author: SUNDBERG, Justice.

text:
    Arrie Lee SHUMAN, Neil Barnes, Deleon Scott, Jack Pierce, and Allan Hawkins, Petitioners, v. STATE of Florida, Respondent.
    No. 50675.
    Supreme Court of Florida.
    Feb. 23, 1978.
    As Corrected May 25, 1978.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen. and Susan E. Mole, Asst. Atty. Gen., Tallahassee, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, First District, reported at 339 So.2d 1176. The issue presented is whether costs for preparation of a transcript necessary for an indigent’s appeal from a hearing officer’s order of continued involuntary hospitalization, entered pursuant to Chapter 394, the Baker Act, should be taxed against the county in which the hearing was held or against the office of the public defender appointed to represent such indigent. The district court’s decision affects a class of constitutional or state officers and, therefore, we have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioners were involuntarily committed to the Florida State Mental Hospital pursuant to the provisions of Chapter 394, Florida Statutes (1975), the Baker Act. When the hospital desired to continue petitioners’ involuntary hospitalization beyond the initial six-month commitment authorized by Section 394.467(3), Florida Statutes (1975), each petitioner was granted a hearing before a hearing officer for the Department of Administration, as provided by Section 394.467(4)(a), Florida Statutes (1975). Peti-’ tioners were adjudged insolvent and, as provided by Section 394.467(4)(e), were represented by the public defender at their respective hearings. An order of commitment for continued involuntary hospitalization was entered as to each petitioner. Pursuant to the public defender’s request, the hearing officer ordered a court reporter to transcribe the testimony taken at the hearings.

As provided by Section 394.457(6)(d), Florida Statutes (1975), appeals were taken to the Circuit Court for Gadsden County, Florida, raising the issue of the sufficiency of the evidence to warrant continued hospitalization. After the court reporter had transcribed the testimony taken at the hearings but before the appeals were heard, however, each petitioner was either released from Florida State Hospital or transferred to a voluntary status. Thereafter, petitioners voluntarily dismissed their appeals pursuant to Florida Appellate Rule 3.13b. The court reporter submitted a bill to the public defender’s office, and petitioners filed motions to tax the costs of the transcripts against Gadsden County, the county in which petitioners were hospitalized and in which the appeals were filed. The circuit court refused to tax the costs against the county due to its inability to find authority in Chapter 394 to support such an order. The circuit court consolidated petitioners’ cases for further appellate review. On appeal, the District Court of Appeal, First District, found no reversible error and, consequently, affirmed the circuit court’s denial of petitioners’ motion to tax costs. It is from that affirmance that petitioners have requested this Court to exercise its discretionary review.

Petitioners submit that as the right to appeal from an order requiring continued involuntary hospitalization is provided by law to all, this right cannot constitutionally be denied to those unable to pay the cost of the transcript necessary for review. To hold otherwise, it is maintained, would deny indigents equal access to the courts, due process and equal protection of the law, in violation of the Florida and the Federal Constitution. For the reasons hereinafter expressed, we accept petitioners’ contention.

The deprivation of liberty which results from confinement under a state’s involuntary commitment law has been termed a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Those whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions. Chief Justice Warren Burger elaborated upon this principle, concurring in O’Conner v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975):

There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967). Cf. In re Gault, 387 U.S. 1, 12-13, 87 S.Ct. 1428, 1435-1436, 18 L.Ed.2d 527 (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding.

A transcript of the hearing provided by Section 394.467(4)(a), Florida Statutes (1975), upon which an order requiring continued involuntary hospitalization is based, is necessary for meaningful appellate review. The indigent petitioners in the case sub judice have a right to an appellate record of these commitment proceedings, provided at public expense, under both the Florida and the Federal Constitution for the reason succinctly stated in. Williams v. Oklahoma City, 395 U.S. 458, 459-460, 89 S.Ct. 1818, 1819, 23 L.Ed.2d 440 (1969):

“This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.” Rinaldi v. Yeager, 384 U.S. 305, 310-311, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). Although the Oklahoma statutes expressly provide that “[a]n appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him . . . ,” the decision of the Court of Criminal Appeals wholly denies any right of appeal to this impoverished petitioner, but grants that right only to appellants from like convictions able to pay for the preparation of a “case-made.” This is an “unreasoned distinction” which the Fourteenth Amendment forbids the State to make. See Griffin v. Illinois [and] Draper v. Washington [supra]; Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958). (Emphasis in original)

Accord, Grissom v. Dade County, 293 So.2d 59 (Fla.1974); Bell v. State, 208 So.2d 474 (Fla. 1st DCA 1968).

Petitioners submit that the cost of the appellate transcripts in issue must be borne by the county in which the involuntary commitment proceedings were held. In support of this proposition they cite Florida Appellate Rule 6.8, which provides that the cost of an indigent criminal defendant’s transcript on appeal shall be assessed against the county in which the case arises. Respondent, on the other hand, argues that counties are specifically prohibited from paying for the transcripts in question, citing Section 27.54(2), Florida Statutes (1975), which provides:

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

In addition, maintains respondent, legislative appropriations are provided for these expenses by Section 27.51(4)(e), Florida Statutes (1975).

We do not agree with petitioners’ proposition that Florida Appellate Rule 6.8 addresses indigents seeking appellate review under Section 394.457(6)(d), Florida Statutes (1975), of an order requiring continued involuntary hospitalization. Florida Appellate Rule 6.8 relates only to indigent criminal defendants. However, we conclude that, for the reason that Florida Appellate Rule 6.8 requires counties to pay the cost of appellate transcripts for criminal defendants, counties in which involuntary commitment proceedings are held must also bear the cost of an indigent’s transcript when an appeal is taken pursuant to Section 394.457(6)(d). Once the State has chosen to establish an avenue of appellate review of orders requiring continued involuntary hospitalization, both our State and the Federal Constitution require that indigents be afforded review commensurate to that available to nonindigents. See Williams v. Oklahoma City, Grissom v. Dade County, and Bell v. State, supra.

Sections 27.54(2) and 27.51(4)(e), Florida Statutes (1975), do not alter our conclusion. It is an established rule of statutory construction that legislative intent should be ascertained from an examination of a statute as a whole, rather than any one part thereof. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So.2d 552 (Fla.1973); State v. Hayles, 240 So.2d 1 (Fla.1970); Englewood Water District v. Tate, 334 So.2d 626 (Fla. 2d DCA 1976). An examination of Section 27.54 in its entirety reflects that the enactment relates solely to operation expenses of the public defenders’ offices, such as for employment of personnel and travel expenses. It is clear, therefore, that subsection (2) of the statute was intended only to prohibit counties from contributing to such operation expenses; it does not proscribe contributions for costs of appeals — those appellate expenditures which are not related to internal operation of the public defender’s office. Costs have been defined to include payments to a court reporter for preparation of a record on appeal. See King v. Weis-Patterson Lumber Co., 127 Fla. 109, 172 So. 693 (1937); Markham v. Gottsegen, 181 So.2d 594 (Fla. 2d DCA 1966). Section 27.51(4)(e) simply complements Section 27.-54(2) by providing for legislative appropriations for operation expenses of the enumerated public defenders’ offices. Were respondent correct in its assertion concerning the operation of Section 27.54(2) counties would be precluded from paying the transcript costs of an indigent criminal defendant under Rule 6.8. The transcripts in question are no more operation expenses of the public defenders’ offices than are transcripts in criminal appeals.

In order to ameliorate the fiscal burden upon counties in which state hospitals are situated, petitioners submit that Section 57.091, Florida Statutes (Supp.1976), provides for reimbursement by the State to counties which are required to pay for the appellate transcripts in issue. Respondent, however, argues that Section 57.091 provides for reimbursement to counties only for appellate costs of indigent state prisoners, not for persons involuntarily committed to mental institutions pursuant to Chapter 394. We concur with respondent’s position.

A literal reading of Section 57.091 which provides, inter alia, for reimbursement of costs “paid by, any county in all competency proceedings, all criminal prosecutions against state prisoners . . . and all habeas corpus cases ... of state prisoners” would seem to belie our construction of that enactment. (Emphasis supplied) Section 57.091 could reasonably be read to provide for reimbursement of costs to counties for any indigent’s appeal in competency proceedings, and not solely for those of a state prisoner. However, the statutory revision division in revising the enrolled act, Section 3, Chapter 76-287, Laws of Florida, which was subsequently published as Section 57.091, Florida Statutes (Supp. 1976), altered the clear intent of the legislature expressed in the enrolled act.

Section 3, Chapter 76-287, provides for reimbursement of costs of appeals “in all competency proceedings, all criminal prosecutions against state prisoners . . . , and in all habeas corpus cases ... of state prisoners. . . . ” (Emphasis supplied) The statutory revision division’s deletion of the conjunctive “and” between that part of Section 3, Chapter 76-287, relating to competency proceedings and that part relating to criminal prosecutions, and insertion of a comma between those phrases, caused the words “state prisoners” to modify only “criminal prosecutions”; “competency proceedings” was not so modified and, therefore, limited to those involving state prisoners.

The statutory revision division had no authority to effect such a substantive change in Section 3, Chapter 76-287. See Jones v. Christina, 184 So.2d 181 (Fla.1966); Foley v. State, 50 So.2d 179 (Fla.1951); McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla. 1st DCA 1974). In Jones v. Christina, supra, this Court enunciated the limitations upon the statutory reviser’s powers:

The statutory revision power . was intended only for the purification of the statutory law; and not to make changes in the substantive law without express legislative action. 184 So.2d at 184. (Footnotes omitted)

This principle was also elaborated upon in Foley v. State, supra:

In order for the statutory law to be amended it is necessary that the law as amended be enacted by the legislature, either by expressly enacting the Cumulative Supplement in which it is contained in toto or by a separate specific enactment of the amendment itself. 50 So.2d at 183.

