author: PER CURIAM. ENGLAND, Justice

text:
    Glen Stark CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 47888.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Gerald C. Surfus of Stinnett, Surfus & Martin, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on direct appeal to review the judgment of guilty of murder in the first degree and sentence of death. Article V, Section 3(b)(1), Florida Constitution.

Appellant was indicted for the first degree murder of Connie Weeks in that he unlawfully and from premeditated design to effect her death did strike, assault, and mortally injure her. The jury returned a verdict of guilty as charged, and after sentencing hearing, recommended that appellant be sentenced to life imprisonment since the jury found that sufficient mitigating circumstances existed so as to outweigh the aggravating circumstances. However, the trial judge determined that under the circumstances, the death penalty was appropriate. In his judgment and sentence, the trial judge explained:

“It is the sentence and judgment of this court that you, for your said offense be committed to the Florida State Prison, and that you be sentenced to death, the court finding under Florida Statutes, Chapter 921, that there are no significant mitigating circumstances, and that sufficient aggravating circumstances exist. The defendant, who has a significant history of drug usage, was under the influence of some mental or emotional disturbance, but any such distrubance was self-induced by the use of illegal drugs and is not a mitigating circumstance. The murder was ‘especially heinous, atrocious and cruel.’ The victim, a young girl, was brutally beaten by the defendant. Her brain was battered by a continuing, massive, indiscriminate beating.
“The other aggravating and mitigating circumstances contained in Chapter 921, Florida Statutes, are not applicable.”

The facts leading up to the death of Connie Weeks are as follows. Appellant and the victim had been living together for several months. On the evening of January 22, 1975, appellant dragged the victim from the car in which she was sitting in the parking lot of her place of employment, across the parking lot and commenced to beat her. At this time, he was arrested, taken to the Sarasota County jail, and charged with two counts of assault. Later that same evening, the victim went to the police department to bond appellant out. The victim returned with him to their residence where appellant apparently informed her that he was leaving. A vehement argument ensued and the victim was so severely beaten that she died five days later as a result of said beating from cerebral and brain stem contusion. She was bruised all over the head and legs, had a deep gash under her left ear; her face was unrecognizable, and she had several internal injuries.

Appellant contends that a verdict should have been directed for him since the evidence was legally insufficient to prove premeditation. With this contention, we cannot agree. The record before us is more than adequate to support the jury’s finding of premeditation. The State posits that the record contains competent sufficient evidence to find that appellant inflicted the mortal wounds with the requisite premeditated intent existing several hours prior to the successful conclusion of his criminal design.

Brenda Austin testified:

“Q (By Mr. Klaus) Did you have an opportunity to see Mr. Chambers again that morning?
“A Yes.
“Q About what time was that?
“A About 11:30.
“Q And where were you when you saw him?
“A Robarts Sports Arena.
9f( * * * * J}C
“Q (By Mr. Klaus) Okay. Now, she— he looked inside the van. And did he say anything to you while he was looking inside the van?
“A Yes.
“Q What did he say?
“A He asked me where Connie was. “Q Now, how did he appear to you at that time?
“A Mad.
“Q Okay. Now, did he appear that— did you smell any alcohol or—
“A No.
“Q Did he walk all right?
“A Yes.
“Q How mad was he?
“A Mad.
“Q Real mad?
“A Real mad.
“Q Now, did he say anything to you about Connie?
“A Yes.
“Q What did he tell you?
“A He told me that when I saw her to tell her that he had tore up the house and he was going to tear up her can and then he had taken some money and was going to leave for New York that day, and that if I'saw her to tell her that he was going to beat her head in.
“Q And this is during the time that he was mad?
“A Yes.
“Q And, now, you’ve seen people who have been under the influence of narcotic drugs or alcohol before?
“A Yes.
“Q Did he appear — have you seen Glenn Chambers under those influences?
“A Yes.
“Q Did he appear to be at all under any influence of anything at that time?
“A No. No.”

Joan Berryman, the victim’s employer, testified:

“A He drug her the full length of the parking lot, smacking her in the mouth, hitting her in the head, pulling her hair, tearing her clothes off.
“Q Now, let’s back up a little bit. You said he dragged her the full length of the parking lot. Can you show the dimensions of this courtroom, or is it longer than this courtroom?
“A It’s a little longer than this courtroom. Maybe another half as long.
“Q Okay. And for that full distance she was drug?
“A Right.
“Q Was she walking on her own at any time?
“A No.
“Q And how was she drug, again?
“A By her hair and by her clothes.
“Q Okay. Now, can you describe with your — showing us with your hands how he grabbed her and how he hit her?
“A He grabbed her by the head of her hair and he was hitting her in the face. Then she’d fall down and he’d pick her up and he’d pick her up and drag her and kept tearing her clothes and I kept following him and asking him to please don’t hit her, please leave her alone.
“Q Did he have anything to say to that?
“A He told me to call the God damn cops.
“Q Did he say anything else?
“A He said because he was going to kill her. He said, ‘Go and call the God damn cops because I’m going to kill her.’
******
“Q Okay. Now, have you ever seen Glenn under the influence of either drugs or marijuana or alcohol?
“A I guess I’ve seen him under a couple.
“Q Okay. Did he appear that night to be influenced at that time?
“A At that time to me he was angry. He was really, really angry.
“Q Had you ever seen him that mad before?
“A No.
“Q Had you seen him numerous times before?
“A Yes.
“Q Have you ever seen him mad?
“A Not this mad.
“Q But you’ve seen him mad?
“A Seen him mad.”

Colleen Cole testified:

“A He asked me if I had seen her and I said no. He asked me if I knew where she was and I said no. He said, well, when he found her he was going to kill her.”

As the State submits, appellant by his own testimony admits the terrible beating of the victim and his sole defense is that he did not intend to kill her. Thus the question requiring resolution by this Court is whether there was sufficient evidence adduced at trial, direct or circumstantial, to prove premeditation on the part of appellant at the time he inflicted the mortal wounds. We find that there was sufficient evidence to support the jury’s determination of premeditation. Although appellant admits the beating which resulted in the death of Connie Weeks, he submits that his capacity to form premeditation was diminished by the fact that he was under the influence of illegal drugs. The mental condition of appellant at the time of the crime and prior thereto on the day of the crime was thoroughly dealt with in the testimony of State’s witnesses at the time appellant made the numerous threats to kill the deceased. The record contains sufficient evidence to contradict appellant’s contention that he was under the influence of drugs. As this Court stated in Songer v. State, 322 So.2d 481 (Fla.1975), wherein defendant alleged that he was so intoxicated by drugs as to negate his ability to premeditate the murder:

“Recognizing the established principle that, where a jury’s verdict is supported by competent substantial evidence, an appellate court should not substitute itself as the trier of the fact, we accept the jury’s evaluation of the evidence; in doing so, we specifically reject Appellant’s contention that a defendant’s interpretation of circumstantial evidence should be accepted completely unless it is specifically contradicted.”

In Dawson v. State, 139 So.2d 408 (Fla.1962), this Court opined:

“Premeditation may be inferred from the circumstances just as other inferences of fact may be drawn by the jury. Parker v. State, 1940, 142 Fla. 210, 194 So. 484; Crawford v. State, 1941, 146 Fla. 729, 1 So.2d 713; Robinson v. State, 1941, 148 Fla. 153, 3 So.2d 804.
“In this case we think the circumstances were more than adequate to support an inference of premeditation.
“According to appellant’s confession Mrs. Clayton threw a hammer at him but he was not struck by it. There is no evidence to indicate that she was armed in any way or that she pursued the encounter beyond grabbing appellant by the collar. He was in the front seat of the station wagon, she in the seat behind him. When found Mrs. Clayton was lying in the back seat with one arm upraised over her head. The medical evidence showed that she had suffered not one blow, but multiple cerebral contusions and skull fractures, all sufficient to produce death; a dislocated left shoulder; and a wound in the left temple extending through and fracturing the jaw and knocking out a tooth.
“Whatever the appellant’s state of mind might have been, at the beginning of the ‘tussling’, the number of blows struck, the force employed, the unarmed status of Mrs. Clayton and the other circumstances surrounding the unfortunate incident indicate that there was sufficient time for appellant to have formed the intent to kill Mrs. Clayton and that he did form and carry out this design. The facts established were sufficient to support the inference obviously drawn by the jury that appellant did effect the death of Mrs. Clayton by premeditated design. This would be sufficient to supply this element in the killing of Roger Glenn Clayton as well.”

Most recently in Alvord v. State, 322 So.2d 533 (Fla.1975), this Court reiterated:

“The jury is charged with the responsibility of resolving factual conflicts. When it is shown that the jurors have performed that duty faithfully and honestly and reached a conclusion that squares with reason, it takes more than a difference in opinion as to what the evidence shows for this Court to reverse them. The conflicts were resolved in favor of the State and the evidence was sufficient as a matter of law to sustain the verdicts. See State v. Smith, 249 So.2d 16 (Fla.1971).”

