author: ENGLAND, Justice. PER CURIAM.

text:
    DEPARTMENT OF REVENUE of the State of Florida, et al., Appellants, v. Harriet L. GOLDER, as Executrix of the Estate of Max Lavin, Deceased, Appellee.
    No. 47057.
    Supreme Court of Florida.
    Oct. 15, 1975.
    On Reconsideration Nov. 24, 1975.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellants.
    Stuart W. Patton and Daniel G. La-Porte, of Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Miami, for appellees.
   ORDER

ENGLAND, Justice.

Appellee’s counsel has requested that I disqualify myself from participation in this proceeding on the ground that I may possibly lack complete impartiality. The issues raised by this request are broader than this lawsuit, and they require a personal judgment with which others might reasonably disagree. My perception of my responsibility in the area of judicial ethics dictates that I publish both my decision on counsel’s request and my reasons for that decision.

I believe it essential that judges contemplate the appearance of partiality at every turn. The acceptance of court-made justice delivered by imperfect humans relies heavily for its existence on the respect of the citizenry for those who dispense it. In order for the courts to remain as a civilized alternative to less acceptable means of resolving disputes, the public in general, and parties and their counsel in particular, must • be reassured regularly that causes brought to the judiciary are decided on the law alone.

“Possessed of neither the purse nor the sword, [the judiciary] depends primarily on the willingness of members of society to follow its mandates.”

To that end, I believe it appropriate to express my views in this fully public manner.

This case was filed with the Court shortly after I became one of its members. The principal legal issue in the proceeding involves the constitutionality of an estate tax statute enacted by the Florida Legislature in 1971. At the time of the enactment of this statute, I was serving as special tax counsel to the Florida House of Representatives, and in that capacity I prepared for the House Finance and Tax Committee a preliminary memorandum of law on the constitutionality of the then proposed enactment. Beyond that familiarity with the statute, I have had no affiliation with this lawsuit, the parties, or their counsel.

Immediately prior to oral argument in this case, I filed of record in this proceeding and served on each counsel a Notice indicating my prior involvement with the statute and my familiarity with the constitutional question at issue. I indicated that I would consider a request for disqualification by counsel for either party, and pending such a request I neither questioned counsel during oral argument nor participated in the Court’s preliminary, post-argument discussion of the case.

Shortly after oral argument, respondent’s counsel requested my disqualification “in view of [my] preparation in 1971 of a legal memorandum concerning . , . the very issue before the Court in this case.”

At issue here is seeming “bias” in the form of a personal pronouncement on a point of constitutional law prior to commencing judicial service. Bias in this context, of course, does not connote the standard dictionary notion of “an inclination of temperament or outlook.” It means, rather, a bias of extra-judicial origin, such as would arise from a judge’s association with an attorney, a party or a cause. This form of bias is addressed in the Florida Code of Judicial Conduct, recently adopted by this Court following its development and adoption by the American Bar Association.

The basis for “bias” disqualification appears in Canon 3C(1) of the Code, which asserts as a general standard that

“a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . .

Under that Canon, several specific situations are enumerated in which disqualification is required. None of those situations apply here unless, by implication from its commentary, subsection (1) (b) is considered applicable. That subsection requires disqualification of a judge who formerly served as counsel in the particular proceeding or was a member of the law firm which served as counsel in the proceeding. The commentary to that subsection states that

“a judge formerly employed by a governmental agency . . . should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association.”

In considering whether that commentary suggests disqualification as a result of my prior governmental association, I have considered principally its placement and purpose. Placement of the commentary suggests that its applicability should be confined to situations described in the subsection to which it relates, namely cases in which the judge has some prior affiliation with the same proceeding. Under ordinary rules of judicial construction, the commentary would not expand the specific prohibition of the subsection itself. Reliance on statutory construction techniques alone is unnecessary, however, in light of the purpose for the commentary. This can be inferred from the reporter’s notes to the ABA draft code which served as the verbatim model for this subsection and most of the other provisions in Florida’s Code. Describing subsection 3C(l)(b) and its governmental affiliation commentary, the reporter states:

“Canon 3C(l)(b) sets the standard for problems that arise most often for a new judge. A judge should not sit in a proceeding in which he has been a witness or has acted as a lawyer. The Committee was of the opinion that he should also disqualify himself in a proceeding if a lawyer with whom he previously practiced law was a witness or served as a lawyer concerning the same matter during such association. The Commentary clarifies the status of a judge who was formerly a lawyer in a governmental agency. An agency — for example, the Justice Department — is not fully equated with a private law firm, in that a former agency lawyer is not considered to have been associated with all other lawyers in the agency. If the former agency lawyer, now a judge, served as a lawyer in the matter in controversy, he is disqualified.”

It is apparent that Canon 3C(1)(b) is directed to disqualification based upon prior contacts with a proceeding, and not as a result of general familiarity with a particular legal issue. Since the present controversy is not a matter in which I had been involved as counsel or witness, subsection (1)(b) does not apply to require my disqualification. No other disqualifying subsection of Canon 3C(1) even remotely bears on the inquiry in this case.

The question of disqualification, however, requires more than a conclusion that the specific examples under Canon 3C(1) are not applicable. The examples are that only, and not an exclusive catalog. As indicated in the reporter’s notes on governmental affiliation, the non-specific, general standard of reasonably perceived impartiality must still be considered.

The specific problem of prior governmental pronouncements or expertise was apparently considered by the framers of Canon 3C(1). The subject is specifically mentioned in the reporter’s notes to subsection (l)(a), which in its present form deals only with bias concerning a party and personal knowledge of disputed evi-dentiary facts. The reporter states:

“Subsection (a) has gone through several formulations in drafting. At one time the language provided for disqualification if a judge ‘had a fixed belief concerning the merits.’ It was intended that a judge disqualify himself if he had made up his mind on the merits before he heard the case. The Committee was confronted, however, by the interpretation of many able judges and law professors that would require a judge to disqualify himself if he had a fixed belief about the law applicable to a given case. For example, it was argued that a judge with a fixed belief that the First Amendment precludes a libel action by a public official against a newspaper in the absence of proof of malice should disqualify himself in a libel case of that general character. This interpretation was not intended; indeed, the Committee recognized the necessity and the value of judges’ having fixed beliefs about constitutional principles and many other facets of the law." (emphasis supplied)

It would appear from this commentary that the ABA’s drafting committee specifically rejected the notion that judges should disqualify themselves for previously developed or expressed legal expertise. This view is consistent with the view of this Court regarding the responsibility of a judge in like circumstances under prior judicial canons. See Dade County Bd. of Pub. Instr. v. Michigan Mutual Liab. Co., 169 So.2d 483 (Fla.1964).

Beyond the specific and the general standards of judicial conduct codes, or any express laws on the subject, the matter of judicial disqualification necessarily involves personal, judgmental considerations. I suppose these concerns are evoked because litigants will inevitably bring causes before jurists whose prior analysis of the law is at odds with a result one of the parties seeks to achieve. Such an occurrence immediately raises concern as to whether a studied view of a particular point in the law, whether developed before or after the onset of judicial service, is not a form of “bias” for which disqualification is the most suitable remedy.

These concerns quite frequently manifest themselves, as here, in the form of an apparent predisposition towards a given legal result as a consequence of prior governmental service. They have been most evident with respect to Justices of the United States Supreme Court. The resolution from that bench has been uniformly against disqualification, in the absence of any direct, prior participation in the particular proceeding.