In the case sub judice, the statutory revision division’s substantive change in Section 3, Chapter 76-287, Laws of Florida, as embodied in Section 57.091, Florida Statutes (Supp.1976), is without force or effect because Section 57.091 has not yet been adopted by the legislature. The statutory revision division’s publication of the statutes of this State as revised and consolidated is adopted biennially by the legislature. By Chapter 77-266, Laws of Florida, the 1977 Legislature adopted the statutes of 1975, to be published under the title “Florida Statutes 1977.” All laws enacted at or prior to the 1975 legislative session not contained in Florida Statutes 1977 were repealed. The legislature did not, however, repeal any laws enacted at the 1976 and 1977 sessions. This will occur only upon adoption by the 1979 Legislature of the laws enacted during the 1976 and 1977 sessions. Until that time, Section 57.091, Florida Statutes (Supp.1976), the statutory revisions division’s publication, constitutes only prima facie evidence of the law. The enrolled act, Section 3, Chapter 76-287, stands as the official, primary evidence of the law as enacted by the legislature. See Section 11.242(5)(c), Florida Statutes (1975); McCulley Ford, Inc. v. Calvin, supra.

We make no determination as to the effect of Section 57.091, Florida Statutes (Supp.1976), should the 1979 Legislature adopt it as amended by the statutory revision division. This Court is merely effectuating the legislative intent as expressed in the enrolled act. Consequently, we hold that Section 3, Chapter 76-287, Laws of Florida, provides for reimbursement to counties solely for the enumerated costs incurred by prisoners incarcerated in state correctional institutions.

We recognize the inequity of requiring counties with mental institutions within their borders to bear the costs of indigents’ transcripts for appeals from orders requiring continued involuntary hospitalization under the Baker Act, particularly since this burden has been recognized by the legislature with respect to state correctional institutions. However, it is not this Court’s province to vary the clear legislative intent expressed in a statute merely because of our belief as to the lack of wisdom of the enactment. See McDonald v. Roland, 65 So.2d 12 (Fla.1953); State ex rel. Bie v. Swope, 159 Fla. 18, 30 So.2d 748 (1947); Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960).

Accordingly, the writ of certiorari is granted and the decision of the District Court of Appeal, First District, is quashed, with instructions to remand to the circuit court for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, HATCHETT and KARL, JJ., concur.

ADKINS, Acting C. J., concurs in result only.

      . Fla.App. Rule 6.8 reads:
      “When an appeal is taken by either the state or the defendant, the trial court shall, upon motion of either party, direct the reporter to transcribe his notes of the proceedings . . . The cost of such stenographic report and copies shall be paid by the defendant if he takes the appeal and by the county if the state takes the appeal, except that if the state appeals under authority of Section 924.07(4), Florida Statutes, after the taking of an appeal by the defendant, the defendant shall pay the cost of that part which he procures to be prepared and the county shall pay for that part which the state procures to be prepared; provided that, if an appealing defendant is adjudged insolvent, the county shall pay the cost of such transcript and copies.”

      . § 27.51(4)(e), Fla.Stat. (1975), reads:
      “A sum shall be appropriated annually to the public defender of those judicial circuits enumerated in paragraphs (a)-(d) for the employment of attorneys as part-time public defenders, clerical employees, and expenses, including those incurred in cases on appeal.”

      . § 57.091, Fla.Stat. (Supp.1976), reads:
      “Costs; refunded to counties in certain proceedings relating to state prisoners. — All lawful fees, costs, and expenses hereafter adjudged against, and paid by, any county in all competency proceedings, all criminal prosecutions against state prisoners imprisoned in a state correctional institution, and all habeas corpus cases brought to test the legality of the imprisonment of state prisoners of such correctional institutions shall be refunded to the county paying the sum from the General Revenue Fund in the state treasury in the manner and to the extent herein provided, to wit: between the 1st and 15th of the month next succeeding the month in which the fees, costs, and expenses have been allowed and paid by the county, the clerk of the court shall make requisition on the Comptroller for the fees, costs, and expenses so allowed and paid during the preceding month, giving the style of the cases in which fees, costs, and expenses were incurred and the amount and items of cost in each case; providing a certified copy of the judgment adjudging the fees, costs, and expenses against the county and showing that the amount represented thereby has been approved by the presiding judge, paid by the county, and verified by the clerk; and attaching a certified copy of the bill as approved and allowed by the board of county commissioners of the county. If the Comptroller finds the bills legal and adjudged against and paid by the county, he shall draw his warrant in the amount thereof, or in the amount he finds legal and adjudged against and paid by the county, in favor of the county paying the fees, costs, and expenses, which shall be paid by the State Treasurer from the General Revenue Funds of the state.”

      . § 3, Ch. 76-287, Laws of Florida, reads:
      “Section 57.091, Florida Statutes, is amended to read:
      “57.091 Costs; refunded to counties in certain proceedings relating to state prisoners.— All lawful fees, costs and expenses hereafter adjudged against, and paid by any county in all lunacy competency proceedings, and all criminal prosecutions against state prisoners imprisoned in a state correctional institution at the state prison farm at Raiford, and all habeas corpus cases brought to test the legality of the imprisonment of state prisoners of such correctional institutions imprisoned-at-t-he-state -prison farm at Raiford, shall be refunded to the county paying the sum from the general revenue fund in the state treasury in the manner and to the extent herein provided . . .


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    GOODYEAR TIRE & RUBBER CO. and Travelers Insurance Co., Petitioners, v. HUGHES SUPPLY, INC., Hartford Accident and Indemnity Co., the Hanover Insurance Co. and Joseph Hale, Respondents. DAYTON TIRE & RUBBER CO. et al., Petitioners, v. Clyde E. DAVIS et al., Respondents.
    Nos. 50411 and 52360.
    Supreme Court of Florida.
    March 2, 1978.
    As Corrected On Denial of Rehearings June 13, 1978.

      Janis M. Halker of Gurney, Gurney & Handley, Orlando, for Goodyear Tire & Rubber Co.
    L. William Graham and Joe C. Willcox of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, and W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for Dayton Tire & Rubber Co., petitioner.
    Elmo R. Hoffman of Hoffman, Hendry, Smith, Stoner & Schoder, Orlando, for Hughes Supply, Inc.
    Dan H. Honeywell of Billings, Frederick, Wooten & Honeywell, Orlando, for Clyde E. Davis, respondent.
   ENGLAND, Justice.

Both the Goodyear and Dayton tire companies have asked us to review district court of appeal decisions involving essentially the same set of facts and the identical point of law. The availability of the reasoning of both district courts on the single legal issue suggested that we consolidate the cases for both analytical and opinion purposes.

These are personal injury cases initiated when an individual was injured while driving a motor vehicle on which a tire blew out. The tire in each case had been manufactured by the respective defendant tire company. In Goodyear’s case the incident occurred after the allegedly defective tire had been in the possession and control of the plaintiff for one month, and had been driven 9,500 miles. In Dayton’s case the plaintiff had been in possession and control of the tire for six months, and the tire had been driven 4,000 miles. A more complete recitation of the facts of the two occurrences, available in each of the district courts’ opinions, is not essential to our review of the legal question presented.

In each case, a divided panel of the district court held that a jury instruction on the doctrine of res ipsa loquitur was properly given, in addition to other standard jury instructions, despite the fact that both parties introduced substantial expert and other evidence tending to prove or disprove negligence associated with the plaintiff’s use of the tire and in the tire manufacturing process. The basis for our review is the determination by each court that the plaintiff in a controverted negligence case is entitled to the benefit of the inference which the doctrine of res ipsa loquitur provides, a proposition in direct conflict with our decision in Frash v. Sarres, 60 So.2d 924 (Fla.1952).

In Frash the plaintiff was struck by the revolving blades of an overhead fan in defendant’s restaurant while attempting to open a window shutter. The facts surrounding the injuring occurrence — whirling fan blades coming in contact with the plaintiff — were not in dispute, and liability hinged on whether the fan had been turned on before or after plaintiff’s attempt to open the shutter. This was a factual matter on which “there were direct conflicts in the evidence.” Our Court there upheld the trial court’s ruling that plaintiff was not entitled to the benefit of the inference which the doctrine of res ipsa loquitur would supply. In South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla.1960), we construed the Frash decision to mean that there is no room for an inference of negligence where direct evidence is adduced to reveal the circumstances surrounding the occurrence and to establish the precise cause of the plaintiff’s injury.

The Frash and McCrea decisions are viewed by Goodyear and Dayton as our announcement that res ipsa loquitur is unavailable whenever a defendant introduces specific evidence tending to disprove its asserted negligence. Judges Walden and Smith, dissenting in the two cases now before us, have focused the problem in somewhat different terms. Judge Walden has isolated the factors which take this type of “exploding tire” case out of the mainstream of res ipsa loquitur cases, in particular rejecting his colleagues’ acceptance of an attenuated “exclusive control” requirement for tire manufacturers. Judge Smith views the majority position in his court’s case more broadly, and in developing his point he traces what he perceives to be an evolutionary departure from the basis on which the doctrine of res ipsa loquitur was first introduced into the fault system of tort liability. Both judges agree, however, that the use of a res ipsa inference in the situations presented here would essentially make it available for plaintiffs in every products liability lawsuit.

