text:
    In re RULES OF the FLORIDA JUDICIAL QUALIFICATIONS COMMISSION.
    No. 54626.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Woodrow M. Melvin, Tallahassee, Chairman, for State of Florida Judicial Qualifications Commission, petitioner.
   PER CURIAM.

The Florida Judicial Qualifications Commission has filed with the Court a copy of its amended rules of procedure, as adopted by the Commission on May 26, 1978. Pursuant to Article V, Section 12(d) of the Florida Constitution, this Court may repeal these rules, or any part thereof, so long as five Justices concur in that action.

We have thoroughly reviewed the rules and now repeal Rules 22(a) and (b) in their entirety. These provisions directly conflict with Rule 9.520(b) of the Florida Rules of Appellate Procedure, as promulgated by this Court effective March 1, 1978, which prescribes the procedure to be followed in this Court upon the filing of a recommendation by the Commission. While the Commission is vested with the authority to “adopt rules regulating its proceedings” under Article V, Section 12(d) of the Constitution, it is clear that these provisions, by purporting to establish procedures governing our review of Commission proceedings, exceed that lawful authority and intrude upon this Court’s exclusive power to “adopt rules for the practice and procedure in all courts” pursuant to Article V, Section 2(a).

It is so ordered.

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

RULES OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Pursuant to the provisions of Article V, Section 12, of the Florida Constitution, as amended 1976, the following Rules are hereby adopted by the Judicial Qualifications Commission.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES

RULE 1. SCOPE AND TITLE

These rules apply to all proceedings before the Judicial Qualifications Commission involving the discipline, retirement or removal of justices of the Supreme Court, and judges of the District Courts of Appeal, Circuit Courts and County Courts pursuant to Article V, Section 12, of the Constitution of the State of Florida, as amended. These rules shall be known as Florida Judicial Qualifications Commission Rules and may be abbreviated as “FJQCR”.

RULE 2. DEFINITIONS

In these rules, unless the context or subject matter otherwise requires:

(a) “Commission” means the Judicial Qualifications Commission.
(b) “Judge” means a justice of the Supreme Court and a judge of a District Court of Appeal, Circuit Court and County Court.
(c) “Chairman” includes the acting chairman.
(d) “Counsel” means the lawyer designated by the Commission to gather and present evidence before the Commission with respect to the charges against a judge and to represent the Commission in all proceedings.
(e) “Shall” is mandatory and “may” is permissive.
(f) “Mail” and “mailed” include ordinary mail and personal delivery.
(g) The masculine gender includes the feminine gender.

RULE 3. MEMBERSHIP AND JURISDICTION

(a) The membership of the Commission shall be as prescribed in Article V, Section 12, of the Constitution of the State of Florida and for such term as prescribed by general law. When a judge ceases to be a judge of the court from which he was appointed or whenever any member becomes otherwise ineligible to hold office, his membership on the Commission shall terminate. The Chairman shall promptly notify the appointing authority of the vacancy. In the event of a vacancy the Commission shall appoint a temporary replacement from the same category until such time as the appointing authority shall duly certify to the Commission a replacement for the remainder of the term.

(b) The Commission shall have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or hearing, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, to order the production of books, records or other documentary evidence, and the power of contempt. Any member of the Commission shall have the power to issue subpoenas, administer oaths and affirmations to witnesses in any matter within the jurisdiction of the Commission.

RULE 4. OFFICERS OF COMMISSION

The Commission shall elect a Chairman and a Vice-Chairman, each of whom shall serve for a term of two years. The Vice-Chairman shall act as the chairman of the Commission in the absence of the Chairman. The Commission may select an executive secretary and a General Counsel.

RULE 5. QUORUM OF COMMISSION

A quorum for the transaction of business by the Commission shall be seven members of the Commission except as otherwise provided in these rules.

RULE 6. COMPLAINT AND INVESTIGATION

(a) The Commission, upon receiving factual information, not obviously unfounded or frivolous, or an individual Complaint made under oath, indicating that a judge is guilty of willful or persistent failure to perform his duties, or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or that he has a disability seriously interfering with the performance of his duties, which is, or is likely to become permanent in nature, may make an investigation to determine whether formal charges should be instituted and a hearing held.

(b) The judge has no right to be present or to be heard during an investigation, but before the Commission determines that there is probable cause to warrant formal proceedings, the judge shall be notified of the investigation, the general nature of the subject matter of the investigation, and shall be afforded reasonable opportunity to make a statement before the Commission, personally or by his attorney(s), verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct or disability. The judge shall not have the right to present other testimony or evidence, and he shall not have the right of confrontation or cross-examination of any person interviewed, called or interrogated by the Commission. Such notification shall be given by registered or certified mail addressed to the judge at his chambers and at his last known residence.

(c) The Commission shall have the right to require a judge to meet with it on an informal basis in reference to matters that relate to the discharge of his judicial duties.

(d) When a judge has received a notice of investigation, notice to appear before the Commission, or requested such notification, if the investigation does not disclose probable cause to warrant further proceedings, the judge shall be so notified.

(e) The Commission shall have access to all information from all executive, legislative and judicial agencies, including grand juries. At any time, on request of the Speaker of the House of Representatives or the Governor, the Commission shall make available all information in the possession of the Commission for use in consideration of impeachment or suspension, respectively.

RULE 7. FORMAL PROCEEDINGS

(a)After the investigation has been completed, if the Commission finds probable cause that the judge is guilty of misconduct and that formal charges shall be filed, it shall designate one or more counsel who shall be members of The Florida Bar and who shall prepare appropriate papers and pleadings, gather and present evidence before the Commission with respect to the charges against the judge, and otherwise act as counsel in connection with the prosecution of the charges against the judge, including the representation of the Commission in connection with any Commission or judicial proceedings. It shall direct counsel designated by the Commission to cause to be served on the judge a copy of Notice of Formal Charges. Such proceedings shall be entitled:

“BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION” “Inquiry Concerning a Judge, No. _"

(b) The notice shall be issued in the name of the Commission and specify in ordinary and concise language the charges against the judge and allege facts upon which such charges are based, and shall advise the judge of his right to file a written answer to the charges against him within 20 days after service of the notice upon him.

(c) If it appears to the Chairman of the Commission upon affidavit that, after reasonable effort for a period of 10 days, personal delivery could not be made, service may be made upon the judge by registered or certified mail addressed to the judge at his chambers and at his last known residence.

(d) After formal charges have been instituted, if the judge is represented by an attorney(s), any notice or the furnishing of any matter may be perfected on such attorney^). If no attorney(s), then any notice or other matter shall be mailed to the judge at his residence.

RULE 8. SUSPENSION OF JUDGE

Upon or after the filing of formal charges, the Commission may, in its discretion, issue its order directed to the judge ordering him to show cause before the Commission why the Commission should not recommend to the Supreme Court that he be suspended from office, either with or without compensation, while the inquiry is pending. The order to show cause shall be returnable before the Commission at a designated place and at a time certain, at which place and time the Commission shall consider the question of suspension. The Commission, not less than seven members concurring, either after issuing its order to show cause as above provided or without such order to show cause, may recommend to the Supreme Court that the judge be suspended from performing the duties of his office either with or without compensation pending final determination of the inquiry. If the Commission recommends suspension, such recommendation shall have incorporated therein all proceedings of the Commission in relation to the recommendation.

RULE 9. ANSWER AND MOTIONS

(a) Within 20 days after service of the Notice of Formal Charges, the judge may file a signed Answer. If the judge desires that all hearings be held in the county of his residence he shall so demand in writing at the time of filing his initial Answer.

(b) There shall be a motion Committee with the power to dispose of all pre-trial motions. Such Committee shall be composed of the Chairman and two judges appointed by the Chairman. The Committee’s disposition shall be subject to review at the Commission’s next ensuing meeting.

RULE 10. FILING

(a) Upon a finding of probable cause by the Commission and the filing of the Notice of Formal Charges against a judge with the Clerk of the Supreme Court of Florida, the Notice of Formal Charges and all subsequent proceedings before the Commission shall be public.

(b) The original of all pleadings subsequent to the Notice of Formal Charges shall be filed with the Clerk of the Supreme Court of Florida, which office is designated by the Commission for receiving, docketing, filing and preserving the records of all proceedings of the Commission that are public and making such records available for public inspection. A duplicate original of all pleadings filed in the proceedings shall be served on the Florida Judicial Qualifications Commission and on all of opposing counsel or on the respondent judge if unrepresented by an attorney.

RULE 11. SETTING FOR HEARING

After the filing of an Answer or the expiration of the time for its filing, the Commission shall order a hearing to be held before it concerning the discipline, retirement or removal of the judge. If the judge in his initial Answer requests that the hearing be held in the county of his residence, the hearings shall be in such county unless the Commission by vote of nine members determines otherwise. The Commission shall set a time and a place for a hearing and shall give notice of such hearings by mail to the judge and to the attorney(s) at least 20 days prior to the date set.

RULE 12. PROCEDURE

(a) In all formal proceedings, the Florida Rules of Civil Procedure shall be applicable except as otherwise provided. All proceedings and hearings, prior to a certification as required by Rule 21, shall be before the Commission, except as otherwise provided herein.

(b) Counsel shall, upon written demand of a party or counsel of record, promptly furnish the following:

The names and addresses of all witnesses whose testimony the counsel expects to offer at the hearing, together with copies of all written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Commission which are relevant to the subject matter of the hearing and which have not previously been furnished. When good cause is shown this rule may be waived.

