C.A. 1975). Accordingly, this ease is REMANDED for the purpose of striking the language “at hard labor” from the sentencing order; it is otherwise affirmed. Appellant need not be present for this purpose.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Cicero HICKS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-414.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1978.
    Cicero Hicks, in pro per.
    No appearance for appellee.
   PER CURIAM.

An appeal from a denial of appellant’s motion to vacate a portion of a sentence under F.R.Cr.P. 3.850. Appellant urges that the trial court erred in giving him a “split sentence” — three years imprisonment followed by seven years probation — on his nolo contendere plea to a charge of attempted second degree murder. While this argument may have previously had merit under Robinson v. State, 256 So.2d 390 (Fla.3d DCA 1973) and its progeny, it is now clear that a trial court may in its discretion sentence a defendant to a period of incarceration followed by a period of probation. See Section 948.01(4), Florida Statutes (1977); State v. Jones, 327 So.2d 18 (Fla.1976), and State v. Holmes, 360 So.2d 380 (Fla.1978).

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Doyle PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. KK-136.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a criminal conviction for withholding support for a minor child. We reverse.

In the trial court there was no showing of the defendant’s ability or capacity to provide support and there was no showing of the needs of the minor child. Thus, the essential factors set forth in Stedman v. State, 80 Fla. 547, 86 So. 428 (1920), were not established.

REVERSED with orders that appellant be discharged.

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


text:
    Laverne Campbell COLLINS, formerly known as Laverne Campbell Newton, Appellant, v. Carey Edgar NEWTON, Sr., Appellee.
    No. 78-113.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1978.

      Alexander G. Paderewski, of Dent & Pflugner, P. A., Sarasota, for appellant.
   GRIMES, Chief Judge.

The parties were divorced in 1966, and custody of their two-year old son was awarded to the mother. Ten years later the father filed a petition to modify custody. Following a hearing, the court granted custody of the boy to his father upon the condition that the father pay his arrearage in child support payments. The mother now appeals the order changing custody.

The father produced evidence of his improved circumstances since the divorce. He had remarried and moved to Arkansas where he now lives with his wife and their two daughters. The mother’s circumstances had not substantially changed. She was a waitress when the parties were divorced, and she now works as a bar manager. Her second marriage also ended in a divorce. The boy was generally well adjusted and made good grades in school. He told the judge that while he had enjoyed visiting with his father during the summer, he preferred to remain with his mother. The Department of Health and Rehabilitative Services concluded that both parents were fit, but because of the boy’s age and interest in doing things with his father, recommended that custody be given to the father.

In order to modify custody, there must have been a substantial change in circumstances since the entry of the original order. Robinson v. Robinson, 333 So.2d 526 (Fla.2d DCA 1976). In the final judgment the court specified the fact that the boy was about to enter high school as the change in circumstances which dictated a change in custody to the father. We cannot see how this fact, standing alone, would warrant removing a child from his mother with whom he had lived under a custody order for the past ten years.

The record reflects that in recent months the mother had sometimes permitted a man to stay overnight in the home; however, there was no evidence that such occurrences had any direct bearing on the welfare of the child. Cf. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). In any event, the court specifically found that both parents were fit to have custody.

This case is similar in many respects to Hutchins v. Hutchins, 220 So.2d 438 (Fla.2d DCA 1969). There the judge modified a custody order of four-years standing because he concluded that the older boy needed the parental guidance of his father. The judge found that both parties were fit persons to have custody but reasoned that since the father’s income had substantially increased, he was better able to provide for the needs of the children. On appeal this court first observed that improved circumstances of the father after a divorce in which custody had been given to the mother would not alone authorize modification of custody where the mother was not unfit. We pointed out that modification of a divorce decree requires a greater showing than would have been necessary to grant the requested relief at the time of the original trial. In reversing the change of custody order, we held that the mere finding that the best interest and welfare of the children would be served by a custodial change was insufficient to warrant modification when there was no showing of a detriment to the children if custody were not changed.

In the same vein, we believe that the evidence presented below would have been enough to support an award of custody to the father if this were an original proceeding. It was legally insufficient to support a' change of custody.

REVERSED.