The majority of the points raised on appeal sub judice are directed to the imposition of the death penalty by the trial court in light of the particular facts of this case. Although, we do not agree with appellant that Florida’s death penalty statute constitutes cruel and unusual punishment or is violative of the equal protection and due process clauses of the Constitution of the United States, we do find that the totality of the circumstances existent in the instant cause, and the weighing of mitigating and aggravating circumstances do not warrant imposition of the death penalty. Rather, we must determine that the jury’s recommendation of a life sentence was appropriate.

Having considered the other points raised on appeal by appellant, we find none of them so meritorious as to constitute reversible error.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and. briefs filed, and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial on the issue of guilt be awarded.

Accordingly, appellant’s conviction for murder in the first degree is affirmed; however, the order of the trial court sentencing appellant to death is quashed and the trial judge is directed to sentence Glenn Stark Chambers to life imprisonment.

It is so ordered.

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

ENGLAND, J., concurs with an opinion, with which ADKINS and SUNDBERG, JJ., concur.

ENGLAND, Justice

(concurring).

I fully concur in the Court’s disposition of this case, but I believe it appropriate to state more specifically why I consider the death penalty inappropriate on the facts of this case.

Contrary to the recommendation of the jury, the trial judge in this case imposed the death penalty on the ground there existed one aggravating circumstance — that the murder was committed in a heinous, atrocious and cruel manner — without any significant offsetting mitigating circumstance. Although the trial judge found appellant to have been under the influence of some mental or emotional disturbance at the time of the crime, he rejected that factor as a mitigating circumstance because the condition was self-induced by the use of illegal drugs. I believe it essential to articulate our reconciliation of this factual circumstance with other death penalty cases.

In Tedder v. State, 322 So.2d 908 (Fla.1975), we emphasized the weight to be given jury recommendations in capital cases and held that a death penalty is inappropriate following a jury recommendation of life imprisonment unless the facts suggesting death were so clear and convincing that virtually no reasonable person could differ. The considerations underlying that decision were further explained in Cooper v. State, 336 So.2d 1133 (Fla.1976), a case involving a jury recommendation of death. There we elaborated on the respective functions of the judge and jury in death penalty cases, explaining that the judge’s role is primarily to insure the jury’s adherence to law and to protect against a sentence resulting from passion rather than reason. Our directive there that the jury’s advisory function may not be distorted by the omission of any aggravating or mitigating circumstance (absent acquiescence by all parties) was a calculated step to insure that a jury and judge could never reach differing conclusions on a sentence as a result of misunderstanding the law or applying different standards to the peculiar facts before them.

Tedder and Cooper espouse the same guidelines. Where a jury and a trial judge reach contrary conclusions because the facts derive from conflicting evidence, or where they have struck a different balance between aggravating and mitigating circumstances which both have been given an opportunity to evaluate, the jury recommendation should be followed because that body has been assigned by history and statute the responsibility to discern truth and mete out justice. Given that the imposition of a death penalty “is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment . . . ”, both our Anglo-American jurisprudence and Florida’s death penalty statute favor the judgment of jurors over that of jurists.

On the record before us, it does not appear that the jury struck an impassioned and unreasoned balance when it recommended life imprisonment. Our death penalty statute lists as mitigating circumstances the fact that a defendant “was under the influence of extreme mental or emotional disturbance”, as to which there was conflicting evidence, and the fact that the victim consented to the act causing death. The jury had evidence in abundance that appellant and Connie Weeks had voluntarily shared a long-standing sado-masochistic relationship which included severe and disabling beatings. They also knew that Connie Weeks had herself obtained appellant’s release from jail on the very day he had beaten and dragged her through the streets in an unholy rage. In light of the Legislature’s enumeration of the factors to be weighed before effecting state executions, the facts suggesting a sentence of death in this case are not so clear and convincing that reasonable people could not believe life imprisonment justified.

ADKINS and SUNDBERG, JJ., concur.

      . This weighing of circumstances is directed in these cases by Section 921.141, Fla.Stat. (1975). State v. Dixon, 283 So.2d 1 (Fla.1973).

      . The Court here correctly notes that the evidence regarding appellant’s alleged use of drugs was conflicting.

        . Proffitt v. State, - U.S. -, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

      . State v. Dixon, 283 So.2d 1, 10 (Fla.1973).

      . Section 921.141(6)(b), Fla.Stat. (1975).

      .Section 921.141(6)(c), Fla.Stat. (1975).


source: Caselaw Access Project

author: HATCHETT, Justice.

license: Public Domain

text:
    John FITZGERALD, Appellant, v. STATE of Florida, Appellee.
    No. 48202.
    Supreme Court of Florida.
    Nov. 4, 1976.

      David J. Busch, Asst. Public Defender, and Jerry Caughey, Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   HATCHETT, Justice.

This cause has been transferred to us by the District Court of Appeal, First District, pursuant to Florida Appellate Rule 2.1 a(5), to review an order of the Circuit Court of the Seventh Judicial Circuit upholding the constitutional validity of Section 814.03, Florida Statutes, thereby vesting jurisdiction in this Court, pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant was charged by information with auto theft in violation of Section 814.-03, Florida Statutes. Appellant had rented an automobile from Bozard Ford Company in St. Augustine, Florida, for five days. The rental documents were signed in his name and a $75 deposit placed on the automobile. Five days later, appellant contacted the rental manager of Bozard Ford Company, Marvin Taylor, and requested a two-day extension of the rental agreement. Taylor agreed and appellant was scheduled to return the automobile on June 28, 1974. Appellant failed to return the automobile on that date and a warrant was issued for his arrest. He was arrested four months later in Las Vegas, Nevada, and subsequently returned to Florida to stand trial.

At trial, appellant, testifying in his own behalf, stated that he had never intended to steal the car and had intended to return it around January 1, 1975. He testified that, when arrested, he had been working his way to California to visit his grandmother who was ill and from whom he intended to borrow some money. He also stated that he attempted to get in touch with Taylor in November to inform Taylor that he still had the car and intended to return it. He further testified that he spoke to a Mr. Johnson or Johansen who informed him that the car would have to be returned in 48 hours or a warrant would be issued.

Taylor appeared as a witness for the state and testified that to the best of his knowledge, no one by the name of Johnson or Johansen was employed by Bozard Ford Company, that no employee of the company, other than himself, had ever spoken to appellant about an extension of time, and that he had neither seen nor spoken to appellant since the contact regarding the two-day extension.

During the trial appellant made a motion for judgment of acquittal on two grounds: (1) that the state failed to establish sufficient ownership of the automobile, and (2) that auto theft is in fact an offense of larceny, requiring a trespass and that the evidence failed to demonstrate that appellant had either trespassed or had the requisite intent to commit the offense. The motion was denied.

Appellant also objected to any instruction to the jury on Section 814.06(5), claiming that the section was unconstitutional. The court stated that it considered the statute constitutional and subsequently included the statute in its instructions to the jury. The jury returned a verdict of guilty and appellant was sentenced to five years imprisonment.

Appellant’s attack is upon the statutory presumption which furnishes intent. Recently statutory presumptions with respect to criminal litigation have been criticized by legal commentators. Proponents of such presumptions generally base their arguments on pragmatic grounds such as the avoidance of unnecessary or unreasonable expense, the comparative convenience of gathering the means of proof, and the practical impossibility of enforcement without the presumption. See Soules, Presumptions in Criminal Cases, 20 Baylor L.Rev. 277, 285 (1968). Critics argue that no matter how compelling considerations of convenience may be, they are not a constitutionally sufficient basis for upholding presumptions in criminal cases. See Christee and Pye, Presumptions and Assumptions in the Criminal Law: Another View, 1970 Duke L.J. 919; Note, The Unconstitutionality of Statutory Criminal Presumptions, 22 Stan. L.Rev. 341 (1970). See also, Ashford and Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969).

In criminal litigation, it is well recognized that only a permissive presumption may be applied, i. e., a presumption which allows the jury to find the presumed fact once the basic fact is proven but does not require such a finding by the jury. Application of other types of presumptions, such as mandatory or conclusive, would substitute the proof of the basic fact for that of the presumed fact, and the proof of the basic fact would be the only issue tried. In criminal cases, the jury must be allowed to determine whether a reasonable doubt exists for any element of the crime. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Comment, Statutory Criminal Presumptions: Reconciling the Practical with the Sacrosant, 18 UCLA L.Rev. 1 (1970). Application of a conclusive or mandatory presumption would effectively preclude the jury from considering one element of the offense. Thus, while the power of the legislature to declare that one fact is prima facie evidence of another has been recognized by Florida courts, see Wooten v. State, 24 Fla. 335, 5 So. 39 (1888), such statutes are considered invalid when they effectively place the burden of proving innocence on the defendant, 20 Am.Jur., Evidence § 11; 13 Fla.Jur. Evidence § 12, since the law presumes that every individual charged with a crime is innocent. See Davis v. State, 90 So.2d 629 (Fla.1956), Jordan v. State, 171 So.2d 418 (Fla.3d DCA 1965). 13 Fla.Jur. Evidence § 12 states:

Such a statute [creating a presumption] does not, of course, preclude evidence in rebuttal, nor does it raise an independent legal presumption as to the ultimate fact in issue. It merely relieves the state, in the absence of proof to the contrary, from the necessity of introducing further proof or the evidence to make out a pri-ma facie case on the point. If the accused denies the charge and adduces evidence in rebuttal, the jury must be satisfied of his guilt beyond a reasonable doubt before returning a conviction, (footnotes omitted)

See also McNair v. State, 61 Fla. 35, 55 So. 401 (1911).