RULE 13. HEARING

At the time and place set for hearing, the Commission may proceed with the hearing whether or not the judge has filed an Answer or appears at the hearing.

RULE 14. DISABILITY

Upon receiving information that a judge is suffering a possible physical or mental disability which might impair the performance of his judicial duties, the Commission, upon the vote of nine members, may order the judge to submit to a physical and/or mental examination. If the judge fails to submit to such examination within the time ordered, the Commission may recommend to the Supreme Court that the judge be suspended without compensation until such time as the judge complies with the Commission’s order.

RULE 15. EVIDENCE

At a hearing before the Commission, legal evidence only shall be received and oral evidence shall be taken only on oath or affirmation.

RULE 16. PROCEDURAL RIGHTS OF JUDGE

(a) A judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by attorney(s), and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evi-dentiary matter.

(b) When a transcript of the trial testimony has been prepared at the expense of the Commission, a copy thereof shall be furnished without the cost to the judge. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at his expense.

(c)If the judge is adjudged insane or incompetent, the Commission shall appoint an attorney ad litem unless the judge has a guardian who will represent him. The guardian or attorney ad litem may claim and exercise any right and privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent, and whenever these rules provide for serving or giving notice or sending any matter to the judge, a copy of such notice or matter also shall be served, given, or sent to the guardian or attorney ad litem.

RULE 17. AMENDMENTS TO NOTICE OR ANSWER

The Commission may in the interest of justice allow or require amendments to the Notice of Formal Charges and may allow amendments to the Answer. In case such an amendment is made, the judge shall be given reasonable time both to answer the amendment and to prepare and present his defense against the matters charged thereby.

RULE 18. EXTENSION OF TIME

The Chairman of the Commission may extend the time for filing an Answer or for the commencement of a hearing before the Commission.

RULE 19. HEARING ADDITIONAL EVIDENCE

The Commission may order a hearing for the taking of additional evidence at any time while the. matter is pending before it. The order shall set the time and place of the hearing and shall indicate matters on which the evidence is to be taken. A copy of such order shall be sent by mail at least 10 days prior to the date of hearing.

RULE 20. COMMISSION VOTE

After conclusion of the hearing and consideration of the issues presented for decision, the Commission shall first determine by vote the judge’s guilt or innocence of the formal charges. If the Commission determines by an affirmative vote of not less than nine members that the judge is guilty of one or more of the charges so specified, it shall then proceed to determine the discipline to be recommended. Failure to recommend the imposition of a penalty by the affirmative vote of not less than nine members shall constitute a dismissal of the proceedings.

RULE 21. CERTIFICATION OF COMMISSION RECOMMENDATION TO SUPREME COURT

Upon dismissal by the Commission of the formal charges, the Commission shall promptly file a copy of the same certified by the Chairman, General Counsel or Secretary of the Commission in the office of the Clerk of the Supreme Court of Florida. Upon making a determination recommending the discipline, retirement, or removal of a judge, the Commission shall promptly file a copy of the recommendation certified by the Chairman, General Counsel or Secretary of the Commission, together with a transcript and the findings and conclusions, with the Clerk of the Supreme Court and shall promptly mail to the judge and to the attorney(s) notice of such filing, together with a copy of such recommendation, findings, and conclusions.

RULE 22. REVIEW OF COMMISSION PROCEEDINGS

(a) A petition to the Supreme Court to modify-or reject the recommendation of the Commission for discipline, retirement, or removal of a judge may be filed by tho judge within 30 days after the filing with the Clerk of the Supreme Court of the certified copy of tho Commission’s recommendation. The petition shall be based on the rooord, shall speeify the grounds rolied on, and shall be accompanied by petitioner’s brief together-with proof of service on-the- Commission of two copies, and on tho counsel of one copy of the petition and the brief. — Within 2Q-days-- after service of petitioner’s brief, the Commission shall file — a-respondent’s brief-and sorve a copy thereof on tho judge. Within 20 days-after serviee-of respondent’s brief the petitioner may file a reply brief, ■two copies-of-whioh shall be served on the Commission and one copy shall be served on the counsel,

(b) In the event the judge-does not file a petition as-provided in Rule 22(a), the Supreme Court shall, before modifying or rejecting the -recommendations of tho Commission, afford in such manner as the Court deems appropriate, both the judge and the Commission an opportunity — to file briefs and--to-prosent oral arguments before the Court in opposition to or in support-of the recommendations of the Commission.

To the extent necessary to implement this Rule, the Florida Appellate Rules shall be applicable to reviews of Commission proceedings by the Supreme Court.

RULE 23. SUBPOENAS

Subpoenas for the attendance of witnesses and the production of documentary evidence in any proceedings shall be issued as follows:

(a) Judicial Qualifications Commission. Subpoenas for the attendance of witnesses and the production of documentary evidence before the Commission, or for discovery in a proceeding, may be issued by any member or General Counsel of the Commission, and be served in the manner provided by law for the service of witness subpoenas in a civil action.

(b) Contempt. Any person who, without adequate excuse, fails to obey such a subpoena served upon him may be cited for contempt of the Commission in the manner provided in these rules.

RULE 24. CONFIDENTIALITY OF PROCEEDINGS

(a) All papers filed with and the proceedings before the Commission shall be confidential until a Notice of Formal Charges is filed by the Commission with the Clerk of the Supreme Court, at which time such charges and all further proceedings before the Commission shall be public.

(b) All notices, papers and pleadings mailed to a judge prior to formal charges being instituted shall be enclosed in a cover marked “confidential”.

(c) Every witness in every proceeding under these Rules shall be sworn to tell the truth and not to disclose the existence of the proceeding, subject matter or the identity of the judge until the proceeding is no longer confidential under these Rules. Violation of this oath shall be an act of contempt of the Commission.

(d) Violation of these Rules by a member of the Commission shall subject him after written notice and hearing, to removal from office by a majority vote of the Commission and shall constitute contempt of the Commission which may be enforced by appropriate proceedings in the Supreme Court of Florida.

RULE 25. INTERESTED PARTY

A judge who is a member of the Commission or of the Supreme Court shall be disqualified from participation in such capacity in any proceedings involving his own discipline, retirement, or removal.

RULE 26. DISQUALIFICATION OF MEMBERS OF COMMISSION

(a) Whenever any judge against whom formal proceedings have been instituted, as provided in these Rules, shall make and file with the Commission an affidavit that he fears that he will not receive a fair hearing before the Judicial Qualifications Commission on the charges because of the prejudice of one or more members of the Commission against him, and the facts stated as the basis for making the said affidavit shall be supported in substance by affidavit of at least two reputable citizens of the State of Florida not of kin to the judge or his attorney, or if any member of the Commission shall voluntarily recuse himself, such member or members of the Commission shall proceed no further therein and shall be disqualified from hearing said charges. Every such affidavit of a judge shall state the facts and the reasons for the belief that any such prejudice exists, shall specify the members of the Commission allegedly prejudiced, and shall be filed not more than 15 days after service of the Notice of Formal Charges upon the judge charged. The Commission shall make ad hoc appointments of a person or persons to take the place of the member or members of the Commission so disqualified, but each member so disqualified may participate in the action of the Commission in making such ad hoc appointments. Each ad hoc appointee shall be from the same category as the disqualified members as set forth in Section 12(a) of Article V of the Constitution of the State of Florida. The judge may, within 15 days after receiving notice of any ad hoc appointment, file a like affidavit as to said appointee which shall be supported in substance by affidavit of two citizens as set forth above, in which event said ad hoc appointee shall not be disqualified on account of alleged prejudice against said judge unless said appointee admits that it is then a fact that he is prejudiced against said judge, or unless a majority of the Commission, which may include any ad hoc appointee holds that said appointee is prejudiced against the judge; in which event the same ad hoc appointment procedure set forth above shall be followed until a qualified person has been appointed.

(b) A judge moved against by the Commission may, by affidavit, suggest the disqualification of a member or members of the Commission unsupported by two citizens, but in such event the determination of the matter of disqualification shall be by majority vote of the Commission unless the person sought to be disqualified voluntarily disqualifies himself.

RULE 27. CONTEMPT

Should any witness fail without justification to respond to the lawful subpoena of the Commission or having responded, fail or refuse to answer all lawful inquiries or to turn over evidence that has been lawfully subpoenaed or should any person be guilty of disorderly or contemptuous conduct before any hearing of the Commission, a motion may be filed in the name of the Commission before the Circuit Court of the County in which the contemptuous act was committed, alleging the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of an alleged contempt of the Commission. Such motion shall pray for the issuance of an order to show cause directed to such witness or person ordering him to show cause before the Circuit Court why the Circuit Court should not find him in contempt of the Commission and he should not be punished by the Court therefore. The Circuit Court shall issue such orders and judgments therein as the Court deems appropriate.