OTT and DANAHY, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    AUTO OWNERS INSURANCE COMPANY, Appellant, v. Robert ALLEN and Diane Kay Allen, Appellees.
    No. 78-604.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1978.
    Edward E. Fessenden, Jr. of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellant.
    R. Scott Bunn of Straughn, Sharit, Bunn & Chilton, Winter Haven, for appellees.
   BOARDMAN, Acting Chief Judge.

Appellees/plaintiffs Robert and Diane Kay Allen owned a motel which was covered by a policy of insurance issued by appellant/defendant Auto Owners Insurance Company. The motel was of concrete block construction.

While a trench was being dug next to the back wall of the motel in order to lay sewer pipe, sandy soil fell away from the footings supporting the wall. Appellant denied coverage under its policy for the resulting damage. The issue on this appeal is whether there was coverage under the following language contained in the policy of insurance:

Collapse: Loss by collapse shall mean only the collapse of the building or any part thereof. The Company shall not be liable as respects this peril for loss:
2. by settling, cracking, shrinkage, bulging or expansion of pavements, patios, foundations, walls, floors, roofs, or ceilings;
all except as a direct result of the collapse of a building.

It is undisputed that the concrete blocks in the wall separated, a condition which appellant describes as “cracks.” It is also undisputed that the wall bulged outward and away from the concrete slab floor. Appellant contends that there was settling, cracking, and bulging within the meaning of the exclusionary language of the policy. Appellees contend that there was a “collapse.” Appellees rely on an affidavit of an independent expert submitted in support of their motion for partial summary judgment, which described the damage. He stated that one exterior wall of the building had collapsed and a second was leaning out from the interior wall a significant distance. It was his opinion that the roof was kept from immediately falling only by resting on the interior walls and that “the function of the wall and building (including the function of supporting the superstructure) was impaired and the total building . was in imminent danger of falling further.”

The trial judge ruled that the motel wall had collapsed and that there was no issue as to that fact. He then entered a partial summary judgment for plaintiffs on the issue of liability. This interlocutory appeal followed.

The parameters of the degree or nature of damage which will constitute a collapse under a policy provision such as the one at issue in the case before us has not yet been treated by an appellate court opinion in Florida. There are, however, numerous cases in other jurisdictions which have done so, and there is a split of opinion among them. See Annot., 11 A.L.R.3d 1072 (1967). We agree with those jurisdictions which have concluded that a policy similar to the one at issue here provides coverage for a building which has suffered material or substantial impairment of its basic structure. We recognize that this is the minority position but think it is the better view.

It is appellant’s contention that the exclusion of loss “by settling, cracking, shrinkage, bulging or expansion” was specifically designed to avoid ambiguity so as to limit its liability to loss occasioned by a building, or any part of it, which has been reduced to a flattened form or rubble. We cannot accept this construction. If appellant had intended to limit its liability as it argues, it would have been a simple matter to include in the policy a restriction of coverage to a flattened form or rubble. Other than the exclusion for “settling, cracking, shrinkage, bulging or expansion” there is no attempt to define what a collapse is or is not. In fact, loss occasioned by “settling, cracking, shrinkage, bulging or expansion” will be covered if it was suffered as a result “of the collapse of a building.”

The provision at issue here is clear in only one regard as to the meaning of collapse. Coverage is not provided for loss from “settling, cracking, shrinkage, bulging or expansion” which is occasioned by other than as a direct result of collapse of the building. The definition of collapse has not been limited by this restriction.

Our holding that collapse in this policy means material and substantial impairment of the basic structure of a building or a part of a building is based on the ambiguity of the term. See, e. g., Government Employees Insurance Co. v. DeJames, 256 Md. 717, 261 A.2d 747 (1970). Because the provision is ambiguous, as we have explained, we must determine the intent of the parties to the policy, and the policy will be construed in favor of the insured. The more reasonable construction of the term collapse is material and substantial impairment of its basic structure.

is Accordingly, the ruling of the trial court

AFFIRMED.

OTT, RYDER, JJ„ concur.

      . We do not include the further qualification noted by cases such as Jenkins v. United States Fire Insurance Co., 185 Kan. 665, 347 P.2d 417 (1959) that the impairment rendered the building unhabitable, even though in this case the building was not habitable.