Several tests evolved with respect to the constitutionality of statutory presumptions. In Mobile, Jackson and Kansas City R. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910), a civil action involving the question of negligence the United States Supreme Court first adopted the “rational connection” rule for testing the constitutionality of statutory presumptions. The rule provided that the presumed fact (in the instant case, the appellant’s intent to deprive the car rental company of its property) and the proven fact (that the car had not been returned within 72 hours of the due date) must be rationally connected. The test was first applied in a criminal action in Fee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925). After Fee Hem, however, several other tests evolved and it was not until Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) that the “rational connection” emerged as the primary rule.

The rule was further defined in Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969) when the Court stated that:

[A] criminal statutory presumption must be regarded as “irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend, (emphasis added)

The Leary court did not address the question as to whether a presumption which satisfies the “more likely than not” test must also meet the standard of “reasonable doubt” normally applied in criminal cases. This question was recognized in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); however as in Leary, the particular facts of the case did not require the Court to resolve this issue.

Finally in Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973), the Court stated that “if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then clearly it accords with due process.”

In the instant case appellant argues that Section 814.06(5) is unconstitutional in that it fails to pass the “reasonable doubt” test required in criminal cases. Appellant traces the history of the rules concerning statutory presumptions and contends that a presumption must satisfy both the “rational connection” test as well as the “reasonable doubt” standard in order to be constitutional. He contends that the latter standard has not been met and that the state relied solely on Section 814.06(5) and presented no other evidence to demonstrate the requisite intent to steal the automobile. This failure, he contends, denies him due process of law.

Appellant testified in his own behalf during the trial proceedings, and now argues that he was forced to do so in order to combat the presumption created by Section 814.06(5); and thereby was denied his constitutional right against self-incrimination. Moreover, he contends that he: (1) explained the situation regarding his retention of the automobile; (2) denied ever intending to steal the vehicle; (3) demonstrated his intention of paying the full rental fee due; and (4) attempted to notify the rental company concerning his plans. This testimony, he argues, demonstrates the lack of requisite intent in spite of the statute, and makes it impossible for a jury properly instructed to find all elements established beyond a reasonable doubt.

Respondents argue that this Court’s decision in Dirk v. State, 305 So.2d 187 (Fla.1974), in which the Court upheld a statutory presumption contained in Section 832.05(6), provides an analogous situation. In Dirk this Court referred to the recent United States Supreme Court eases (Barnes, Turner, and Leary) and stated that “they have been carefully examined and we find that they do not vitiate our prior decisions upholding the constitutionality of Section 832.05, Florida Statutes.” 305 So.2d at 188. The statute in Dirk created a presumption of intent when evidence of a “bad check” was introduced.

The fact that the appellant still retained the vehicle five months after it was supposed to have been returned without “any plausible explanation” was sufficient evidence to allow the jury to find beyond a reasonable doubt that appellant intended to keep the car. In a footnote, the Barnes court said:

Of course, the mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is “satisfactory.”
(412 U.S. at 845 n. 9, 93 S.Ct. at 2362).

The jury in this case obviously found appellant’s explanation lacking.

We reject appellant’s claim that the presumption in effect forced him to testify in violation of his constitutional right against self-incrimination. Turner v. United States; Yee Hem v. United States, supra.

We find the statute constitutional and affirm the appellant’s conviction.

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

      . Section 814.03(1), Florida Statutes (1973), provides in part that:
      [a]ny person who shall willfully and without authority take possession of and drive . . or obtain by fraud or trickery, any motor vehicle . belonging to another shall, upon conviction, be guilty of a felony of the third degree .
      This section of the Florida Statutes was repealed by s. 66, ch. 74-383, effective July 1, 1975.

      . Section 814.06, Florida Statutes (1973), provides in part:

        Presumption of intent. — It shall be prima facie evidence of intent to deprive the owner of his property when any person:
      ****$$
      (5) Fails to return a rented or leased motor vehicle, aircraft, boat, or boat motor within seventy-two hours after the time and date agreed upon for the return of the vehicle, aircraft, boat, or boat motor, unless notification of the reason for delay has been made to the rentor or lessor.
      This section was repealed by s. 66, 74-383, effective July 1, 1975. However, under Section 775.011, Florida Statutes (1975), Section 814.06 is still applicable to petitioner’s case. Section 775.011(2), Florida Statutes (1975), provides:
      (2) Except as provided in subsection (3), the code does not apply to offenses committed prior to July 1, 1975, and prosecutions for such offenses shall be governed by the prior law. For the purposes of this section, an offense was committed prior to July 1, 1975, if any of the material elements of the offense occurred prior thereto.

      . Mr. Swanson: At this point does that mean that you’re ruling on the constitutionality of that subsection?
      The Court: Yes, I think it does; it would mean that, now of course, obviously that motion in the event of conviction in this case, if there is a motion for a new trial and you want to specifically allege that as a ground in your motion for a new trial, the Court would consider it but I am not going to find the statute unconstitutional off the top of my hat. I would still consider it in a subsequent motion if that occasion arises, if he is found guilty and a motion is filed, I will further consider it but at this point I am finding it proper to give it at this time but I don’t foreclose you on that. .

      . One rule which evolved was the “lesser included offense” rule. At issue was whether the presumed fact was an essential element of the offense or whether the legislature could have created the offense without the presumed fact. The rule, only applied once in Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928) was rejected in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Another rule which evolved was the relative convenience rule which considered whether it would be more difficult for a defendant to disprove the presumed fact than for the prosecution to establish it. See Note, supra, at 345 n. 32.

      . Respondents also refer to Ross Car Rental and Leasing, Inc. v. Padgett, 278 So.2d 667 (Fla.App.2nd 1973) in which the Court considered Section 814.06. The case involved an action for malicious prosecution arising out of a car theft suit by the rental car company against the rentee. The Court held that the rental company had probable cause to bring the car theft action.


author: PER CURIAM.

text:
    Don A. ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 48347.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Joseph F. McDermott, of McDermott & Ohle, St. Petersburg, for petitioner.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued, and upon further consideration of the matter and hearing argument, 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 and HATCHETT, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Daniel CRAWFORD, Respondent.
    No. 48399.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Robert L. Shevin, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, for respondent.
   PER CURIAM.

We granted the petition for writ of cer-tiorari in this cause without argument on the basis of an asserted conflict between the decision below, Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975), and the decision in Johnson v. State, 166 So.2d 798 (Fla. 2d DCA 1964). See Article V, Section 3(b)(3), Florida Constitution.

Finding no error in the decision under review, we approve the opinion and decision of the District Court of Appeal, Fourth District, 321 So.2d 559, and discharge the writ of certiorari.

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


text:
    Willie Lee ELAM, Petitioner, v. STATE of Florida, Respondent.
    No. 48415.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond and Richard L. Wilson, Asst. At-tys. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued, and upon hearing argument and reviewing the briefs, 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 ADKINS, BOYD,, ENGLAND and SUNDBERG, JJ., concur.


author: DREW, Justice (Retired).

text:
    James M. FOLEY, Petitioner, v. George A. MORRIS, M.D., and the Hartford Accident & Indemnity Company, Respondents.
    No. 48876.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Edward A. Perse, of Horton, Perse & Ginsberg, Miami, and Muscarella, Perenich & Carroll, Clearwater, for petitioner.
    Stephen L. Rosen and Paul F. Crames, of Marlow, Mitzel, Ortmayer & Shofi, Miami, for respondents.
   DREW, Justice (Retired).

We have for review the decision of the District Court of Appeal, Second District, in Foley v. Morris, 325 So.2d 37 (Fla.2d DCA, 1976), which conflicts with Maltempo v. Cuthbert, 288 So.2d 517 (Fla.2d DCA, 1974), certiorari denied 297 So.2d 569 (Fla.1974), and DeLuca v. Mathews, 297 So.2d 854 (Fla.4th DCA, 1974), thereby vesting jurisdiction in this Court. Article V, Section 3(b)(3), Florida Constitution.

On September 17, 1974, petitioner filed his complaint against Dr. Morris and his insurer, Hartford, alleging the respondent physician left a rubber drain in his body during surgery performed on April 14, 1971; that said drain was removed on September 11, 1971, by Dr. William E. Kilgore when he performed further surgery on petitioner necessitated by respondent Morris’ original negligence; that on November 13,1972, Dr. Kilgore performed additional surgery allegedly made necessary by the negligence involved in the first operation. Respondents sought dismissal on basis that petitioner’s cause of action was barred by the two-year statute of limitations, Fla.Stat. § 95.11(6) (1973), effective July 1, 1972, rather than the four-year statute of limitations, Section 95.11(4), Florida Statutes, in effect when the cause of action accrued. The trial court granted the motion and entered a final order of dismissal from which the plaintiff appealed. Concluding petitioner’s cause was governed by the new two-year statute of limitations, the District Court of Appeal affirmed the final order of dismissal.