       Fla.R.App.P. 9.010; see also In re Proposed Appellate Rules, 351 So.2d 981 (Fla.1977). We note that subsection (a) is identical to the Commission’s former Rule 23(a), which we approved in In re Rules of the Florida Judicial Qualifications Commission, 346 So.2d 70 (Fla.1977). At that time, however, this Court had not officially adopted any procedural rule to govern such proceedings, and thus there was no conflict of the kind that now exists.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Santiago DUARTE, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 77-2671.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Weiner & Rubin and Mark R. Rubin, Miami, for appellant.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Rivera v. Southern American Fire Insurance Company, 361 So.2d 193 (Fla. 3d DCA 1978).


text:
    Michael PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-152.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before' HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Revels v. State, 64 Fla. 432, 59 So. 951 (1912); Lentini v. State, 231 So.2d 275 (Fla. 3d DCA 1970); Matera v. State, 218 So.2d 180 (Fla. 3d DCA 1969); Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967); and Dabney v. Yapa, 187 So.2d 381 (Fla. 3d DCA 1966).


text:
    Elizabeth Joanna AUSTIN, Appellant, v. Robert J. AUSTIN, Appellee.
    No. 78-530.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Manners, Amoon & Whatley and George H. Tucker, Miami, for appellant.
    Francis E. Holden, Jr., Hialeah, for áppel-lee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Manning v. Manning, 353 So.2d 103 (Fla. 1st DCA 1977).


text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Appellant, v. Walter THOMAS, Appellee.
    No. JJ-112.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    Carolyn M. Snurkowski, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellant.
    Richard A. Belz, of Florida Legal Services, Inc., Prison Project, Gainesville, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

On February 8,1978, the Division of Administrative Hearings (DOAH) of the Department of Administration entered an order in consolidated case nos. 77-728R and 77-1258R. The order found that certain practices and procedures of the Florida Parole and Probation Commission (hereinafter the Commission) were rules and as such were invalid because of the failure of the Commission to properly adopt them pursuant to § 120.54, Fla.Stat. Pursuant to Fla.R.App.P. 9.030(b)(1)(C) and § 120.68, Fla.Stat., the Commission, through its attorney, filed a timely notice of appeal seeking review of the DOAH order. We now have for consideration appellee’s motion to dismiss wherein it is argued that this appeal is void as a matter of law because the decision of the Commission to take this appeal constitutes “formal action” so as to require that the decision be reached in an open and public meeting as required § 286.011, Fla. Stat., which statute is commonly known as Florida’s Government in the Sunshine Law. We now hold that the decision to take this appeal from a DOAH hearing officer’s order is not one which triggers the public meeting requirements of the Government in the Sunshine Law. Accordingly, we deny the motion to dismiss.

Florida’s Government in the Sunshine Law provides, in pertinent part, as follows:

286.011 Public meetings and records; public inspection; penalties
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.

It is clear that requisite to the application of the Sunshine Law is a meeting of two or more public officials. Mitchell v. School Board of Leon County, 335 So.2d 354 (Fla.1st DCA 1976). It is equally clear that the Sunshine Law would apply to all meetings of the Parole and Probation Commission. The facts of this case reveal that the Commission never met to determine whether to appeal the order now under review. The commencement of this appeal was, in the words of the Commission, “performed in the normal course of business by the Legal Department of this agency”. The appeal was filed “with the approval of the Chairman and other members of the Commission, following individual discussions between legal staff and each commissioner concerning the final order rendered”. In the absence of a meeting, the Sunshine Law is not applicable. Mitchell, supra. We cannot, however, allow this fact to mark the end of our inquiry, for it is obvious that the spirit, intent and purpose of the statute requires a liberal judicial construction in favor of the public and a construction which frustrates all evasive devices. We must, therefore, consider whether the process by which this appeal was taken should have included a formal public meeting of the Commission. We think not.

The Legislature has recognized that the Commission cannot carry put its statutory powers and duties in a vacuum. Among other supporting services, the Commission occasionally require formal legal representation, which is made available under § 947.11, Fla.Stat. With regard to the rules which are the subject of this appeal, the Commission has been represented by counsel throughout the administrative process. One obvious obligation of counsel is to advise the Commission of the prospective merits of an appeal from the administrative process, and to preserve the appeal by timely filing the jurisdictional notice of appeal. It would be unrealistic and intolerable to suggest that this and every other legal decision or legal act effected by counsel as representative of the Commission would have to be ratified at a formal public meeting. That result would, in our view, unduly hamper the efficient conduct of the Commission’s business and make effective legal representation virtually impossible. If, as urged by appellee, the decision to file this appeal is a formal action which must be taken at a Government in the Sunshine meeting, then such a meeting would be required to consider every procedural decision counsel makes in the course of this representation. Neither the letter nor the spirit of the Sunshine Law requires such an extreme and impractical result.

We find nothing improper in the individual discussions had between members of the Commission and the Commission’s legal staff'. It is well settled that frequent, unpublicized meetings between an agency member and advisors, consultants or staff who assist him in the discharge of his duties are not meetings within the contemplation of the Sunshine Law. See Bennett v. Warden, 333 So.2d 97 (Fla.2d DCA 1976), and Occidental Chemical Company v. Mayo, 351 So.2d 336 (Fla.1977).

Appellee’s motion to dismiss is DENIED.

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


author: OTT, Judge. GRIMES, Chief Judge,

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION and Thomas E. Drawdy, Appellants, v. CONE BROTHERS CONTRACTING COMPANY, Appellee.
    No. 77-1006.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 1978.
    As Modified On Denial of Rehearing Nov. 15, 1978.

      Jerrold K. Phillips, Tallahassee, Fletcher N. Baldwin, Gainesville, and H. Reynolds Sampson, Tallahassee, for appellants.
    J. Rex Farrior, Jr., and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   OTT, Judge.

The case below and this appeal involves the validity of the legislature’s retroactive amendment (Ch. 76-174, Laws of Florida) of a prior enactment (Ch. 74-262, Laws of Florida). The lower court ruled that the 1976 amendment was inapplicable. We disagree.

In 1974, the energy crisis caused petroleum prices to rapidly increase. This created a potentially catastrophic situation for road contractors, or their subcontractors and suppliers, who employed bituminous materials (asphalt) in the performance of binding road contracts. The Florida Legislature responded by enacting Section 337.143, Florida Statutes (1974) (Ch. 74-262, Laws of Florida). By this legislation the Department of Transportation (DOT) was directed to adjust the unit price of bituminous materials used in certain road construction contracts. The act was directed to apply to asphalt used after December 1, 1973 for use in “contract(s) for roadway construction for which bids were received . . . prior to April 1, 1974 . . .Thus, the legislation was directed at contracts for which bids had been accepted but where the contract work had either not commenced or was incomplete.

The preamble to the 1974 act detailed the need for and purpose of the legislation:

WHEREAS, the price of bituminous material has substantially increased during the past months due partly to the worldwide energy crisis, and the situation now and in the future appears to be very volatile and unstable, and
WHEREAS, a contractor has no control over the rapidly increasing prices of bituminous material after he has successfully bid on a road construction project with the Department of Transportation, and after entering into binding contracts for the supply of bituminous material, and
WHEREAS, the Department of Transportation has recognized this situation by adopting a specification providing for adjustment of the bid unit price for bituminous material which is applicable to contracts on which bids are received after April 1, 1974. The price adjustment activates upon a rise in the current asphalt price index . . . applicable at the time bids were received for a project, and
WHEREAS, contractors on projects for which bids were received by the Department of Transportation prior to April 1, 1974 will suffer irreparable economic harm and injury in performing their contracts upon the failure of the Legislature to enact this law, .

Part (E) of the 1974 act authorized the DOT to extend an offer to all contractors with uncompleted contracts entered into prior to April 1,1974 to amend the affected contracts so that asphalt prices would be adjusted on the basis of market prices instead of the fixed bid prices during the applicable period. Part (E) provided:

No adjustment shall be made to the contract unit price for bituminous material on any applicable contract unless a contractor agrees to the application of this adjustment for all applicable contracts he holds with the department. The department shall notify each contractor in writing by registered mail of his right to have this act apply to his contracts with the department. If a contractor fails to respond within 15 calendar days of such notice, no adjustment provided for in this act shall be made to any applicable contract.

The DOT, by letter of August 29, 1974, notified the appellee contractor of its “rights to have this act to apply to applicable contracts with the Department.” On September 12, 1974 appellee returned (signed) a Letter of Agreement to Participate.

Part (A) of the 1974 act set out the formula by which adjustments would be made. Part (A) provided as follows:

The adjustment shall be calculated separately for each month during which bituminous material is incorporated into a project, using the following formula:
Pa = Id + 5 cents where:
Pa = Adjusted unit price for bituminous material; and
Id = Department’s Asphalt Price Index in effect during the month in which the material is incorporated into the project. The Department of Transportation shall determine the Asphalt Price Index by averaging quotations in effect on the first day of each month at terminals which could reasonably be expected to furnish bituminous materials to road construction projects in the State [of Florida],

With very minor exceptions, the Asphalt Price Index rose steadily from December 1973 through July 1975. The record reflects the following figures:

MONTH INDEX
December, 1973 0.1591
January, 1974 0.1958
February, 1974 ' 0.2192
March, 1974 0.2590
April, 1974 0.2650
May, 1974 0.2776
June, 1974 0.2787
July, 1974 0.2875
August, 1974 0.2875
September, 1974 0.2889
January, 1975 0.2928
February, 1975 0.2929
March, 1975 0.2933
April, 1975 0.2988
May, 1975 0.2969
June, 1975 0.2980
July, 1975 0.3029

In mid-1975, the DOT realized that certain road contractors were making windfall profits under the provisions of the 1974 act. Accordingly, the DOT promulgated emergency regulations in July, September and October of 1975. The DOT contacted appel-lee and other contractors by letter asking them to participate under these emergency regulations. The appellee declined to do so, stating in its letter of July 28, 1975 that “[w]e hereby agree to the application of bituminous unit price adjustments, but only as defined by [the 1974 act].” The DOT then declined to make further payments under the 1974 act and appellee brought this action. The attempt of the DOT to correct this deficiency of the 1974 act by the promulgation of emergency rules was successfully challenged. See State Department of Transportation v. Pan American Construction Company, 338 So.2d 1291 (Fla.1st DCA 1976).