      . [The insurance carrier] would have us say that as a matter of law the case should have been taken from the jury because “collapse” means “to break down completely: fall apart in confused disorganization: crumble into insignificance or nothingness: * * * to fall or shrink together abruptly and completely: fall into a jumbled or flattened mass through the force of external pressure: * * * to cave in, fall in, or give away: undergo ruin or destruction by or as if by falling down: * relying on the definition of “collapse” as a verb which is found in Webster’s Third International Dictionary (1941) at 443, which the court made available to the jury with the concurrence of counsel.
      But when used as a noun as it was in the policy, the same dictionary gives “collapse” a somewhat different connotation: “a breakdown in * * * strength * *: complete sudden enervation: sudden loss of accustomed abilities: * * * breakdown: sudden failure: disintegration, ruin, destruction: * * * sudden loss of force *

        Government Employees Insurance Co. v. DeJames, 256 Md. 717, 721, 261 A.2d 747, 750 (1970).


text:
    In re ESTATE of Anna F. C. MARTIN, Deceased. Anna M. ESLICK, Frederick M. Eslick, Hancock Bank, trustee v. Mary Frances DENT, Dr. B. B. Martin, Landman Teller, Pauline B. Latimer, James P. Biedenharn, et al.
    No. 50620.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Eaton, Cottrell, Galloway & Lang, David Cottrell, Jr., Gulfport, for appellants.
    Ward, Martin, Terry & Way, J. S. Terry, Teller & Teller, Landman Teller, Vicksburg, Gwin & Gwin, L. C. Gwin, Jr., Natchez, for appellees.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before SMITH, P. J., WALKER and BOWLING, JJ., and JOHN M. DUNNAM, Commissioner.

Affirmed.


text:
    SCRIBNER EQUIPMENT COMPANY, INC. v. CITY OF AMORY, Mississippi.
    No. 50602.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    Burgin, Gholson, Hicks & Nichols, Hunter M. Gholson, Columbus, for appellant.
    Michael Malski, Amory, for appellee.
   Appeal from Circuit Court, Monroe County; Neal Biggers, Judge.

Before ROBERTSON, P. J., and SUGG and COFER, JJ.

Affirmed.


text:
    Meredith Colon JOHNSTON v. Elsie Ray D. JOHNSTON.
    No. 50621.
    Supreme Court of Mississippi.
    Sept. 13, 1978.
    James H. Herring, Canton, for appellant.
    A. R. Wright, Jr., Harold W. Davidson, Carthage, for appellee.
   Appeal from Chancery Court, Leake County; E. G. Cortright, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

Affirmed.


text:
    Glen H. ELROD, Sr. v. Gladys M. ELROD.
    No. 50396.
    Supreme Court of Mississippi.
    May 31, 1978.
    Holmes & Dukes, Alfred B. Jernigan, Jr., Hattiesburg, for appellant.
    Mize, Thompson & Blass, W. Joel Blass, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before SMITH, P. J., WALKER and COFER, JJ., and GEORGE F. ADAMS, Commissioner.

AFFIRMED.


author: REX GORDON, Commissioner

text:
    CHARTER MEDICAL CORPORATION, d/b/a Gulf Coast Community Hospital v. MISSISSIPPI HEALTH PLANNING AND DEVELOPMENT AGENCY, State Health Coordinating Council, and J. Marshall Lusk, Jr.
    No. 50412.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rehearing Denied Sept. 20, 1978.
    Denton & Persons, James B. Persons, Biloxi, Robert W. Miller, Atlanta, for appellant.
    A. F. Summer, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen. and Fay N. Pascoe, Special Asst. Atty. Gen., Jackson, for appellees.
    Before PATTERSON, C. J., LEE and BOWLING, JJ., and GORDON, Commissioner.
   REX GORDON, Commissioner

for the Court:

Charter Medical Corporation, d/b/a Gulf Coast Community Hospital, filed suit in the Chancery Court of Hinds County against Mississippi Health Planning and Development Agency, State Health Coordinating Council, and J. Marshall Lusk, Jr., seeking a mandatory injunction for the purpose of requiring them to issue a certificate of need in order to enable Charter Medical Corporation to obtain a “CAT Scanner.” The lower court sustained a demurrer to the bill of complaint, Charter Medical Corporation declined to plead further, a final order of dismissal was entered, and Charter Medical Corporation appeals to this Court.

