author: SUNDBERG, Justice.

text:
    In re PETITION OF POST-NEWSWEEK STATIONS, FLORIDA, INC. for Change in Code of Judicial Conduct.
    No. 46835.
    Supreme Court of Florida.
    April 7, 1977.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, for petitioner.
    Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, for Fla. Ass’n of Broadcasters, Inc.
    Parker Lee McDonald, Orlando, Chairman, for the Fla. Conference of Circuit Judges.
    Richard C. McFarlain, Tallahassee, Asst. Director, for The Fla. Bar.
    Robert Eagan, State’s Atty. and Donald A. Lykkebak, Asst. State’s Atty., for State of Fla.

      Ellis S. Rubin of Ellis Rubin Law Offices, Miami, for Rommie L. Loudd.
    A. Broaddus Livingston, Chairman, Tampa, and Larry S. Stewart, Chairman-Elect, Miami, for Trial Lawyers Section of The Florida Bar.
    Gary C. Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Soc. of Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter, intervenor.
    Richard E. Gerstein, State’s Atty., and N. Joseph Durant, Jr., Chief Asst. State’s Atty., for Fla. Prosecuting Attys. Ass’n, amicus curiae.
    Harold Peter Barkas, Miami, for Academy of Fla. Trial Lawyers, amicus curiae.
   SUPPLEMENTAL INTERLOCUTORY DECISION

SUNDBERG, Justice.

By interlocutory opinion filed in this cause on January 28, 1976, reported at 327 So.2d 1 (Fla.1976), which decision has been several times supplemented to provide, inter alia, for inclusion of still camera photography, this Court has sought to have conducted for experimental purposes one televised civil and one televised criminal trial. The purpose of the experimental trials was to provide the Court additional data upon which to base its decision concerning the proposed modification of Canon 3 A(7) of the Code of Judicial Conduct of the State of Florida.

Among the guidelines imposed by the interlocutory decision was the requirement that all participants in such experimental trials consent to the experiment. The Court has met with total failure in securing the conduct of a trial in which all participants will consent, within the deadline of April 1,1977, for conducting the experimental trials. However, it remains the view of this Court that a test period during which trials will be conducted at which the electronic media and still photographers will be present is essential to a reasoned decision on the petition for modification of Canon 3 A(7).

Consequently, in order to gain the experience which we deem essential to a proper final determination of this cause, it is the decision of this Court to invoke a pilot program with a duration of one year from July 1, 1977, during which the electronic media, including still photography, may televise and photograph, at their discretion, judicial proceedings, civil, criminal, and appellate, in all courts of the State of Florida, subject only to the prior adoption of standards with respect to types of equipment, lighting and noise levels, camera placement, and audio pickup, and to the reasonable orders and direction of the presiding judge in any such proceedings. To this end, counsel for the respective parties are directed to develop and submit to this Court on or before May 15, 1977, proposed standards concerning technology and conduct for consideration and adoption by the Court prior to July 1,1977. In the event accord cannot be reached by the parties as to such recommended standards, the respective recommendations of the parties shall be submitted to the Court not later than May 15, 1977, for consideration and resolution. At the request of counsel for any party to these proceedings, a conference may be convened with Justice Sundberg, as conferee of the Court, to clarify and expedite the procedures for. development of the proposed standards.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM. KARL, Justice,

license: Public Domain

text:
    PETITION OF POST-NEWSWEEK STATIONS, FLORIDA, INC., for Change in Code of Judicial Conduct.
    No. 46835.
    Supreme Court of Florida.
    June 14, 1977.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, for petitioner.
    Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, for the Fla. Ass’n of Broadcasters, Inc.
    Parker Lee McDonald, Tallahassee, Chairman, for the Fla. Conference of Circuit Judges.
    Richard C. MeFarlain, Tallahassee, Asst. Director, for The Fla. Bar.
    • Robert Eagan, State’s Atty., and Donald A. Lykkebak, Asst. State’s Atty., for State of Fla.
    Ellis S. Rubin of the Ellis Rubin Law Offices, Miami, for Rommie L. Loudd.
    A. Broaddus Livingston, Tampa, Chairman; and Larry S. Stewart, Miami, Chairman-Elect, for Trial Lawyers Section of The Fla. Bar.
    C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Society and Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter, intervenor.
    Richard E. Gerstein, State’s Atty., and N. Joseph Durant, Jr., Chief Asst. State’s Atty., for Fla. Pros. Attys. Assn., amicus curiae.
    Harold Peter Barkas, Miami, for the Academy of Fla. Trial Lawyers, amicus curiae.
   PER CURIAM.

Pursuant to this Court’s Supplemental Interlocutory Decision filed April 7, 1977, 347 So.2d 402, the parties of record in the cause have submitted proposed standards of conduct and technology to govern electronic media coverage of proceedings in the courts of Florida during the one year pilot program invoked by the Supplemental Interlocutory Decision. In addition to the proposed standards, the Court has received response to the Supplemental Interlocutory Decision filed on behalf of the Chief Judge of the Eleventh Judicial Circuit of Florida and Sunbeam Television Corporation. The Court’s conferee met with a special committee of the Circuit Judges’ Conference, counsel of record and other interested parties on May 21,1977, at which time equipment was demonstrated and implementation of standards was discussed. It was unanimously recommended at the conference on May 21, 1977, that inauguration of the pilot program be postponed until July 5, 1977, to accommodate the July 4th holiday.

In the response of the Chief Judge of the Eleventh Judicial Circuit of Florida, it was recommended that the pilot program be limited in geographic scope to each of two judicial circuits. We have considered this proposal and rejected it on the basis that it would too severely limit the experience which this Court seeks to gain from the pilot program in order to reach a reasoned decision on the merits of the proposed modification of Canon 3 A(7).

In implementing the pilot program and applying the standards hereinafter enunciated, the authority of the presiding judge conferred by statute, rule or common law to control the conduct of proceedings before him shall in no wise be diminished. In this regard, the same rules of law applicable to inclusion or exclusion of the press or public at particular proceedings or during the testimony of particular witnesses shall apply to the electronic media and still photographers.

In consideration of the foregoing, the following standards of conduct and technology are hereby adopted to govern electronic media and still photography coverage of judicial proceedings in Florida during the one-year pilot program commencing at 12:01 a. m. on July 5,1977, and ending at 11:59 p. m. on June 30, 1978.

1. Equipment and personnel.

(a) Not more than one portable television camera [film camera — 16 mm sound on film (self blimped) or video tape electronic camera], operated by not more than one camera person, shall be permitted in any trial court proceeding. Not more than two television cameras, operated by not more than one camera person each, shall be permitted in any appellate court proceeding.

(b) Not more than one still photographer, utilizing not more than two still cameras with not more than two lenses for each camera and related equipment for print purposes shall be permitted in any proceeding in a trial or appellate court.

(c) Not more than one audio system for radio broadcast purposes shall be permitted in any proceeding in a trial or appellate court. Audio pickup for all media purposes shall be accomplished from existing audio systems present in the court facility. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the chief judge of the judicial circuit or district in which the court facility is located.

(d) Any “pooling” arrangements among the media required by these limitations on equipment and personnel shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personal from a proceeding.

2. Sound and light criteria.

(a)Only television photographic and audio equipment which does not produce distracting sound or light shall be employed to cover judicial proceedings. Specifically, such photographic and audio equipment shall produce no greater sound or light than the equipment designated in Appendix A annexed hereto, when the same is in good working order. No artificial lighting device of any kind shall be employed in connection with the television camera.

(b) Only still camera equipment which does not produce distracting sound or light shall be employed to cover judicial proceedings. Specifically, such still camera equipment shall produce no greater sound or light than a 35 mm Leica “M” Series Rangefinder camera, and no artificial lighting device of any kind shall be employed in connection with a still camera.

(c) It shall be the affirmative duty of media personnel to demonstrate to the presiding judge adequately in advance of any proceeding that the equipment sought to be utilized meets the sound and light criteria enunciated herein. A failure to obtain advance judicial approval for equipment shall preclude its use in any proceeding.

3.Location of equipment and personnel.

(a) Television camera equipment shall be positioned in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. If and when areas remote from the court facility which permit reasonable access to coverage are provided all television camera and audio equipment shall be positioned only in such area. Video tape recording equipment which is not a component part of a television camera shall be located in an area remote from the court facility.

(b) A still camera photographer shall position himself or herself in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. Still camera photographers shall assume a fixed position within the designated area and, once a photographer has established himself or herself in a shooting position, he or she shall act so as not to call attention to himself or herself through further movement. Still camera photographers shall not be permitted to move about in order to obtain photographs of court proceedings.

(e) Broadcast media representatives shall not move about the court facility while proceedings are in session, and microphones or taping equipment once positioned as required by l.(c) above shall not be moved during the pendency of the proceeding.

4. Movement during proceedings.

News media photographic or audio equipment shall not be placed in or removed from the court facility except prior to commencement or after adjournment of proceedings each day, or during a recess. Neither television film magazines nor still camera film or lenses shall be changed within a court facility except during a recess in the proceeding.

5. Courtroom light sources.

With the concurrence of the chief judge of a judicial circuit or district in which a court facility is situated, modifications and additions may be made in light sources existing in the facility, provided such modifications or additions are installed and maintained without public expense.