“Justices disqualify in government cases when they have been directly involved in some fashion in the particular matter, and not otherwise. . . . The disqualification is limited to the particular department with which the person has been connected — that is to say, Justice Goldberg did not disqualify in a non-labor case coming from the Department of Justice when he was Secretary of Labor. Any other rule would make it useless to appoint government lawyers at all. More important, Justices who have come from the government do not disqualify merely because the particular matter involves a policy which, when in the government, they may have helped to form. The Justices who come from the House or the Senate do not disqualify from the interpretation of statutes which they may most actively have helped to write. Chief Justice Vinson wrote on tax matters and Justice Black on Fair Labor Standards Act cases, though each was particularly involved with those laws. Other examples could be endless.”

Perhaps one reason that prior legal expertise has not suggested disqualification to these Justices or to the ABA’s drafting committee is that litigants in our system of jurisprudence should not be afforded the right to select their own judges. This point was recently addressed in a report prepared by the Judiciary Committee of the United States House of Representatives to accompany and explain the new federal disqualification statute:

“ . . . in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a ‘reasonable fear’ that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judge of their own choice.”

The same point was also made by Mr. Justice Rehnquist in response to a suggestion of his disqualification on the ground (among others) that he had previously expressed a public view on a constitutional question brought to the Court following his appointment. In a memorandum opinion rejecting the suggestion of disqualification he observed:

“Every litigant is entitled to have his case heard by a judge mindful of [his] oath [of office]. But neither the oath, the disqualification statute, nor the practice of the former Justices of this Court guarantees a litigant that each judge will start off from dead center in his willingness or ability to reconcile the opposing arguments of counsel with his understanding of the Constitution and the law. That being the case, it is not a ground for disqualification that a judge has prior to his nomination expressed his then understanding of the meaning of some particular provision of the Constitution.”

Thus, it does not appear essential (and in practical effect it does not appear desirable) that judges should decide only those cases in which they lack all knowledge of the legal issues brought before them. Indeed, as Mr. Justice Rehnquist observed:

“Proof that a Justice’s mind at the time he joined the Court was a complete tabu-la rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

To these general views can be added the observation that in Florida, where Supreme Court Justices are elected, proof that a candidate for Justice lacks some acquaintance with constitutional law might very well prevent attaining judicial service altogether.

In this case, I invited the inquiry regarding disqualification. Having analyzed counsel's suggestion and found no clear directive for disqualification, my decision becomes in the last analysis a choice between competing policies. On the one hand, there is unquestionably a judicial “duty to sit” in all cases, so long as it is feasible for me to do so. On the other hand, there is an unsettling appearance that I am predisposed to a given legal result which I developed before I began my judicial service. As between the two policies, I have little difficulty making the choice so long as the apparent predisposition is based solely on my prior analysis of the law for purposes unconnected with this particular lawsuit, the parties or their counsel.

In this case, the views I expressed in 1971 as to the constitutionality of this estate tax provision were evolved independently of any particular controversy or party. I am not so pre-committed to them that I cannot be persuaded to the contrary. Accordingly, consistent with the views of Chief Justices Marshall, Chase and Hughes, and with Justices Holmes, Black, Harlan, Frankfurter, Jackson and Rehnquist, I decline to step aside.

ON RECONSIDERATION

At appellee’s request I have reconsidered my decision not to disqualify myself in this proceeding. I can find no reason to recede from the opinions I expressed in my order of October IS, or from the conviction that my participation in this case in no way violates the spirit or the letter of the Florida Code of Judicial Conduct. Under the totality of circumstances now present in this case, however, I do not believe that I can participate in any decision on the merits of this case without creating, in the public’s view, concern for the integrity of the Court’s decision. I therefore disqualify myself in this case.

ON RECONSIDERATION

PER CURIAM.

On October 27, 1975, counsel for appel-lee filed a motion, together with a memorandum of law, requesting that Justice England reconsider an opinion-order in this proceeding dated October 15, in which he declined to disqualify himself from participation. Appellee’s lengthy memorandum of law, containing numerous citations of authority, frankly states that it is “couched in argumentative terms.”

In this case, as in Department of Revenue v. Leadership Housing, Inc., Fla., 322 So.2d 7, appellee’s memorandum of law inadvertently created an intolerable adversary atmosphere between ap-pellee and Justice England after his deci-sional order on disqualification was entered. Appellee did not request our review of Justice England’s original decision, and none is required in light of his decision on reconsideration, but we incorporate in this proceeding by reference to our per curiam opinion today in Leadership Housing, the views there expressed for future disqualification situations.

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

      . Kaufman, Lions or Jackals: The Function of a Code of Judicial Ethics, 35 Law and Contemp.Prob. 3, 5 (1970).

      . On September 10, 1974, I was elected to the Court for a term which began on January 7, 1975. This case was filed on March 13, 1975. Briefs were filed in due course, after which oral argument was scheduled for September 9, 1975.

      . Chapter 71-202, Laws of Florida, now appearing as Section 198.02, Fla.Stat. (1973).

      . In August, 1970, House Speaker Schultz appointed a Select Revenue Study Committee of the Florida House of Representatives. That Committee issued its final report on February 24, 1971, and a copy of that report is on file with the Clerk of the Florida House of Representatives. One of the Committee^ recommendations was the “passage of a statute to allow Florida to receive a pro-rata share of the federal tax credit for residents as well as non-residents.” The Committee implemented this recommendation by pre-filing a bill for the 1971 Regular Session. Subsequently I was asked to prepare a memorandum of law as to the constitutionality of the proposed enactment. The bill which later was enacted by the Legislature and became law was, for present purposes, identical to the one analyzed in my preliminary memorandum.

      . Webster’s Third New International Unabridged Dictionary 211 (1968) ; Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 Law and Contemp.Prob. 43, 48 (1970).

      . Cf., Craven v. United States, 22 F.2d 605, 607 (1st Cir. 1927).

      . In re The Florida Bar — Code of Judicial Conduct, 281 So.2d 21 (Fla.1973). The entire Code, and its accompanying commentary, are reproduced in 32 Fla.Stat.Ann. (Supp. 1975), beginning at p. 131.

      . The prohibitions of the Canons are mandatory where they are specifically applicable. Fla.Bar Code Jud.Conduct, Preface.

      . “The commentary is included for purposes of construction and understanding.” Fla.Bar Code Jud.Conduct, Preface.

      . Cf. Farrey v. Bettendorf, 96 So.2d 889, 893 (Fla.1957).

      . E. Thode, Reporter's Notes to Code of Judicial Conduct (1973), a project sponsored by the American Bar Association and the American Bar Foundation.

      . Thode, supra note 11 at 63.

      .“The judge is disqualified also if his association with an agency lawyer now before the court or his association with the matter in controversy leads to the conclusion that, under the general standard of Canon 3C(1), his impartiality might reasonably be questioned.” Thode, supra note 11 at 63.

      . Thode, supra, note 11 at 61.

      . Florida’s disqualification statute:- re not involved in this proceeding in any way. See Sections 38.01, 38.02, and 38.10, Fla.Stat. (1973).

      . Frank, supra note 5, at 50.