The bill of complaint alleged that appellant operates a hospital situated in Biloxi and that the appellees, Mississippi Health Planning and Development Agency and the State Health Coordinating Council are agencies of the State of Mississippi and that appellee, J. Marshall Lusk, Jr., was the designated Hearing Officer to review actions of the State Health Coordinating Council. These agencies were created by executive order pursuant to an agreement entered into between the Governor and the Secretary of the U. S. Department of Health, Education and Welfare as authorized by 42 U.S.C., § 1320a — 1 (1970). Their function was to determine the need and use of federal funds for capital expenditures. It was further alleged that the appellant desired to install a computerized axial tomography body scanner (“CAT Scanner”) at a cost of approximately $600,000.00, and that the denial of a certificate of need to appellant as determined by said agencies and the Hearing Officer was arbitrary, capricious and unreasonable and was not supported by the evidence presented at the hearings.

The appellees contend that, since federal funds are involved, the State Court has no jurisdiction to determine if, in fact, there is such a need for a “CAT Scanner” and that the Federal Court has exclusive jurisdiction. There is no provision under either the federal statutes or the executive order for appeals and the sole question presented is whether or not the lower court had jurisdiction.

There is authority to sustain appellees’ position in denying jurisdiction that any ruling of the State Court would not be binding on the Secretary of Health, Education and Welfare of the United States. Palmetto General Hospital, Inc. v. State Department of Health and Rehabilitative Services, 333 So.2d 531 (Fla.Dist.Ct.App. 1976). Jurisdiction was upheld by a Federal District Court involving a somewhat similar factual situation in which it was held that the controversy involved the construction of a federal statute and regulations and hence there was federal involvement. Lakeside Mercy Hospital v. Indiana State Board of Health, 421 F.Supp. 193 (N.D.Ind. 1976).

However, it is not necessary to look for authority in other jurisdictions since this Court has heretofore passed on the question of whether or not a mandatory injunction will lie in chancery court for review of an agency where there is no statutory scheme for appeal from the acts of the agency and there is no full, plain, adequate and complete remedy at law. Justice Ethridge speaking for the Court in Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 67 So.2d 378 (1953), held that a bill in chancery was the proper remedy to obtain judicial review from an order of the board denying application for a license in which there was no statutory method of appeal and no plain, adequate and complete remedy at law, and stated the rule to be:

However, in the instant case appellee-complainant has no adequate remedy at law. The statutes regulating the practice of veterinary medicine, surgery, and dentistry, Miss.Laws 1946, Ch. 371, Miss.Code 1942, Secs. 8914-01 to 8914 — 13, have no statutory provision for judicial review of the actions of the board in exercising its licensing powers. In this respect it is similar to a number of other state agencies. An appeal by certiorari would not be adequate, since it is limited to a review of the legal sufficiency of the application and order refusing the license. An appeal by a petition for mandamus would not be sufficient, because the court could not review whether the board’s action is supported by substantial evidence, but could only direct the board to act in some manner, either by granting or denying the license. Hence a bill in chancery for a mandatory injunction is the only possible method by which appellee could obtain judicial review of the board’s order to ascertain whether it is supported by substantial evidence, or is arbitrary, capricious, and unlawful.

See, also, Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277 (1934).

There is no conflict of jurisdiction between the State and Federal Courts here. The decision of the State Court will not be binding upon the Secretary of the United States Department of Health, Education and Welfare. Such would be a proper question within the jurisdiction of the Federal Court. However, this does not mean that judicial review is denied to parties claiming to be injured by acts of agencies and boards created and existing in this State. Where there is no provision for appeal and injured parties do not have a full, plain, complete and adequate remedy at law, the chancery court has jurisdiction for judicial review of the actions of such board or agency.

The bill of complaint contained allegations which, if true, entitled the appellant to relief. The rule is so well established in this State that a demurrer admits all material facts well pleaded in the bill that there is no need of citation for this authority. Therefore, this cause is reversed and remanded to the lower court for trial on its merits.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.