6. Conferences of counsel

To protect the attorney-client privilege and the effective right to counsel, there shall be no audio pickup or broadcast of conferences which occur in a court facility between attorneys and their clients, between co-counsel of a client, or between counsel and the presiding judge held at the bench.

7. Impermissible use of media material.

None of the film, video tape, still photographs or audio reproductions developed during or by virtue of the pilot program shall be admissible as evidence in the proceeding out of which it arose, any proceeding subsequent or collateral thereto, or upon any retrial or appeal of such proceedings.

8. Appellate review.

So that the Court may evaluate in depth all experiences engendered under the program at the end of one year, and to preclude appellate activity during the test year, (1) no appellate review shall be available to the electronic or still photographic media from individual orders entered by trial or appellate courts ruling upon matters arising under these standards, and (2) no appellate court shall entertain any petition by the electronic or still photographic media for extraordinary writ seeking in any way to affect such media reporting of a judicial proceeding or proceedings; provided however, that any party to this proceeding, any electronic media representative or any circuit or district court chief judge may at any time during the one-year pilot program apply to this Court, with proper notice to all parties, to amend the standards set out in this Order for the purpose of meeting unforeseen technical difficulties in their general application.

9. Evaluation of program.

At the conclusion of the one-year pilot program, all media participants in the program, all parties hereto, and all participating judges are requested to furnish to the Court a report of their experience under the program, so that the Court can determine whether or to what extent Canon 3 A(7) shall be modified.

It is so ordered.

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

KARL, J., concurs specially with an opinion.

KARL, Justice,

concurring specially.

I concur with the majority in establishing the one-year pilot program and adopting standards of conduct and technology to govern the electronic media and still photography coverage of judicial proceedings in Florida, but I would establish far less restrictive standards.

The justification for standards is the potential for distracting noises and movements and the possibility that the electronic media reporters will have an effect on the outcome of the trials by concentrating on certain witnesses and excluding others. These are legitimate concerns, and every effort should be made to avoid any activity in the courtroom that interferes with the litigants’ rights to fair trials. However, the standards promulgated by the majority go further than necessary.

APPENDIX A

FILM CAMERAS-16mm Sound on Film (self blimped)

1. CINEMA PRODUCTS CP-16A-R Sound Camera

2. ARRIFLEX 16mm-16BL Model Sound Camera

3. FREZZOLINI 16mm (LW16) Sound on Film Camera

4. AURICON "Cini-Voice" Sound Camera

5. AURICON "Pro-600” Sound Camera

6. GENERAL CAMERA SS III Sound Camera

7. ECLAIR Model ACL Sound Camera

8. GENERAL CAMERA DGX Sound Camera

9. WILCAM REFLEX 16mm Sound Camera

VIDEO TAPE ELECTRONIC CAMERAS

1. Ikegami HL-77 HL-33 HL-35 HL-34 HL-51

2. RCA TK 76

3. Sony DXC-1600 Trinicon

3a. ASACA ACC-2006

4. Hitachi SK 80 SK 90

5. Hitachi FP-3030

6. Philips LDK-25

7. Sony BVP-200 ENG Camera

8. Fernseh Video Camera

9. JVC-8800 u ENG Camera

10. AKAI CVC-150 VTS-150

11. Panasonic WV-3085 NV — 3085

12. JVC GC-4800U

VIDEO TAPE RECORDERS /used with video cameras

1. Ikegami 3800

2. Sony 3800

3. Sony BVU-100

4. Ampex Video Recorder

5. Panasonic 1 inch Video Recorder

6. JVC 4400

7. Sony 3800H


author: ENGLAND, Justice, OVERTON, Chief Justice,

text:
    FLORIDA GREYHOUND OWNERS & BREEDERS ASSOCIATION, INC., etc., et al., Petitioners, v. WEST FLAGLER ASSOCIATES, LTD., etc., et al., Respondents.
    No. 50128.
    Supreme Court of Florida.
    April 21, 1977.
    Donald G. MacKenzie of MacKenzie & MacKenzie, Bruce W. Greer of Pettigrew, Arky, Freed, Stearns, Watson & Greer, for petitioners.
    Herbert L. Nadeau of Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Miami, Sibley, Giblin, Levenson & Ward, Miami Beach, Aubrey V. Kendall, George W. Wright, Jr., of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, L. Robert Frank of Allen, Dell, Frank & Trinkle, Tampa, John A. Rush, Arthur T. Boone, Jacksonville, Robert L. Floyd, James D. Little of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for respondents.
    ADKINS, BOYD and KARL, JJ., concur.
    ENGLAND, J., concurs with opinion in which OVERTON, C. J., concurs.
    OVERTON, C. J., concurs specially with opinion.
   ENGLAND, Justice,

concurring.

I tentatively voted to accept jurisdiction in this case based on an apparent conflict between the decision below and other Florida appellate decisions. I had thought from the jurisdictional filings that the decision below, which without discussion affirmed an order of the trial court dismissing one count of petitioners’ amended counterclaim, was in conflict with such decisions as Napolitano v. H. L. Robertson & Assoc., Inc., 311 So.2d 757 (Fla.3d DCA 1975), and Sarasota-Manatee Airport Auth. v. Alderman, 238 So.2d 678 (Fla.2d DCA 1970). These cases generally involve the right to a jury trial for a counterclaim which contains both legal and equitable aspects. I now believe that the conflict I initially perceived is not present.

■To find decisional conflict in this case, it was necessary to scrutinize the second count of petitioners’ second amended counterclaim, which alleged a violation of the anti-trust laws, to ascertain whether it asserted a right to the alleged “legal” claim of damages. After carefully examining that pleading I could not say with any certainty that petitioners had requested damages, as opposed to an avoidance of an underlying contract. I gave petitioners the benefit of the doubt. Still, it was then necessary to determine whether the district court’s affirmance of a dismissal of that counterclaim count had generated a “real and embarassing” conflict in the jurisprudence of this state. After pondering this question for some time, I not only concluded that no jurisprudential conflict was present, but I further concluded that the inquiry itself was wasteful and improvident.

In AB CTC v. Morejon, 324 So.2d 625 (Fla.1975), I wrote in dissent that the time had arrived to reconsider Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), the divided decision of this Court (4-3) which granted us the authority to review district court decisions rendered without opinion. This case crystallizes my evolving concern and leads me to conclude that the time has indeed come to recede from Foley and its ill-conceived attempt to retain the last word on every matter brought to the Florida appellate courts.

Immediately after the district courts of appeal were created in 1957, this Court evaluated their constitutional role in a series of unanimous opinions which, in general, resulted in their characterization as courts of final rather than intermediate appellate jurisdiction. In one of the earliest decisions — Ansin v. Thurston, 101 So.2d 808 (Fla.1958) — the Court dealt with the exception to district court finality which occurs when one of their decisions is in “direct conflict” with other Florida appellate precedents, announcing that the Constitution is concerned only “with decisions as precedents as opposed to adjudications of the rights of particular litigants.” This fundamental evaluation of the new court system in Florida, which was made contemporaneously with the constitutional change that brought the district courts into being, was amplified in Lake v. Lake, 103 So.2d 639 (Fla.1958), to mean that a district court’s decision was not reviewable as a matter of “conflict” jurisdiction unless, with only “conceivable” exceptions, a direct conflict appeared on the face of the opinion. The Court there refused to be immersed in the record of the case in an attempt to discover some conflict which might lurk behind a district court’s unexplained decision. Later that same year, in Seaboard Air Line R., R. v. Branham, 104 So.2d 356, 358 (Fla.1958), a unanimous Court announced the procedure it would follow when asked to review decisions of the district courts for “conflict”:

“The Court will examine the opinion upon which the district court of appeal decision is based, and if the opinion, on its face, shows the probable existence of a direct conflict between the two decisions, on the same point of law, the writ of certiorari may issue and, after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any direct conflict between the decisions on the same point of law may be reconciled.” (Emphasis in original)

Despite these clear pronouncements of law, the bar of this state refused to accept the finality of district court decisions. Apparently from the intensity of repeated assaults on district court decisions and a perceived need to rectify what appeared to be an occasional error in their decisions, this Court began to depart from the principles it had so carefully forged. Generally, however, the Court remained resolute. See Kyle v. Kyle, 139 So.2d 885 (Fla.1962).

With the decisional armor once chinked, however, the defense of fortress “finality” became increasingly untenable. First, a procedure was developed to pry open inscrutable decisions of the district courts to see what was really behind them. To do this the Court began to examine per curiam affirmances in the light of concurring and dissenting opinions and by that means examine the cause for injustice. In its first phases cases would be remanded to the district courts if the possibility of conflict existed, and the courts were requested to write an opinion explaining the action of the majority. These later-developed opinions would then be used to determine if there existed a conflict in precedents. Within a few years this remand-for-opinion procedure became reflexive. The stage was then set for a constitutional struggle between the fledgling district courts and a prevailing majority on this Court, as to whether the early promises of finality were more than mere rhetoric.