We are persuaded, after studying the able arguments of counsel and the thoughtful analyses of the law developed by all of the district court judges who considered these cases, that Judges Walden and Smith are correct in their penultimate conclusion, and that the doctrine of res ipsa loquitur has developed a judicial gloss which was never intended. Having the historical development so well presented in the opinions below, our reiteration of that history is unnecessary. The time seems propitious simply to address the dimensions of the doctrine head-on, and in so doing to restore the inference of negligence to its historically proper bounds — that is, when direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the injuring incident.

Res ipsa loquitur — “the thing speaks for itself” — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. The district courts of Florida have expanded the doctrine far beyond its intended perimeters, both by liberalizing the elements requisite to its application and by allowing the development of inferences not only as to the incident itself but also as to pre-incident acts, such as manufacture or production.

Plainly, the threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care. The initial burden is on the plaintiff to establish that the circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor. An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

In the cases now before us, persons were injured as a result of tire blowouts. Can it realistically be concluded, on the basis of previous human experience, that this “happening” does not ordinarily occur in the absence of negligence by the manufacturer? American courts have consistently, and thoughtfully, rejected that notion. We, too, hold that res ipsa loquitur supplies no inference of the manufacturer’s negligence in tire blowout cases, at least where the blowout has occurred after possession and some significant use by another.

Not only was the use of the negligence inference inappropriate in these cases because the facts surrounding the incident were discoverable and provable, and because they were not of a nature typically suggestive of negligence by the defendants, but the inference was inappropriate because the plaintiffs in these cases failed to allege and prove the essential element of defendant’s exclusive control over the injury-causing instrumentality. In Schott v. Pancoast Properties, 57 So.2d 431, 432 (Fla.1952), we held:

“The doctrine may not be invoked unless it appear [sic] that the thing causing the injury was so completely in the control of the defendant that, in the ordinary course of events, the mishap could not have occurred had there been proper care on the defendant’s part.”

In the two cases before us, the evidence presented to establish the tire companies’ sole control was wholly insufficient. Given the time of plaintiffs’ control over the tires and the extent of their usage, it is impossible to assert that the tire companies had “exclusive control” at the time of the injuries.

We recognize that there are exceptions to the exclusive control requirement in Florida. Each is supported, however, by a justifiable basis for inferring that the cause of injury was probably the defendant’s negligence. It is untenable to suggest that anything inherent in the product warrants creating an exception for automobile or truck tires once they have left the manufacturer’s possession and have been put to their intended use.

We agree with Judge Smith that to allow the use of res ipsa loquitur in the present cases, where the plaintiffs neither satisfied the essential elements of the doctrine nor demonstrated an inaccessibility to evidence of the occurrence, is to recognize res ipsa loquitur as but

“a finishing stroke, administered by the charging judge, in a plaintiff’s case which is built step by step until the last on ordinary circumstantial evidence that defendant was negligent and [plaintiff] was not.”

The decisions of the Fourth and First District Courts of Appeal are quashed, and these eases are remanded for further proceedings consistent with this opinion. To the extent that other Florida decisions are in conflict with these views, they are disapproved.

It is so ordered.

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

ADKINS, J., dissents.

      . Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221 (Fla. 4th DCA 1976); Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977).

      . Art. V, § 3(b)(3), Fla.Const.

      . 60 So.2d at 926.

      . Dean Prosser has suggested that the Latin label has created confusion in the cases to which the doctrine is applied. “Along with res gestae and other unhappy catchwords, the Latin tag should be consigned to the legal dustbin.” Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn.L.Rev. 241, 271 (1936). Lord Shaw, in Ballard v. North British R.R., [1923] Sess.Cas., H.L., 43, opined that “[i]f that phrase had not been in Latin, nobody would have called it a principle.”

      . DeMoss v. Darwin T. Lynner Constr. Co., 159 N.W.2d 463 (Iowa 1968). See Frash v. Sarres, 60 So.2d 924 (Fla.1952); American Dist. Elec. Protective Co. v. Seaboard Air Line Ry., 129 Fla. 518, 177 So. 294 (1937); W. Prosser, Law of Torts § 39, at 214 (4th ed. 1971).

      . This requirement is not satisfied, however, by the plaintiffs allegations and proof of specific acts of negligence. As one court explained:
      “When the facts and circumstances from which the jury is asked to infer negligence are those immediately attendant on the occurrence, we speak of it as a case of res ipsa loquitur; when not immediately connected with the occurrence, then it is an ordinary case of circumstantial evidence.”

        Sand Springs Park v. Schrader, 82 Okl. 244, 248, 198 P. 983, 987 (1921), quoting from Griffen v. Manice, 166 N.Y. 188, 196, 59 N.E. 925, 927 (1901).

      . See, e. g., Shramek v. General Motors Corp., 69 Ill.App.2d 72, 216 N.E.2d 244 (App.Ct.1966); Wojciuk v. United States Rubber Co., 19 Wis.2d 224, 120 N.W.2d 47, modified, 122 N.W.2d 737 (1963). See also Restatement (Second) of Torts § 328d, at 158 (1965).

      . It is conceivable that res ipsa loquitur would be appropriate in some situations involving tire malfunctions, as where one is injured by a new tire which explodes while being mounted for the first time. See the cases cited in Judge Smith’s dissent below in Dayton. 348 So.2d at 587.

      .In the line of “exploding bottle” cases, such as Starke Coca-Cola Bottling Co. v. Carrington, 159 Fla. 718, 32 So.2d 583 (1947), plaintiffs were injured by an exploding bottle which had left the control of the bottler. The applicability of res ipsa loquitur in suits against the bottler requires that the plaintiff make an affirmative showing “that the bottle after it left possession of the bottler was not subjected to any unusual atmospheric changes, or changes in temperature, or that it was not handled improperly up to the time of the explosion.” Starke Coca-Cola Bottling Co. v. Carrington, 159 Fla. at 721, 32 So.2d at 585. In Yarbrough v. Ball U-Drive Sys., Inc., 48 So.2d 82 (Fla.1950), the Court analogized to the “exploding bottle” cases where severe injuries were incurred by reason of a mechanical failure of a truck recently rented from the defendant as part of his rental business. The Court concluded that the element of control was satisfied under these particular circumstances. The same situation could occur in an “exploding tire” case, of course. See note 8 above.

      . Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575, 587 (Fla. 1st DCA 1977) (Smith, J., concurring and dissenting).

      . Obviously, our decision on res ipsa loquitur with respect to the Dayton case does not bear in any way on the other issues passed upon by the district court.

      . Among these are Auto Specialties Mfg. Co. v. Boutwell, 335 So.2d 291 (Fla. 1st DCA), cert. dismissed, 341 So.2d 1080 (Fla.1976); Cortez Roofing Inc. v. Barolo, 323 So.2d 45 (Fla. 2d DCA 1975); Kulczynski v. Harrington, 207 So.2d 505 (Fla. 3d DCA 1968); National Airlines, Inc. v. Fleming, 141 So.2d 343 (Fla. 1st DCA 1962).


text:
    DEPARTMENT OF REVENUE, consisting of Ruebin O’D. Askew, as Governor of Florida, Bruce A. Smathers, as Secretary of State, Robert L. Shevin, as Attorney General, Gerald A. Lewis, as Comptroller, Philip F. Ashler, as Treasurer, Doyle Conner, as Commissioner of Agriculture, and Ralph Turlington, as Commissioner of Education; and J. Ed Straughn, as Executive Director of the Florida Department of Revenue, Appellants, v. AMREP CORPORATION, an Oklahoma Corporation, Silver Springs Shores, Inc., a Florida Corporation, Silver Springs Golf and Country Club, Inc., a Florida Corporation, Marion Realty, Inc., a Florida Corporation, Holiday Shores Tours, Inc., a Florida Corporation, Mid-Florida Lakes, Inc., a Florida Corporation, Florida Ridge Utilities Corp., a Florida Corporation, Panorama Inn of Florida, Inc., a Florida Corporation, Rolling Greens, Inc., a Florida Corporation, and Amrep Construction Corp., a New Mexico Corporation, Appellees.
    No. 50549.
    Supreme Court of Florida.
    March 9, 1978.
    As Modified On Denial of Rehearing May 25, 1978.

      Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellants.
    Parker D. Thomson and Susan W. Diner of Paul & Thomson, Miami, for appellees.
   On Petition For Clarification

SUNDBERG, Justice.

This appeal tests the validity of the exemption of intercompany accounts receivable from the intangible personal property tax afforded to domiciliary corporate “affiliated groups” under Section 199.023(7), Florida Statutes (1975), when measured against the Equal Protection Clause of the United States Constitution.

The appellees in this cause are Amrep Corporation, an Oklahoma corporation having its principal place of business in New York, and nine wholly-owned subsidiaries of Amrep which are incorporated in or actually doing business in Florida. The members of the corporate group not incorporated in Florida, including Amrep, are duly qualified by the Secretary of State to do business in Florida. This action was commenced in circuit court by the appellees under the provisions of Section 199.242(1), Florida Statutes (1975), to contest certain intangible personal property tax assessments totaling $422,-512.58 rendered against them by the appellant, Department of Revenue, for the years 1972,1973, and 1974. The complaint asserted that Section 199.023(7), Florida Statutes (1975), defining “affiliated groups” for the purpose of creating the privilege of filing a consolidated return exempting intercompa-ny accounts receivable violated appellees’ right to equal protection of the laws, and rendered the assessment void. Such was alleged because the exemption is available only to those affiliated groups of corporations whose parents are either incorporated in Florida or maintain their principal place of business in Florida. The parties stipulated that with the exception of this residency requirement, appellees meet the definition of an “affiliated group.” Appellees, therefore, took the position in their pleadings that they are entitled to file a consolidated return, which eliminates all intercompany receivables notwithstanding the fact that the parent corporation is not incorporated in Florida nor does it maintain its principal place of business in this State.