      . House Report No. 93-1453, 3 U.S.Cong. & Admin.News, pp. 6351, 6355 (11/8/74), relative to Pub.Law 93-512, 88 Stat. 1609 (1974). It is interesting to note that, while the new statute adopted the disqualification provisions of the ABA’s new Code virtually intact (House Rep.No.93-1453, supra at 6353), Congress added a wholly new provision addressed specifically to judges with prior governmental affiliations. Insofar as is relevant here, the new provision requires disqualification only “where he has served in governmental emi>loyment and in such capacity . . . expressed an opinion concerning the merits of the particular case in controversy.” (emphasis added) 28 U.S.C. § 455(b)(3). This provision “is intended to cover the situations which can occur during the first two or three years of judicial service of a lawyer who is appointed to the bench from service as a government lawyer. This situation occurs more frequently in the federal judicial system than it does in state judicial systems and for this reason the committee believes that the federal statute should be more explicit than are the minimum standards adoj)t-ed by the ABA for application in all the states.” House Rep.No.93-1453, supra at pp. 6355-56.

        . Laird v. Tatum, 409 U.S. 824, 838-39, 93 S.Ct. 7, 15, 34 L.Ed.2d 50 (1972).

      . Laird v. Tatum, supra note 18 at 835, 93 S.Ct. at 14. Obviously, the notion that only uninformed judges should decide constitutional questions becomes increasing untenable with the length of judicial service.

      . It is arguable, although counsel for the State has not done so in this case, that familiarity with a particular constitutional issue demands participation rather than disqualification in a state which has an elected judiciary, lest the Court be denied the very expertise which the electorate sought to provide.

      . Fla.Const. art. V, § 13. See Edwards v. United States, 334 F.2d 360 (5th Cir. 1964).

      . Laird v. Tatum, supra note 18 at 831-33, 835-36, 93 S.Ct. 7; Frank, Disqualification of Judges, 56 Yale L.J. 605, 625 (1947).

      . As I said in my original Notice to counsel, this decision is made without prejudice to respondent or its counsel by reason of having filed the request for my disqualification.


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. LEADERSHIP HOUSING, INC., and Leadership Communities, Inc., Appellees.
    No. 47440.
    Supreme Court of Florida.
    Oct. 22, 1975.
    On Reconsideration Nov. 24, 1975.

      Robert L. Shevin, Atty. Gen., and Sydney H. McKenzie, III, Asst. Atty. Gen., for appellant.
    Richard H. Hunt, Jr., Samuel C. Ullman, and Smathers & Thompson, Miami, for ap-pellees.
   ORDER

ENGLAND, Justice.

On July 29, 1975, appellees’ counsel filed a suggestion for my disqualification in this proceeding. The bases for the suggestion are that, as special tax counsel to the Florida House of Representatives, I “rendered and published [my] opinion on the precise question of substantive constitutional law which is in issue on this appeal, and supervised the drafting of corporate income tax statutory provisions consistent with said opinion, the constitutionality of which provisions are in issue herein.”

These grounds for my disqualification are identical with those suggested by appellee’s counsel in Department of Revenue v. Golder, Case No. 47,057, Fla., 322 So.2d 1. Both proceedings involve constitutional questions which will receive consideration by the entire Court. Fla.App. Rule 3.10(g).

On October 15, 1975, I entered an Order declining to disqualify myself in that proceeding. A copy of that Order is attached. For the reasons I set out in Golder, I decline to step aside in this proceeding.

ON RECONSIDERATION

For the reasons expressed in my opinion on reconsideration issued today in Department of Revenue v. Golder, Case No. 47,057, Fla., 322 So.2d 1. I disqualify myself in this case.

ON RECONSIDERATION

PER CURIAM.

On November 3, 1975 counsel for appel-lees filed a Motion to Reconsider addressed to an opinion-order in this proceeding dated October 22, in which Justice England declined to disqualify himself from participation. The twenty page motion contains, in the style of a brief, separate sections entitled Statement of Facts, Points Discussed, Argument: Point I, Argument: Point II, Argument: Point III, and Conclusion. It contains numerous citations of authority. The motion requests that Justice England reconsider his disqualification decision, and that the question also be considered by the full Court. While it has become unnecessary for us to comment on Justice England’s disqualification in light of his personal decision in favor of disqualification, we deem it essential to comment on the procedural aspects of this issue in order to avoid for the future the type of problem which arose in this case.

Under the rules and precedents of this Court, the form of appellees’ motion ordinarily would be considered improper. In practical effect, it challenges Justice England as to the correctness of his conclusions on the matters considered and passed upon in his order. This is not appropriate in a motion for reconsideration or for rehearing. The rule as to such requests was clearly and forcefully expressed in Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558 (1919), where the Court, on application for rehearing, said at 80 So. at 559:

“We think it proper here to call the attention of the profession to the rules governing applications for rehearings.
The proper function of a petition for rehearing is to present to the court in clear concise terms some point that it overlooked or failed to consider; only this and nothing more. [citations] Upon an application for rehearing of a cause decided by this court, it is irregular, and an infraction of the rule, to accompany the petition with a written argument and citation of authorities, [citations]
An application for rehearing that is practically a joinder of issue with the court as to the correctness of its conclusions upon points involved in its decision that were expressly considered and passed upon, and that reargues the cause in advance of a permit from the court for such reargument, is a flagrant violation of the rule, and such an application will not be considered, [citations]
The petition for rehearing in the present case infracts the rule in all of the above particulars, and the profession is hereby put upon notice that in future the court will adhere strictly to the requirements of the rule in such cases, and will visit infractions thereof by a refusal to consider such applications and with a dismissal thereof.”

The mandate of Texas Co. v. Davidson is now contained in Florida Appellate Rule 3.14(b), which states that any petition to rehear a decision or order of the Court shall be presented “without argument”.

The order of Justice England on the subject of disqualification comes within an area of the law historically considered to be personal and discretionary with individual members of the judiciary, including those who sit on collegial courts. For purposes of the rules governing reconsideration, such a decisional document has the same dignity as a decision or order of the full Court in the areas of law within its collegial, appellate jurisdiction. For obvious reasons, the Court cannot allow counsel to debate the law with a member of the judiciary after he has entered an order on disqualification. To permit such an adversary atmosphere between a litigant and the judge who must then again decide his or her own disqualification would seriously erode public confidence in either the impartiality (if disqualification were rejected) or the independence (if disqualification were accepted) of the judiciary. Arguments on the law of disqualification, just as legal arguments on other issues, must be made between the parties before a judicial decision is rendered; not between one litigant and a tribunal which has already ruled.

In this case, appellees had no reason to anticipate the application of these principles. There has been in Florida no prescribed format for non-statutory disqualification requests, or for related legal arguments. Appellees had no notice that a brief or memorandum of law on disqualification would only be considered if it were submitted prior to Justice England’s deci-sional order. We do not, therefore, in any way suggest that appellees here acted improperly.

In future situations of this type, the Court will require legal arguments on disqualification to be made in advance of the judge’s disqualification decision, and no post-decision argument will be entertained. Moreover, a suitable opportunity to brief the question will be afforded both parties of the proceeding prior to rendition of the judge’s decision if either party requests or exercises that privilege.

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


author: ROBERTS, Justice.

text:
    The Honorable Robert W. RAWLINS, Petitioner, v. Timothy S. KELLEY, Respondent.
    No. 45063.
    Supreme Court of Florida.
    July 31, 1975.
    E. J. Salcines, State’s Atty., Robert Lee Dennis and Jack W. Crooks, Asst. State’s Attys., for petitioner.
    Stuart W. Umbarger and H. Lee Mof-fitt, Straske & Moffitt, Tampa, for respondent.
   ROBERTS, Justice.