The questions posited for our determination are (1) whether petitioner’s cause of action accrued on September 11,1971, when the drain was discovered or on November 13, 1972, at which time petitioner underwent additional surgery and (2) whether petitioner’s cause of action is governed by the four-year statute of limitations, Section 95.11(4), Florida Statutes, or by the new two-year statute of limitations, Section 95.-11(6), Florida Statutes, which became effective July 1, 1972.

We agree with the District Court that petitioner’s cause of action accrued on September 11,1971, at which time the rubber drain was removed. However, we do not concur with the District Court’s determination that the new two-year statute of limitations should apply sub judice. In effect, the District Court has in fact retrospectively applied the new statute contrary to the intent of the Legislature.

Since the presumption is against retroactive application of a statute where the Legislature has not expressly in clear and explicit language expressed an intention that the statute be so applied and recognizing the authority of the Legislature to adopt a statute of limitations which retroactively shortens a period of limitation, providing a reasonable time is allowed by the statute within which to file suit, where there is manifest legislative intent to retrospectively shorten the period, we must look to the language of Chapter 71-254, Section 95.11(6), which provides:

“Section 1. Subsection (6) of Section 95.11, Florida Statutes, is amended to read:
“95.11 Limitations upon actions other than real actions. — Actions other than those for the recovery of real property can only be commenced as follows:
“(6) WITHIN TWO YEARS. — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; an action arising upon account of an act causing a wrongful death-; an action to recover damages for injuries to the person arising from any medical, dental, optometric, podiatric or chiropractic treatment or surgical operation, the cause of action in such case not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.
“Section 2. This act shall take effect on July 1, 1972.”

Nothing in the language of the act manifests an intention by the Legislature to do otherwise than prospectively apply the new two-year statute of limitations.

The District Court of Appeal, Second District, in Maltempo v. Cuthbert, supra, which involved the question of retroactive application of Section 95.11(6), Florida Statutes, opined:

“Our conclusion is that where there is reasonable doubt concerning legislative intention to provide for retroactive application of a shortened limitation period, the benefit of this doubt should be given to the person with the existing cause of action.”

Confronted with the question of whether Section 95.11(6), Florida Statutes, as amended by Chapter 71-254, Laws of Florida, applied to an alleged act of malpractice that occurred prior to the effective date of that act, the District Court of Appeal, Fourth District, in DeLuca v. Mathews, supra, responded in the negative and declared that where “There is reasonable doubt concerning the legislative intention to provide retroactive effect to the newly added statute of limitations, § 95.11(6), and the benefit of this doubt should here be given to the appellant-plaintiff, whose cause of action was dismissed.”

Generally referring to the conceded authority of the Legislature to pass a statute of limitations or to change a period previously established by law and to make the changes applicable to existing causes of action so long as a reasonable time is permitted by the new law for commencing an action before the action is barred, we approve the following language from American Jurisprudence:

“Where the legislature has not sufficiently manifested its intent whether a statute of limitations should apply retrospectively or should apply prospectively only, the question is passed on to the courts to determine, as a matter of construction, in which of these ways the statute should apply. In most jurisdictions, in the absence of a clear manifestation of legislative intent to the contrary, statutes of limitation are construed as prospective and not retrospective in their operation, and the presumption is against any intent on the part of the legislature to make such a statute retroactive. Thus, rights accrued, claims arising, proceedings instituted, orders made under the former law, or judgments rendered before the passage of an amended statute of limitations will not be affected by it, but will be governed by the original statute unless a contrary intention is expressed by the legislature in the new law.” 51 Am. Jur.2d § 57, Limitation of Actions.

Since the legislative intent to provide retroactive effect to Section 95.11(6), Florida Statutes, is not express, clear, or manifest, we conclude that it does not apply to causes of action occurring prior to its effective date.

The subject decision of the District Court is quashed with directions to reverse the judgment of the trial court and remand the same for further proceedings there consistent with the views herein expressed.

It is so ordered.

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

      . It was conceded at oral argument by respondent’s counsel that the cause of action accrued prior to July 1, 1972.

      . See Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

      . Cf. Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla.1973), H.K.L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954), Indemnity Insurance Company of North America v. Brooks-Fisher Insulating Co., 140 So.2d 613 (Fla.2d DCA, 1962).


author: SUNDBERG, Justice.

text:
    Lewis Joseph LACROS, Petitioner, v. STATE of Florida, Respondent.
    No. 48898.
    Supreme Court of Florida.
    Nov. 4, 1976.

      Jack 0. Johnson, Public Defender, Tenth Judicial Circuit, and Judge C. Luckey, Jr., Public Defender, and Wayne Chalu, Asst. Public Defender, Thirteenth Judicial Circuit, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for respondent.
   SUNDBERG, Justice.

This case is before us on petition for writ of certiorari to the District Court of Appeal, Second District. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

Petitioner Lackos was convicted of buying, receiving or aiding in the concealment of stolen property. In the information the owner of the property was specified to be Remington Electric Razors, Incorporated. During the State’s case, the local manager of the company from which the electric razors had been stolen testified that the correct corporate name of the firm at the time of the theft was Remington Electric Shavers, a Division of Sperry Rand Corporation. At this point, the State moved to amend its information to include the correct corporate name. After objection, the court offered to continue the trial for as long as reasonably necessary for the petitioner to seek to obtain evidence indicating that he would be prejudiced by the amendment. Petitioner’s counsel asserted that the question of prejudice was immaterial and declined the offer of continuance. Thereupon, the State was permitted to amend, and the petitioner was subsequently convicted.

In an opinfeh reported at 326 So.2d 220, the Second District Court of Appeal affirmed the action taken by the trial court. Because of conflict in decision with Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (1946), and Sipos v. State, 90 So.2d 113 (Fla.1956), we issued our order allowing certiorari and dispensing with oral argument. After studying the briefs submitted by the parties, we have concluded that the District Court of Appeal reached the proper result in the instant case.

In Alvarez, supra, the information charged the defendant with breaking and entering a building owned by Harold McGucken with intent to commit a felony, to-wit: grand larceriy. At trial it was determined that the building was actually owned by McGucken Liquor Stores, Inc., a corporation. Over the defendant’s objection, the court permitted the State to amend its information by striking out the name of the alleged owner and inserting in lieu thereof the appropriate name. This decision was found to be reversible error in a Supreme Court opinion which indicated that when an information is amended in a matter of substance, it should be re-signed by the prosecutor, re-sworn to by him, and re-filed with the clerk. The Court further held that the defendant'should be re-arraigned, should re-plead, and that the jury should be re-selected and re-sworn upon new issues joined. Alvarez was followed in Sipos v. State, supra, wherein it was held that a trial court erred in permitting an information charging burglary of a building owned by Sterchi Brothers, Inc., a corporation, to be amended to read Sterchi Brothers Stores, Inc., a corporation.

Rule 3.140(o), Fla.R.Cr.P., first adopted in 1967, governs the resolution of this issue. That rule reads as follows:

“Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

As pointed out by the District Court, there is no showing that language similar to the foregoing, contained in former Section 906.-25, Florida Statutes, was considered by the Alvarez and Sipos courts.

We are persuaded by the reasoning articulated by Judge Grimes, writing for the District Court in the instant case:

“The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial. Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. Appellant received a fair trial.”

We agree that a showing of prejudice should be a condition precedent to undertaking the kind of procedural niceties envisioned by Alvarez, supra, and Sipos, supra. While we note that the District Court of Appeal sought to distinguish those earlier decisions from the case sub judice, to the extent that Alvarez and Sipos conflict with the principles enunciated herein they are expressly overruled.

Accordingly, the writ is discharged.

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

ADKINS, J., dissents.


text:
    O. K. HOUSTOUN, Jr., Appellant, v. Gordon M. ALBURY, Jr., and Gail B. Baldwin, Appellees.
    Nos. 75-1428, 75-1435.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 24, 1976.
    Robert M. Brake, Coral Gables, for appellant.
    Neil Flaxman, Don Livingstone, South Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Appellant brings these consolidated appeals from an order styled “Order Appointing Receiver and Partial Final Judgment” entered by the trial court sitting nonjury. In its order, the trial court found, among other things, that three partnership entitles existed between the parties as follows:

(1) between appellee Gordon Albury, Jr., and appellant O. K. Houstoun, Jr., from September, 1962, to January 1, 1965;

(2) between Albury, Houstoun, and ap-pellee Gail B. Baldwin from January 1, 1965, to June 30, 1968; and

(3) between Houstoun and Albury from July 1, 1968, to September 30, 1968.

The trial court ordered that the 1968 partnership should be dissolved and that whatever assets remained in existence in 1975 from the partnership should be taken into custody by a receiver. The trial court also ordered that the parties file a plan of distribution in kind or a plan for sale, but the order did not mention the need for a full final accounting or the payment of the debts of the partnership.

In the same order, the trial court also entered a judgment in favor of appellee Albury and against appellant for the fair market value of certain shares of stock which the trial court found had been acquired, in appellant’s name, by him and appellee Albury during the first partnership. This stock was sold by appellant after the termination of all the partnerships to pay a partnership debt. Further, all costs of the proceedings were taxed against appellant.