Relying on the statutory exemption [§ 199.052(5), Florida Statutes (1975)], ap-pellees chose not to return their intercom-pany accounts for taxation during the years in question. The proposed assessment is based entirely on such intercompany accounts. Appellees have challenged other aspects of the assessment, but by stipulation the parties have agreed there would be no assessment at all if the intercompany accounts could not be taxed.

The instant cause arrives at this Court by way of appeal from a final judgment on the pleadings entered by the Circuit Court of the Second Judicial Circuit for Leon County, wherein the trial judge declared the statute unconstitutional on Equal Protection grounds. Prior to that final judgment, the Department had moved to dismiss the complaint on the grounds that appellees (plaintiffs below) had not exhausted administrative remedies. Consequently, the circuit court lacked jurisdiction to hear the case because the appellees had not complied with the provisions of the Administrative Procedure Act, Chapter 120, Florida Statutes (1975). Subsequently, Amrep filed an “Amendment to Complaint” asserting alternatively that the circuit court has jurisdiction under Section 86.011, Florida Statutes (1975), in addition to Section 199.242(1), Florida Statutes (1975). Appellant then moved to strike this amendment on the ground that it did not cure the defects raised by the initial motion to dismiss. The motion to strike and motion to dismiss were denied. The Department then filed a notice of interlocutory appeal to the District Court of Appeal, First District, but took a voluntary dismissal of that appeal prior to adjudication on the merits.

At the culmination of pleadings, the court entered its final judgment, finding the statute unconstitutional and cancelling the assessments against Amrep’s intercompany accounts receivable. However, the circuit judge refused to award costs to appellees, which order is the basis for Amrep’s cross-assignments of error.

We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution, because the judgment of the trial court initially and directly passed upon the validity of Section 199.023(7), Florida Statutes (1975).

Three issues are presented for resolution by this appeal. They are:

(i) Whether appellee taxpayers have a right of action in the circuit courts of this State to challenge on constitutional grounds an intangible personal property tax assessment and obtain a declaration of their rights in view of the provisions of Chapter 120, Florida Statutes (1975);

(ii) Whether Section 199.023(7), Florida Statutes (1975), defining “affiliated groups” in such a way as to require that the common parent be incorporated in the State of Florida or have its principal place of business in this State violates the Equal Protection Clause of the Federal Constitution by denying an exemption for intercompany receivables to an affiliated group of corporations, otherwise qualified, whose parent is not domiciled in the State of Florida; and

(iii) Whether the circuit court erred in declining to award appellees their costs.

The gravamen of appellant’s argument as to the standing issue is that the circuit courts do not retain jurisdiction to review actions taken by the Department of Revenue (DOR) when the parties seeking such review have not complied with the provisions of Chapter 120, Florida Statutes (1975). According to appellant, Section 199.242(1), Florida Statutes (1975), which was cited by appellees in their complaint as the basis for the circuit court’s jurisdiction, was impliedly repealed by the Administrative Procedure Act. Appellant cites to Section 3, Chapter 74-310, Laws of Florida, a general repealer, as support for the proposition that one of the major purposes of the act was to achieve uniformity in the public’s interaction with state agencies. Toward this goal, the act was meant to replace all other provisions dealing with any form of administrative adjudication by a state agency and judicial review thereof.

Appellant concedes that DOR did not fall within the scope of Chapter 120 at one time, due to the constitutional mandate that the circuit courts have exclusive original jurisdiction in all cases involving legality of any tax assessment or toll. However, in 1972, the new Article V to the Florida Constitution was adopted. The provision adopted expressly authorized the legislature to change by general law the circuit courts’ exclusive jurisdiction over tax assessments. Article V, Section 20(c)(3), Florida Constitution. It is asserted that the enactment of Chapter 120, Florida Statutes (1975), was a manifestation of the legislature’s new constitutional authority.

According to appellant, it is settled law in Florida that the absence of a specific re-pealer does not prevent a later statute from repealing an earlier one, as the latest expression of the legislature governs. In Walton County v. Board of Public Instruction, 161 So.2d 45 (Fla. 1st DCA 1964), the court articulated the three circumstances under which one law could impliedly repeal an earlier one:

It is the settled law of this state that in order for a court to declare that one statute impliedly repeals another, it must appear that there is positive repugnancy between the two, or that the last was clearly intended to prescribe the only governing rule, or that it revises the subject matter of the former. (Footnote omitted) 161 So.2d at 46.

Appellant relies on the third of these bases to argue that Section 199.242(1) was impliedly repealed. While DOR concedes that the courts do not favor an implied repealer based on the first two grounds stated above, it contends that as to the third ground, this Court has found a presumption in favor of an implied repealer, where there is a complete and general revision of a subject by the legislature. See Orange City Water Co. v. Town of Orange City, 255 So.2d 257 (Fla.1971); State v. Newell, 85 So.2d 124 (Fla.1956); Brevard County v. Board of Public Instruction, 159 Fla. 869, 33 So.2d 54 (1947); Realty Bond and Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932). Appellant concedes that Department of Revenue v. University Square, Inc., 336 So.2d 371 (Fla. 1st DCA 1975), cert. denied, 342 So.2d 1101 (Fla.1977), is contrary to this hypothesis, but dismisses this case as being an aberration from the general principle. It is asserted that the provisions of the Administrative Procedure Act show no intent to retain any provisions in the 1973 statutes regarding administrative determinations by an agency of a party’s rights or judicial review of such determinations, after the effective date of the Administrative Procedure Act.

Appellant maintains that appellees should find no greater solace under the provisions of Section 86.011, Florida Statutes (1975). The express language of that section suggests that it does not attempt to enlarge the circuit courts’ jurisdiction to render declaratory judgments. It merely indicates that nothing in the new Administrative Procedure Act repeals anything in Chapter 86, Florida Statutes (1975). School Board of Flagler County, v. Hauser, 293 So.2d 681 (Fla.1974).

According to appellant, Department of Revenue of Florida v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), which case the lower court relied on in denying appellant’s motion to dismiss and motion to strike, is overbroad. Appellees’ interpretation of the holding of that case is that a circuit court has jurisdiction to determine a constitutional issue anytime it is raised. Appellant rejects such notion, arguing that while an agency may not have the authority to render a portion of a statute unconstitutional, that' determination should ultimately be made by the district courts in accordance with the Administrative Procedure Act after all of the issues have been disposed of at the administrative level. Any other interpretation would not satisfy the doctrine of exhaustion of administrative remedies.

We reject the position of the appellant for two reasons. First, Section 26.012, Florida Statutes (1975), defining the jurisdiction of the circuit courts of this State provides, in part:

(2) They shall have exclusive original jurisdiction:
******
(c) In all cases in equity including all cases relating to juveniles except traffic offenses as provided in chapters 39 and 316;
******
(e) In all cases involving legality of any tax assessment or toll;

In like fashion, Article V, Section 20(c)(3), Florida Constitution, provides, inter alia, that “until changed by general law” circuit courts shall have exclusive original jurisdiction “in all cases involving legality of any tax assessment or toll.” We concur with the holding and reasoning of the District Court of Appeal, First District, in Department of Revenue v. University Square, Inc., supra, that there are no provisions in Chapter 120, Florida Statutes, including Section 3 of Chapter 74-310, Laws of Florida, which directly or by implication divest the circuit courts of their historical jurisdiction to determine the issues in contested tax assessment actions such as the dispute in the instant case. Accord, Department of Revenue v. Crisp, 337 So.2d 404 (Fla. 2d DCA 1976), and Florida Department of Revenue v. Estero Bay Development Corp., 336 So.2d 479 (Fla. 2d DCA 1976).

By its very terms Section 120.73, Florida Statutes (1975), provides that nothing in Chapter 120, Florida Statutes (1975), shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of Chapter 86, Florida Statutes (1975).

Furthermore, the challenge here is to the constitutional validity of the statutory section creating the exemption for “affiliated groups.” The attack is on the facial validity of the statute as denying equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States. As noted by the District Court of Appeal, First District, in the Department of Revenue of Florida v. Young American Builders, supra, which involved a constitutional attack on a DOR rule concerning the documentary stamp tax:

The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in § 120.73 to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes. 330 So.2d 864, 865.

We hold, therefore, that this action was properly cognizable before the circuit court.

Respecting the merits of appellees’ constitutional assault upon Section 199.-023(7), Florida Statutes (1975), we observe that DOR does not seriously contend that the classification contained therein is not discriminatory vis-a-vis foreign “affiliate group” corporations. The DOR contends essentially that the discrimination is not invidious and, hence, no violation of the Equal Protection Clause is involved. Appellant relies upon the oft-repeated general proposition that in matters of taxation the states are possessed of broad latitude in creating classifications without offending the Equal Protection Clause or Privileges and Immunities Clause of the Federal Constitution. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); State v. Andersen, 208 So.2d 814 (Fla.1968). DOR also alludes to the heavy burden resting upon one who asserts the unconstitutionality of a statutory scheme. Gray v. Central Florida Lumber Co., 104 Fla. 446, 147 So. 320, 141 So. 604 (1932). The pole star for judging the validity of a particular classification is whether that classification “rest[s] upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Ohio Oil Co. v. Conway, 281 U.S. 146, 50 S.Ct. 310, 74 L.Ed. 775 (1929). Accord, Rollins v. State, 354 So.2d 61 (Fla., opinion filed January 12, 1978); Gammon v. Cobb, 335 So.2d 261 (Fla.1976).