This cause is before us on Petition for Writ of Certiorari granted to review the decision of the District Court of Appeal, Second District, in State ex rel. Kelly v. Rawlins, 289 So.2d 444 (Fla.App. 2nd 1974), which purportedly conflicts with State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956), State v. Bernard, 254 So.2d 38 (Fla.App. 3rd, 1975).

Respondent, a minor of 15 years of age, was arrested on April 7, 1973, at a convenience store for armed robbery of that store on March 20, 1973. On April 13, 1973, a Complaint was filed with an Intake Officer with the Division of Youth Services of Hillsborough County, Florida, alleging the respondent to be delinquent by alleging that he committed the aforesaid offense. On April 23, 1973, respondent was arrested at his home for armed robbery of two convenience stores on April 19, 1973. On May 2, 1973, a two-count Complaint was filed with an Intake Officer with the Division of Youth Services of Hillsborough County, Florida, alleging the respondent to be delinquent by alleging that he committed the two aforesaid offenses.- On May 23, 1973, the State Attorney of Hillsborough County, Florida, filed a three-county Petition in the Juvenile and Domestic Relations Division of the Circuit Court, Thirteenth Judicial Circuit in and for Hillsborough County, Florida, requesting that that Court take jurisdiction of respondent and adjudicate him to be a delinquent child for committing the aforesaid offenses. On August 10, 1973, upon motion for discharge filed by respondent, that court entered an order dismissing the petition against respondent with prejudice and directing that the case be closed because the speedy trial rule (Rule 8.120, Rules of Juvenile Procedure, and Rule 3.191, Rules of Criminal Procedure) had been violated. No appeal from that order dismissing petition was taken by the State of Florida. On October 10, 1973, 170 days after respondent was arrested for armed robbery the second time (April 23, 1973), the State Attorney of Hillsborough County, Florida, obtained two grand jury indictments charging respondent with the crimes of April 19, 1973, as had been previously charged in the petition filed May 24, 1973, and dismissed on August 10, 1973. On October 11, 1973, respondent was again arrested at his home for the April 19, 1973 offenses, and on October 12, 1973, respondent was arraigned on both indictments and entered a plea of not guilty to both indictments. Trial was scheduled on the first indictment for the following Tuesday, October 16, 1973, and on the second indictment for the following day, Wednesday, October 17, 1973. Both cases were scheduled to be heard before the Honorable Robert Rawlins, Circuit Judge, Hillsborough County, Florida. At arraignment, respondent moved to dismiss the indictments on the grounds of collateral estoppel, res ad ju-dicata, and/or double jeopardy, which motion was denied.

Respondent then filed a petition for writ of prohibition with the District Court of Appeal seeking to prohibit the trial court from assuming jurisdiction of the cause and alleged as a basis therefor double jeopardy and estoppel. The District Court granted the writ of prohibition on the authority of Fain v. Duff, 488 F.2d 218 (U.S. 5th Cir. 1973), wherein the United States Fifth Circuit Court of Appeals considered a case wherein a juvenile, sixteen years of age, who had been adjudged delinquent by a juvenile court because of a charge of rape was nine days later indicted for the same offense of rape. After the state courts in Florida had rejected Fain’s argument that prosecution for him of rape would violate the double jeopardy clause of the Fifth Amendment to the Constitution, he filed a petition for writ of habeas corpus in the federal court, which was issued by the United States District Court, Middle District of Florida. The United States Circuit Court of Appeal affirmed the granting of the writ and found that the re-prosecution of Fain as an adult would violate the Constitution’s protection against double jeopardy made applicable in state proceedings by the Fourteenth Amendment. The court, therein, explained that a court proceeding which may result in incarceration places a person, adult or juvenile, in jeopardy, and that the status of one adjudicated delinquent or juvenile does not preclude him from asserting double jeopardy as a defense to a subsequent attempt by the state to criminally prosecute him as an adult for the same offense which led to his adjudication of delinquency.

Most recently in Breed v. Jones, 421 U. S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, opinion filed May 27, 1975, the Supreme Court of the United States was confronted with the question as to whether the prosecution of respondent, a juvenile, as an adult, after juvenile court proceedings resulting in a finding that respondent had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Fifth Amendment guarantee against double jeopardy and held:

“We deal here, not with ‘the formalities of the criminal adjudicative process,’ McKeiver v. Pennsylvania, 403 U.S. [528], at 551, 91 S.Ct. [1976] at 1989 [29 L.Ed.2d 647], but with an analysis of an aspect of the juvenile court system in terms of the kind of risk to which jeopardy refers. Under our decisions we can find no persuasive distinction in that regard between the proceeding conducted in this case pursuant to Cal.Welf. & Inst’ns Code § 701 and a criminal prosecution, each of which is designed ‘to vindicate [the] very vital interest in enforcement of criminal laws.’ United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. [547] at 554. We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was 'put to trial before the trier of the facts/ ibid., that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U.S. at 377, 95 S.Ct. 1055 [43 L.Ed.2d 265].” (emphasis supplied)

In Breed, supra, the Supreme Court of the United States explained:

“As we have observed, the risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’ United States ex rel. Marcus v. Hess, supra, 317 U.S. [537] at 548-549, 63 S.Ct. [379] at 388 [87 L.Ed. 498]. Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens — psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offense.’ See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S., [323], at 331, 90 S.Ct. [1757] at 1762 [26 L.Ed.2d 300]; United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L. Ed.2d 543 (1971).
s|c ‡ %
“We cannot agree with petitioner that the trial of respondent in Superior Court on an information charging the same offense as that for which he had been tried in Juvenile Court violated none of the policies of the Double Jeopardy Clause. For, even accepting petitioner’s premise that respondent ‘never faced the risk of more than one punishment,’ we have pointed out that ‘the Double Jeopardy Clause ... is written in terms of potential or risk of trial and conviction, not punishment.’ Price v. Georgia, 398 U.S., at 329, 90 S.Ct. [1757] at 761.”

Sub judice, the District Court in prohibiting the trial court from proceeding in the prosecution of respondent for charges of robbery from which he had been discharged by the Juvenile and Domestic Relations Division of the Circuit Court, relied on Fain v. Duff, supra, as authority.

The State properly, submits that jeopardy did not attach in the instant case since it is well settled in Florida that jeopardy attaches at the time the jury is impaneled and sworn in a jury case or when the court begins to hear evidence in a non-jury proceeding. Allen v. State, 52 Fla. 1, 41 So. 593 (1906), State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956), 63 A.L. R.2d 777, Kennick v. State, 107 So.2d 59 (Fla.App.1959), Bernard v. State, 254 So. 2d 38 (Fla.App. 3, 1971), writ discharged with opinion 261 So.2d 133 (1972). See also, Ray v. State, 231 So.2d 813 (Fla. 1970) wherein this Court explicated that a plea of guilty entered to a valid criminal charge in either an indictment or information in a court of competent jurisdiction does upon acceptance raise the bar of former jeopardy against another prosecution for an offense based on the same transaction.

Sub judice, respondent was discharged pursuant to the speedy trial rule, and jeopardy never attached. Specifically, the Supreme Court of the United States held that jeopardy attached when the juvenile court in an adjudicatory hearing begins to hear the evidence. Although jeopardy did not attach, respondent was discharged pursuant to Rule 8.120, R.J.P., which provides:

“Rule 3.191 of the Rules of Criminal Procedure relating to Speedy Trial shall apply, modified by substituting appropriate language relating to juvenile procedures for that applicable to criminal procedures, and by changing the time within which a case must be brought to trial for adjudication without demand from 90 days if the crime .charged be a misdemeanor, or within 180 days if the crime charged be a felony, to 90 days in all cases computed from the time the complaint is filed with the intake officer. This rule shall not apply to proceedings for permanent commitment of a child for subsequent adoption to a licensed child placing agency or the division of family services of the Department of Health and Rehabilitative Services.”