Rising to the defense of the district courts’ finality in Foley v. Weaver Drugs, Inc., 172 So.2d 907 (Fla.3d DCA 1965), the Third District Court of Appeal refused to write an opinion for this Court’s benefit. The Court’s reaction came in a sharply divided decision (4-3) holding that jurisdiction exists here if any conflict can be found in the “record proper”. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). Mr. Justice Thornal vigorously dissented, noting that the Foley majority never came to grips with the important constitutional considerations involved in so vast a broadening of the Court’s jurisdiction. In fact, the only constitutionally relevant basis for the Foley majority was the suggestion that a per cu-riam affirmance without opinion creates an effective precedent in the trial court being affirmed. For so minor a premise, so significant a consequence!

In my view, the premise articulated by the Foley majority is in all events manifestly unsound. It is based on the indefensible assumption that trial judges assume that district courts issue per curiam affirmances only when they agree with the trial judge’s reasons for ruling a certain way. That assumption is not only fallacious as a matter of simple logic, but it has, since Foley, been expressly rejected by the district courts themselves. Both the Second and Third District Courts of Appeal have expressly stated that trial judges can make no assumptions as to the basis on which a per curiam affirmance without opinion is rendered. And this Court has also stated that reasons expressed by a trial judge, although part of the “record proper”, are irrelevant when we consider whether we have jurisdiction to review a district court’s per curiam affirmance. Since Foley, as I have attempted to point out, the district courts have more and more been regarded by a majority of this Court simply as inconvenient rungs on the appellate ladder. The high cost of Foley in dollars and time to litigants and to the judiciary of Florida now demands that the majority decision there be reconsidered. My own conviction is that Foley should be scrapped, along with the stillborn traces of decisional control which were conceived in the Lake decision. To my mind, there is no possible way that a district court’s affirmance without opinion can create decisional disharmony in the jurisprudence of this state sufficient to warrant our attention. The foul assumption which underlies any review is that the district court perpetrated an injustice which it could not explain away in an opinion. I refuse to indulge that assumption.

An honest analysis by my colleagues would compel them to admit that decisional conflict in this class of cases exists today solely on the grounds that we say it does. This is, of course, contrary to our recognition that the reasons for the district courts’ decisions in such cases are not capable of being discovered. The only rationale for our continued search of a basis for review in non-opinion decisions, then, is an unarti-culated notion that we should, when necessary, give “justice” not provided by the lower courts. That notion is simply not good enough for me since the Constitution was amended to assign that responsibility to the district courts.

Even if I am wrong in my premise that an affirmance without opinion doesn’t constitute a “precedent”, I would still contend that the need to “harmonize” such a precedent with other decisions is too miniscule to require our intercession. A precedent so limited simply does not create disharmony in the general law of the state. Similar situations occur whenever a losing litigant fails to take an erroneous trial court decision to the district court or an erroneous district court decision to us. In those cases future litigants are affected by any propensity of the trial judge or the appellate court to follow its erroneous “precedent”, yet the system survives. That is because those cases have no lasting effect on our general jurisprudence. For the same reason, unexplained district court decisions have only a limited potential effect throughout the system.

It has been suggested that our effort to review all district court decisions has contributed to an “intermediate court philosophy” in those courts. If true, that phenomenon is more damaging to our entire system of justice than the occasional miscarriage of justice which this Court attempts to rectify. The district courts will never be final in the areas reserved to them unless we acknowledge that they are and treat them that way. By its continual intrusion into the constitutional domain of the district courts, this Court has come perilously close to making us a court of select errors. I would cast out the devil which caused this perversion of our judicial system, and overrule Foley.

A final thought seems appropriate in light of the impending convocation of the 1977 Constitution Revision Commission. A majority of this Court may hold the view that district court decisions without opinion are precedents, and that the Constitution imposes on us an obligation, as opposed to a right, to harmonize all conflicts which are detectable among the four judicial districts of the state. If that be so, then I commend to the Commission the abolition of our conflict jurisdiction, as well as the other enumerated classes of discretionary review, in favor of the federal model which tolerates conflicts among the eleven judicial circuits of the nation and gives the United States Supreme Court complete and unfettered discretion to determine when uniformity is not essential.

OVERTON, C. J., concurs.

OVERTON, Chief Justice,

concurring specially.

I concur with Justice England that the time has come to recede from Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). This Court does not have sufficient time to give deliberative consideration to the second appeals that are being filed here under the Foley doctrine. I fully agree that this Court’s jurisdiction is restricted to decisional conflicts, as expressed by Mr. Justice Thornal in his dissent in Foley, supra.

      . Petitioners’ jurisdictional filings suggested direct decisional conflict on two other issues of law, but the district court’s decision on these points did not create an apparent disharmony in the law.

      . Ansin v. Thurston, 101 So.2d 808 (Fla.1958).

      . Ansin v. Thurston, 101 So.2d 808 (Fla.1958); Lake v. Lake, 103 So.2d 639 (Fla.1958); Karlin v. City of Miami Beach, 113 So.2d 551 (Fla. 1959). See also Kyle v. Kyle, 139 So.2d 885 (Fla.1962).

      .101 So.2d at 811.

      .“Since [the district courts were created] we have many times announced that the jurisdiction of this court was, as of that date, circumscribed by the specific limitations stipulated in the Constitution. Shortly after amended Article V became effective we thought that we detected a sort of prodding process whereby repeated efforts were made to induce this court to break down the barriers which separated our jurisdiction from that of the several Courts of Appeal .... We have resisted these assaults against the finality of decisions of the Courts of Appeal in all of those cases where such decisions were entitled to be accorded finality.” Karlin v. City of Miami Beach, 113 So.2d 551, 552 (Fla.1959).

      . For example, a divided court (4-3) in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla. 1960), held that conflict with dictum in a forty year old case served to give jurisdiction, although there was no discussion as to how the dictum had become precedential or why the “conflict” fit within the policy framework that had just been formulated.

      . See Rosenthal v. Scott, 131 So.2d 480 (Fla.1961), deciding by a divided court (5-2) to request an opinion on a per curiam reversal.

      . See, for example, Home Development Co. of St. Petersburg, Inc. v. Bursani, 168 So.2d 131 (Fla.1964); Young Spring & Wire Corp. v. Smith, 168 So.2d 540 (Fla.1964); Fontainebleau

        Hotel Corp. v. Forty-five Twenty-five, Inc., 168 So.2d 317 (Fla.1964).

      . In Acme Specialty Corp. v. City of Miami, 292 So.2d 379, 380 (Fla.3d DCA 1974), the court stated that while
      “sufficient to support a plea of res judicata as between the original parties, such per cu-riam affirmance opinion does not stand for any general pronouncement of principles of law that might have been urged by the parties in their pleadings and briefs.”
      The Second District Court of Appeal had earlier reached the same conclusion in Schooley v. Judd, 149 So.2d 587, 590 (Fla.2d DCA), rev’d on other grounds, 158 So.2d 514 (Fla.1963), stating that
      “such a decision does not establish any point of law; and there is no presumption that the affirmance was on the merits.”

      . In State ex rel. Ranalli v. Johnson, 277 So.2d 24, 25 (Fla.1973), Mr. Justice Adkins said that
      “. . . reasons given by the trial judge are merely surplusage unless relied upon specifically by the District Court. It is elementary that the statements of the trial judge cannot be a basis for conflict jurisdiction before this Court, as our jurisdiction requires a decision of a District Court of Appeal which is in conflict with a decision of this Court or of another District Court.” (emphasis in the original)

      . Williams v. State, 340 So.2d 113, 116 (Fla.1976) (dissent); City of Jacksonville v. Florida Nat’l Bank, 339 So.2d 632 (Fla.1976) (concurrence); National Airlines v. Edwards, 336 So.2d 545, 547 (Fla.1976) (dissent); Golden Loaf Bakery, Inc. v. Charles W. Rex Constr. Co., 334 So.2d 585, 586 (Fla.1976) (concurrence); Carter v. State, 331 So.2d 293, 294 (Fla.1976) (concurrence); Cummings v. Cummings, 330 So.2d 134, 137 (Fla.1976) (dissent); Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 18 (Fla.1976) (dissent); Hunt v. Seaboard Coastline R.R., 327 So.2d 193, 196 (Fla.1976) (dissent); State v. Embry, 322 So.2d 515, 518 (Fla.1975) (dissent).

      . Lake v. Lake, 103 So.2d 639 (Fla.1958).

      . We have already held that certiorari denials without opinion are non-precedential and cannot be reviewed by this Court on the basis of a “conflict”. Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla.1976).

      . I am not the first to suggest this thesis. See Gibson v. Maloney, 231 So.2d 823, 832-33 (Fla.1970) (dissenting opinion of Thornal, J.).

      . The role of intermediate and highest appellate courts is functionally different. There is extensive literature which describes the differences. A most recent monograph by the American Bar Foundation, which summarizes the prevailing views of the distinction, is Leflar, Internal Operating Procedures of Appellate Courts, 63-65 (1976). Separate judicial training courses have even been established in recognition of the differences.

      . Comment, The Erosion of Final Jurisdiction In Florida's District Courts of Appeal, 21 U.Fla. L.Rev. 375 (1969).

      . In his concurrence with the majority in Foley, Mr. Justice Drew demonstrated that at least 99% of all district court decisions remain undisturbed, even after review here.