Appellant argues there are two rational bases for upholding the classification inherent in Section 199.023(7), Florida Statutes (1975). First, it is asserted that the exemption provides a form of tax equalization. According to appellant, the State may discriminate in favor of domiciliary corporate “affiliated groups” (those whose parent is either legally or commercially domiciled in Florida) because the initial tax base of a Florida parent is substantially greater than that of a wholly out-of-state parent corporation. This is so because under controlling law the situs of movable property such as intangibles for purposes of ad valorem taxation is the domicile of the owner, making domicile the central question of the extent of a taxpayer’s intangible tax base for purposes of imposing the annual one-mill levy prescribed by Section 199.032(1), Florida Statutes (1975). Under this rule a Florida domiciliary who owns intangible personal property is subject to tax on that property to the State of Florida, even though the physical evidence of that intangible property may be located in another state, and even though the intangibles might arise out of business conducted in another state. This result obtains even though such intangible property is, in fact, taxed by the foreign jurisdictions in which they arose. See Florida Steel Corp. v. Dickinson, 328 So.2d 418 (Fla.1976). An out-of-state corporation which maintains its commercial domicile (principal place of business) in Florida is likewise subject to Florida’s intangible personal property tax on the basis of the “owner-domicile” theory. Genesee Corp. v. Owens, 155 Fla. 502, 20 So.2d 654 (1945); cf. Gay v. Bessemer Properties, 159 Fla. 729, 32 So.2d 587 (1947). On the contrary, a foreign corporation which does business in Florida without maintaining its principal place of business in this State is subject to Florida’s intangible personal property tax only on its intangibles actually generated by business conducted in Florida. See Section 199.112, Florida Statutes (1975). The consolidated return for domiciliary “affiliated groups” with the attendant exemption provided by Section 199.023(7) is espoused by appellant to be a device to alleviate the seeming inequity which flows from the “owner-domicile” theory for taxation of intangible personal property.

The second string to the State’s bow is predicated on the premise that the tax exemption in question fosters the goal of encouraging corporate conglomerates to establish headquarters in Florida as well as fostering those already domiciled in the State. Appellant maintains that such considerations have been recognized by this Court to supply the rational basis for classification which will obviate an equal protection attack. In Faircloth v. Mr. Boston Distiller Corp., 245 So.2d 240 (Fla.1970), the Court upheld as against an equal protection attack, legislation which imposed excise taxes at different rates on manufacture of alcoholic beverages exclusively from raw materials produced in Florida as opposed to those manufactured in whole or in part from raw materials produced in other states. In so holding the Court observed:

As pointed out by the appellants, this court has in the past on numerous occasions upheld the validity of special tax exemptions or rates which were granted for the purpose of encouraging state industry. 245 So.2d at 247.

See also State v. Andersen, supra, which approved disparate tax treatment between notes and obligations secured by liens on real property, and those which are not. The Court therein considered legitimate for classification purposes the goal of attracting investors in Florida real estate development. It should be here noted that neither case involved discrimination against nonresidents in ad valorem tax treatment.

Appellees respond by suggesting that the State’s position is predicated on general principles with which the taxpayers have no quarrel, but that such principles are inapplicable to the instant case. Appellees contend that this case is controlled by a trilogy of decisions from the Supreme Court of the United States: WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117, 89 S.Ct. 286, 21 L.Ed.2d 242 (1968); Allied Stores of Ohio, Inc. v. Bowers, supra; Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544 (1948).

In Wheeling, the tax at issue was an intangible tax on accounts receivable. The exemption involved receivables arising from (i) goods sold by an agent in another state but shipped from Ohio as well as (ii) goods sold by an agent in Ohio but shipped from another state. The Ohio taxing authorities construed and applied the statutes to exempt both classes of receivables from taxation where the taxpayer was an Ohio resident and to tax the same type receivables where the taxpayer was a nonresident. In addressing the issue of the rights of a foreign corporation concerning matters of ad valorem taxation, as distinguished from a franchise, privilege, occupation or income tax, the Court held:

After a state has chosen to domesticate foreign corporations [by permitting the corporation to qualify to conduct business within the state], the adopted corporations are entitled to equal protection with the state’s own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valo-rem tax basis. 337 U.S. at 571-572, 69 S.Ct. at 1296.

With respect to the specific intangible tax in contest, the Court in Wheeling observed a classic example of unequal treatment in violation of the Fourteenth Amendment because a receivable of identical economic derivation and identical contacts with the State was taxed or exempt depending solely on the residence of the taxpayer:

It seems obvious that appellants are not accorded equal treatment, and the inequality is not because of the slightest difference in Ohio’s relation to the decisive transaction, but solely because of the different residence of the owner. 337 U.S. at 572, 69 S.Ct. at 1297.

In WHYY, the principle of Wheeling was reasserted. There, the taxpayer was a nonprofit Pennsylvania corporation authorized to transact business in New Jersey. The corporation, which qualified in all other respects for exemption, was denied an exemption from state real and personal property taxes solely on the ground that the statute exempted only nonprofit corporations incorporated under the laws of New Jersey. On the premise that the classification avoided the administrative burden of determining whether the taxpayer was a qualified nonprofit corporation in the state of its domicile, the Supreme Court of New Jersey determined that the classification was not “wholly irrational” and sustained denial of the exemption. In rejecting the “administrative burden” theory, the United States Supreme Court concluded that the principles of equal protection prohibited New Jersey from imposing additional conditions which would deny the foreign taxpayer an opportunity equivalent to the resident taxpayer . . to demonstrate that it meets the requirements for a nonprofit corporation under local law.” 393 U.S. at 120, 89 S.Ct. at 288. Echoing the language of Wheeling, the court concluded that “appellant has not been ‘accorded equal treatment, and the inequality is not because of the slightest difference in [New Jersey’s] relation to the decisive transaction, but solely because of the different residence of the owner.’ ” 393 U.S. at 120, 89 S.Ct. at 288. In similar settings the courts of Massachusetts and Michigan have reached the same conclusion in reliance upon WHYY. See Mary C. Wheeler School, Inc. v. Board of Assessors of Seekonk, 331 N.E.2d 888 (Mass.1975); American Youth Foundation v. Township of Benona, 37 Mich.App. 722, 195 N.W.2d 304 (1972).

Allied Stores of Ohio, Inc. v. Bowers, supra, the third case in the trilogy, intervenes in time between Wheeling and WHYY. The parties are in dispute concerning the significance of that decision. Appellant asserts that Allied Stores represents a limitation upon Wheeling. On the other hand, appellees contend that the failure of the Court to mention that decision in WHYY coupled with its reliance on Wheeling demonstrates either an attempt to distinguish or recede from that case and a reaffirmation of Wheeling. Allied Stores involved an Ohio resident’s challenge on equal protection grounds to another Ohio statute which exempted “merchandise or agricultural products belonging to a nonresident ... .if held in a storage warehouse for storage only.” In upholding the exemption, a majority of the Court distinguished Wheeling on the ground that in Wheeling Ohio had enacted exemptions “admittedly discriminatory” on the face of the statutes as an inducement for reciprocal provisions by other states. 358 U.S. at 529, 79 S.Ct. 437. The Court determined that the stated purpose of the statutes in Wheeling made them invidiously discriminatory while the enactment in Allied Stores contained no such express legislative intent, thus leaving the United States Supreme Court free to discern the objective of the legislation.

What were the special reasons, motives or policies of the Ohio Legislature for adopting the questioned proviso we do not know with certainty, nor is it important that we should, (citation omitted), for a state legislature need not explicitly declare its purpose. But it is obvious that it may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso, to encourage the construction or, leasing and operation of warehouses in Ohio by nonresidents with the attendant benefits to the State’s economy, or to stimulate the market for merchandise and agricultural products produced in Ohio by enabling nonresidents to purchase and hold them in the State for storage only, free from taxes, in anticipation of future needs. Other similar purposes reasonably may be conceived. 358 U.S. at 528-529, 79 S.Ct. at 442.

Ironically, the majority opinion seems to indicate that in areas where questions of discrimination may arise states should not declare their purpose for tax legislation, as was done in the Wheeling statute, for in the absence of stated legislative intent the Court will be free to speculate on purposes which will support the classification.

Justice Brennan, in a concurring opinion, questioned the majority’s grounds for distinguishing Wheeling. He observed that the statute in Allied Stores “discriminates” against residents in the sáme fashion that the statute in Wheeling “discriminated” against nonresidents. With respect to the distinction drawn by the majority, viz., that a reasonable basis for difference could be conceived, he suggested that an equally reasonable ground for the statute in Wheeling could be found in the state’s desire to favor its own residents by giving them an advantage over foreign competition. See Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299 (1935). Justice Brennan disregarded the distinction that the Wheeling statute specifically stated an invalid purpose, by suggesting that the “reciprocity” plan was nothing more than a rejected argument by which the state had tried to show that the statute was not discriminatory-

Mr. Justice Brennan’s basis for upholding the proviso in Allied Stores, a position consistent with the Wheeling holding, would have been to regard the equal protection clause as an instrument of federalism. He concluded that the Court in the Wheeling case protected our federal system by denying Ohio the power to discriminate in favor of its residents against residents of other states of the federation, while in Allied Stores the proviso operated merely against Ohio residents and presented no action by the state which disrupts the federal pattern. See Colgate v. Harvey, supra. Thus, limited by the concept of federalism, it appears that Justice Brennan’s rationale grounds that state’s power to classify on a narrower basis than does the majority opinion in Allied Stores, which limits the power by requiring only the presence of a “valid purpose which reasonably can be conceived to justify” the classification.