Because portions of the order were both interlocutory and final, appropriate appeals were filed by appellant and subsequently consolidated for all appellate purposes by this court.

Among the several points raised by appellant on appeal are two which we feel require some discussion. The first of these pertains to the basic question of whether or not the trial court properly found that the partnerships, as set forth above, existed. The Florida courts have been called upon on numerous occasions to determine whether or not, under the facts of a particular case, a partnership exists. See, e. g., 24 Fla.Jur., Partnerships §§23 through 32 and the cases cited therein. It is unnecessary for us to itemize these tests or indicia of partnership.

We have carefully reviewed the record in the instant case and, based upon the principles set forth above, have concluded that the trial court properly determined that the partnerships existed.

The second point which requires discussion is whether or not the trial court in the action for dissolution and accounting, after finding that the partnerships existed, properly proceeded to order a full final accounting and to provide for the payment of the debts of the partnerships. Again, after a careful review of the record and the appellate proceedings in this case, we have concluded that the trial court prematurely entered its order appointing a receiver and entering a partial final judgment. See Wiese v. Wiese, 107 So.2d 208 (Fla.2d DCA 1958); Section 620.755, Florida Statutes (1975); and 24 Fla.Jur., Partnerships §§ 165 through 169. Prior to entering the order, the trial court should have required a full and final accounting of the partnerships’ affairs. Therefore, the cause is remanded to the trial court for a full and final accounting and for such other action which is not inconsistent with this opinion. Further, in light of the above determinations, we feel that it is unnecessary for us to discuss at this time the other points raised on appeal by appellant.

Our decisions, as stated above, were based upon a consideration of the record, all points in the briefs and arguments of counsel in the light of the prevailing principles of law.

Affirmed in part, reversed in part, and remanded with directions.


text:
    Glimmert BECKHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 76-93.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Rehearing Denied Nov. 24, 1976.
    James Birkhold, Florida Legal Services, Inc., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant appeals the denial of his motion to vacate judgment and conviction on the ground that he was ineffectively represented by court appointed counsel.

Defendant Glimmert Beckham was informed against for robbery and a crime against nature. An assistant public defender was appointed to represent Beckham and upon his advice, Beckham pled guilty to both charges in exchange for a five year sentence. At the same time the court appointed three psychiatrists to determine his competency to stand trial or to enter a guilty plea. At a hearing on Beckham’s competency, two of the three psychiatrists found him competent. Thereupon, the court adjudged him competent. Because of the conflicting psychiatric reports, Beck-ham’s counsel moved to withdraw his guilty plea and stipulated five year sentence. The motion was granted by the trial judge who announced in open court in the presence of both defendant and his counsel that he was withdrawing the guilty plea and vacating the stipulated five year sentence and adjudication of guilt. The judge also determined that defendant was competent to stand trial and a jury trial was held solely on the issue of Beckham’s sanity as all other facts involving the crimes were stipulated to by defense counsel. Beckham was found sane by the jury and sentenced to 50 years in the state penitentiary. His conviction was affirmed on appeal by this court. Beckham v. State, 264 So.2d 30 (Fla. 3d DCA 1972).

Beckham contends in this appeal that he was ineffectively assisted by counsel because his counsel elected to submit him to trial on the sanity issue on the mistaken belief that the earlier stipulated five year sentence would still be in force if the jury found him sane.

To successfully collaterally attack a judgment on the grounds of ineffective assistance of counsel, the facts alleged must demonstrate that the trial was a mockery or a farce. Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964); Quesada v. State, 321 So.2d 442 (Fla. 3d DCA 1975).

Further, mishandling of a trial with regards to matters falling within the judgment or strategy of counsel does not constitute ineffective assistance of counsel. Solloa v. State, 221 So.2d 217 (Fla. 3d DCA 1969).

At most Beckham is claiming that counsel exercised bad judgment in pursuing the defense of insanity and withdrawing the negotiated guilty plea and five year sentence and this is not proper grounds for a collateral attack.

Affirmed.


author: GRIMES, Judge.

text:
    BEST SANITARY DISPOSAL COMPANY, and Safeco Insurance Company, Appellants, v. LITTLE FOOD TOWN, INC., and Home Insurance Company, Appellees.
    No. 76-208.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1976.
    Rehearing Denied Dec. 9, 1976.

      Kings wood Sprott, Jr. of Sprott & Gro-seclose, Lakeland, for appellants.
    J. M. McCarthy and S. Joseph Piazza of Law Offices of Carver & McCarthy, P. A., Lakeland, for appellees.
   GRIMES, Judge.

This is an appeal from an order directing contribution among defendants.

Tania Knight was injured while playing on a refuse disposal container. The container was owned by Best Sanitary Disposal Company and located on premises occupied by Little Food Town, Inc. Little Food Town, Inc. leased the premises from Roy Lovett. Tania and her father sued Best, Little Food Town and Lovett. Little Food Town and Lovett filed a cross-claim against Best and Best filed a cross-claim against Little Food Town and Lovett.

Immediately prior to the trial, counsel for the plaintiffs and for the defendants, Little Food Town and Lovett, announced to the court in chambers the execution of an agreement which provided in pertinent part as follows:

“1. HOME INSURANCE COMPANY on behalf of the defendants ROY LOVETT and LITTLE FOOD TOWN, INC., agrees to pay the plaintiffs TANIA GAIL KNIGHT and E. L. KNIGHT, the sum of FORTY FIVE THOUSAND DOLLARS ($45,000). The maximum liability, exposure or financial contribution to plaintiffs of the defendants HOME INSURANCE COMPANY, ROY LOVETT and LITTLE FOOD TOWN, INC., shall be FORTY FIVE THOUSAND DOLLARS ($45,000), regardless of any verdict judgment, or cost judgment that might be entered in the aforementioned Case Number GC-G-74-1277.
2. In the event that it is determined in a court of law that HOME INSURANCE COMPANY extended coverage under the policy issued to LITTLE FOOD TOWN, INC., and/or that such coverage is also extended to ROY LOVETT, and a judgment is rendered against LITTLE FOOD TOWN, INC., and/or ROY LO-VETT, in consideration of the FORTY FIVE THOUSAND DOLLARS ($45,000) to be paid pursuant to paragraph one (1) hereof, the plaintiffs TANIA GAIL KNIGHT and E. L. KNIGHT, will give a complete release and covenant not to enforce judgment in favor of the defendants HOME INSURANCE COMPANY, ROY LOVETT and LITTLE FOOD TOWN, INC., said release and covenant not to enforce judgment shall be made pursuant to Florida Statutes, Section 768.31(5) and shall reduce any judgment accordingly.
3. The plaintiffs, TANIA GAIL KNIGHT and E. L. KNIGHT will not under any circumstances proceed against HOME INSURANCE COMPANY, ROY LOVETT or LITTLE FOOD TOWN, INC., for any payment other than the FORTY FIVE THOUSAND DOLLARS ($45,000) set forth in paragraph one (1) herein and will specifically not pursue any cause of action, claim or demand against said defendants for recovery of any sum of money for failure to negotiate or effectuate a settlement in good-faith or for any other reason.
4. It is the intention of the parties hereto that this agreement shall be construed as an agreement between them as to financial responsibility only, and in no way constitute an admission of liability or have any effect upon the trial of this case as to liability or extent of damages.
5. In consideration for the plaintiffs’ agreement to release, not to enforce judgment and/or to limit the liability of the defendants, HOME INSURANCE COMPANY, LITTLE FOOD TOWN, INC., and ROY LO-VETT, those defendants agree to pay the plaintiffs the sum of FORTY FIVE THOUSAND DOLLARS ($45,000) whether a verdict is rendered in favor of the defendants and against the plaintiffs or in favor of the plaintiffs against any or all defendants. It is agreed that the verdict rendered in excess of FORTY FIVE THOUSAND DOLLARS ($45,000), the plaintiffs will satisfy such excess from defendants other than HOME INSURANCE COMPANY, LITTLE FOOD TOWN, INC. and ROY LOVETT.
6. If a verdict is rendered in favor of the plaintiffs and against the defendants jointly, and if any proceeding or action is taken against the defendants HOME INSURANCE COMPANY, LITTLE FOOD TOWN, INC. or ROY LOVETT, by any other defendants for contribution pursuant to Florida Statutes, Section 768.-31, then the plaintiffs agree to indemnify or reimburse HOME INSURANCE company; little FOOD TOWN, INC. and ROY LO-VETT for any contribution required by court order or settlement agreement.
7. The defendants HOME INSURANCE COMPANY, LITTLE FOOD TOWN, INC., and ROY LOVETT shall continue as active defendants in the active defense of the subject litigation until all questions of liability and damages are resolved between the plaintiffs and defendants.
8. The terms and conditions specified in this agreement, which are dependent upon a jury verdict, shall be equally applicable to and binding on the parties in the event the plaintiff amicably settles the cause of liability and damages with the other defendants.”