The legislature acted in June 1976 with Ch. 76-174 amending Section 337.143, Florida Statutes. Part (1) of the amendment stated as follows:

Recognizing that the unprecedented increase in the cost of petroleum products seriously affects a vital segment of the construction industry, legislative intent was, and is, to protect, by this act, said industry from irreparable economic harm and injury. It was not, and is not, legislative intent that any single contractor or group of contractors should receive excess or windfall profits to the detriment of the taxpayers, and the department shall take immediate steps to recoup any excess profits made since July 1, 1974. [Emphasis supplied.]

The method of calculation of the recoupment, etc. was set out in Parts (2) — (7) of the 1976 amendment. Part (3) (b) added the requirement that the DOT “shall require documentation of actual costs paid prior to making any adjustments.” Then in a new Part (4) the legislature spelled out the minimum and maximum increases any contractor could receive, based upon the actual costs paid by the contractor. Then, in Part (8) the following language appeared (the same as in Part (E) of the 1974 act, supra):

No adjustment shall be made to the contract unit price for bituminous material on any applicable contract unless a contractor agrees to the application of this adjustment for all applicable contracts he holds with the department. The department shall notify each contractor in writing by registered mail of his right to have this section applied to his contracts with the department. If a contractor fails to respond within 15 calendar days of such notice, no adjustment provided for in this section shall be made to any applicable contract.

In a letter to the DOT of June 7, 1976 the appellee stated:

Regarding the participation by our company for application of bituminous unit price adjustments this will advise that our company continues to maintain its position that it is entitled to payment in accordance with the original statutory formula contained in [the 1974 act].

The heart of appellee’s contention is that the 1974 law (1) created a contract between appellee and the DOT, and (2) vested certain rights in appellee. Its argument is that subsequent legislation, i. e., the 1976 amendment, impaired the contract and abrogated vested rights.

While it may be arguable that a new contract was not effected by the 1974 act we are more persuaded that it was. Consequently, for our purposes we assume that a new contract was effected. More accurately, perhaps, the parties to a previous binding contract (each road contract) have mutually agreed (by the 1974 act — offer by the state — and its acceptance by the contractor) to a material revision of their pre-existing contract, namely, to change the calculation of the amount the state shall pay the road contractor (or his subcontractor or supplier) for asphalt.

The sovereign has a right to correct deficiencies such as those in the 1974 act. Ap-pellee argues at the outset that the 1976 act should not be retroactively applied in the instant case since there was no plain intention by the legislature to do so. We do not agree. In Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla. 1973) the supreme court stated:

“A statute is not to be given a retrospective effect, unless its terms show clearly that such an effect was intended.
The rule that statutes are not to be construed retrospectively unless such construction was plainly intended by the Legislature applies with peculiar force to those statutes the retrospective operation of which would impair or destroy vested rights.” 275 So.2d at 525 citing In Re Seven Barrels of Wine, 79 Fla. 1, 17, 83 So. 627, 637 (1920).

In the Tufts College case the supreme court considered whether a 1970 statute that limited rights of entry in realty under mineral rights reservations to twenty years could be retroactively applied. The interest to be divested by a retroactive application was a vested property interest. The court held:

Since valuable vested rights may be destroyed by retrospective application of [the applicable statute], the rule that statutes will not be construed retroactively unless such construction was plainly and clearly intended by the Legislature applies with particular force to the construction of the [applicable statute]. 275 So.2d at 526.

In the case sub judice the 1976 amendment of the legislature clearly and expressly provided for retroactive application to the 1974 enactment. The effect of the 1976 amendment was to engraft a requirement that the contractor demonstrate that he had actually sustained a price increase as anticipated. We are therefore left with the fundamental question of whether such retroac-tivity was unconstitutional or invalid.

In McCord v. Smith, 43 So.2d 704, 708-09 (Fla. 1950) the supreme court held:

A retrospective provision of a legislative act is not necessarily invalid. It is so only in those cases wherein vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, in connection with transactions or considerations previously had or expiated.

A curative or remedial statute is necessarily retrospective in character and may be enacted to cure or validate errors or irregularities in legal or administrative proceedings, except such as are jurisdictional or affect vested substantive rights. 6 Fla. Jur. Constitutional Law § 264 (1956). In the supreme court’s recent decision in Village of El Portal v. City of Miami Shores, Florida, 362 So.2d 275 (Case No. 51,233, Opinion filed May 31, 1978) the court dealt with the question of what is a vested right. The issue in the Miami Shores case was whether the statute there in question [§ 768.31, Fla.Stat. (1975), the Uniform Contribution Among Tortfeasors Act] adversely affected vested rights. In the process of reaching its ultimate conclusion the supreme court stated:

Remedial or procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases . . . [where the act] does not affect any vested rights . or create any new obligations . [at 278]

We think the 1976 act is remedial in nature rather than a modification of the substantive rights of the parties.

By its very terms the 1974 act limited the price adjustment, inter alia, to contracts covered by bids submitted prior to April 1, 1974, but covering asphalt work done or to be done after December 1, 1973; to price increases experienced prior to the expiration of the allowable contract time; to the contractors who agreed to the application of the adjustment to all applicable contracts and to pay the entire amount of the resulting additional compensation to any subcontractor who actually performed the asphalt work. The 1976 act — in keeping with the express reason for and objective of the 1974 act — added a further narrowing condition: where the contractor can actually demonstrate a minimum advance of his cost of asphalt. We point out that the substantive provisions of the 1974 act, including price adjustment formula, remained unchanged.

By the 1974 act the state bailed out the contractors by providing relief from an unexpected and potentially catastrophic development. By the 1976 act the state acted to prevent or decrease any unintended windfall; confining the relief to those situations — road contracts — wherein modification of an already binding contract was truly justified.

With reference to impairment of contract, in United States Trust Company of New York v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) the Court held with reference to the Contract Clause:

The Contract Clause is not an absolute bar to subsequent modification of a State’s own financial obligations. As with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. 431 U.S. at 25, 97 S.Ct. at 1519, 52 L.Ed.2d at 111-12.

In United States Trust Co. the facts were as follows. The states of New York and New Jersey had, in 1962, entered into a statutory covenant which limited the ability of the Port Authority of New York and New Jersey to subsidize rail passenger transportation from revenues and reserves pledged as security for consolidated bonds issued by the Port Authority. A 1974 New Jersey statute, together with a concurrent and parallel New York statute, retroactively repealed the 1962 covenant.

The Court held that the 1962 statutory covenant had been impaired. The Court based its holding on several factors. It pointed out that the bond holders had been harmed by the retroactive legislation in the sense that the outright repeal of the 1962 covenant totally eliminated an important security provision and thus impaired the obligation of the state’s contracts. The Court noted that it was aware of the laudable goals underscoring the retroactive legislation, i. e., mass transportation, energy conservation and environmental protection. While pointing out that it realized that these were important and legitimate matters of public concern, the Court held that “a State cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors.” 431 U.S. at 29, 97 S.Ct. at 1521, 52 L.Ed.2d at 114.

The facts in the instant case are much different than those found in United States Trust Co. In the first place, the nature of the contractual relationship is entirely different. In United States Trust Co., the state had obligated itself financially in a municipal bond contract. In contrast, our statutory “contract” (under the 1974 act) was, in simple terms, a “contractor’s relief act.” In the present case the State of Florida, rather than obligating itself financially as in the ease of a bond situation, was more in the nature of a grantor of social welfare funds. The legislature’s response to the embargo and rapidly escalating petroleum prices was not really all that much different from other social welfare legislation. The legislature decided that contractors, subcontractors and suppliers were truly exposed to a real danger of irreparable economic harm on public works contracts falling within the narrow time frame established by the 1974 act.

The instant case fits under the rule that “an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose.” 431 U.S. at 25, 97 S.Ct. at 1519, 52 L.Ed.2d at 111-12. It is illogical to assume that the legislature, by enacting the 1974 act, was irrevocably and forever frozen to the precise terms and conditions of qualification provided therein. The state could have done nothing and forced the contractors to either take the losses or default. The state didn’t do this and provided relief through the 1974 act. It is surely reasonable and necessary to protect the taxpayers by amending the original law to recoup or prevent unintended excess profits by the contractors.

We find City of El Paso v. Simmons, 379 U.S. 497, 515, 85 S.Ct. 577, 587, 13 L.Ed.2d 446, 458 (1965) most apropos. In that case a 1910 statute directing sale of public lands on long-term liberal contracts had unforeseen effects which allowed speculators to reap windfall benefits at the expense of the State of Texas. By a 1941 amendment the legislature of the State of Texas sought to limit and sharply curtail such possibilities. In holding the 1974 amendment valid the United States Supreme Court stated:

This Court’s decisions have never given a law which imposes unforeseen advantages or burdens on a contracting party constitutional immunity against change.
Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of a contract.

Appellee argues that two other cases apply in support of their argument that their 1974 contract was impaired by the 1976 amendment. Appellee argues that Anders v. Nicholson, 111 Fla. 849, 150 So. 639 (1933) is directly on point. The facts in Anders are clearly distinguishable from those here under consideration.