Because we believe that the historical development of permissible taxation of foreign corporations under the Equal Protection Clause and the decision in WHYY bear out Justice Brennan’s analysis, we conclude that Section 199.023(7), Florida Statutes (1975), does, in fact, violate the Equal Protection Clause of the United States Constitution. Since the embryonic position of Chief Justice Taney that a corporation “must dwell in the place of its creation, and cannot migrate to another sovereignity,” the law has evolved to recognize that while the states enjoy wide latitude in placing conditions upon the entry of a foreign corporation to transact business within a state other than the state in which it is incorporated, once a foreign corporation is admitted and domesticated, it enjoys equal protection of the laws of the admitting state to the same extent as domiciliary corporations. See Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535, 54 S.Ct. 830, 78 L.Ed. 1411 (1934); Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165 (1927); Hanover Fire Insurance Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372 (1924); Air-Way Electric Appliance Corp. v. Day, 266 U.S. 71, 45 S.Ct. 12, 69 L.Ed. 169 (1924); Southern R. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536 (1910); Sholley, Corporate Taxpayers and the Equal Protection Clause, 31 Ill.L.Rev. 4 63 (1936).

The Wheeling decision represents a fruition of the historical development of the application of the Equal Protection Clause to foreign corporations. That the principles of Wheeling were not contradicted by Allied Stores seems apparent in view of the decision in WHYY, which applied the Wheeling rationale. Reference to Mr. Justice Brennan’s concurring opinion in Allied Stores not only harmonizes that case with the other two of the trilogy, but it supplies a two-tier model for analysis under the Equal Protection Clause. Where a nonresident makes a challenge to a state’s tax scheme it must first be determined whether the classification discriminates against the nonresident in such fashion as to unduly impinge upon our system of federalism which the Equal Protection Clause is intended to foster and protect along with the Commerce Clause and the Privileges and Immunities Clause. If no such impediment is found, the traditional test of a rational basis for the classification must then be applied. If the tax scheme fails to pass muster under either test, the statute must fall. Applying this analysis to the instant case, we determine that the ad valorem tax at issue must fail because within the rationale of Wheeling the unequal treatment of identical receivables is based solely on the residence of the parent and is not differentiated in any way on the basis of where the receivable arose or its actual contacts with the State of Florida.

The remaining issue concerning the award of costs we determine adversely to the appellees on their cross-appeal. There is nothing contained in Section 199.-242, Florida Statutes (1975), which implies appellees’ entitlement to an award of costs. Although Chapter 86, Florida Statutes (1975), authorizes the trial court to award costs as are equitable, this authority in the trial judge is subject to his exercise of sound judicial discretion. In view of the fact that DOR was obliged to defend the constitutionality of the statute under which it proceeded there can be no serious contention that the trial court abused its discretion by ruling, in effect, that each side should bear its own costs. 1

For the reasons stated above, the final judgment on the pleadings entered by the trial court is affirmed.

It is so ordered.

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

      . § 199.242(1), Fla.Stat. (1975), provides:
      “If any taxpayer shall feel aggrieved by any action of the department, he shall have the right to a conference with the department and shall request such a conference in writing, within thirty days after issuance of written notice of such action with such data as may be relevant in support thereof. All exceptions and objections to the actions of the department must be filed with the department in duplicate at least 10 days prior to the date set for such conference. If the department’s decision, following the conference, is determined adversely to the taxpayer, the taxpayer shall receive formal written notice of the department’s determination and shall thereafter have the right within the time and in the manner provided by the Florida Appellate Rules to have the department’s determination reviewed in appropriate proceedings in either the circuit court of Leon County or the judicial circuit of Florida wherein his residence or place of business is located.”

      . § 199.023(7), Fla.Stat. (1975), states:
      “ ‘Affiliated group’ means one or more chains of includable corporations connected through stock ownership with a common parent corporation, incorporated in or having its principal place of business in the state, which is an includable corporation, providing that:
      (a) Stock possessing at least 80 percent of the voting power of all classes of stock and at least 80 percent of each class of the nonvoting stock of each of the includable corporations, excepting therefrom the common parent corporation, is owned directly by one or more of the other includable corporations; and
      (b) The common parent corporation owns directly stock possession at least 80 percent of the voting power of all classes of stock and at least 80 percent of each class of the nonvoting stock of at least one of the other includable corporations.
      As used in this subsection the term ‘nonvoting stock’ does not include nonvoting stock which is limited and preferred as to dividends.”

      . § 86.011, Fla.Stat. (1975), provides:
      “The circuit courts have jurisdiction to declare rights, status and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
      (1) Of any immunity, power, privilege or right; or
      (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.”

      . § 3, Ch. 74-310, Laws of Florida, states:
      “(1) The intent of the legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rule-making and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rule making, agency orders, administrative adjudication or judicial review, except marketing orders adopted pursuant to chapters 573 and 601, Florida Statutes, and that the division of statutory revision of the joint legislative management committee is directed to prepare a reviser’s bill to conform the Florida Statutes to such intent.
      "(2) All administrative adjudicative proceedings begun prior to the effective date of this act shall be continued to a conclusion under the provisions of the Florida Statutes, 1973; except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.
      “(3) Notwithstanding any provision of chapter 120, Florida Statutes, all public utilities and companies regulat.ed by the public service commission shall be entitled to proceed under the interim rate provisions of chapter 364, Florida Statutes, or the procedures for interim rates contained in Committee Substitute for House Bill 1542 of the 1974 legislative session, or as otherwise provided by law.
      “(4)(a) All prior rules not adopted following a public hearing as provided by statute shall be void and unenforceable after October 1, 1975, and shall be stricken from the files of the department of state and from the files of the adopting agency.
      (b) All rules in effect on, or filed with the department of state prior to, the effective date of this act, except those adopted following a public hearing as provided by statute, shall be forthwith reviewed by the agency concerned on the written request of a person substantially affected by the rule involved and this provision. The agency concerned shall initiate the rule-making procedures provided by this act within ninety days after receiving such written request. If the agency concerned fails to initiate the rule-making procedures within ninety days, the operation of the rule shall be suspended. This provision shall control § 120.54(4), Florida Statutes.
      (c) All existing rules shall be indexed by January 1, 1975.”

      . The conclusion that this action is cognizable as a matter of original jurisdiction in the circuit court does not affect the jurisdiction of the district courts of appeal and this Court to review agency action pursuant to § 120.68, Fla. Stat. (1975).

      . Bank of Augusta v. Earle, 13 Pet. 519, 588, 38 U.S. 519, 588, 10 L.Ed. 274 (1839).


text:
    Marie L. HEREDIA, etc., et al., Petitioners, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. 51997.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied June 13, 1978.

      Milton Kelner, Miami, for petitioners.
    Robert J. Dickman and Betsy Ellwanger Hartley of Talburt, Kubicki & Bradley, Miami, for respondent.
   ENGLAND, Justice.

Under Florida’s no-fault automobile insurance law, an insured (or a statutorily specified relative) is entitled to personal injury protection (“PIP”) benefits for bodily injury sustained as a pedestrian when injured “by physical contact with a motor vehicle.” The term “motor vehicle” is defined in the no-fault statute to include:

“a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.”

The Third District Court of Appeal has certified for our consideration the question whether the word “insured” in this provision has reference to owners of commercial vehicles, as it ruled in denying Heredia PIP benefits, or to insureds who are injured by physical contact with commercial vehicles, as Heredia contends. The question being one of great public interest, we accept the certification.

The contentions of the parties are simple. Heredia asserts that the Legislature used the unambiguous word “insured”, not “owner”, and that the district court has improperly rewritten the clear statutory language. Allstate Insurance Co. contends that the district court properly gleaned the sense of the term from the entire no-fault act, and that the construction so imported into the statute provides the result most consistent with logic and reason.

In matters requiring statutory construction, courts always seek to effectuate legislative intent. Where the words selected by the Legislature are clear and unambiguous, however, judicial interpretation is not appropriate to displace the expressed intent. Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951); Platt v. Lanier, 127 So.2d 912, 913 (Fla. 2d DCA 1961). It is neither the function nor prerogative of the courts to speculate on constructions more or less reasonable, when the language itself conveys an unequivocal meaning.

The Legislature chose the term “insured” in the provision before us, and in several other provisions of the no-fault insurance law. It also employed the term “owner” throughout the same statute, in a variety of contexts. In the face of this selectivity, courts generally are not free to replace one term with the other in order to provide what they perceive to be a preferred connotation. Although Allstate proposes a reasonable interpretation of the statute in construing the word “insured” to mean “owner of commercial vehicles”, it does not assert that the statute would have no subject matter on which to operate if the term “insured” is given the same meaning here as in other places throughout the Act. This situation, then, presents no occasion to depart from general principles.

Notwithstanding that the plain meaning of a term used by the Legislature may not artfully harmonize one provision of a law with others in the same act or may not fully carry out a court-perceived intent as to the statute’s operation, an adjustment is appropriately made by legislative and not judicial redrafting. Respect for the separation of governmental powers requires no less.