      . See, In re Advisory Opinion to the Governor, Request of November 19, 1976 (Constitution Revision Commission), filed February 15, 1977, 343 So.2d 17 (Fla.).

      . Personally, I cannot accept this view. The Constitution says that we “may” review cases in direct conflict, not that we “must”. Section 3(b) of Article V is very clear as to which aspects of our jurisdiction are mandatory and which discretionary.

      . Art. V, § 3(b)(3), Fla.Const.

      . Art. Ill, § 2, U.S.Const.; 28 U.S.C. § 1254 (1970).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Virginia L. DUREN, Deborah S. Dunn, Linda Marie Gibson, Julie Martinez and Deborah Y. Cox, Appellees.
    No. 49657.
    Supreme Court of Florida.
    May 26, 1977.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.
    William F. Casler, St. Petersburg, for ap-pellees.
   PER CURIAM.

' Reversed. See State v. Bales et al., 343 So.2d 9 (Fla.1977).

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


author: PER CURIAM. ENGLAND, J.,

text:
    In re TRANSITION RULE 20, TRAFFIC COURT RULE 6.110.
    No. 46,571-I.
    Supreme Court of Florida.
    June 2, 1977.
    Richard E. Cox, Tallahassee, Executive Secretary of the Traffic Court Review Committee, for petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, rule 6.110 of the Florida Rules of Practice and Procedure, is amended in the manner as appended to this opinion and said amendment is hereby adopted. This amendment shall be effective immediately.

It is so ordered.

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

ENGLAND, J.,

dissents.

RULE 6.110.

DRIVER IMPROVEMENT, STUDENT TRAFFIC SAFETY COUNCIL, AND DWI COUNTER ATTACK SCHOOLS

(a) In those areas where traffic law violators are sentenced or are allowed to elect to attend a driver improvement school or student traffic safety council school or are sentenced to a DWI Counter Attack School, the chief judge of the circuit shall issue a local rule designating the schools to which attendance is required. No DWI Counter Attack School shall be approved by the chief judges until approval is first granted by the DWI Schools Coordinator or the Traffic Court Review Committee.

(b) Any school not designated by the chief judge may seek approval by petition to the Traffic Court Review Committee.

(c) Any schools designated to serve an area of the state are subject to the inspection and supervision of the DWI Schools Coordinator or the Traffic Court Review Committee.


author: OVERTON, Chief Justice. SUNDBERG, Justice, BOYD, Justice,

text:
    STATE of Florida, Appellant, v. Jimmie L. SIMPSON, Appellee. STATE of Florida, Appellant, v. Melvin BENJAMIN, Appellee. STATE of Florida, Appellant, v. Joel R. HANUKAH, Appellee.
    Nos. 48426, 48595 and 48596.
    Supreme Court of Florida.
    June 2, 1977.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for appellant.
    Philip J. Padovano of Ruiz, Padovano & Schrader, St. Petersburg, for appellees.
   OVERTON, Chief Justice.

We review these consolidated cases on direct appeal from the Pinellas County Court. In each case the trial court dismissed informations filed against defendants, declaring Florida’s statute on unlawful assembly, Section 870.02, to be unconstitutional because it abridged defendants’ First Amendment right to freedom of assembly. We have jurisdiction.

Section 870.02 makes it unlawful for three or more persons to meet in order “to commit a breach of the peace, or to do any other unlawful act.” The trial court found the statute neither vague nor overbroad, construing “unlawful act” to mean unlawful criminal act. Nevertheless, it held that:

“. . . [T]he Statute in question violates the First Amendment to the United States Constitution in that it attempts to regulate conduct which is protected by the Freedom of Assembly Clause contained in the First Amendment; in that it seeks to make criminal the coming together without requiring affirmative action in furtherance of the breach of peace or other unlawful act . .”

We disagree.

In State v. Beasley, 317 So.2d 750 (Fla.1976), we upheld the related riot statute, Section 870.01, Florida Statutes, and held the term riot must be defined as it was understood at common law since it was not expressly defined in the statute. We further required that each of the common law elements of the offense must be established by the circumstances of the incident and the charging document must include the, “. . . facts which establish that

three or more persons acted with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace.”

We have similar situations in the instant cases. The term unlawful assembly as used in the statute may be defined in accordance with the common law definition. State v. Beasley, 317 So.2d 750 (Fla.l975); Fields v. State, 85 So.2d 609 (Fla.1956); Smith v. State, 80 Fla. 315, 85 So. 911 (1920).

The common law had both narrow and broad definitions for unlawful assembly. The narrow view regarded unlawful assembly merely as a lesser included offense to riot, i. e., assembly of three or more persons with the common intent to riot, but without actually executing the violent action necessary to riot. Supra note 5.

The broad view required only a common purpose among the members of the assembly, and assembly in a manner which caused apprehension in the neighborhood of a breach of the peace. It did not necessarily require there be a purpose to riot or even any unlawful purpose. The broad definition resulted from expansion of the original narrow view. See 1 W. Hawkins, Pleas of the Crown 516 (8th ed. 1824); 8 W. Holds-worth, A History of the English Law 324-26 (2d ed. 1937).

The statutory provision for unlawful assembly is obviously designed to make unlawful an assembly in which those assembled have the intent to do an unlawful act which threatens a breach of the peace. The basic common law elements apply. Accordingly, we construe Section 870.02 to prohibit (1) an assembly of three or more persons who, (2) having a common unlawful purpose, (3) assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace.

It is no abridgement of free speech or assembly to make criminal an assembly which has as its purpose the breach of the peace. We hold Section 870.-02, Florida Statutes (1975), which establishes the offense of “unlawful assembly,” to be constitutional subject to the following restrictive limitations: The term “unlawful assembly” as used in the statute is defined in accordance with the definition as set forth in this opinion; each of the itemized elements of the offense must be established by the circumstances of the incident; and the charging document must articulate the facts which establish each of those elements.

With reference to the specific facts in the instant cases we find that the infor-mations in each instance charge that each of the individual appellees on a specific date and place,

“did then and there meet together with two or more persons to commit a breach of the peace, or to do any other unlawful act . . . .”

The facts are not sufficiently before us, and the informations as drawn are clearly inadequate. Florida Rules of Criminal Procedure 3.140(b) and 3.140(d)(1); State v. Beasley, supra.

We reverse the holding of the trial judge that the statute is unconstitutional, but affirm the dismissal of the informations on grounds that they fail to properly state an offense under the statute, without prejudice to the State to file amended informa-tions.

These causes are remanded for further proceedings consistent herewith.

It is so ordered.

ADKINS, ENGLAND and SUNDBERG, JJ., concur.

SUNDBERG, J., concurs with an opinion.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

SUNDBERG, Justice,

concurring.

I concur in the majority opinion because as construed and limited, I believe Section 870.02, Florida Statutes (1975), satisfies federal and state constitutional requirements. I believe there is implicit in the majority holding a determination that the alternative purpose of assembly proscribed by the statute, i. e., “. . . or to do any other unlawful act, . . .” may not be constitutionally prohibited due to the over-breadth inherent in such phrase and consequent infringement on the protected freedom of speech and assembly. I would have the opinion expressly so hold.

BOYD, Justice,

dissenting.

In my opinion the statute reviewed here is defective because it makes a crime out of the exercise of the First Amendment freedoms of assembly and speech. The restrictions placed by the majority opinion upon the definition of an “unlawful assembly” do not cure this fatal defect. The statute continues to prohibit the mere assembly of people. It is stressed by the majority that an assembly, to be illegal, must have a “common unlawful purpose.” However, a purpose is merely an expression of intent or desire. If it is not acted upon to any degree then it remains merely an expression, and is protected by the First Amendment guarantee of freedom of speech. Thus, we have two of our most fundamental rights involved in this statute, enforcement of which requires the violation of both.

There are many criminal statutes which punish overt criminal acts of unlawfulness. And there are others which can prevent disorder by punishing the beginning steps of such criminal acts. Traditionally, the earliest point at which incipient criminal behavior can be punished within the limits of due process is represented by the conspiracy statutes. But these statutes do not punish the assembling of people to create an illegal goal — the assembly becomes criminal only when an actual agreement is reached to commit a criminal act. This element is crucial to the constitutionality of the conspiracy statutes, since otherwise they would prohibit mere assembly or speech.

The statute in question provides criminal penalties for assembling in a group which has an unlawful purpose, as if this may somehow be inferred on a group level and attributed to every member of the group, without any proof of an agreement among the members or of the acquiescence of the individual charged. It is clear that under the conspiracy laws a person cannot be convicted for merely associating with conspirators. As the Fifth Circuit stated: “It is elementary that neither association with conspirators nor knowledge of illegal activity constitute proof of participation in a conspiracy.” But the statute in question goes beyond the limits of the conspiracy statutes and punishes a person for merely associating with others who may have unlawful intentions. This exceeds traditional limits placed upon punishment for the mere possibility of crime.

If the “common unlawful purpose” of the assembly is not expressed in overt acts, then it can only be gleaned from the thoughts or words of those assembled. But it is only when thoughts and words become acts that they are subject to criminal penalties. As we made clear in White v. State :

“We hold that mere words, when used as a tool of communication, are constitutionally protected. The protection fails only when (1) by the manner of their use, the words invade the right of others to pursue their lawful activities or (2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace.” 330 So.2d at 7.