Anders involved pension funds for city employees in Jacksonville. A 1919 statute created the pension plan. Participation was voluntary and the act provided that any employee-member of the fund, upon discharge, would receive all the monies contributed by him plus interest at 4% per annum. Thereafter, however, the legislature — in 1925 — amended the plan and provided that an employee, upon discharge, would only be eligible to receive 50% of the funds contributed by him during the period of his employment. The court held [citing the New Jersey case of Ball v. Board of Trustees of Teachers’ Retirement Fund, 71 N.J.L. 64, 58 A. 111 (1904)] as follows:

The fact that the terms of the agreement were embodied in an act of the Legislature does not change its essential character as a contract, and it was beyond the power of the Legislature to impair the obligation of this contract by subsequent legislation. 150 So. at 644 citing 58 A. at 112.

Very important to the Anders court was the fact that the pension fund was made up of voluntary contributions of employees made under clear conditions and expectations. A far different situation would have been presented had the pension fund involved only public monies. Appellee’s contention that “in both cases [here and Anders ] there was an existing obligation on the part of the government unit which was modified by legislation . . . ” is overly simplistic. The reason for finding an impairment of contract in Anders was to rectify a grossly unfair taking of employee contributions by the 1925 law. In our case, instead of voluntary contributions to a pension plan being swept away by legislative fiat, we have a situation where the likelihood of windfall profits to a contractor under a contractor’s relief act was at least attempted to be diminished by amendment.

We also think appellee’s reliance on Forbes Pioneer Boat Line v. Board of Commissioners of Everglades Drainage District, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922) rev’g 80 Fla. 252, 86 So. 199 (1920) is misplaced. In Forbes the Florida Legislature attempted to retroactively validate— by statute — tolls for passage through canal locks. The tolls had been set and collected by the Board of Commissioners of the particular drainage district [an agency of the state] without such being authorized by the original act. The legislation was enacted on the same day that the Florida Supreme Court decided the case. The plaintiff boat line had paid the tolls for three years and sued to recover them back. Forbes did not involve a right premised upon a prior existing and lawful contract as modified by subsequent legislation. The simple holding in Forbes was that the state legislature may not retroactively create a new liability in the absence of just compensation.

Appellee makes much of the supposed “two-way” nature of the 1974 act. Appel-lee summarizes this argument as follows:

When the agreement [1974] was entered into switching to a variable price, the state stood to gain if the monthly price fluctuation averaged out lower than the various fixed bids under the respective contracts.

The recent case of State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 358 So.2d 605 (Fla. 1st DCA 1978) agreed with this argument. Chadbourne is a case involving facts almost identical to those in the instant case. The Chadbourne court accepted the “two-way” argument:

[F]ixing payment according to a monthly asphalt price index is a double edged sword. At the time [the 1974 act] was enacted prices were volatile and unstable, capable of dropping abruptly should the oil embargo have failed. The statute then would have operated to the benefit of the state should asphalt prices have plunged. [Emphasis supplied.] 358 So.2d at 608.

This is a highly unlikely reading of history and requires us to ignore the preambles of the acts in question. As pointed out by the dissent in Chadbourne “the possibility of a drop in oil prices so low that payments would dip below the original price bid is remote indeed.” 358 So.2d at 608. We add that if such a result were at all likely it is very doubtful the legislation would have ever been proposed or, if proposed by DOT, would have passed the legislature. Similarly, if enacted, it would hardly have commended itself to the contractors’ “acceptance”. If the 1974 act had been passed to increase — or had the strong likelihood of increasing — the profit of either the contractors or the state then it seems to us that its validity would be in serious jeopardy.

The rationale of the majority in Chadbourne on this point does not commend itself to us. That court held:

[T]he legislature could not have forced Chadbourne to accept the terms of the 1974 statute, for to do so would be contrary to the United States and Florida Constitutions as an impairment of a valid and existing contract. Chadbourne chose, however, to participate, taking the good with the bad. The trial judge construed the 1976 amendment as again giving contractors a choice. We agree. Since Chadbourne did not elect to participate, his payment must be determined under the 1974 act. Having elected to participate under the 1974 act, but having exercised his right not to participate under the 1976 act, the latter did not affect the contracts which were submitted pursuant to the 1974 act prior to the enactment of the 1976 act. 358 So.2d at 607.

This would seem to indicate that the contractors are afforded three options (as argued by appellee herein):

1. Return to the pre-1974 law position;
2. Retain the application of the defective 1974 “windfall” formula;
3. Elect the curative 1976 formula amount.

We are more inclined to believe that the contractor has but two options:

1. Elect to continue its participation in the asphalt price adjustment pursuant to the 1976 qualifying requirements (the actual price adjustment formula was not changed by the 1976 act).

Note: This allows the contractor to review established financial data and criteria to make an intelligent election as to which option is financially preferable.

2. Return to or stand on his pre-1974 act contract by simply rejecting the program.

Appellee points to the deposition of Drawdy in which Drawdy [of the DOT] made a supposedly damaging admission that the 1974 act was a “two-way clause.” Taken out of context, this is a valid contention. However, in context, Drawdy is merely admitting what is possible, not probable. What the majority in Chadbourne and appellee in its brief maintain as a two-way street was in reality a one-way street with only an extremely remote, if not nonexistent, possibility of the state deriving a profit — much less a windfall.

Appellee also seeks to make much of the “offer” and “acceptance” language of both acts as thereby creating — at least by the 1974 act — a new unimpairable contract between the parties. We think the “offer” and “acceptance” language is not determinative of the question. It seems to us that the legislature intended to “offer” relief only to those contractors or subcontractors who incurred the contemplated increase and needed relief — otherwise the contractor would have no need to “accept” and, in fact, it would be unconscionable to do so. The legislature therefore provided in both acts that the “added compensation” would be payable to “the subcontractor who performed the asphalt work on the project” clearly having in mind that price increases were inevitable and that the “additional compensation” would actually go to the party experiencing such increases. Windfall or excess profits would obviously occur if the contractor is permitted an adjustment in the price he is paid according to the statutory formula and yet has assured his supply of asphalt under the affected contracts at pre-crisis prices. Perhaps the real significance of the “offer” and “acceptance” provisions was to provide a basis for enforceability by those contractors who “accepted” the state’s “offer” and relied thereon to their prejudice. No such showing is attempted by appellee. It simply stands on the flat premise that a new contract was created by the 1974 act that could not be modified, in any way, by the 1976 legislative enactment unless the contractor so chose.

We hold that the 1976 act was a valid retroactive amendment to the 1974 act. Its purpose and effect is to specify the criteria to qualify for the intended relief and limits its availability to such as demonstrate a real or genuine need.

We realize that our holding places us in direct conflict with our sister court’s holding in Chadbourne, supra. Further in view of the widespread nature of the problem, its public significance and the need for speedy resolution of the legal status of the state and the numerous road contractors under the 1974 and 1976 legislation we certify the case to the supreme court for determination.

Reversed and remanded for further proceedings not inconsistent therewith.

SCHEB, J., concurs.

GRIMES, C. J., dissents with opinion.

GRIMES, Chief Judge,

dissenting.

The result accomplished by the majority opinion is appealing because it incorporates into the 1974 act the 1976 safeguards against windfall profits which the legislature would have surely passed in 1974 had the matter been considered at that time. Nevertheless, I cannot rationally overcome what the majority characterizes as the “two way” nature of the 1974 act. Under this legislation the contractors were given the option of having their payments for paving work under existing contracts based upon the current asphalt price index. If a contractor chose to accept this method of price calculation he was bound to it regardless of whether he ultimately received more or less than his original contract price. While the asphalt index price did go up as everyone expected, there were instances in which by virtue of having accepted the new formula some contractors were paid less than they would have been under their original contracts. This occurred with respect to one of the three contracts in issue in State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., supra. Thomas E. Drawdy, Department of Administration Estimates Engineer, confirmed this when he testified on deposition:

Q There are cases where the asphalt price index system when applied to the formula resulted in less compensation than the original fixed bid price?
A This is correct.

The impairment of contract involved in this case is best illustrated by assuming that the 1974 act had not been passed but that the asphalt price formula included therein was a part of the appellant’s original contracts with the Department of Administration. Then assume that in 1976 the legislature passed a statute specifying that any existing contracts having such an asphalt price formula would be changed to the extent that the payment must be tied to actual costs. I have little doubt that under these circumstances the 1976 legislation would be construed as an unconstitutional impairment of the pre-existing contracts. The only way that the instant case differs from the hypothetical set of facts is that the asphalt price formula was incorporated into the existing contracts by virtue of the option offered under the 1974 legislation. Under both circumstances, there were valid contracts which provided that the payments would be computed according to the asphalt price formula, and the 1976 act seeks to alter this formula.

In my judgment, the majority may be more willing to conclude that the 1976 amendment is not an impairment of contract because of the fact that when oil prices started rising the state could have held the contractors to their original fixed bid contracts, and the 1974 legislation was enacted to help them weather an unforeseen hardship. As persuasive as this may be, I don’t think this provides us with a basis upon which we can apply the legal doctrine of impairment of contract in different ways. It does draw into issue the question posed by the dissent in Chadbourne of whether the 1974 act was constitutional in the first place. As did the majority in Chadbourne, I believe the 1974 act was constitutional because there was a substantial state benefit in seeking to avoid a total breakdown in road building due to the potential bankruptcy of paving contractors and because of the possibility that the monies paid out on the new asphalt price index formula would be less than the original contract price. The constitutionality of the 1974 act was also argued before us, but because of the disposition of the case it was unnecessary for the majority to reach it.