The decision of the Third District Court of Appeal is quashed, and the case is remanded for further proceedings consistent with this opinion.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS and HATCHETT, JJ., dissent.

      . § 627.736(4)(d), Fla.Stat. (1975).

      . § 627.732(1), Fla.Stat. (1975).

      . Heredia v. Allstate Ins. Co., 346 So.2d 1230 (Fla. 3d DCA 1977). To the same effect are Saborit v. Deliford, 312 So.2d 795 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 32 (Fla.1976); and Camacho v. Allstate Ins. Co., 310 So.2d 330 (Fla. 3d DCA 1975).

      . Art. V, § 3(b)(3), Fla.Const.

      . Allstate put the word “owner” in its policy in order to effect what it perceived to be the legislative intent. Its refusal to pay is based on the policy term, which Heredia says cannot be substituted for the specific legislative directive.

      . See, e. g., §§ 627.736(8), and 627.738(4), Fla. Stat. (1975).

      . See, e. g., §§ 627.734(1), and 627.735(1), Fla. Stat. (1975).


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR. Re Leon H. BRUSH.
    No. 51479.
    Supreme Court of Florida.
    April 27, 1978.
    Rehearing Denied June 15, 1978.

      Leon H. Brush, in pro per.
    James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, respondent.
   PER CURIAM.

In 1971 Leon H. Brush was permitted to resign from The Florida Bar pending disciplinary proceedings. His application for reinstatement has been rejected by the Bar’s Board of Governors. We are reviewing the rejection by his petition. Florida Bar Integration Rule, Article XI, Rule 11.08(5).

Brush’s law partners, in March of 1971, had reason to believe that Brush had misappropriated a substantial amount in funds from the law firm and its trust accounts. After the discovery, Brush petitioned this Court, pursuant to Rule 11.08 of the Rules, of Discipline in the Integration Rule, to allow him to resign without leave to petition for reinstatement. In simple terms, Brush asked that he be allowed to resign permanently. The Florida Bar supported Brush’s request, in part, because he had left the State and was living in Mexico. More importantly, it stated that the loss of the opportunity to discipline Brush and to expose fully his wrongdoing would not harm the public or the administration of justice. The Bar’s position was taken, almost certainly, in reliance on Brush’s representation that he would not seek reinstatement. The Court granted the petition and Brush’s name was stricken from the roll of attorneys in The Florida Bar.

Four years later Brush filed an application for reinstatement with the Board of Governors of the Bar. In it, he conceded that he had resigned permanently but he stated it had not been his clear intent to do so. A hearing on the application was held before a referee. The referee, after applying the six elements to be considered in reinstatement cases, recommended that the application be rejected. He reported that Brush failed to call any witnesses to support his good reputation for professional ability, that he did not submit evidence that he could conduct the practice of law in an exemplary fashion or that there was proof of full restitution of the misappropriated funds. After reviewing the referee’s report and the record, the Board of Governors voted to reject the application for reinstatement.

Our review of the transcript of the hearing, the referee’s report and the rest of the record convinces us that sufficient evidence, under the traditional reinstatement burden which the applicant carries, has not been produced. Accordingly, we accept the recommendation of the referee and order that Brush be denied reinstatement.

There is an equally significant reason why Brush should not be reinstated. The Rules of Discipline of the Integration Rule contemplate that an attorney who resigns pending disciplinary proceedings may apply for reinstatement. However, it was expressed in The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977), that when a member of the Bar resigns and promises not to seek reinstatement in exchange for dismissal of misconduct charges by the Bar, the member is bound by the agreement. The main policy for such a rule is protection of the public. A resignation of this kind, most often, curtails the Bar’s investigation. As a result the wrongdoing may never be fully exposed. And, the full extent of the threat the attorney posed to the public will not come to light when the promise is broken and reinstatement is sought. The idea that the agreement is binding did not command a majority in Mattingly. However, because of the potential harm to the public inherent in the halt of disciplinary proceedings which results from the acceptance of a resignation while those proceedings are pending, we today hold that a resigning member of the Bar will be bound by an agreement he makes with The Florida Bar not to seek reinstatement so long as it is freely and voluntarily made. Although this rule may appear harsh it is no harsher than binding a criminal defendant to a plea bargain he enters into freely and voluntarily. And in truth it is fairer to the public and the resigning lawyer to know in advance the consequences of such an agreement. The likelihood of improvidently entering into such a commitment should be reduced thereby.

Reinstatement is denied. Petitioner, within thirty days of this order, is to pay the costs of these proceedings in the sum of |87.95 above his $150.00 cost deposit.

It is so ordered.

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

BOYD, J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

concurring in part, dissenting in part.

I concur in the denial of petitioner’s application. But I cannot agree that those who resign pending disciplinary proceedings with a promise not to seek reinstatement should be forever barred from readmission.

For one, although it is appealing in theory, a rule that the promise is binding may, in the reality of application in the future, work a harshness that cannot be envisioned now. Certainly, it should be a rare case when readmission will be granted, and I would allow it only on a showing of exceptional circumstances which are not present here.

The present members of this Court do not have perpetual tenure in these offices. I disavow the idea that we have authority to lay down in case law a permanent rule which can restrict the power of a future Court to govern admissions to the Bar. The idea of the permanency of the rule has been questioned before. See The Florida Bar v. Mattingly, 342 So.2d 508, at 510 (Fla.1977), Drew, J. (concurring specially). In my mind, the opinion of the majority, as to the rule announced for the first time today, is not stare decisis.

I realize that acceptance of such resignations will usually prejudice the rights of the Bar and the public by making unavailable formal records of the alleged misconduct. This is the principal reason why, as a general rule, such applications should not be granted. But I think we should recognize that there may be. occasions when subsequent changes of circumstances, including availability of evidence, might favor readmission. This would be especially true if the resigned attorney had conducted himself in an exemplary manner for a long period subsequent to resignation.

Only in those exceptional cases in which justice and the interest of society would require readmission should this Court grant subsequent membership in The Florida Bar to lawyers who have resigned under a promise not to file for readmission to this Bar. Such a circumstance might occur if a former Florida practitioner develops a long and unblemished legal career in another jurisdiction.

If the biblical Prodigal Son could gain forgiveness of his transgressions, this Court should not forever foreclose readmission of those attorneys resigning with a promise not to seek readmission.

ADKINS, J., concurs.

      . In re Brush, 250 So.2d 853 (Fla.1971).

      . See In re The Florida Bar (In re Timson), 301 So.2d 448 (Fla.1974); In re Dawson, 131 So.2d 472 (Fla.1961).

      .Brush destroyed the firm’s records that could have shown what was necessary for full restitution. But, his former partners have accepted the restitution he has made as satisfaction for the loss.

      .See Art. XI, Rule 11.08(5).

      . For the practical problems presented by this situation see The Florida Bar v. Mattingly, supra, Drew, J. (concurring specially).

      . A majority of the members of the Court who took part in Mattingly concurred in Justice Drew’s concern with the concept. See note 5, above.

       Luke 15: 11-32 (Revised Standard Version).


author: PER CURIAM. ADKINS, Justice,

text:
    Bernard T. SIMMONS, D.P.M., Appellant, v. Mary Frances FAUST and Johnnie Lee Faust, her husband, Appellees.
    No. 50015.
    Supreme Court of Florida.
    May 11, 1978.
    Charles W. Pittman of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    David T. Henniger of Lloyd & Henniger, St. Petersburg, for appellee.
   PER CURIAM.

This is a direct appeal of the Medical Mediation Panel’s judicial referee’s order dismissing Faust’s action before the panel against Simmons, her podiatrist. The referee dismissed the claim because he found that Section 768.133, Florida Statutes (1975) which establishes the mediation panel and its jurisdiction did not apply to podiatrists. The referee also declared the statute constitutional.

Orders of trial courts passing upon the constitutional validity of a Florida Statute are appealable to this Court. Article V, Section 3(b)(1), Florida Constitution. The jurisdictional question this case presents is: Is the order of a Medical Mediation Panel’s judicial referee an order of a trial court? We conclude that it is not and transfer this appeal.

Judicial referees are circuit judges. Section 768.133(2), Florida Statutes (1975). This fact and the Legislature’s failure to provide a means of review for judicial referee orders have caused confusion in. the district courts, each of them treating attempts to review judicial referee orders in a different manner. See, e. g. State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977) (review by certiorari); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977) (review by certiorari); Scherer v. Liberto, 353 So.2d 1224 (Fla. 4th DCA 1977) (review by appeal. See also, State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977) (writ of prohibition); State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977) (mandamus).

The Florida Constitution provides for only four types of courts and the Legislature may create no others. Article V, Section 1, Florida Constitution. When acting as a judicial referee, a circuit judge is not functioning as a trial court. At the least, a trial court determines parties’ legal rights absolutely unless the decision is changed by an appellate court. A medical mediation panel does not perform this function. Its findings function only as evidence in a circuit court proceeding. Section 768.-134(2), Florida Statutes (1975). And regardless of the panel’s determination, either party remains free to take the issue to circuit court and a full-fledged trial. Section 768.134(1), Florida Statutes (1975).

It is only in the trial court, after mediation proceedings have run their route, that the legal rights of the parties are finally determined. Since the medical mediation panel does not perform the essential function of a court, it is not one, and the judicial referee’s orders are not appealable.

The appeal is transferred to the District Court of Appeal, Second District, for disposition as a petition for a writ of common law certiorari.