In pertinent part, Rule 3.191 provides:

“(a)(1) . . . and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; . . .
‡ >|< ‡ >Jc 5(€ ‡
“(h)(1). Discharge from Crime; Effect. Discharge from a crime under this Rule shall operate to bar prosecution of the crime charged and of all other crimes upon which trial has not commenced nor conviction obtained nor adjudication withheld and which were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.”

Discharge under the speedy trial rule for failure to timely prosecute’cannot serve to support a plea of former jeopardy because the defendant has not been put in jeopardy. Cf. State v. Doyle, 11 Ohio App.2d 97, 228 N.E.2d 863 (1967). However, since the discharge under the rule is for failure of state action to timely prosecute, such discharge by the clear language of the rule would rate as an estoppel against prosecution of defendant for the same offenses from which he has been previously discharged. Cf. Breed v. Jones, supra, and Fain v. Duff, supra.

For the reasons hereinabove stated, the judgment of the District Court of Appeal granting respondent’s petition for writ of prohibition is affirmed.

It is so ordered.

ADKINS, C. J., and BOYD, McCAIN and OVERTON, J J.. concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Arturo Dominador MORENO-SANTANA, Respondent.
    No. 44008.
    Supreme Court of Florida.
    July 24, 1975.

      R. Layton Mank, Miami, Leonard Riv-kind, Miami Beach, David W. Walters, Miami, Clifford L. Davis, Asst. Staff Counsel, and Richard C. McFarlain, Asst. Director, Tallahassee, for petitioner.
    Arturo Dominador Moreno-Santana, in pro per.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule and charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides:

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section 15, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law . .” This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

We issued a Rule to Show Cause, to which Respondent filed his answer, whereupon this Court appointed Judge Francis X. Knuck as Referee and directed that he should hold such hearings and take such testimony as might be necessary to establish the facts of the case. After a hearing the Referee entered the following findings of fact:

“1. That this cause is properly brought by the Petitioner pursuant to the provisions of the Florida Constitution and the Integration Rules of the Supreme Court.
“2. That the Respondent is sui juris, a resident of Dade County, Florida, and is not and never has been licensed to practice law in the State of Florida or any other jurisdiction within the United States of America.
“3. That during the year 1972, the Respondent represented himself to one, Delia Romero Castro Arthur, to be an attorney authorized to practice law within this State.
“4. That thereafter Mrs. Arthur paid to the Respondent at his request, the sum of $215.00, lawful money of the United States, in order for the Respondent to effect a change of her immigration status from tourist to permanent resident.
“5. That the Respondent gave Mrs. Arthur legal advice and counsel as to her immigration status and of the means by which to effect the requested change and further the Respondent prepared numerous documents which were intended to effect the desired change in immigration status but which were, in fact, unnecessary.
“6. That Mrs. Arthur would not have paid the said sum of $215.00 to the Respondent had she known that he was not an attorney licensed within the state.
“7. That during the year 1971 and subsequent thereto the Respondent asked for and received from one, Marlene Sofia O’Donald, the sum of $250.00 lawful money of the United States, in return for which he gave her legal advice and counsel as to immigration matters and agreed to file certain papers in order to effect the change of immigration status from tourist to permanent resident.
“8. That notwithstanding the foregoing, the Respondent never filed any papers on behalf of Mrs. O’Donald and never returned the said money.
“9. That the Respondent’s failure to file any papers on behalf of Mrs. O’Donald resulted in her being placed in a delinquent status with the Immigration and Naturalization Service and subjected her to deportation.
“10. That Mrs. O’Donald believed the Respondent to be an attorney licensed to practice in this state and relied upon such fact.
“11. That the Respondent admits to having prepared immigration forms for others on numerous occasions and to having received $10.00 to $25.00 for the completion of each such form, the last such matter having been handled by the Respondent during the week prior to this hearing.
“12. That the Respondent by business card and stationery has held himself out to the public as qualified to handle immigration matters.
“13. That the preparation of forms to effect a change of immigration status requires legal training and familiarity with immigration laws and the failure to properly prepare and file such documents may result in deportation of the individual involved.
“14. That the completion of official immigration forms by the Respondent for a substantial fee, as here, implies to the individual that the Respondent is competent and qualified to attend to such legal matters and to fully protect the individual.
“15. By his own admission, the Respondent has no training in immigration matters and is unqualified to give advice or counsel in such matters.”

Additionally, the Referee made the following recommendations:

“A. That ARTURO DOMINADOR MORENO-SANTANA be found to have engaged in the unauthorized practice of law within the State of Florida.
“B. That Respondent be restrained and enjoined from the preparation of immigration and naturalization forms for others with or without charge, from advertising or holding himself out to perform such services, and from otherwise engaging in the practice of law within the State of Florida.
“C. That the Respondent be found to be in contempt of the Supreme Court of this State.
“D. The Respondent be fined for such contempt of Court and that such further punishment be imposed as the Court shall deem necessary and appropriate under the circumstances.”

The record and the Referee’s report have been examined by this Court. We hereby approve the Referee’s finding of guilt and agree that the foregoing conduct on Respondent’s part constitutes the unauthorized practice of law. Furthermore, we adopt the Referee’s recommendations, find that Respondent is in contempt of this Court and assess a fine against him in the amount of two hundred and fifty dollars ($250.00) to be paid to the Clerk of this Court plus the costs of these proceedings. It is further ordered that Respondent, Arturo Dominador Moreno-Santana, be and he hereby is permanently enjoined from engaging in the unauthorized practice of law.

It is so ordered.

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

      . State ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed. 2d 428 (1963).


author: ENGLAND, Justice.

text:
    Gerald A. LEWIS, as Comptroller and Commissioner of Banking of the State of Florida, Petitioner, v. JUDGES OF the DISTRICT COURT OF APPEAL, FIRST DISTRICT, of the State of Florida, Respondents.
    No. 47063.
    Supreme Court of Florida.
    July 17, 1975.
    Rehearing Denied Dec. 2, 1975.

      Howard Horowitz, Gen. Counsel, Miami, and William B. Corbett, Jr., Clinton H. Coulter, Jr., and Fred O. Drake, III, Asst. Gen. Counsels, Tallahassee, for petitioner.
    Sam Spector and Cynthia S. Tunnicliff, of the Law Office of Sam Spector, Tallahassee, for respondents.
   ENGLAND, Justice.

This is an original proceeding in our court seeking to prohibit the judges of the First District Court of Appeal from reviewing certiorari petitions filed in that court by two groups with bank charter applications pending before petitioner. Our jurisdiction is based on Article V, Section 3(b)(4) of the Florida Constitution.

We issued an order directing the judges to show cause why they should not be prohibited from entertaining the petitions, and we have received their return.