In essence, the majority seems to be construing the 1974 act as if it had always contained the limiting provisions of the 1976 amendment, but this is not so. I cannot escape the conclusion that to apply the provisions of the 1976 amendment to those paving contracts which had been agreed upon as being governed by the 1974 price index formula constitutes an unconstitutional impairment of contract.

Therefore, I respectfully dissent.

      . The 1976 amendment was enacted (effective June 18, 1976) prior to the decision in Pan American (opinion filed October 18, 1976). The appellee contends that the Pan American decision is dispositive of “all of the same arguments which [the DOT] raises on this appeal.” This, however, is not the case. Pan American was a narrow decision. Its treatment of the 1976 amendment was limited to the question of timing, i. e., did the 1976 amendment and accompanying rules preclude judicial construction of the 1974 law and the rules promulgated thereunder by the DOT. On this question, the First District Court of Appeal ruled against the DOT, holding that respondent contractors were entitled to construction of the prior law and rules.

      . The supreme court recently reiterated the “bias against retroactive legislation” in the absence of legislative intent to the contrary. Century Village, Inc. v. Wellington E, F, K, L, H, J, M & G Condominium Ass’n, 361 So.2d 128 (Opinion filed July 13, 1978).


author: ERVIN, Judge.

text:
    W. W. BURLESON, a/k/a Wilder Burleson, Sr. and wife, Emily Margaret Burleson, Appellants, v. Jerry M. BROGDON, Appellee.
    No. HH-469.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1978.
    As Corrected On Denial of Rehearing Nov. 30, 1978.

      James W. Middleton and Michael William Mead of Middleton & Mead, Fort Walton Beach, for appellants.
    Fred B. Estergran of Estergran, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   ERVIN, Judge.

Burleson appeals from a judgment quieting title and reforming a deed conveying certain property to him in favor of appellee Brogdon.

In 1960, Ruby Smith attempted to deed parcel “B” to her brother, appellant W. W. Burleson, and parcel “C” to another brother, Charles Burleson, but the descriptions in the deeds were erroneously written so that parcel “A” was conveyed to appellant and parcel “B” to his brother. For point of clarity the following is a rough draft sketch of the parcels involved:

In 1963, appellant Burleson and his brother executed quit claim deeds to the “A” and “B” parcels to Mrs. Smith. She again attempted to convey parcels “B” and “C” to her brothers. Unfortunately the deeds were again erroneously drawn. This time appellant’s deed was to parcel “C” (He should have received parcel “B”.), and his brother’s deed was to parcel “D”. (He should have received parcel “C”.) The following is a sketch of the conveyances as reflected by the 1963 corrective deeds:

That property which is represented by the dotted line and is partially enclosed by parcel “D” represents the land which appel-lee Brogdon purchased by tax deed from the IRS in 1966. This property had previously been conveyed by Ruby Smith in 1953 to Mr. and Mrs. Guiseppe Mazzola. There is no dispute by the parties that the 1963 deed was incorrect and that parcel “B” should have been received by appellant and parcel “C” by his brother Charles; although appellant was under the impression at the time he received the deed that it described parcel “B”.

Subsequent to the 1963 transfers, Charles Burleson deeded parcel “D” to his son, Luther Burleson, who conveyed the property to Andrew and Martin Bilek, and the Bileks in turn conveyed the same property to James E. Moore. After Moore obtained the property, he constructed a sea wall on it, and appellee Brogdon brought suit against him to quiet title to that portion of parcel “D” which Brogdon claimed by reason of a deed received by him from the IRS. Brog-don also sued the Bileks. Moore counterclaimed, requesting that the court quiet title in him according to the description he received in the chain of title from Charles E. Burleson. On May 24, 1978, a final judgment was entered pursuant to stipulation of counsel in which Moore was adjudged the owner of the west 53.75 feet of parcel “D”, and Brogdon the owner of the east 25.75 feet. Paragraph three of the judgment stated: “That this judgment only determines the land dispute between these parties and does not in any way affect the rights of these parties against their predecessors in title.”

Following the entry of the above judgment, Ruby Smith, on August 18, 1973, conveyed parcels “B” and “C” to appellant and his wife. Finally, in February, 1975 Moore deeded to Brogdon that portion of the property which Moore had been adjudged the owner in the prior consent judgment. Subsequently Brogdon went upon the property described as parcel “C”; Burleson sued Brogdon for trespass and sought an injunction from the court to enjoin Brogdon from continuing his trespass, as well as damages. Brogdon in turn counterclaimed, seeking reformation of the 1973 deed as it pertained to parcel “C”.

Brogdon’s rights of reformation are derived from whatever rights his remote grantor, Charles Burleson, had against his immediate grantor, Ruby Smith. Reformation will be allowed against the original grantor in the series if the mistake occurred under circumstances which would entitle any of the grantees to reformation, in which case the equity works back through all the grantees and operates against the original grantor. 66 Am.Jur.2d, Reformation of Instruments, § 63 (1973). Whether Charles Burleson could have prevailed depends upon the nature of his deed, executed in 1963, from Ruby Smith. It is necessary to examine the circumstances surrounding the conveyances to the two Burleson brothers. Brogdon testified that Ruby Smith told him the reason for the conveyances to the brothers was to settle their share of the estate of J. F. Burleson, the deceased father of Ruby Smith, W. W. Burleson and Charles E. Burleson, who were three of eight heirs of J. F. Burleson. The two deeds dated in 1960 from Ruby Smith to her brothers recited consideration in the sum of $10.00 and the deeds had on them state documentary stamps in the amount of $.20. Quit claim deeds were subsequently executed by the Burleson brothers in 1963 conveying the property back to Ruby Smith for the purpose of correcting the descriptions in the deeds. Both corrective deeds were executed on October 2,1963, by Ruby Smith to the two brothers. Both deeds again recited $10.00 consideration. The deed to Charles Burleson was first recorded, and the deed to appellant was recorded shortly afterward.

It was necessary for Brogdon, through his remote grantor, Charles Burle-son, to show that the deeds conveyed to the latter in 1960 and 1963 from Ruby Smith were for consideration. The general rule is that a court of equity will not undertake to reform an instrument which is merely voluntary and based upon no consideration. 66 Am.Jur.2d, Reformation of Instruments, § 42 (1973). Accord, Triesback v. Tyler, 62 Fla. 580, 56 So. 947 (1911); Harrod v. Simmons, 143 So.2d 717 (Fla. 2d DCA 1962).

Brogdon argues, however, that the recitation of consideration in a deed raises the presumption of consideration and that parol evidence may not be presented to vary the clear and unambiguous terms stated in the instrument conveyed to Charles Burleson in 1963. Florida Moss Products v. City of Leesburg, 93 Fla. 656, 112 So. 572 (1927); Saltzman v. Ahern, 306 So.2d 537 (Fla. 3rd DCA 1975). If the deed to Charles Burleson was shown to have been for consideration, then it is clear from the record that both deeds to the two Burleson brothers were for consideration. Both deeds recited the sum of $10.00 consideration. The rule is that any consideration which will support a deed is sufficient for the purpose of reformation. For example, it has been held that a deed stating a consideration of $1.00 and other valuable consideration is sufficient as a recital of valuable consideration. 66 Am.Jur.2d, Reformation of Instruments, § 46. If parol evidence may not be allowed to defeat Charles Burleson’s right to claim the conveyance was made to him for the consideration stated on the face of the deed, neither may it be allowed against Wilbur Burleson. Clearly then Wilbur Burleson must be said to have given consideration for his interest in parcel “C”.

Since there was adequate consideration recited in both deeds, is Brogdon, through his remote grantor, Charles Burle-son, entitled to reformation? Reformation is generally allowed against all persons except a bona fide purchaser for value and without notice. See Annot., 79 A.L.R.2d 1180 at § 8(b) (1961). Thus, as between the original parties, reformation of a deed will be allowed to make it conform to the intention of the parties; however, such relief will not be granted if it appears that the rights of bona fide and innocent purchasers will be prejudiced. Holley v. May, 75 So.2d 696 (Fla.1954). Wilbur Burleson must be considered a bona fide purchaser for value. The only remaining question is whether he took the property without notice of its incorrect description.

It is clear from the record that when Wilbur Burleson was erroneously conveyed his interest to parcel “C” in 1963, he was not aware until after the conveyance, from information received at the tax collector’s office, that the property conveyed did not comply with the intent of the grantor. Thus he took without prior notice of the defect. The fact that the deed identified an entirely different piece of property than was intended does not prevent the grantee from claiming the benefit of the rule in favor of innocent purchasers in the absence of other factors affecting the situation. See Annot., 79 A.L.R.2d, § 8(b) at 1203-1204.

In conclusion, it appears that there is no theory under which Brogdon may obtain reformation as against Wilbur Burle-son since his interest in the property is identical to that of Charles Burleson. The conveyances to the Burleson brothers must be considered either voluntary, or for a valuable consideration. If voluntary, Charles Burleson may not obtain reformation. If the conveyances were for consideration, then Wilbur Burleson must be considered a bona fide purchaser for value without notice of the incorrect description conveyed to him by Ruby Smith. As a result Brogdon, as Charles Burleson’s remote grantee, may not prevail over the intervening rights of a bona fide purchaser for value and without notice.