It is so ordered.

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

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring.

I concur.

This case raises issues, among them the actual role of a judge in malpractice mediation proceedings and presence or absence of due process protections in mediation proceedings, which cause me to question the wisdom of our earlier rulings on the Act’s constitutionality. We cannot, however, reach them in this case since we do not have jurisdiction.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Frederick Robert SMITH, Appellee.
    No. 52248.
    Supreme Court of Florida.
    May 11, 1978.
    James A. Gardner, State’s Atty., and R. John Cole, II, First Asst. State’s Atty., Sarasota, for appellant.

      No appearance, for appellee.
   PER CURIAM.

Affirmed. State v. Lee, 356 So.2d 276 (Fla.1978).

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


text:
    In re TRAFFIC COURT RULES 6.290 AND 6.575.
    No. 46571-K.
    Supreme Court of Florida.
    May 11, 1978.
    Richard E. Cox, Executive Secretary of the Traffic Court Review Committee, Tallahassee, for petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, Rule 6.290 of the Florida Rules of Practice and Procedure is amended and Rule 6.575 is created in the manner as appended to this opinion and said rules are hereby adopted. These amendments shall be effective immediately.

It is so ordered.

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

Rule 6.290. WITHHOLDING ADJUDICATION PROHIBITED: WHEN

(a) Pursuant to the provisions of section 322.281 of Florida Statutes, no court shall withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle, while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue, or any substance controlled by chapter 893 of Florida Statutes.

(b) The Court is also prohibited from accepting a plea of guilty or nolo contendere to a lesser offense from a person charged under the provisions of Chapter 322 of the Florida Statutes, whose chemical results show a blood alcohol content by weight of .20 percent or more.

Rule 6.575. RETENTION OF CASE FILES

For the purpose of record retention pursuant to the General Records Schedule D-T 1, case files with an outstanding or unsatisfied D-6 shall be considered disposed of five years after the submission of the D-6 by the clerk to the Department of Highway Safety and Motor Vehicles.


author: PER CURIAM. OVERTON, Chief Justice, BOYD, Justice,

text:
    Petition of POST-NEWSWEEK STATIONS, FLORIDA, INC., for Change in Code of Judicial Conduct.
    No. 46835.
    Supreme Court of Florida.
    May 11, 1978.
    Rehearing Denied July 5, 1978.
    See 359 So.2d 1195.
   PER CURIAM.

By Supplemental Interlocutory Decision filed April 7, 1977, implemented by Order filed June 14, 1977, which adopted standards of conduct and technology, this Court invoked a pilot program authorizing coverage of judicial proceedings in the courts of Florida by the electronic media and still photographers in order to assist the Court in reaching a reasoned decision upon the petition of Post-Newsweek Stations, Florida, Inc., for modification of Canon 3 A(7), Code of Judicial Conduct. By the terms of the orders the pilot program shall terminate at 11:59 p. m. on June 30, 1978. To aid the Court in evaluating the pilot program it was requested that all media participants, all parties hereto, and all participating judges furnish the Court a report of their experiences under the program at its conclusion.

A request has been received from counsel representing Post-Newsweek Stations, Florida, Inc., under date of March 3, 1978, that the Court (i) allow current submission of papers evaluating the experiment to date and (ii) allow the continuation of full media coverage after July 1, 1978. It is suggested that petitioner be permitted to file papers in support of its petition within 30 days after April 1, 1978, with all other parties being authorized to respond within 30 days from the filing by petitioner. It is further suggested that all parties be permitted a short time after July 1, 1978, within which to supplement their papers.

In consideration of the foregoing:

(1)The pilot program shall terminate at 11:59 p. m., June 30, 1978, as designated by the decisions of this Court filed April 7, 1977 and June 14, 1977, respectively. The provisions of Canon 3 A(7), Code of Judicial Conduct, shall govern the presence of electronic media and still photographers in the court facilities of this State after June 30, 1978, and until further order of the Court in this cause. The avowed purpose of the pilot program authorized in these proceedings was to aid this Court in reaching a reasoned decision upon the application for modification of Canon 3 A(7). No cause has been made to appear to require a modification of the procedure earlier established and, in fact, a revision of this procedure arguably will impede the orderly consideration of the issues by this Court.

(2) To promote the orderly presentation of views evaluating the pilot program and arguments supporting or opposing modification of Canon 3 A(7), proponents of the petition for modification shall be allowed until June 15, 1978, within which to submit written argument and supporting materials. Opponents to the petition shall be allowed until July 15,1978, within which to respond in writing to arguments of the proponents and submit supporting materials. Proponents shall then be allowed until July 31, 1978, to reply to arguments of the opponents.

(3) Consistent with paragraph numbered 9 of this Court’s Order filed June 14,1977, all media participants, all parties hereto, all participating judges, and any member of the public who has participated in the experiment are invited to furnish to the Court, during the period commencing July I,1978 and ending July 31,1978, a report of their experiences and views under the program.

It is so ordered.

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

OVERTON, C. J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

BOYD, J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

OVERTON, Chief Justice,

concurring in part, dissenting in part.

I concur in provisions in the majority opinion that set forth the procedure for the presentation of all views evaluating the pilot program. I dissent on that portion of the order that denies the request to extend the pilot period beyond June 30, 1978. I would extend the pilot period until September 15, 1978. There have bee'n no substantial problems presented to this Court with regard to the pilot program. In view of this fact, I see no justification for not extending the pilot program to a time certain within which a final opinion may be rendered by this Court.

ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in that portion of the majority opinion providing for receiving and evaluating evidence in anticipation of a permanent decision relating to new procedures of photographic and electronic recording equipment in courtrooms.

I dissent to that portion of the opinion limiting responses to media participants and all participating judges. Since the final order to be entered will affect the lives of almost every person in this State, the public generally should be invited to give expressions of views to this Court.

I further dissent to that portion of the order terminating the experiment on June 30, 1978. Responses which I have heard from judges and lawyers thus far lead me to conclude that the public will be beneficially affected by continuing the program indefinitely pending review by this Court. After one calendar year judges, lawyers, jurors, witnesses, news reporters and the viewing public have grown accustomed to cameras in court. The temporary termination of such activity, with the probability of its renewal within a few weeks, would tend to disrupt and frustrate the program which at this time appears to be generally accepted in this State.

ADKINS, J., concurs.

      . In re Petition of Post-Newsweek Stations, Florida, Inc. for Change in Code of Judicial Conduct, 347 So.2d 402 (Fla.1977).

        . Petition of Post-Newsweek Stations, Florida, Inc., for Change in Code of Judicial Conduct, 347 So.2d 404 (Fla.1977).

      . 32 F.S.A. 198-99 (Supp.1978).

      . 347 So.2d at 406.


author: PER CURIAM. BOYD, Justice, ALDERMAN, Justice,

text:
    THE FLORIDA BAR. In re PETITION TO AMEND the RULES OF the SUPREME COURT of Florida RELATING TO ADMISSIONS TO the BAR-RESIDENCY.
    No. 53265.
    Supreme Court of Florida.
    May 12, 1978.
    Russell Troutman, President, Winter Park, Robert L. Floyd, President-elect, Miami, Raymond W. Royce, Palm Beach, and L. David Shear, Tampa, Members of The Board of Governors, and James P. Holla-way, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Thomas R. Caruso, Ville Platte, La.; Jay H. Beckerman, Tallahassee; and Larry S. Stewart, Miami, amici curiae.
   PER CURIAM.

In this proceeding we have considered a petition of The Florida Bar to amend both Section 19 of the Revised 1977 Rules of the Supreme Court of Florida relating to admissions to the Bar and Section 10(a) of the Rules and Regulations of the Florida Board of Bar Examiners.

The proposed change would require applicants to be residents of Florida for at least six calendar months immediately prior to filing their application for admission to the Bar or to state that the applicant intends to maintain residence in Florida for a period of at least six calendar months, commencing not later than two months after the date upon which applicants would first take the Florida Bar examination. To comply with the residence, the applicant would be required to be physically present in this State for at least 150 days during the six-month period of residence.

Upon consideration of the petition, briefs and arguments we have determined that the proposed residency requirements should not be adopted.

Accordingly, the petition is denied.

It is so ordered.

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

BOYD, J., concurs specially with an opinion.

ALDERMAN, J., concurs specially with an opinion.

BOYD, Justice,

concurring specially.

Under the present system persons having certain educational and moral attributes are permitted to take the Florida Bar examination without being residents, although some of the jurisdictions from which they come may simultaneously refuse to permit Florida residents to take bar examinations without becoming residents of those jurisdictions. This is fundamentally wrong and constitutes unfair treatment to law students and lawyers residing in Florida who may wish to take bar examinations elsewhere. For a long time I have strongly favored a reciprocal rule which would waive residency requirements for persons in states and jurisdictions which would permit Florida residents to take their bar examinations without becoming residents thereof. I would require Florida residence for those persons coming from jurisdictions which would deny Floridians the opportunity to take their bar examinations without becoming residents of such areas.

I would handle this in the same manner as those states do which permit waiver of bar examinations for only those persons coming from jurisdictions which reciprocate by waiving bar examinations for their residents.

ALDERMAN, Justice,

concurring specialty-

I agree that the present petition should be denied because, in my opinion, The Florida Bar has not shown that its proposed durational residency requirement is reasonably connected to the purpose which it is alleged to serve. I would, however, upon a proper showing, be willing to consider the adoption of a reasonable and workable residency requirement.