Factual Background

The background facts giving rise to this proceeding date from December 27, 1974. On that date the incumbent State Banking Commissioner, petitioner’s predecessor in office, issued a “Conditional Approval Order” to each of two groups seeking to establish a new bank in Florida. The Order directed to proposed American Bank of Melbourne (“American”) granted authority to “organize a new banking corporation . . . upon compliance with the following conditions:

“(1) Insurance of deposits by the Federal Deposit Insurance Corporation.
(2) Fixed Asset Investment: Investment in land and building limited to 50% of capital and surplus representing statutory limitation. Total fixed asset investment, including furniture, fixtures and equipment, limited to 50% of combined capital, surplus and undivided profits. All leases to have prior approval of this office.
(3) Articles of Incorporation to be filed with Secretary of State within six months after approval by the Federal Deposit Insurance Corporation. This requirement may be subject to one six months extension upon written request to this office.
(4) Opening to be accomplished within six months after approval by the Federal Deposit Insurance Corporation. Extensions may be granted at the discretion of this office.”

The Order directed to proposed Mariner Bank of Tarpon Springs (“Mariner”) granted similar authority upon compliance with the following conditions:

“(1) Approval for membership in the Federal Reserve System.
(2) Fixed Asset Investment: Investment in land and building limited to 50% of capital and surplus representing statutory limitation. Total fixed asset investment, including furniture, fixtures and equipment, limited to 50% of combined capital, surplus and undivided profits. All leases to have prior approval of this office.
(3) The selection of a qualified Operations Officer (Cashier) subject to the prior approval of this office.
(4) Articles of Incorporation to be filed with Secretary of State within six months after approval by the Board of Governors of the Federal Reserve System. This requirement may be subject to one six months extension upon written request to this office.
(5) Opening to be accomplished within six months after approval by the Board of Governors of the Federal Reserve System. Extensions may be granted at the discretion of this office.”

On January 7, 1975, petitioner took office as the new Banking Commissioner of Florida (“Commissioner”). On January 17, petitioner notified American and Mariner (“the banks”) of his intention to adopt an emergency rule which would allow him, in his official capacity, to revoke any Conditional Approval Order for a new bank. The banks were also notified that their Conditional Approval Orders would be revoked on January 20 when the emergency rule would be filed and become effective. The notification stated that the Commissioner did not intend his action as a decision on the merits of the banks’ applications. On January 20, the rule was filed with the Secretary of State and the banks’ Orders were formally revoked.

On February 18, the banks filed identical petitions for certiorari with the First District Court of Appeal seeking a review of the Commissioner’s rule and revocations. After consolidation of the petitions by the district court, the Commissioner moved to dismiss both suits. His motion was denied, and a subsequent request for rehearing was similarly denied. Petitioner filed his request for a writ of prohibition here, and after oral argument we granted our order to show cause.

Issues

The principal issue for our consideration is whether the First District Court of Appeal has jurisdiction to review the emergency rule and the orders of revocation issued by the Commissioner. In order to resolve that question, we must first determine whether the 1961 or the 1974 version of Florida’s Administrative Procedure Act governs the Commissioner’s acts.

Florida’s current Administrative Procedure Act (“the new act”) was enacted by 1974 Legislature to become effective (for most purposes) on January 1, 1975. Section 3 of the Act (Section 120.72(2), Florida Statutes (1974)), provides for an orderly transition of administrative proceedings from the prior, repealed administrative procedure act (“the old act”), as follows:

“(2) All administrative adjudicative proceedings begun prior to January 1, 1975 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.”

In determining whether the old act or the new act applies to this proceeding, we are called upon to define the term “administrative adjudicative proceeding” as used in the transition rule under the new act. The new act contains a number of definitions, but it has none which provides any guidance to that terminology. We believe the legislative policy for that omission was deliberate, and that the source of the term can be traced through the new act’s evolution.

The concepts of the new act, and virtually all of its provisions, were first developed by the Florida Law Revision Council in the exercise of its statutory responsibility to examine Florida’s statutes for defects, to recommend needed reforms, and to recommend new laws needed to bring Florida law into harmony with modern conditions. On March 9, $974, the Council adopted a wholly revised act in draft form in order to “remedy massive definitional, procedural and substantive deficiencies in existing law.” One important feature of the Council’s draft act was an attempt to eliminate rigidity which had developed in the old act through acts of the legislature, applications of the state’s agencies and interpretations by the state’s courts. Some of the rigidity was attributable to an “unthinking adherence to ‘rule-making’ and ‘adjudication’ procedures, as if they were wholly distinct and distinguishable.” The draft act expressly addressed this goal by rejecting the former notion of distinctive agency “adjudications” in favor of a range of procedures designed to focus on the extent to which agency decisions affect substantial interests. This more modern concept was fully embraced by the 1974 Legislature and built into the new act.

The Council’s draft act, which was adopted with minor changes by the Florida House of Representatives on April 17, 1974, contained no transition provision comparable to Section 120.72(2), Fla.Stat. (1974), and it nowhere contained the term “administrative adjudicative proceeding.” That provision of the new act had its genesis in a conference committee of the Florida Legislature. The conference committee report, unfortunately, offers no insight intcfc the reason for the adoption of this provision.

The old act, however, contained a Part entitled “Administrative Adjudication Procedure”, for which the expressed legislative intent was “to establish minimum requirements for the adjudication of any party’s legal rights, duties, privileges or immunities by state agencies.” Under that Part, “adjudication” was defined to mean an agency “proceeding” for the formulation of an order. In consideration of the placement of the term “adjudication proceeding” in the new act, and the manner of its adoption, it appears obvious to us that the purpose of this terminology was to avoid the invalidation of “adjudication” proceedings in progress under Part II of the old act. The term, therefore, necessarily derives its definition from the context of the old act. Our focus narrows, then, to an evaluation of the Department of Banking’s chartering processes under prior administrative law. An analysis of the old act will show that on January 20, 1975, the pending applications of American and Mariner were in an “adjudicative proceeding” under that act.

The definitions set forth in Part II of the old act made it abundantly clear that the entire process of granting new bank charters, from initial application to final approval, was an “adjudication”. That process (in the technical language of the old act) was an “agency proceeding” to “grant” an “order” conferring a “form of permission”. Under Section 120.72(2) of the new act, it follows that the bank char- * ter applications of American and Mariner are to be continued to conclusion under, and governed by, the provisions of the old act.

The preceding discussion does not apply to the Commissioner’s emergency rule adopted on January 20, 1975. That rule was promulgated after the effective date of the new act, and since there was no rule proceeding in process prior to 1975 its effect is controlled by the new act.

The Commissioner asserts an absolute right to revoke outstanding “conditional approval orders” under the old act. He contends, first, that all acts of his department prior to a final grant of approval are quasi-executive, interim actions not reviewable by any court. He also contends that there is no statutory authority for his predecessor’s grant of “conditional” approval, so that revocation was a gratuitous courtesy which merely provided formality regarding a prior act which inherently lacked legal effect. We agree that the Commissioner’s revocations are not reviewable in the district court, so that it is not necessary to reach his second contention.

We have consistently held that the acts of the Commissioner under the old act were quasi-executive, and as such not reviewable by certiorari in the district courts. Dickinson v. Judges of the District Court of Appeal, 282 So.2d 168 (Fla.1973) (involving a final grant of approval within the Commissioner’s powers), citing prior cases of like effect. Those authorities, coupled with the old act’s stricture that only “final orders” of an agency would be subject to judicial review, preclude the district court’s review of the banks’ petitions in this case.