If a group of people should congregate that is their right. If they talk among themselves their speech is protected. Even if they discuss ideas which are repugnant to the community and express violent or otherwise distasteful desires, their assembly and speech remain protected. Only when their speech goes beyond the communication of ideas and becomes a criminal act, such as the incitement of others to imminent violence or the formation of a criminal conspiracy, does it lose its protection. If the generalized expressions of those assembled become specific and threatening, or if the individuals exercise their rights of assembly and speech in an unduly loud or obtrusive manner, then the law becomes effective to prevent them. Otherwise they are within the protection of the First Amendment.

By this statute the law begins to punish at the point where people have merely gathered together, at a time when their purported “common unlawful purpose” is merely the inference of neighbors. The threat to public welfare, is too speculative to allow such an imposition upon the rights of free association and speech.

As we stated in State v. Beasley, construing the anti-riot statute (Section 870.01, Florida Statutes), for speech to constitute an incitement to riot the state must allege and prove “circumstances justifying a clear and present danger of a riot in accordance with its elements as heretofore set out and that the language used by the defendant tended to incite the persons assembled to an immediate breach of the peace.” There are no such limitations found in our construction of Section 870.02. As the statute is now drafted and construed, constitutionally protected speech and association could be criminally punished.

It is difficult to conceive of a situation in which people could “assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace” without committing acts which are adequately proscribed by other, constitutionally valid, penal statutes. If the crowd were armed, or were making threats to passersby, or were trespassing, the situation would come within the proscription of a number of valid criminal statutes. Should there be rioting, or the incitement to riot, the case would be adequately covered under Section 870.01, which we held constitutional in Beasley, supra. Should there be an express agreement to commit a crime, then a conspiracy would be established under Section 777.04. But if the crowd were peacefully gathered, and the “common unlawful purpose” was to be gleaned merely from their words, uttered in a lawful manner, then it is hard to understand how this could cause well-grounded fear in a rational and courageous person. Thus, the statute is not only unconstitutional but redundant, since by its construction it is virtually impossible to violate without incurring a criminal penalty under a more valid penal statute. The statute allows a person who is doing nothing more than exercising his First Amendment freedoms to be criminally punished. This is precisely what is meant by overbreadth.

This statute, which affects so vitally the freedoms of association and speech, is too broadly drawn to be saved by restrictive interpretation. It is an unconstitutional law which can only produce more harm than good. It is useless, yet dangerous, and should be eliminated.

For these reasons, I must respectfully dissent.

      . Art. V, § 3(b)(1), Fla.Const.

      . § 870.02, Fla.Stat. (1975), reads:

        “Unlawful assemblies. — If three or more persons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

      . § 870.01(2), Fla.Stat. (1975), which reads in its entirety:
      “All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . State v. Beasley, 317 So.2d at 753.

      . Compare, e. g., 6 Coke’s Third Institutes ¶ 79, at 175 (1809) with Reg. v. Vincent, 9 Car. & P. 91, 173 Eng.Rep. 754 (1839).

      . Reg. v. Vincent, supra note 5 at 756, 62; Reg. v. Graham, 16 Cox C.C. 420 (1888).

      . We do not read Callender v. Florida, 383 U.S. 270, 86 S.Ct. 924, 15 L.Ed.2d 749 (1966), to declare the statute to be facially unconstitutional. The restrictive construction we now make saves the statute from similar future dispositions.

      . Pearce v. State, 330 So.2d 783 (Fla. 1st DCA 1976); U. S. v. Feo.., 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975).

      . Roberts v. U. S., 416 F.2d 1216, 1220 (5th Cir.1969).

      . 330 So.2d 3 (Fla.1976).

      . 317 So.2d 750 (Fla.1976).


author: HATCHETT, Justice.

text:
    Joseph T. GARO, Petitioner, v. Agnes Mae GARO, Respondent.
    No. 49282.
    Supreme Court of Florida.
    June 2, 1977.
    Joseph T. Garo, in pro. per.
   HATCHETT, Justice.

By petition for writ of certiorari, we have for review a decision of the Fourth District Court of Appeal reported at 327 So.2d 845 (Fla. 4th DCA 1976), which conflicts with Ratner v. Ratner, 297 So.2d 344 (Fla. 3d DCA 1974), and State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936), ■ thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(3), Florida Constitution.

This case involves the validity of an order holding petitioner in contempt for nonpayment of alimony. The trial court made no specific finding that petitioner was presently able to pay any amounts due, but found him to be in willful default. The Fourth District Court of Appeal affirmed.

Petitioner contends that the order of contempt is fatally defective in that it lacks specific findings as to his present ability to pay. We agree and have so held in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976):

We hold a trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

Accordingly, the decision of the District Court is quashed and the cause remanded to the trial court with directions to make the required findings, if supported by the record, or otherwise vacate the order of contempt.

It is so ordered.

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


author: BOYD, Justice.

text:
    Sylvester BELLAMY, Appellant, v. STATE of Florida, Appellee.
    No. 50082.
    Supreme Court of Florida.
    June 2, 1977.
    Robert A. Farrance of Kearney & Mu-lock, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for appel-lee.
   BOYD, Justice.

Undercover police detectives began to observe a pool hall in Palmetto, Florida, where they suspected gambling was being conducted. Eventually they covertly participated with others in dice games played for money on a pool table in the back of the hall. Sylvester Bellamy, the lessee of the building, was arrested and charged with operating a gambling house contrary to Section 849.01, Florida Statutes. After being found guilty by a jury, he moved for a new trial and arrest of judgment on the ground, among others, that the statute is unconstitutionally vague and overbroad. The motion was denied, an adjudication of guilt was rendered and Bellamy was sentenced to pay a fine of $2,500. Bellamy took a direct appeal here to present his challenge to the statute which reads:

“849.01 Keeping gambling houses, etc. —Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or-other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

Bellamy complains that the statute is vague and overbroad because it would appear to outlaw games played for money (such as professional football, tennis, jai-alai, etc.) considered by reasonable men to be innocent. We cannot agree. The second definition of “game” in Webster’s Unabridged Dictionary, 3d Ed., p. 932 (1966) is “to play for a stake (as with cards, dice or billiards).” As used in the context of the statute, the words “gaming” and “game” are synonymous with gambling and the wording of the statute would not mislead a person of ordinary intelligence into thinking that the professional games mentioned by Bellamy are prohibited. “Gambling” has been defined by this Court as anything which induces risk of money or property without any other hope of return than to get for nothing any given amount from another. Creash v. State, 131 Fla. 111, 179 So. 149 (Fla.1938). Similarly, gaming has been defined as an agreement between two or more to risk money on a contest of chance of any kind, where one must be the loser and the other gainer. Id. As defined these terms are understandable by the citizenry of this State.

The other points raised on appeal by Bellamy are not meritorious. The conviction is affirmed and the cause remanded to the trial court for proceedings consistent with this opinion.

It is so ordered.

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


text:
    In re CANON 7C, CODE OF JUDICIAL CONDUCT.
    No. 43707-A.
    Supreme Court of Florida.
    June 3, 1977.
   PER CURIAM.

The amendment to Canon 7 C of the Code of Judicial Conduct herein adopted, relating to Code restrictions applicable to retired judges, has been submitted to and approved by the Committee on Standards of Judicial Conduct and the Board of Governors of the Florida Bar.

The applicability of Canon 7 C, as it was structured, required retired judges who had been recalled to judicial service to comply with all the provisions of the Code except Canons 5 D, 5 G, and 6 if they were eligible to receive one hundred percent of the compensation paid to full-time judges. There was a question of what portion of the Code was applicable in view of our varying formula for the payment of retired judges when called to service. The amendment is written to eliminate any question of the applicability of the Code of Judicial Conduct and to better utilize available retired judicial manpower of those judges who are presently reluctant to serve because of extra-judicial interests other than the private practice of law. Canon 7 C, as it read, could have been construed to prohibit a retired judge who was eligible to serve from being involved in commercial business interests or from serving in the capacity of an arbitrator or as an executor or administrator of an estate even though there was no possibility that these extra-judicial activities would reflect adversely on the judge’s impartiality in his assigned cases. This has an inhibiting effect upon use of retired judges because the Chief Justice is unable to assure retired judges that they will receive assignments which will provide a certain amount of annual income to offset loss of extra-judicial business income.

In order to avoid the construction problems inherent in former Canon 7 C, and to better utilize the manpower of retired judges eligible for recall to judicial service, the following amendment to Canon 7 C is hereby adopted, effective immediately:

C. Retired Judge. A judge who has retired from judicial service and who has complied with the procedures established by the Supreme Court of Florida so as to be eligible for recall to judicial service should comply with all the provisions of this Code except Canons 5C(l)-{7), 5D, 5E, 5G, and 6. A retired judge who is subject to recall shall not practice law and shall refrain from accepting any assignment in any cause in which his present financial business dealings, investments, or other extra-judicial activities might be directly or indirectly affected. The purpose of this admonition is to ensure that his impartiality is not subject to question.
If a retired justice or judge does not desire to be assigned to judicial service, such justice or judge who is a member of The Florida Bar may engage in the practice of law and still be entitled to receive his retirement compensation. He shall then be entitled to all the rights of an attorney-at-law and no longer be subject to this Code.