At the request of the parties to the agreement and without objection by Best, the agreement was presented to the jury in the course of the trial. At the conclusion of the evidence (1) Lovett was granted a directed verdict on the claim by the plaintiffs, (2) Best dismissed its cross-claim against Little Food Town and Little Food Town dismissed its cross-claim against Best. (3) The court denied a motion by Best that Little Food Town and Roy Lovett be totally dismissed from the action. The jury returned a verdict totalling $45,000 against Little Food Town and Best. Thereafter, asserting that it had paid the plaintiffs $45,000, Little Food Town filed a motion for contribution. The court entered judgment for the plaintiffs for $45,000 plus costs, subject to a credit for the $45,000 already paid, and directed Best to reimburse Little Food Town for one-half the judgment.

At the outset, there are two considerations which may be disposed of summarily. Best concedes that under Section 768.-31(4)(b), Florida Statutes (1975), Little Food Town could properly assert its claim for contribution by way of motion despite the fact that it had voluntarily dismissed its cross-claim against Best during the trial.. Likewise, we need not consider the effect of Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla.2d DCA 1967), upon our decision, because Little Food Town does not seriously quarrel with Best’s characterization that the agreement constituted a settlement between Little Food Town and the plaintiff.

There was no right of contribution among tortfeasors in Florida until the passage of the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1975). Under this statute, one of several persons liable in tort for the same injury or wrongful death has a right to recover from the other tortfeasors whatever he has paid in excess of his pro rata share of the common liability. Pertinent to the instant case, section (l)(d) of the uniform act, which is codified as Section 768.-31(2)(d), Florida Statutes (1975) provides:

“(2) Right to contribution.—
******
(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.”

Best contends that Little Food Town is precluded from contribution because Little Food Town settled with the plaintiffs without obtaining an extinguishment of Best’s liability to the plaintiffs.

On the other hand, Little Food Town argues that since the $45,000 it agreed to pay would be deducted from any verdict obtained against Best under Section 768.-31(5)(a), Florida Statutes (1975), this was equivalent to an extinguishment of Best’s liability. In support of its position, Little Food Town cites Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962), in which it was held that a settlement by one tort-feasor which had the effect of reducing the verdict against the other to that extent, amounted to an extinguishment of liability under the uniform act so as to permit the settling tortfeasor to obtain contribution. With all due respect, we believe that the interpretation placed upon the uniform act by the Pennsylvania court was contrary to both its letter and spirit.

On the basis of language alone, we cannot see how a reduction in the amount of the claim against Best is equivalent to an extinguishment of Best’s liability even though because the verdict did not exceed the amount of the settlement Best now owes nothing to the plaintiffs. The provision which causes the $45,000 payable by Little Food Town to be a reduction of the claim against Best to that extent is section (4) of the uniform act (Section 768.31(5), Florida Statutes (1975)) which reads as follows:

“(5) Release or covenant not to sue. —When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

Presumably, the drafters of the uniform act carefully chose their words when they stated that a release or covenant not to sue or not to enforce judgment does not “discharge” any other tortfeasor for liability but simply reduces the claim by the stipulated amount.

It is further significant that section (4)(b) of the uniform act (Section 768.31(5)(b), Florida Statutes (1975)) provides that where one of several tortfeasors has settled a claim against him, he is relieved of liability for contribution to any other tortfeasor. It appears that sections (l)(d) and (4)(b) of the uniform act present opposite sides of the same coin. Thus, if tortfeasor A (Little Food Town) settles out and tortfeasor B (Best) elects to go to trial and suffers a large verdict, section (4)(b) protects tort-feasor A from any claim for contribution by tortfeasor B. However, at the same time section (l)(d) provides that if tortfeasor A (Little Food Town) buys its peace before trial without absolving tortfeasor B (Best) from all further responsibility, then tort-feasor A cannot later obtain contribution from tortfeasor B. This is borne out by the comment of the Commissioners under section (4)(b) of-the uniform act which states:

. [T]he subsection [4(b)] provides that the release in good faith discharged the tortfeasor outright from all liability for contribution. This is consistent with Section 1(d) above, which provides that the settling tortfeasor himself has no right of contribution against another unless he has assumed the full responsibility to the claimant.” 12 ULA 100.

The fact that Little Food Town ended up paying a disproportionate portion of the plaintiffs’ claim was a circumstance of its own making. Little Food Town calculated the risk and acted accordingly. By virtue of the agreement, Little Food Town absolutely limited its liability to $45,000. Even if the verdict exceeded twice that figure, Little Food Town was immune from a claim for contribution by Best. When Little Food Town chose not to pay what would have been necessary to obtain the extinguishment of Best’s liability, it lost its claim for contribution under the statute. Accordingly, the judgment for contribution is

REVERSED.

HOBSON, A. C. J., and.GOBBIE, EVELYN, Associate Judge, concur.

      . The liability insurance carriers for the several defendants were also joined but need not be referred to in the balance of this opinion.

      . The effectiveness of this provision of the act was recently illustrated in Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA Í976).


author: PER CURIAM. WALDEN, Chief Judge DOWNEY, Judge.

text:
    BERT ROGERS SCHOOLS OF REAL ESTATE, Petitioner, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. 76-418.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    On Rehearing Nov. 5, 1976.

      Cynthia S. Tunnicliff of the Law Office of Sam Spector, Tallahassee, for petitioner.
    Howard Hadley, Winter Park, for respondent.
   PER CURIAM.

Certiorari denied.

CROSS and MAGER, JJ., concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting):

I respectfully dissent. It is my view that Petitioner was entitled to a hearing under Fla.Stat. 120.57 and that this is the clear intendment of the Administrative Procedures Act.

I would grant the Petition for Certiora-ri.

ON PETITION FOR REHEARING

DOWNEY, Judge.

Petitioner Bert Rodgers Schools of Real Estate seeks review by certiorari of the Florida Real Estate Commission’s action in amending Rules 21V-301 through 21V-307 of the Florida Administrative Code.

Pursuant to Section 120.54(1), Florida Statutes (1975), the respondent gave notice of its intention to amend the aforesaid rules. In accordance with Section 120.54(2), petitioner requested an opportunity to be heard concerning said proposed amendments. In addition, petitioner asserted that its substantial interests would be affected in the proceedings and requested that it be afforded a hearing pursuant to Section 120.57, Florida Statutes (1975).

On December 22, 1975, the respondent held the hearing required by Section 120.54 (2). Petitioner appeared and again requested that it be afforded a full hearing as authorized by Section 120.57. The pertinent portion of the transcript of the December 22nd hearing demonstrates that the respondent never exercised the discretion which Section 120.57 affords it to determine whether the Section 120.54 hearing was adequate to protect petitioner’s interests. Petitioner timely asserted that its “substantial interests” would be affected in the proceedings, but respondent never permitted petitioner to demonstrate that the December 22nd hearing held pursuant to Section 120.54(2) was not adequate to protect those interests.

Respondent represents that the purpose of the December 22nd hearing was to allow “affected persons” to give “input” to the commission relative to the proposed amendment to the rules. As such it was evident that there was neither time nor opportunity for an extended evidentiary hearing as contemplated by Section 120.57. In addition, it seems apparent that everyone involved was somewhat in doubt as to the correct procedure to follow under the circumstances. We do not say this critically because these waters are unchartered and only time and experience will enable those dealing with the Administrative Procedure Act to know with any degree of certitude the proper application of its legislative directives. Nevertheless because petitioner (in effect) asserted that the Section 120.54 (2) input hearing would not be sufficient to protect its substantial interests, petitioner was entitled to have the Commission exercise its discretion and make an express determination as to whether the input hearing was adequate to protect the interests asserted.

If it can be argued that respondent did exercise its discretion and implicitly denied petitioner a Section 120.57 hearing, then we think such a denial was a clear abuse of discretion. The only matters the respondent had before it upon which a denial could have been based (since the commission declined to hear any testimony or argument from petitioner on December 22, 1975) were letters petitioner had sent respondent. Those letters set forth the interests petitioner asserted were substantial. The letters also contained assertions that petitioner’s “substantial interests” would not be adequately protected by a Section 120.54(2) hearing and specifically requested a Section 120.57 hearing, setting forth the issues petitioner wished to present at such a hearing. Without anything to refute these matters, a conclusion that petitioner had failed to demonstrate that the Section 120.54(2) proceedings of December 22nd were inadequate to protect its interests is not supported by the record and is thus arbitrary.

Accordingly, having granted petition for rehearing, we now grant the petition for writ of certiorari, and upon authority of Section 120.68(13), we remand the cause with directions to grant petitioner a hearing as authorized by Section 120.57, Florida Statutes (1975).

ALDERMAN, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.


author: McNULTY, Chief Judge.

text:
    Earl Edward MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1716.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

The question before us this day is whether the trial court should have afforded appellant an opportunity to withdraw a negotiated plea of guilty before sentencing. Under the circumstances of this case we think the trial court should have done so and we remand for that purpose.