The final judgment reforming the instrument between Ruby Smith and Leonard Smith to W. W. Burleson and Charles Burleson is reversed with directions that judgment be entered in favor of W. W. Burleson and his wife, Emily Margaret Burleson, to that property conveyed to them by the 1963 and 1973 deeds from Ruby Smith and Leonard Smith.

MILLS, Acting C. J., and MELVIN, J., concur.

      . Section 201.02, Fla.Stat. (1959), provided that documentary stamps in the amount of $.20 per $100.00 be affixed to deeds.


author: BERANEK, Judge.

text:
    VISTA VIEW APARTMENTS et al., Appellants, v. HARDRIVES COMPANY, a Florida Corporation, Appellee.
    No. 78-667.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Rehearing Denied Dec. 7, 1978.

      Maurice Graham of Brimmell & Graham, Fort Lauderdale, for appellant.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This matter is before us on interlocutory appeal and is governed by the 1977 Revision of the Florida Rules of Appellate Procedure. Although neither party has raised the question, we determine the order appealed is not within the permitted class of non-final orders which are subject to review pursuant to Rule 9.130. If the case is viewed as a petition for common law certiorari pursuant to Fla.R.App.P. 9.040(c), we are of the opinion that no adequate jurisdictional basis has been demonstrated.

If the order appealed is erroneous and remains uncorrected throughout the balance of the proceedings and if the appellant does suffer an adverse final judgment, then the entire matter may be reviewed on full appeal.

APPEAL DISMISSED.

CROSS and DAUKSCH, JJ., concur.


author: MILLS, Acting Chief Judge. ERVIN, Judge,

text:
    William POWELL, Appellant, v. STATE of Florida, Appellee.
    No. HH-111.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1978.
    Rehearing Denied Dec. 12, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

Appellant seeks review of his conviction for possession and sale of a controlled substance, to wit: heroin, urging that the trial court erred in denying his motion for disclosure of the identity of a confidential informer. The facts herein are virtually identical to those expressed in McCants v. State, 363 So.2d 362 (Fla. 1st DCA 1978), HH-217, opinion filed September 21, 1978, and thus the decision therein is dispositive of the issue raised here. Accordingly, since in our view the court did not err in refusing to require disclosure of the identity of the confidential informant, the judgments and sentences are AFFIRMED.

MELVIN, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I dissent for the same reasons previously stated in McCants v. State, 363 So.2d 362, No. HH-217 (Fla. 1st DCA, September 21, 1978).


author: HASTINGS, ALCEE L., Associate Judge.

text:
    Dora Mae BREEDLOVE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1665.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Rehearing Denied Dec. 13, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Larry S. Weaver and Joseph R. Atterbury, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   HASTINGS, ALCEE L., Associate Judge.

The appellant was charged with second degree murder, tried by jury and found guilty of the lesser included offense of assault and battery. This appeal comes from an order in the Circuit Court, Orange County, denying a motion to suppress statements made by appellant to the police.

The sole question on appeal is whether the trial court erred in denying the motion to suppress statements made by the appellant at the time of her arrest. It appears from the record that although the appellant was not taken into custody, her Miranda rights were read four times in approximately an hour and she would have been detained if she started to leave. Testimony of deputies discloses that although perhaps not a direct physical restraint, such action falls within the prohibition of the Miranda rule. According to the court in United States v. Montos, 421 F.2d 215 (5th Cir. 1970): “Custodial interrogation [within the meaning of the Miranda decision] means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (at 222).

We are compelled to reject the State’s contention that the statement given at the appellant’s home was admissible because it was not the product of custodial interrogation or a result of coercion. It is settled that continued readings of Miranda rights to the accused may constitute undue harassment. In State v. Prosser, 235 So.2d 740 (Fla. 1st DCA 1970), the court affirmed the granting of a motion to suppress statements made to the police when evidence showed defendant wished to remain silent or consult with an attorney. Quoting Miranda with approval the court stated: “interrogation must cease if, after warnings have been given, the defendant ‘indicates in any manner that he wishes to remain silent or that he wishes to consult with an attorney’ ” (at 742). In the instant case, appellant repeatedly asserted her right not to make a statement without the presence of an attorney. The court, in Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969), observed “any showing of coercion or compulsion on the part of those having the accused in custody or any showing that the accused did not knowingly and intelligently waive such rights would have the effect of tainting the statements subsequently obtained” (at 325).

In Jones v. State, 346 So.2d 639 (Fla. 2d DCA 1977), statements obtained from a defendant after indicating a wish to remain silent were deemed inadmissible even though not a product of direct interrogation. The record indicates that after the appellant refused to make a statement for the third time, an officer continued to interrogate her. Our appellate courts have repeatedly condemned such practice. In Nunez, supra, quoting State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968), “the vice sought to be removed is the evil of continued, incessant harassment by interrogation which results in breaking the will of the suspect, thereby making his statement involuntary.”

The record shows that the emotional state of the accused was such as to effectively preclude a knowing and voluntary waiver of her Fifth Amendment rights. At trial an officer testified the appellant “ . . . was crying and very upset.” Another officer arriving approximately one hour later, testified: “she was very hysterical . . . she was crying and we had to calm her down.” In the case at bar, the appellant’s emotional confusion raises serious doubts as to whether her statements were knowingly and intelligently made. In Singleton v. State, 344 So.2d 911 (Fla. 3d DCA 1977), the court reversed a conviction when the record showed the accused was confused and indecisive at the time she made inculpatory statements. Clearly, the State failed to meet the heavy burden imposed on it under Miranda. It is for this reason we must reverse the decision below.

REVERSED AND REMANDED.

LETTS and BERANEK, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: BOARDMAN, Judge. GRIMES, Chief Judge,

text:
    Clay Leonard ENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1450.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 1978.

      Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant/defendant Clay Leonard Ennis and two others were charged in a three-count indictment with first-degree felony murder, robbery, and conspiracy to commit robbery. A jury found appellant guilty of all the charges in the indictment. Appellant was adjudicated guilty of all three charges and sentenced to life in prison for murder in Count I, a concurrent life sentence for robbery in Count II, and a consecutive eight-year sentence for conspiracy to commit robbery in Count III.

Appellant has raised two points, both of which merit discussion: one, that his sentence imposed on the robbery offense is impermissible, and two, that his sentence for the conspiracy to commit robbery exceeds the maximum sentence prescribed by law. We agree.

Appellant contends that the robbery sentence is impermissible under Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) for the reason that the sentence is violative of the double jeopardy clause of the fifth amendment applicable to the states through the fourteenth. The supreme court of this state in Slater v. State, 316 So.2d 539 (Fla.1975) and State v. Adams, 335 So.2d 801 (Fla.1976) held that a felony murder and the felony upon which the felony murder charge is predicated were two separate and distinct crimes for which separate judgments and sentences could be imposed upon conviction of each offense. Appellant argues that Slater and Adams have been implicitly overruled by the decisions of Harris and Brown. We do not think so. As we read Harris and Brown there is no apparent conflict between the decisions rendered in these cases and the holdings of our supreme court in the cited cases with regard to the aspect of double jeopardy at issue here. The issue in Harris and Brown was whether the double jeopardy clause prohibited successive prosecutions for violation of two separate statutes. The issue in the Florida cases and the case before us is whether the double jeopardy clause prohibits cumulative punishment for violation of two separate statutes prosecuted in a single proceeding. We believe this distinction is important.

As stated in Brown :

Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the sam$ offense.

432 U.S. 161, at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. Brown reiterated the test for determining whether violation of two statutes during one criminal transaction constitutes the same offense for purposes of cumulative punishment which was initially stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The test for determining whether violation of two statutes constitutes the same offense for purposes of successive prosecution is whether “the second prosecution requires relitigation of factual issues already resolved by the first.” Brown, supra, 432 U.S. at 167 n. 6, 97 S.Ct. at 2226 n. 6, 53 L.Ed.2d at 195 n. 6. There are then different standards to be applied to cumulative sentences and successive prosecution actions.

The robbery statute, § 812.13, Fla. Stat. (1977), prohibits the taking of money or other property by force, violence, assault, or putting in fear. Section 782.04, Florida Statutes (1977) provides that the unlawful killing of a human being when perpetrated from premeditated design or when committed by a person engaged in the perpetration of or attempt to perpetrate any one of certain enumerated criminal offenses, including robbery, constitutes first-degree murder. On the face of this statute neither robbery nor any one of the other enumerated felonies is a necessarily included lesser offense of first-degree murder since commission of any one of those enumerated felonies will support a felony murder charge. In other words, the statute does not require that one particular felony be proved but only that one of several felonies and an unlawful killing be proved.

The fact that to convict for felony murder the underlying felony must be proved does not bear on the question of whether cumulative punishment is prohibited by double jeopardy considerations. We look only to the statutory language to resolve that issue. Because the robbery statute requires the taking of property, which the murder statute does not, and the first-degree murder statute requires an unlawful killing, which the robbery statute does not, under the Blockburger test first-degree murder and robbery are not the same offense for cumulative punishment.

Although under the Florida statute, as under the Oklahoma statute considered in Harris, it is necessary to prove the underlying felony to convict for felony murder, what we believe to be the intended effect of a long line of double jeopardy cases persuades us to strictly adhere to the Blockburger test for cumulative punishment and not extend Harris to the factual situation before us. We believe that the Florida Supreme Court did not transgress the constitutional safeguard against double jeopardy. Nevertheless, we believe Slater and Adams are no longer controlling under the circumstances of this case.