A final question to be answered is whether the letters of revocation required the sanction of an emergency rule, since district court review of the rule would be an act of futility if they did not. Nothing in the Florida banking code authorizes conditional approval orders. We recognize the desire of bank applicants to know that their preliminary formation activities have met with departmental approval, and we do not fault the Commissioner for providing a mechanism for interim assurances of partial compliance. Section 659.03(2), Florida Statutes, provides, however, that “the department shall approve or disapprove the application, in its discretion.” The department has neither approved nor disapproved the applications of American and Mariner, and it is clear from their conditional approval orders that a number of significant events must take place before that approval could be given. If the Commissioner elects to notify applicants as a class or individually that they should not rely on a prior assurance because the department intends to develop additional facts before granting approval, we see no statutory impediment to his doing so. It follows that the Commissioner’s emergency rule was unnecessary.

We conclude, therefore,

(1) that all applications for bank charters which were pending before the Commissioner on December 31, 1974 are to be continued to a conclusion under the old Administrative Procedure Act (unless the department and the parties consent to use the new act);

(2) that the Commissioner’s letters of revocation, being quasi-executive acts under the old act, are not reviewable by cer-tiorari in the district court;

(3) that while the department’s. emergency rule is governed by the new act and reviewable by the district court, any declaration concerning the emergency rule would be an act of futility since the letters of revocation had independent legal effect; and

(4) that the district court should be prohibited from considering further the petitions of the banks.

The writ of prohibition requested by petitioner is granted, and the judges of the First District Court of Appeal are prohibited from considering further the certiorari petitions filed by American and Mariner.

ADKINS, C. J., and BOYD and OVER-TON, JJ., concur.

McCAIN, J., dissents.

      . Emergency rules may be promulgated by the Department of Banking under Section 120.54(8), Fla.Stat. (1974).

      . The emergency rule was accompanied by a statement of the Commissioner setting forth reasons for its promulgation and indicating that the pendency of 33 conditional approval orders of the predecessor Commissioner (of which American’s and Mariner’s were two) liad prompted its filing. Among the reasons given for the rule were (1) a lack of time to review 33 conditional approval orders before possible approval by federal authorities, (2) a desire to hold public hearings on each application, and (3) a need to secure additional factual material in light of changed economic conditions since the applications had been filed.

      . Chapter 74-310, Laws of Florida, now appearing as chapter 120, Fla.Stat. (1974).

      . Section 120.52, Fla.Stat. (1974).

      . Section 13.96, Fla.Stat. (1973).

      . Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, p. 3 (3/9/74). The work papers of the Council’s reporter, including five draft statutes and accompanying commentary, are filed and available in the library of the Florida Supreme Court and in the archives of the Law Revision Council.

      . Id. at p. 6.

      . Sections 120.57, 120.58, Fla.Stat. (1974).

      . H.R.Jour., 2d Reg.Sess. 352-56 (Fla.1974).

      . S.Jour., 2d Reg.Sess. 906, 913 (Fla.1974) ; H.R.Jour., 2d Reg.Sess. 1326, 1334 (Fla. 1974). Compare S.Jour., 2d Reg.Sess. 399-401, 550-63 and H.R.Jour., 2d Reg.Sess. 912-25 (Fla.1974), reflecting the bills adopted by the House and Senate before conference.

      . Section 120.20, Fla.Stat. (1973).

      . Section 120.21(2), Fla.Stat. (1973).

      . Section 120.21, Fla.Stat. (1973).

      . The record before us indicates that the banks have not consented to apply the new act, as Section 120.72(2) allows.

      . See Section 120.72, Fla.Stat. (1974). It is also clear that judicial review of the rule is governed by the new act and available in the First District Court of Appeal. See Sections 120.68(2), 120.52(2) and 120.54(8), Fla.Stat. (1974). A review of the rule, or tlie emergency conditions requiring its quick adoption, is of no avail to the banks, however, if, as the Commissioner contends, his letters of revocation can be given independent legal effect not predicated on the authorizing rule.

      .Section 120.31(1), Fla.Stat. (1973). Clearly the revocation of a conditional approval order does not constitute “final” action in these agency proceedings. The process of chartering banks begins with an application and ends with a grant or denial of final approval to open a banking business in a particular place. The effect of the Commissioner’s revocation letters was to put the bank applicants in the same position they occupied between the time their applications were filed and the conditional orders were issued, namely in the status of pending applicants for a bank charter.

      . The banks based their arguments on the notion that the conditional approval orders were in reality bank charters. From this premise they argue that their “charter” are property rights which cannot be divested, that the letters of January 20, 1975 commenced a new adjudication, revocation proceeding, that the new act applies to govern these proceedings, and that non-final orders are appealable under that act. The fallacy in their position is the premise. The Commissioner’s conditional approval orders obviously do not constitute bank charters under the Florida bank code. Section 659.05, Fla.Stat. (1973), entitled “Authorization to engage in banking or trust business” describes the stops preliminary to entering a banking business. That section makes it abundantly clear that the first requisite for forming a bank, even before incorporation, is “approval of the application for authority to organize by the commissioner.” The approval to which this refers is described in Section 659.03(2), Fla.Stat. (1973).

      . The department could change or add additional requirements for pending applicants, thereby indirectly revoking any prior letter of conditional approval. See Section 659.04(1), Fla.Stat. (1973), authorizing the department to set financial requirements for banks.


author: ADKINS, Chief Justice.

text:
    Linda A. DINKEL, Petitioner, v. Darrell G. DINKEL, Respondent.
    No. 46764.
    Supreme Court of Florida.
    Aug. 14, 1975.

      James W. Grimsley of Smith, Grimsley, Barron & Remington, Ft. Walton Beach, for petitioner.
    D. Michael Chesser, Ft. Walton Beach, for respondent.
   ADKINS, Chief Justice.

Upon petition for certiorari to review the opinion of the District Court of Appeal, First District, at 305 So.2d 90 (1974), conflict appears with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed. Grant v. Corbitt, 95 So.2d 25 (Fla.1957); Green v. Green, 254 So.2d 860 (Fla.App. 1st, 1971); and Harrison v. Harrison, 165 So.2d 235 (Fla.App. 2nd 1966).

The only contested issue before the trial court in this proceeding for dissolution of marriage was the matter of custody of the parties’ three-year-old child.

In any child custody proceeding, the welfare of the child is the prime consideration. Green v. Green, supra. Although a spouse has committed adultery, it may nonetheless be in the best interest of the child that custody be awarded to that spouse. Anderson v. Anderson, 205 So.2d 341 (Fla.App. 2nd, 1967). As stated in McAnespie v. McAnespie, 200 So.2d 606, (Fla.App. 2nd, 1957):

“The fact that a mother is guilty of adultery does not necessarily disqualify her to have the custody of her children. Although she may have been a bad wife, she may be a good mother. The moral tinfitness of a mother must be such as has a direct bearing on the welfare of the child, if it is to deprive her of the custody of the child.” (Emphasis supplied) (p. 609)

The District Court of Appeal in the case sub judice recognized these rules. Although the District Court referred to the “moral unfitness” of the mother, there is nothing in the opinion which indicates that such “moral unfitness” had any “direct bearing on the welfare of the child.” There is conflict and we have jurisdiction.

Petitioner admitted having sexual relations over a period of time with one man while she was married to respondent. During the time petitioner was having an affair with a co-teacher, respondent was overseas in military service. Although the sexual activity was carried on while the subject child was present in the two-bedroom mobile home, it was never performed in front of the child.

Although contradictory testimony was presented at the trial, the record contains competent substantial evidence to show that petitioner is an attentive, intelligent, loving and responsible parent whose adulterous activity did not adversely affect the child.