It is so ordered.

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

      . The present Canon 7 C reads as follows:
      C. Retired Judge. A retired .judge who receives the same compensation as a full-time judge on the court from which he retired and is eligible for recall to judicial service should comply with all the provisions of this Code except Canons 5D, G, and 6, but he should refrain from judicial service during the period of an extra-judicial appointment not sanctioned by Canon 5G. All other retired judges eligible for recall to judicial service should comply with the provisions of this Code governing part-time judges.
      If a retired justice or judge shall file with the Clerk of the Supreme Court a statement that he does not desire to be assigned to judicial service, such justice or judge who is a member of The Florida Bar may engage in the practice of law and still be entitled to receive his retirement compensation. He shall then be entitled to all the rights of an attorney-at-law and no longer be subject to this Code.


text:
    Walter Scott McDOUGALL, Petitioner, v. STATE of Florida, Respondent.
    No. 48017.
    Supreme Court of Florida.
    June 9, 1977.
    Ralph V. Hadley, III of Davids, Henson & Hadley, Winter Garden, for petitioner.
    Robert L. Shevin, Atty. Gen., and C. Marie Bernard and Anthony C. Musto, Asst. Attys. Gen., for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5c(6).

We are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certiorari is discharged.

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

ADKINS, Acting C. J., dissents.


text:
    Rocco PUGLIESE, Petitioner, v. Tina PUGLIESE, Respondent.
    No. 49908.
    Supreme Court of Florida.
    June 9, 1977.

      Steven L. Sommerfield, Venice, for petitioner.
    Robert G. Jacobson, Farr, Farr, Hay-mans, Moseley & Odom, Punta Gorda, for respondent.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to review a decision of the District Court of Appeal, Second District, reported at 336 So.2d 614 (Fla.2d DCA 1976), which is alleged to be in conflict with Demetree v. State, 89 So.2d 498 (Fla.1956), and its progeny with respect to the distinction between civil and criminal contempt, direct and indirect criminal contempt, and the procedural requirements for criminal contempt proceedings. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

On November 4, 1975, the Circuit Court for Charlotte County, Florida, entered its final judgment dissolving the marriage of Rocco and Tina Pugliese. That judgment ordered Rocco, the petitioner, to vacate, by November 7, 1975, the portion of the marital duplex residence he had been occupying during the action. Rocco was then a 70-year-old immigrant from Italy not completely fluent in the English language. Subsequent to entry of the judgment, petitioner was advised by his counsel that motion for new trial, stay of execution, and notice of hearing thereon had been filed, and, consequently, the provisions of the final judgment requiring surrender of the premises were stayed pending final determination of those motions at the assigned hearing. Based on such advice, Rocco declined to evacuate. Tina Pugliese, respondent, filed a motion for contempt order and notice of hearing. The motion and notice of hearing were served upon counsel for petitioner and not petitioner himself.

On November 18, 1975, the contempt hearing was held before the circuit judge. As of that date, the trial court had entered no supersedeas so as to excuse petitioner from compliance with the terms of the final judgment of dissolution of marriage. At the hearing, petitioner was held in contempt of court for willfully refusing to vacate the premises as required by the final judgment and was sentenced to 13 days in the Charlotte County jail. The order did not provide a means by which petitioner could purge his contempt prior to the expiration of the 13-day jail sentence by complying with the acts required by the final judgment.

On appeal from the contempt order, the District Court of Appeal, Second District, affirmed the trial court per curiam without opinion, citing Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and Morgan v. State, 325 So.2d 40 (Fla.2d DCA 1975).

To review properly the decision of the District Court of Appeal, we must determine the nature of the contempt for which petitioner was found guilty and the proceedings culminating in the entry of the order of contempt. Initially, we must ascertain whether the order is for civil or criminal contempt and, if for criminal contempt, whether it is direct or indirect.

If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor “carries the key to his cell in his own pocket.” See Demetree v. State, supra; Faircloth v. Faircloth, 321 So.2d 87 (Fla.1st DCA 1975); and In re S. L. T., 180 So.2d 374 (Fla.2d DCA 1965).

On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923); Demetree v. State, supra. Accordingly, while the conduct in the ease at bar could be the subject of civil contempt proceedings at the instance of the wife to coerce the petitioner to vacate the premises, it could also be the basis for criminal contempt proceedings in the event the trial court determined the conduct to be obstinate and sought simply to vindicate the authority of the court by punishing the petitioner. It is apparent then that the nature of the conduct is not determinative of the character of the order. However, a determination of whether an order is civil or criminal must be made. If the purpose of the proceedings was the latter, greater procedural due process safeguards are involved. This principle is recognized in Fla.R.Crim.P. 3.830 and 3.840. The rule appropriate to the proceedings is determined by whether the contemptuous conduct is direct or indirect.

Where the act constituting the contempt is committed in the immediate presence of the court, this contempt is defined as direct. Where an act is committed out of the presence of the court, the proceeding to punish is for indirect (sometimes called constructive) contempt. A review of the Rules of Criminal Procedure set forth in footnotes 1 and 2, supra, reflects the greater procedural due process safeguards imposed when proceedings are for indirect criminal contempt.

With the foregoing principles in mind, we proceed to review the contempt order entered in the instant case and the proceedings which led to such order. The record of the hearing culminating in the order under review is ambivalent upon the issue of whether it was intended to be for civil or criminal contempt. After pronouncing the sentence he would impose, the trial judge made the following conflicting statements:

THE COURT: ... But this is directly in violation of the Court’s order. And I want him moved off the premises and stay there.
It is a direct violation of the Court order and I think he should learn a little bit better than that.
‡ # * # * #
[COUNSEL FOR RESPONDENT-TINA:] This order that the Court is entering is not that type of an order. This is an order of punishment for civil contempt on the part of this Respondent.
THE COURT: It is a clear violation of civil contempt if I ever seen one and that’s true. And the order stands so you remain right here.

The former statement by the judge makes it appear that the sentence was intended to punish, not to coerce. The latter statement clearly characterizes the order as being for civil contempt.

Because the record yields no meaningful insight into the problem, we must look next to the face of the contempt order. After reciting the contemptuous conduct of petitioner, the order states simply:

ORDERED AND ADJUDGED that ROCCO PUGLIESE is in contempt of this Court; that he is hereby sentenced to serve thirteen (13) days in the Charlotte County Jail as punishment for contempt.

The absence of any provision allowing the petitioner to purge himself of the contempt and thereby terminate the sentence makes it appear that the order is for criminal contempt.

On the other hand, the manner in which the proceedings were initiated tends to belie the conclusion that the order sought to punish criminal contempt. Rather than having been initiated by the judge “of his own motion or upon affidavit of any person having knowledge of the facts,” the hearing and consequent order were provoked by a motion of the wife for contempt order. This is the classic method for gaining coercive relief by a private party to litigation.

Respondent maintains that the procedure here utilized is of no moment because counsel for the petitioner received the motion for contempt order, and petitioner appeared at the hearing with counsel at which time he admitted to violating the terms of the judgment earlier entered. She relies on a statement from In re S. L. T., supra, to the effect that formal pleading may become unnecessary even in proceedings for indirect criminal contempt if the person charged is given notice of the charge and a hearing. This position is untenable for two reasons. First, In re S. L. T. predates Fla. R.Crim.P. 3.840 [see Weech v. State, 309 So.2d 246 (Fla.4th DCA 1975)]. Second, even though petitioner, through counsel, received notice of a hearing for contempt order, he had no reason to believe at the time of the hearing that it was for other than civil contempt. He was not appraised that he would be required to stand ready to answer a charge of criminal contempt. See Aaron v. State, 284 So.2d 673 (Fla.1973). It is questionable that petitioner would have taken the stand and testified unabashedly to his violation of the terms of the final judgment had he known that criminal penalties were involved. Since the procedural requirements of Fla.R.Crim.P. 3.840 had not been observed, petitioner had no means of suspecting the consequences of the hearing.

Respondent further asserts that petitioner misapprehends the rule applicable to the case at bar. She suggests that the order was for punishment of direct criminal contempt and, therefore, the less stringent procedure of Fla.R.Crim.P. 3.830 is applicable. Respondent arrives at this conclusion upon the premise that since petitioner admitted in the presence of the court that he had defied the terms of the judgment, the judge “heard the .conduct constituting the contempt committed in the actual presence of the court,” and, therefore, the judge could punish him summarily. Were this contention accepted, the distinction between direct and indirect criminal contempt would be obliterated because the judge must always hear some testimony in his presence at a hearing on indirect contempt concerning conduct which took place outside his presence. We reject any such notion that would expunge the distinction between direct and indirect contempt.

In the final analysis, the order under review cannot stand whether it be characterized as criminal or civil contempt. As explained above, the conduct complained of did not take place in the presence of the court, so at most it constituted indirect contempt. This being so it would be error to enter an order of indirect criminal contempt without adhering to the requirements of Fla.R.Crim.P. 3.840 which admittedly were not complied with. Furthermore, the order may not be sustained as being for civil contempt because no opportunity to purge was afforded.