In 1977 Section 775.021, Florida Statutes, was amended by the legislature to add a completely new provision, subsection (4), which provides:

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

This section was not included in the Florida Statutes at the time Adams and Slater were decided by the supreme court.

In this case, the robbery is a category (4) lesser included offense under Brown v. State, 206 So.2d 377 (Fla.1968) since its commission was alleged in the charging language of the murder count and was proved at trial. Section 775.021(4) clearly states that a court may not sentence on lesser included offenses arising out of the same criminal transaction or episode as the higher offense. The trial court erred in sentencing appellant for the robbery.

With reference to appellant’s second point, that is, that his sentence for conspiracy to commit robbery is excessive, he is right. He was charged in Count III with conspiracy to commit robbery, but the indictment does not allege that he conspired to carry a firearm during the course of committing this offense. Since the underlying substantive offense charged in Count III did not state an essential element of robbery in the first degree, § 812.13(2)(a), Fla.Stat. (1975), the underlying substantive offense was robbery in the second degree. Under these circumstances, the conspiracy is a third-degree felony for which the maximum sentence is five years. §§ 775.-082(3)(d), 777.04(4)(c), Fla.Stat. (1977).

Accordingly, the judgments of guilt on Count I, Count II, and Count III are affirmed. The sentence imposed on Count I is affirmed. The sentence on Count II is vacated and set aside. The sentence on Count III is reversed for resentencing as indicated in this opinion. On remand the sentence should be corrected to specifically set forth the period of credit time to which appellant is entitled by law. See Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975); § 921.161(1), Fla.Stat. (1977).

AFFIRMED in part; REVERSED in part; and REMANDED for proceedings consistent with this opinion.

RYDER, J., concurs.

GRIMES, C. J., concurs specially with opinion.

GRIMES, Chief Judge,

concurring specially.

I tend to think that Harris v. Oklahoma, supra, implicitly overruled Slater v. State, supra and State v. Adams, supra. However, the fact that I differ slightly from the majority appears academic to this appellant because under either, view his sentence for robbery will be set aside.

      . As pointed out in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), where cumulative punishment is prohibited successive prosecution is prohibited. The opposite is not necessarily true.


author: MOORE, Judge.

text:
    Angelia HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1605.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Rehearing Denied Dec. 13, 1978.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant was convicted of grand larceny and uttering a forged or false instrument. We find no merit in appellant’s argument with regard to the conviction of uttering a forged or false instrument and, therefore, affirm that conviction. With regard to the conviction of grand larceny we find merit and reverse.

A cash register, cash and a number of checks were allegedly stolen from Tropical Auto Body Works, Inc. In Count I appellant was charged with larceny of the cash register and cash and in Count II appellant was charged with uttering one of the checks which had been stolen and forged. The trial court erroneously instructed the jury with regard to inferences to be drawn from a defendant’s possession of recently stolen property. The basis of this instruction was apparently appellant’s possession of the check because there was no evidence of her possession of the cash register or the cash. She was not charged with larceny of the cheek. The instruction, therefore, was not applicable to the larceny charge and should not have been given.

The trial court also failed to instruct the jury on petit larceny. Consistent with our decision in Moore v. State, 352 So.2d 529 (Fla. 4th DCA 1977) we find this failure to be reversible error. However, in keeping with the majority opinion in Battle v. State, 362 So.2d 464 (Fla. 4th DCA, opinion issued June 6, 1978, rehearing granted September 13, 1978) we certify the following question to the Supreme Court as one of great public interest:

IS PETIT LARCENY NECESSARILY A LESSER INCLUDED OFFENSE OF GRAND LARCENY?

Accordingly, appellant’s conviction of uttering a forged or false instrument is affirmed; the conviction of grand larceny is reversed; and this cause is remanded for a new trial on Count I.

AFFIRMED in part; REVERSED in part; and REMANDED.

DOWNEY, C. J., and DAUKSCH, J., concur.


text:
    Sidney C. COLE, M. D., Petitioner, v. Douglas W. BURROWS, and Anna C. Burrows, his wife, and Frederic R. Saull, M. D., Respondents.
    No. 78-913.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Rehearing Denied Dec. 7, 1978.
    Robert J. Bogdanoff of Preddy, Kutner & Hardy, Miami, for petitioner.
    Jonathan Lynn of Stephens, Schwartz, Lynn & Chernay, Miami, and J. David Lynch of Andrews & Lubbers, Ft. Lauder-dale, for respondents.
   MOORE, Judge.

We have before us a petition for writ of certiorari seeking review of a Clerk’s Certificate terminating the jurisdiction of a medical mediation liability panel pursuant to Section 768.44(3), Florida Statutes (1977). The clerk issued his certificate after ten (10) months had expired from the date the claim was filed. Appellant contends that to deny him his statutory right to a hearing, when the failure to conduct such hearing within the prescribed time limits was through no fault of his, is a denial of due process of law. While the facts of this case tend to make us sympathize with petitioner’s position, we cannot agree that the clerk’s termination of jurisdiction was in error.

The hearing on the merits of this medical mediation was scheduled for March 23, 1978, two days prior to the expiration of ten (10) months from the time the claim was filed. The record does not reflect why the hearing was scheduled so close to the time when jurisdiction of the panel would expire. For the first time, the parties learned on March 23, that the attorney member of the panel would not be available because he had suffered an untimely demise. Not being able to obtain a substitute attorney member within the short time remaining, the hearing never commenced and the clerk issued his certificate terminating jurisdiction of the panel.

Numerous cases have held that the statutory time limits are jurisdictional and must be strictly construed. Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1978); Mellor v. Arakgui, 359 So.2d 36 (Fla. 4th DCA 1978); Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla. 4th DCA 1978); Burchett v. Clontz, 363 So.2d 15 (Fla. 4th DCA, opinion issued September 13, 1978). But see, State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977); State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977); State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977).

As this Court stated in Cole v. Wallace, supra, “strict adherence to the statutory framework provided by Section 768.44, Florida Statutes, is mandated in order to protect the rights of the claimant whose pre-litigation burden ‘reaches the outer limits of constitutional tolerance ..’ ” 354 So.2d at 886. A statutory right to a hearing should not be lightly denied, particularly when the failure to comply with the time limits is not the fault of either party. This right, however, must be balanced against the opposing parties’ constitutional right of access to the courts. In dealing with the crisis in medical care, the Florida Legislature has balanced these rights and provided in its legislation the maximum time during which a citizen’s access to the courts can be denied. Any other interpretation of Section 768.44 would exceed the “outer limits of constitutional tolerance.” Accordingly, the clerk was correct in entering his certificate, terminating jurisdiction of the medical mediation panel as a matter of law.

The petition for writ of certiorari is DENIED.

ANSTEAD, J., concurs.

DAUKSCH, J., concurs in conclusion only.


text:
    COUNTY OF SEMINOLE, State of Florida, Petitioner, v. Arthur L. SELIGMAN, Respondent.
    Nos. 78-1079, 78-1131.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Rehearing Denied Dec. 7, 1978.
    Harry A. Stewart, Sanford, for petitioner.
    Aldo Icardi, Winter Park, for respondent.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


text:
    NATIONAL CARLOADING CORP., a New Jersey Corporation, d/b/a ABC Air Freight Co., Appellant, v. GEMINI TRANSPORTATION, INC., et al., Appellees.
    No. 77-2644.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.
    Robert L. Bell, Miami, for appellant.
    Franklin, Ullman, Kimler & Entin, North Miami Beach and Ronald A. Dion, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant, who was the plaintiff in the trial court, appeals an order dismissing his cause for lack of prosecution. See Florida Rule of Civil Procedure 1.420(e). We affirm upon a holding that the record clearly reflects plaintiff’s failure to proceed with this case for the periods of time specified. See Leithauser v. Harrison, 206 So.2d 222, 224 (Fla. 4th DCA 1968).

A further point by the plaintiff urges that the dismissal was improperly made “with prejudice.” We agree, and strike from the order of dismissal the words “with prejudice” from the first line of the “ordered and adjudged” portion of the court’s order of November 18, 1977, which is here appealed. Where the dismissal of an action is not upon the merits, the dismissal should be without prejudice. See Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594 (Fla. 4th DCA 1973).

Affirmed in part; reversed in part.

      . “On a motion to dismiss for lack of prosecution, the issue is simply and exclusively whether there has been a failure to prosecute. If no action towards prosecution has been taken within a year, the trial judge may not exercise his discretion and must dismiss the cause.”


text:
    Richard B. SOUVIRON, Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, Appellee.
    No. 77-2677.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.

      Preddy, Kutner & Hardy and Glenn P. Falk, Miami, for appellant.
    Gerald M. Walsh & Associates and Gilbert E. Theissen, Fort Lauderdale, for ap-pellee.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Haenal v. United States Fidelity and Guaranty Co. of Baltimore Maryland, 88 So.2d 888 (Fla.1956); United States Fidelity and Guaranty Co. v. Hazen, 346 So.2d 632 (Fla.2d DCA 1977); Brown v. Gulf Life Insurance Co., 343 So.2d 91 (Fla.3d DCA 1977); General Accident Fire and Life Assurance Co. v. Liberty Mutual Insurance Co., 260 So.2d 249, 253 (Fla.4th DCA 1972).