Appellant was charged with breaking and entering with intent to commit a felony. He pleaded guilty pursuant to negotiations in which he was to get three years imprisonment. At the ensuing sentencing proceeding the trial court itself initiated a renegotiation of the plea and the following colloquy occurred:

THE COURT: Well, I will tell you what I will do, if he wants to do it. I will continue this case for six months. In other words, it is a fifteen-year offense, isn’t it?
MR. BRADLEY: That’s correct, Your Honor.
THE COURT: In other words, he faces fifteen years in the State Prison. I will look at it in six months. He will take a lie box at the end of six months to see if he’s committed any other crimes. If he has, I won’t revoke him based on the lie box, but will certainly find out what the crime was and will certainly get the people in here and try to prove it against him. If he commits one more crime I am going to give him fifteen years in the State Prison. I don’t care if he has eight children. That is opposed to three years now.
If he continues to work, he marries this woman — If it is the proper thing to do. I am not telling them they have got to get married. But if they want to get married, they should get married. That’s not a condition of it. Do you want to do that?
MR. BRADLEY: If I can have a moment with him, I think he does. The defendant wants to do that.
MR. ALFONSO: Your Honor, if I could inquire, what would be the disposition at the end of the six months?
THE COURT: At the end of the six months I would make a decision. If he’s clean it would be three years or less. If he’s not clean, it is going to be fifteen years.
MR. BRADLEY: Fine, Your Honor.
THE COURT: That means out of bars, out of other people’s houses; do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Is that what you want to do?
THE DEFENDANT: Yes, sir.
THE COURT: If you are convicted of one more thing you are going to the State Prison for fifteen years. I don’t care if you parade eight children up there; do you understand it?
THE DEFENDANT: Yes, sir.
THE COURT: All right.
(Italics supplied.)

At the end of the six-month period called for, the appellant came back before the court for sentencing. At that time the court alluded to a trial, presided over by the same trial judge, in which appellant had been charged with rape allegedly committed during the six-month period. The appellant was acquitted of that rape but testified at the trial that he had gone over to the prosecutrix’ house at her request, that they had kissed, fondled, etc., and that the prosecutrix invited him into the house where the alleged rape occurred. Notwithstanding the acquittal, the following occurred at the sentencing hearing in the instant case:

THE COURT: Obviously no lie box was necessary. He was charged with rape, went to trial, was found not guilty of rape, but he took the stand and admitted that he committed a fornication and an adultery.
I will make an adjudication of guilt. Do you or your client have any further comments prior to disposition?
MR. BENITO: Your Honor, he was acquitted of that charge that he was charged with.
THE COURT: That’s correct, he was. MR. BENITO: And the presumption of innocence should be with the defendant.
THE COURT: It is. He was not guilty of rape. I think he probably was not guilty of it. But he’s not not guilty of fornication and adultery because he took that stand under oath and said that he’s guilty of that. Any further comments prior to sentencing?
MR. BENITO: No, Your Honor.
THE COURT: It is the judgment, order and sentence of this Court that Earl Edward Moore be confined in the Florida State Prison for fifteen years. I will give him credit for all time served.

As noted, we are of the view that under these circumstances the court should have afforded appellant an opportunity to withdraw his plea before imposing sentence.

We comment first, parenthetically, that though not per se grounds for reversal under the present posture of the case, the trial court was without authority simply to defer the imposition of sentence on the instant charge for a period of six months. If the trial court had wished to tie the length of sentence to future behavior the appropriate procedure is to impose probation, prescribe certain terms and, upon the orderly establishment of a violation thereof, properly revoke the probation. That not having been done, however, we may consider the case as though sentence were timely imposed upon a negotiated plea.

Considered in this light, we now determine that the bargain as finally struck at the instance of the court was that the fifteen-year sentence was to be predicated on a conviction or proof of a criminal offense committed during the six-month period of sentence deferment. This is a fair interpretation of the bargain and obviously appellant so interpreted it when he pleaded guilty in consideration thereof.

Admittedly, there was no conviction. Moreover, there was no proof of a crime, notwithstanding appellant’s admissions of meretrieiousness, since the record affirmatively indicates that his sexual exploits were neither adultery nor fornication as those offenses are defined by law. Adultery must be “open and notorious,” and fornication must involve an unmarried woman. Neither was the case here.

So it appears that the trial court chose to reject the terms of the plea negotiations. While he has the authority to reject them, he ought not do so without first affording appellant the opportunity to withdraw his plea.

In view whereof, the judgment and sentence appealed from should be, and they are hereby, reversed; and the cause is remanded with directions that appellant be afforded an opportunity to withdraw his plea and enter a plea of not guilty.

HOBSON and GRIMES, JJ., concur.

      . See State v. Bateh (Fla.1959), 110 So.2d 7; Baggett v. State (Fla.App.2d, 1974), 302 So.2d 206.

      . Section 798.01, F.S.1975.

      . See DeLaine v. State (Fla.1972), 262 So.2d 655, construing § 798.03, F.S.1975.

        .See Barker v. State (Fla.App.2d, 1972), 259 So.2d 200; also cf. Brown v. State (Fla.1971), 245 So.2d 41.


author: PER CURIAM. PER CURIAM.

text:
    Alonzo Dwight METZ, Appellant, v. STATE of Florida, Appellee.
    No. CC-140.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1976.
    Rehearing Denied Nov. 24, 1976.

      Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgment and sentence having provided that “this sentence shall be served (concurrently) with any prior sentence or sentences heretofore imposed and not served,” and there being no showing that any prior sentence for which appellant was released on probation was made to run consecutively with the sentence in this cause, as a result of probation violation, the judgment is

AFFIRMED.

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

ON PETITION FOR REHEARING

PER CURIAM.

We have considered the record in our Case No. CC-351 as it bears on the issues of whether Metz should have been permitted to withdraw his bargained guilty plea in this case. Following imposition of the sentence in this case, which pursuant to a bargain was made to run concurrently with the sentence imposed upon Metz’ violation of parole from a forgery sentence, Metz was sentenced to serve a consecutive term for another previously adjudicated forgery. Metz’ probation on the second forgery conviction ended as a result of his conviction in this case and is the subject of our Case No. CC-351.

The record which has been brought to our attention does not show that Metz was unconscious of his probationary sentence in No. CC-351, nor that he was unconscious of the potential consequences on that probation of a felony conviction, at the time he bargained for the adjudication and sentence received in this case. The sentencing court therefore did not err in declining Metz the opportunity to withdraw his guilty plea in this case when, following the inevitable revocation of his probation in No. CC-351, he was sentenced for forgery consecutively with this sentence for possession of a stolen motor vehicle. The bargain in this case did not purport to affect No. CC-351, and in the bargain there was neither mistake nor incompetence of counsel.

The prayer of the petition for rehearing is

DENIED.

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


text:
    Milton LIFSCHITZ et al., Appellants, v. CITY OF MIAMI BEACH, Florida, Appellee.
    No. 76-787.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Rehearing Denied Nov. 9, 1976.

      See also, Fla.App., 339 So.2d 236.
    Cypen & Nevins and Stephen H. Cypen, Miami Beach, for appellants.
    Joseph Wanick, City Atty., Miami Beach, Richard A. Kanner, Miami, Ritter & Ritter, Coral Gables, for appellee.
    Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for Florida Association of Realtors, amicus curiae.
    Richard M. White, Miami, for Miami Bd. of Realtors, amicus curiae.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Plaintiffs, Milton Lifschitz and Melvin Schwartz, take .this appeal from an adverse final judgment in an action for injunction against the enforcement by the defendant, City of Miami Beach, of Ordinance No. 74-2018, the Rent Stabilization Law.

In City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1974), the Supreme Court of Florida ruled that Section 166.021, Florida Statutes, the home rule statute, was constitutionally valid and that the City of Miami Beach was authorized to enact rent control measures, provided sufficient objective guidelines and standards were utilized for delegation of the legislative powers of the City to the rent control administrator. Pursuant to that decision, the City of Miami Beach passed a revised rent control ordinance, which is the subject of the instant action for injunction.

The final judgment in this case contained the following findings of fact: that the City of Miami Beach had the power and legal authority under Section 166.021(1), Florida Statutes, to enact Ordinance 74-2018; that the ordinance was validly enacted in accordance with the mandatory provisions of Section 9 of the Charter of Miami Beach, which provides for the adoption of ordinances to meet public emergencies; that due to the unusual character of Miami Beach, as demonstrated by the evidence, there did exist at the time of passage of the ordinance and thereafter until the time of final hearing, appropriate and sufficient circumstances, conditions and factors to justify its enactment; that Ordinance 74-2018 is neither improper nor an unlawful delegation of the legislative power and authority of the City of Miami Beach, as it provides sufficient and adequate guidelines in its delegation of power to the Rent Control Administrator, as provided in City of Miami Beach v. Forte Towers, Inc., supra; that although certain portions of the ordinance, namely the sections on evictions, prohibitions and survivorship conflict with and are superseded by The Florida Residential Landlord and Tenant Act and the Florida Probate Act (Chapters 83 and 731, Florida Statutes), the evidence reflects that the conflicting provisions are not so mutually connected or dependent upon the rest of the ordinance as to require their continued inclusion to make the rent control provisions work; that the ordinance can be effectively administered without the conflicting provisions; that the evidence failed to prove that the ordinance was vague, indefinite, ambiguous, arbitrary, oppressive, confiscatory, unreasonable or discriminatory, or that it unreasonably impaired the rights of landlords under contracts in existence prior to the effective date of the ordinance.