We emphasize that in any instance where the trial court can reasonably anticipate that conduct of such a nature is present as will invoke the criminal contempt powers of the court to punish the offender, procedural due process of law demands that the proceedings be conducted in conformity with Fla.R.Crim.P. 3.840. If the trial court is of a mind in cases such as here presented to punish rather than coerce, then counsel for an offended party should be so advised when he makes application for an order of contempt so that proper affidavit and order to show cause can be secured to comply with the requirements of the rule. It is possible to convert civil contempt proceedings to criminal contempt proceedings after a hearing is commenced. Such a conversion would mandate the continuation of the hearing to provide for issuance of an order to show cause that complies with the rule with fair opportunity to the respondent to prepare and be heard. However, such practice flirts with procedural due process flaws. Accordingly, better practice suggests that such situations be anticipated in advance wherever possible so that the full due process safeguards required by Fla.R.Crim.P. 3.840 will be afforded.

The petition for writ of certiorari is granted, the decision of the District Court of Appeal, Second District, is quashed, and this cause is remanded to the District Court with instructions to remand to the trial court for proceedings not inconsistent with the views expressed herein.

It is so ordered.

BOYD, ENGLAND and KARL, JJ., concur.

OVERTON, C. J., dissents.

      . “RULE 3.830. Direct Criminal Contempt

      “A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.”

      . “RULE 3.840. Indirect Criminal Contempt

      “(a) Indirect (Constructive) Criminal Contempt. A criminal contempt except as provided in the preceding subsection concerning direct contempts, shall be prosecuted in the following manner:
      “(1) Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
      “(2) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
      “(3) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.

        “(4) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own defense.
      “All issues of law and fact shall be heard and determined by the judge.
      “(5) Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the chief justice of the Supreme Court.
      “(6) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
      “(7) The Sentence; Indirect Contempt. Pri- or to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.”


text:
    STATE of Florida, Appellant, v. Elizabeth I. ESTEL, Appellee.
    No. 49926.
    Supreme Court of Florida.
    June 9, 1977.
    Robert L. Shevin, Atty. Gen., and C. Marie King, Asst. Atty. Gen., for appellant.
    No appearance for appellee.
   PER CURIAM.

Reversed. See State v. Bales, 343 So.2d 9 (Fla.1977).

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


author: KARL, Justice. BOYD, Justice,

text:
    STATE of Florida, Petitioner, v. Arthur Fillmore JEFFERSON, Jr., Respondent.
    No. 50021.
    Supreme Court of Florida.
    June 9, 1977.

      Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender and Craig S. Barnard, Asst. Public Defender, for respondent.
   KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, in Jefferson v. State, reported at 334 So.2d 178 (Fla. 4th DCA, 1976), which conflicts with Adams v. State, 341 So.2d 765 (Fla.1976), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Arthur Jefferson, his brother and another person attempted to rob Carl Dykes of $9,000 in receipts from the Western Sizzlin Steak House in Titusville after Dykes had closed the business for the evening and had exited through the rear door of the restaurant. During the course of events, Dykes was shot several times and subsequently died as a result of these wounds.

Appellee was indicted for murder in the first degree in that he did unlawfully kill Carl Edwin Dykes with a firearm and said killing was perpetrated from a premeditated design to effect the death of Dykes or was committed in the perpetration of, or in the attempt to perpetrate, robbery in violation of Section 782.04(l)(a), Florida Statutes (1973). He was tried, found guilty, convicted and sentenced to life imprisonment.

In his instructions to the jury, the judge instructed as to first, second and third degree murder, first degree felony murder, manslaughter, justifiable and excusable homicide, aggravated assault, assault and battery, and assault. However, no instruction was given, nor was one requested, on second degree felony murder. As to second degree murder, the trial judge instructed:

“Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual. An act is one imminently dangerous to another, and evincing a depraved mind regardless of human life, if it is an act which one, a person of ordinary judgment would know is reasonably certain to kill or to do serious bodily injury to another.
“Two, is done from willful hatred, spite or an evil intent. And third, is of such a nature, the act itself, indicates an indifference to human life.”

The court did not give the following instruction as to second degree felony murder:

“. . . when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, . . . .”

The Fourth District Court of Appeal reversed the conviction and remanded for new trial on the basis that the trial court’s failure to instruct on second degree felony murder constituted fundamental error.

We do not agree with the District Court, under the evidence presented, that the trial judge committed reversible error in not instructing on second degree felony murder. This Court’s recent decision in Adams v. State, supra, which construes the same statute in force sub judice, is controlling here.

In Adams, supra, we recognized the distinction between first degree and second degree felony murder as articulated in State v. Dixon, 283 So.2d 1 (Fla.1973). We held that one who personally kills another during the perpetration of one of the enumerated felonies is guilty of first degree murder and that liability for first degree murder extends to all co-felons who are personally present. The statutory scheme does not allow for the conviction of second degree felony murder of either the one who kills or his co-felons who are present. Only an accessory before the fact who was not personally present during the commission of the underlying felony can be found guilty of second degree felony murder under the applicable statute.

Second degree felony murder is not a lesser included offense of first degree felony murder under the applicable statute. It is a separately defined offense and one that could not apply to the appellee under the facts presented.

The District Court, having evaluated the entire record of evidence, determined that there was adequate proof of defendant’s participation in the crime. Our review of the record confirms the District Court’s finding and convinces us that the evidence excludes any possibility that appel-lee Jefferson’s participation was limited to that of an accessory before the fact. There was no basis for a jury instruction as to a crime that was not involved.

For the foregoing reasons, we hold that the trial court did not commit reversible error in failing to instruct the jury on second degree felony murder.

Accordingly, the decision of the District Court of Appeal, Fourth District, is quashed, and the cause is remanded with directions to reinstate the judgment and sentence of the trial court.

It is so ordered.

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

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

BOYD, Justice,

dissenting.

I dissent. I feel it was reversible error for the court not to charge the jury in this case that it could find the petitioner guilty of murder in the second degree. See Adams v. State, 341 So.2d 765 (Fla.1976), Boyd, J., dissenting.


author: PER CURIAM. BOYD, Justice,

text:
    Larry Wayne JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 48562.
    Supreme Court of Florida.
    June 9, 1977.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell and Craig S. Barnard, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The writ of certiorari was granted to review the decision of the District Court of Appeal, Fourth District, in Jefferson v. State, 320 So.2d 827 (Fla. 4th DCA, 1975), because of apparent conflict with Jefferson v. State, 334 So.2d 178 (Fla. 4th DCA, 1976). We have this date quashed the decision of the District Court of Appeal in the latter case, State v. Jefferson, 347 So.2d 427 (Fla.1977). Having dispelled the conflict, the writ heretofore issued is hereby discharged. Cf. Adams v. State, 341 So.2d 765 (Fla.1976).

It is so ordered.

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

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents.

BOYD, Justice,

dissenting.

I dissent. I feel it was reversible error for the court not to charge the jury in this case that it could find the appellant guilty of murder in the second degree. See Adams v. State, 341 So.2d 765 (Fla.1976), Boyd, J., dissenting.


text:
    Ted HOWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 50235.
    Supreme Court of Florida.
    June 9, 1977.
    Tom B. Osteen, Perry, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   PER CURIAM.

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

It is so ordered.

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

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Robert Scott KAUFMAN, Respondent.
    No. 50295.
    Supreme Court of Florida.
    June 9, 1977.
    Edward J. Atkins, President, Richard M. Leslie, Bar Counsel, and G. Lynn Kilpatrick, Asst. Staff Counsel, for The Florida Bar, complainant.
    Ray Glist, Miami, and Robert Scott Kaufman, Miami, in pro. per., for respondent.
   PER CURIAM.

We are considering a petition for review of a referee’s report which found respondent violated the Code of Professional Responsibility.

The following findings are contained in the report and supplemental report of the referee:

“REPORT OF REFEREE
“Findings of Fact as to Each Item of Misconduct of Which the Respondent is Charged: After considering all of the pleadings, exhibits and evidence before me I find that:
“1. The respondent was a member of the Florida Bar and, also, a registered real estate broker; and the testimony, as to the facts, indicates that the real estate office and law office was located at the same physical location with a sign indicating that said office was both a real estate office and a law office. Therefore, as to Count 1 of the complaint of the Florida Bar, I find the respondent guilty of violating Disciplinary Rule 5-104(A) and 2-102(E) of the Code of Professional Responsibility; and he has violated Integration Rule 11.02(3)(a).
******
“Dated this 15th day of September, 1975.”
“SUPPLEMENTAL REPORT OF REFEREE
“As to II of the Report of Referee, the following Supplemental Report is submitted:
“As to Count III of the Bar’s Complaint, I find that the Respondent is guilty of violating disciplinary rule 1102(3)(B) [11.-02(3)(b)] of the Integration Rule of the Florida Bar and DR1-102(3) and (6) [DR1-102(A)(3, 6)].
“As to Count IV I find the Respondent guilty of violating rule 11.02(3) of the Integration Rule of the Florida Bar, and DR Rules 1-102(A)(4) and 2.106(A) and (B) [2-106(A, B)].
“In support of the finding herein, the Respondent on page 106 of the Testimony stated that he went down voluntarily and told Mr. Dardis (Chief Investigator for State Attorney’s Office) that the complaining witness, Mr. Mori, maintained a bribery payroll at Palmetto Lakes Industrial Park.
“Mr. Dardis testified that he received information from a Miami newspaper reporter, Morton Lucoff, that a person was in possession of information regarding some possible bribery and/or corruption in the Building and Zoning Department of Dade County, Florida. The reporter gave the investigator, Dardis, a telephone number, which turned out to be Mr. Kaufman’s number.
“This Testimony was also reinforced by the Testimony of Joan Berk, wherein she related that Mr. Kaufman, Respondent, stated to her that if he did not straighten out the money he owed with regard to his billing, and if he did not pay a real estate commission, then and in that event, someone would relate information to the State Attorney’s office, as well as the Internal Revenue Service.
“The above referred to Testimony was confirmed by Respondent, Kaufman, in that he admitted he told the newspaper reporter that he had information about the building inspectors being bribed. He also admitted telling reporter Lucoff that he should look into people on the bribery payroll of Eugene Mori of Palmetto Lakes Industrial Park.
******
“I recommend that the Respondent be suspended from the Practice of Law in Florida for a period of two (2) years beginning on the date of the acceptance of the Referee’s Report as to this recommendation.
“As to paragraph 5 in regard to the Supplemental Report herein, I have considered the resume submitted by Respondent that he is a practicing attorney for thirteen years and graduated from Wharton School, University of Pennsylvania 1952, attended Dickinson Law School, New York Law School 1956, New York University Law School 1958, graduate Law Division, and Masters of Law candidate. He is a member of the Florida Bar, District of Columbia Bar, New York Bar, Registered Florida Real Estate broker, U.S. Supreme Court, U.S. Tax Court, U.S. Court of Appeals — 5th District, U.S. District Court — Southern District, Interstate Commerce Division, and Florida Public Service Commission.
“I also considered the professional organizations and past civic activities, as well as present listed civic activities. I also am aware of certain civil matters being litigated, but I am not aware of the status or the results of any such litigation, nor do I have benefit of any past disciplinary history.
“Dated this 18th day of August, 1976.”

We have reviewed the reports, the recommended discipline and the arguments of counsel, including the personal appearance of respondent. We have also considered the fact that the charges were filed more than three years before the matter was argued in this Court. During that time respondent has had time to evaluate his conduct and has experienced personal and professional detriment.

We adopt the findings of the referee. Instead of the recommended suspension, we place respondent on probation for two years from the effective date of this order. During said period he is directed to pass the ethics portion of The Florida Bar examination. The Florida Board of Bar Examiners is directed to administer the test or tests and report to this Court the results attained. Costs of same shall be paid by respondent.

We reserve jurisdiction of this cause for appropriate action in the event such examination shall not be passed by respondent as directed.

Respondent is directed to pay the costs of this proceeding in the amount of $1,288.80.

It is so ordered.

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

ENGLAND, J., concurs in result only.


text:
    STATE of Florida, Petitioner, v. Brian John VOLLMER, Respondent.
    No. 50534.
    Supreme Court of Florida.
    June 9, 1977.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for petitioner.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, for respondent.
   PER CURIAM.

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

It is so ordered.

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

HATCHETT, J., dissents.


text:
    HUSKEY REALTY, Petitioner, v. DIMENSION FOUR INTERNATIONAL LTD., Respondent.
    No. 48913.
    Supreme Court of Florida.
    June 16, 1977.

      Carl D. Motes, of Maguire, Voorhis & Wells, Orlando, for petitioner.
    Mitchell L. Perlstein of Brown, Malman & Salmon, Miami, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued; but upon further consideration of the matter we have determined that the Court is without jurisdiction. Therefore, the Writ is hereby discharged and the Petition for Writ of Certio-rari is dismissed.

It is so ordered.

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

BOYD, J., dissents with an opinion.

ADKINS, J., dissents and concurs with BOYD, J.

BOYD, Justice,

dissenting.

I dissent from discharge of the writ because, in my opinion, the decision of the district court in this cause, reported at 325 So.2d 34, conflicts with Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962).

Petitioner was employed as the real estate broker for the sale of respondent’s land. The contract for the exclusive right of sale (the listing agreement) provided that for finding a purchaser petitioner would receive a commission of 10% of the sales price. The listing agreement was amended to provide,

“. . . that the Agent [petitioner] gets ten percent (10%) of the cash at closing and ten percent (10%) of all installment payments received by the Seller, but that the commission shall be payable as, if, and when received by the Seller.”

Cheetham Realty was enlisted to help find a purchaser. The listing agreement was again amended to provide that Cheetham would receive 60% of the brokerage commission and petitioner 40% and that Cheet-ham was to receive 6% of the cash paid at closing and 6% of the mortgage payments as made. The second amendment further provided that petitioner was to receive 4% of the mortgage payments and

“. . . Because Huskey [petitioner] is not receiving four (4%) percent of the cash at closing, that deferred part of its commission shall be paid out of the mortgage payments made by [buyer] on its mortgage in a ratio based upon the payment made (annual or prepayment) to the original principal balance of the mortgage times the commission due Huskey at closing but not received by Huskey, with interest at seven (7%) percent per annum on the unpaid balance.” (emphasis supplied.)

Closing on the property was held and respondent received a down payment of $450,-000. The buyer defaulted on the mortgages and respondent refused to pay petitioner any part of the brokerage commission. Petitioner brought suit against respondent claiming it was entitled to 4% of the down payment as part of its commission. The trial court regarded the second amendment as ambiguous as to whether the buyer’s payment of the mortgage was to be a condition precedent to Huskey’s receipt of that portion of its commission it would have received as the closing. Accordingly, it admitted parol evidence to determine the intent of the parties. The court decided that receipt of the commission owed Huskey at the time the down payment was made was not conditioned on payment of the mortgage. Accordingly petitioner was awarded judgment of $19,952.70, plus costs of the nonjury trial.

The judgment was appealed by respondent to the district court where it was reversed on the court’s decision that it was error to admit parol evidence, since the second amendment unambiguously conditioned receipt of the commission originally due at the closing, on payment of the mortgage. While the district court correctly espouses the rule of law that parol evidence may not be admitted to vary the meaning of contractual terms which are clear, the court has misapplied the rule.

It seems to me that the language of the amendment could be found to clearly mean that the commission owed petitioner at the closing was not conditioned on payment of the mortgage and that the debt owed petitioner was fixed and its satisfaction was to be achieved by an alternative method. In this regard, satisfaction of the debt was not conditioned upon receipt of the mortgage payments. Either this was the case or the amendment was ambiguous as to whether a condition existed and, therefore, parol evidence was properly admitted. McClure v. Century Estates, Inc., 96 Fla. 568, 120 So. 4 (1928). In either case, the judgment of the circuit court should not have been reversed.

In Cohen, this Court stated:

“It should be kept in mind that the judgment of the trial court reached the district court clothed with a presumption in favor of its validity. 1 Fla.' Law and Practice, Appeals § 152, 2 Fla.Jur., Appeals, § 314, and authorities cited therein. Accordingly, if upon the pleadings and evidence before the trial court, there was any theory or principle of law which would support the trial court’s judgment in favor of the plaintiffs, the district court was obliged to affirm that judgment.” 137 So.2d 222 (Fla.1962).

My examination of the controversial amendment leads me to believe that the judgment of the trial court could have been upheld on the theories that the amendment unambiguously entitled petitioner to the commission or that it was not error to admit parol evidence, since the amendment was ambiguous as to whether a condition existed. There is conflict with Cohen.

Conflict certiorari offers us a vehicle to correct the district court’s error. I would use it since the error so obviously does an injustice to petitioner.

ADKINS, J., concurs.

      . Record on appeal, p. 23.

      . Record on appeal, p. 24.


text:
    THE FLORIDA BAR. In re FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. 49355-B.
    Supreme Court of Florida.
    June 28, 1977.
    Edward J. Atkins, Miami, President and Marshall R. Cassedy, Tallahassee, Executive Director, for The Florida Bar.
    Benjamin M. Tench, Gainesville, Chairman for Criminal Procedure Rules Committee, Petitioner.
    Bruce M. Lyons of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauder-dale, for the Academy of Florida Trial Lawyers.
    Peter L. Nimkoff of August, Nimkoff & Pohlig, Miami, for the Dade County Bar Ass’n.
    Thomas J. Morgan and Gerald Kogan, Miami, for the Florida Criminal Defense Attorneys Ass’n.
    Arthur I. Jacobs, Fernandina Beach, for the Florida Pros. Attorneys Ass’n.
    Phillip A. Hubbart, Public Defender for Eleventh Judicial Circuit of Florida.
    James G. Mahorner, Tallahassee, for Dept, of Health and Rehabilitative Services.
   PER CURIAM.

Rule 3.125(m), Florida Rules of Criminal Procedure (343 So.2d 1247 (Fla. 1977)), refers to the “Schedule of Witnesses and Evidence for Notice to Appear.” The form was omitted.

The “Schedule of Witnesses and Evidence for Notice to Appear” shall be in substantially the attached form.

Rule 3.125(m), Florida Rules of Criminal Procedure, supra, is amended by adding the attached form.

It is so ordered.

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