The first point on appeal concerns whether the ordinance is void because in fact no emergency existed and because the ordinance was not adopted in accordance with the extended notice and public hearing requirements of the city charter. The appellants contend that although the ordinance was enacted on December 11, 1974, as a purported emergency, the ordinance did not go into effect until January 1,1975, 22 days after enactment, a period over twice as long as the minimum time required before a regularly enacted ordinance may become effective. Appellants further argue that the ordinance could have been passed on first reading on December 11,1974, and still have become effective as a regular ordinance on January 1,1975, while still fulfilling mandatory requirements of the charter for the passage of such regular ordinances, including notice, publication, filing and hearings.

In responding to these contentions, we look to Section 9 of the Charter of the City of Miami Beach, which in pertinent part states:

“ . . .To meet a public emergency affecting life, health, property, or public safety, the City Council, by two-thirds vote of the members of the City Council, may adopt the emergency ordinance at the meeting at which it is introduced and may make it effective immediately . . . .”

We also consider the relevant portions of the preamble to Ordinance 74-2018, as follows:

******
“WHEREAS, a grave and serious public emergency exists with respect to the housing of a substantial number of citizens of Miami Beach; and
“WHEREAS, the deterioration and demolition of existing housing; an insufficient supply of new housing; the inhibition upon the construction of new housing resulting from the operation of the Florida Pollution Control Act, other environmental protection laws, and an insufficient supply of financing; and the existing economic inflationary spiral have resulted in a substantial and critical shortage of safe, decent and reasonably priced housing accommodations as evidenced by the low vacancy rates prevailing in the City; and
“WHEREAS, this emergency cannot be dealt with effectively by the ordinary operations of the private rental housing market, and unless residential rents are regulated, such emergency and the inflationary pressures therefrom will produce a serious threat to the public health, safety and general welfare of the citizens of Miami Beach, Florida;
“NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MIAMI BEACH, FLORIDA, that existing Chapter 17A of the Code of the City of Miami Beach, Florida, is deleted and the following substituted therefor . . .
* * * * * *

As clearly demonstrated by the preamble, the City found that an emergency existed. The ordinance is presumptively valid, and the question of the existence of an emergency at the time of its passage rested in the judgment and discretion of the city council. Glackman v. City of Miami, 51 So.2d 294 (Fla.1951); State v. City of Miami Beach, 234 So.2d 103 (Fla.1970).

The record reflects that at trial, there was ample evidence as to the factors creating a housing emergency, for example, a scarcity of housing, accelerating rents and a constant influx of people seeking housing in the area. Accordingly, the finding of the trial judge that an emergency existed was supported by competent evidence and will not be reversed on appeal.

Appellant’s argument that the 22-day delay in the effective date of the ordinance rendered it a non-emergency is without merit. The record demonstrates that the reason for the delay was explained by the rent director:

“There were two reasons. First, accepting the fact that most tenants pay rent on the first of the month, I felt that there would be a tremendous amount of confusion created if the law passed effective December 11, and refunds would have to be made for approximately 20/31 of a month. A second reason would be that the intervening period until January 1 would give us sufficient time to establish an office and get it going.”

Assuming arguendo that the use of the emergency procedure was error, the trial court will not be reversed because, as stated in McCall v. State ex rel. Daniels, 156 Fla. 437, 23 So.2d 492, 493-94 (1945),

“ . . . even if the declaration of an emergency were found defective the ordinance would not, for that reason, be void, but the effective date would only be postponed until the time an ordinary ordinance would become operative.”

Appellant’s second point on appeal concerns the severability of those sections of the ordinance which were found to have been preempted by state law. Appellant’s primary contention is that the subject ordinance could not conceivably have been enacted without the invalidated eviction provisions.

Where certain portions of an ordinance are invalidated, the remaining sections retain their validity unless they are found to be dependent upon those sections which have been declared void. Lysaght v. City of New Smyrna Beach, 159 So.2d 869, 870 (Fla.1964). While the eviction provisions of the Miami Beach ordinance certainly fostered the City’s purpose in enacting the rent control law, the remaining provisions are in no way dependent upon them. Florida Statutes Chapter 83 contains ample standards for the termination of rental agreements. It imposes numerous duties upon both landlord and tenant which are enforceable by civil action. In particular, Section 83.44 imposes an obligation of good faith in the performance or enforcement of every rental agreement or duty imposed by Chapter 83. It should also be noted that Section 12 of the rent control ordinance (which was not affected by the trial court’s ruling) provides inter alia that it is unlawful for any person to remove or attempt to remove a tenant because the tenant has instituted or intends to institute action which is authorized or required by the ordinance. Thus, it appears that both landlord and tenant are otherwise afforded the necessary rights of action which have been eliminated from the ordinance.

Even without the existence of these other safeguards, the eviction procedures would still have been clearly severable. The Supreme Court of New Jersey recently reached this same conclusion after considering a similar problem in Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975). There the court upheld a rent control ordinance despite a finding that the state legislature had preempted certain eviction provisions. The court found that the invalid provisions were “clearly severa-ble” from the remainder of the ordinance.

The Brunetti court cited another New Jersey ease which had also found that conflicting eviction provisions would not force the invalidation of an entire rent control ordinance. The court in that case, Inganamort v. Borough of Fort Lee, 120 N.J.Super. 286, 293 A.2d 720 (1972), applied a rationale which is equally appropriate here:

“ . . . [R]ent leveling cannot be said to be so intertwined with control of evictions that the municipal governing body intended both or none. Some control of maximum rents is itself conducive to the purpose of assuring continued occupancy. To be sure, direct control of evictions is an additional and a more direct technique; yet control of maximum rents is itself an intelligent partial solution. It would be unreasonable to assume that the municipality, if aware of its lack of power to control evictions directly, would do nothing at all to meet the emergency it found to exist.” Id. at 727.

While the Miami Beach ordinance provides for the establishment of rent ceilings, it also governs the maintenance of so-called Minimum Service Standards. These standards assure the tenant that the landlord will not be allowed to reduce the services provided as of a set date without a valid reason, since he is first required to petition the Director of Rent Control Administration as to proposed reductions in service. Ordinance No. 74-2018, Sections 2-J, 3, 5E & F. Thus, the Miami Beach City Council took even greater steps to alleviate the discerned housing emergency than those taken by the Borough of Fort Lee in the ordinance considered in the Inganamort decision.

While the remedial provisions of the Miami Beach ordinance may have been buttressed by the eviction sections, they were not rendered useless once the latter portions of the ordinance were found to be void. We therefore concur with the trial court’s finding that the invalidated sections of the ordinance are severable, and that the remainder of the rent control law is unaffected by the finding of partial invalidity.

The remaining points on appeal are without merit and will not be discussed. Therefore, having carefully considered all points raised in light of the controlling principles of law and for the reasons stated, the trial court’s judgment is affirmed.

Affirmed.


text:
    Steven MUSS, etc., et al., Appellants, v. CITY OF MIAMI BEACH, Florida, Appellee.
    No. 75-1998.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Rehearing Denied Nov. 24, 1976.

      Sibley, Giblin, Levenson & Ward, Miami, Rubin, Baum, Levin, Constant & Friedman, New York City, for appellants.
    Joseph A. Wanick, City Atty., Miami Beach, Richard Kanner, Miami, Ritter & Ritter, Coral Gables, for appellee.
    Pallot, Stern, Proby & Adkins, Miami, amicus curiae.
    Before HENDRY ánd NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

This is a companion case to Lifschitz v. City of Miami Beach, Florida, Fla.App., 339 So.2d 232, opinion rendered this day. Here the Plaintiffs-Appellants, as the owners of six luxury high-rise apartment buildings on Miami Beach, also attack the Miami Beach Rent Stabilization Law.

With one exception, the points of attack are the same as in Lifschitz; and, as in Lifschitz, the Trial Court dismissed the Plaintiffs’ action for an injunction, after final hearing. Our rejection of the attack is fully set forth in Lifschitz, and we now consider Appellants’ additional contention that rent control cannot be constitutionally applied to the luxury rental market. This contention is advanced on the basis of the Plaintiffs’ assertion that there is no housing emergency existing as to luxury apartments and that affluent tenants can afford to pay whatever the traffic will bear for that type of accommodation. No authority is cited to support such a proposition; the Trial Court found, as a matter of fact, that the emergency found to exist city-wide in the preamble to the Rent Stabilization Act had not been overcome by Appellants’ testimony. Nor do we think that it was necessary for the City Council of the City of Miami Beach to fragmentize the city and examine, neighborhood by neighborhood, each apartment building to ascertain whether the public emergency existed as to each apartment unit or in each economic bracket in order to arrive at a city-wide conclusion. The fact that the more affluent tenant may not be as deeply affected or to the same degree is not a valid criterion and is not sufficient to invalidate the legislation. See, for example, Albigese v. Jersey City, 127 N.J.Super. 101, 316 A.2d 483, 487 (1974); Troy Hills Village v. Township Council, 68 N.J. 604, 350 A.2d 34, 41 (1975); Westchester West No. 2 Ltd. Part. v. Montgomery Cty., 276 Md. 448, 348 A.2d 856, 859 (1975). In short, the same reasons which required the emergency legislation as to the less affluent also apply to the more affluent.

Accordingly, the order on appeal is affirmed.

NATHAN, J., concurs in the result only.