After holding two separate hearings and listening to twelve witnesses present over 230 pages of testimony, the trial judge entered a judgment awarding custody of the child to petitioner giving extensive visitation rights to respondent. In the final judgment, the trial judge found that although petitioner had committed adultery, it is in the best interest of the minor child that custody be awarded to petitioner.

The District Court reversed the award of custody of the minor child to petitioner and found that, because petitioner had committed adultery in the presence of her child, she was an unfit mother, and therefore not entitled to custody.

Adultery may or may not have a direct bearing on the welfare of a child of tender years. Engaging in sexual intercourse with someone other than one’s spouse in the same household where the subject child is present does not necessarily affect the child’s welfare. Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. Where the trier of fact determines that the spouse’s adultery does not have any bearing on the welfare of the child, the act of adultery should not be taken into consideration in reaching the question of custody of the child.

Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse. Even if the trier of fact determines that the spouse’s adultery has an adverse effect on the child, other factors, i. e., cruelty, neglect, parental unfitness, exhibited by the other spouse, may be present to tip the scales back in favor of the award of custody to the adulterous spouse. In the latter event, it may be that the best interest of the child would be served by awarding custody to a third party.

While Fla.Stat. § 61.13(2), F.S.A., provides for equal consideration of the spouses in the award of custody, it is still the law in this State that, other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody. Anderson v. Anderson, 309 So.2d 1 (Fla.1975).

It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. Green v. Green, supra; Harrison v. Harrison, supra. As stated in Grant v. Corbitt, supra:

“[Tjhis court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody.” 95 So.2d 25, p. 28,

Were this Court to sit as a trier of fact and hear all the evidence, we might have reached a conclusion different from that of the trial judge. However, neither this Court nor the District Court can substitute its judgment for that of the trier of fact, absent a finding of an abuse of discretion, which requires a lack of competent substantial evidence to sustain the findings of the trial judge.

In the case at bar, the trial judge heard extensive testimony and reached the conclusion that the child’s welfare would be best served by awarding custody to the petitioner. Without even finding an abuse of discretion, the District Court substituted its opinion for that of the trial judge as to which parent would best satisfy the welfare of the child. Absent a showing of abuse of discretion, which was not shown before the District Court or this Court, the order of the trial judge was not reversible.

Accordingly, the decision sub judice is quashed and the cause is remanded to the District Court with instructions to reinstate that part of the order of the trial court awarding custody of the minor child to the petitioner.

It is so ordered.

ROBERTS, OVERTON and ENGLAND, JJ„ DREW, Ret. J., and HENSLEY, Circuit Judge, concur.


text:
    THE FLORIDA BAR, Petitioner, v. Marco Tulio ESCOBAR, Respondent.
    No. 44004.
    Supreme Court of Florida.
    July 24, 1975.
    Norman K. Schwarz, Leonard Rivkind, Miami Beach, David W. Walters, Miami, Clifford L. Davis, Asst. Staff Counsel, and Richard C. McFarlain, Asst. Director, Tallahassee, for petitioner.
    Franklin D. Kreutzer, Wallace, Kreutzer & Breslow, Miami, for respondent.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule and charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides:

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section IS, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law . This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

We issued a Rule to Show Cause, to which Respondent filed his answer; thereafter, this Court appointed Judge Francis X. Knuck as Referee and directed that he hold such hearings and take such testimony as might be necessary to establish the facts of the case. After a hearing the Referee entered the following findings of fact:

“1. That this cause was properly brought before this Referee pursuant to the applicable provisions of the Florida Constitution and the Integration Rules of the Supreme Court.
“2. That Respondent, MARCO TU-LIO ESCOBAR, is not, and was not, at any time pertinent hereto licensed to practice law in the State of Florida or in any other jurisdiction of the United States. That said Respondent is sui jur-is and was at all times pertinent hereto a resident of Dade County, Florida.
“3. That it appeared from testimony taken that in the year 1972, Respondent, MARCO TULIO ESCOBAR, represented himself to one MARIA TRINIDAD GALDAMES, a/k/a MARIA TRINIDAD GOMEZ to be an attorney-lawyer in connection with said MARIA TRINIDAD GALDAMES seeking to obtain legal permission to remain in the United States under the applicable Immigration Laws.
“4. In connection therewith, the Respondent obtained for MRS. GAL-DAMES the 'police card’ for the usual fee of $2.00 and an additional $10.00 fee for servicing and did then and there advise MRS. GALDAMES that said card was in lieu of an immigration visa extension and was better proof of residence.
“5. That in connection with such pronouncements by Respondent, MRS. GALDAMES relied upon the legal advice given by Respondent concerning the laws of immigration and necessity bf having a police card in lieu of immigration visas etcetera.
“6. That all during this time, MRS. GALDAMES was led to believe by Respondent that he was a person trained in the field of law and was permitted, by law, to perform such legal services as MRS. GALDAMES required.
“7. Additional testimony was taken from KARLA TERESA LOPEZ MORALES, who testified that she was directed to Respondent for the purpose of being assisted in obtaining immigration extensions and visas. That upon meeting Respondent he examined her passport, required MRS. LOPEZ to leave it with him and to pay him a fee of $40.00 for him to get an extension on her behalf.
“8. Upon inquiry by MRS. LOPEZ, Respondent advised that he was a lawyer, and that he could obtain extensions because he worked with immigration.
“9. On several occasions thereafter, MRS. LOPEZ requested return of her passport from Respondent, to which Respondent replied that it was necessary for him to keep in connection with his efforts to obtain an immigration extension and visa for MRS. LOPEZ.
“10. MRS. LOPEZ further stated that on numerous occasions he discussed with Respondent the possibility of staying in the United States under different and separate immigration quotas. Respondent further showed documents to the effect that he was authorized to arrange visas, weddings and residences and that he was a ‘Notario Publico.’
“11. That in connection with the supposed efforts of Respondent, MRS. LOPEZ paid additional sums of money all for naught.
“12. That neither MRS. GAL-DAMES or MRS. LOPEZ received any services, either legal or otherwise from Respondent in connection with the payments made.
“13. Notwithstanding the two incidents in which the Respondent received monies, no services, either legal or otherwise were performed on behalf of the said witnesses although said payments were made to Respondent upon the belief of said witnesses that Respondent was in fact a lawyer and/or Notario Publico, to-wit: an attorney licensed to practice law.
“14. That the Respondent by holding himself out to the public as being qualified (legally), to handle immigration matters and to perform said services requiring legal services and familiarity with the laws of the United States concerning immigration and such failure to do so properly may cause irreparable harm to the person dealing with Respondent, such harm consisting of deportation, criminal indictment and/or pecuniary law [loss?].
“15. That he offered no witnesses but offered into evidence Plaintiff’s exhibits 1, 2, 3, and 4, being telephone books, newspaper and magazine advertising and Notary Public advertising.”

Additionally, the Referee made the following recommendations:

“A. That Respondent, MARCO TU-LIO ESCOBAR, did, in fact, hold himself out to be an attorney within the meaning of such definition to the persons from whom he obtained remuneration and such holding out and payment constituted the unauthorized practice of law in the State of Florida.
“B. That said Respondent, MARCO TULIO ESCOBAR, be enjoined, restrained and otherwise restricted in engaging in the type of work described, to-wit: immigration law for any person or persons with or without payment thereof, or from holding himself out to perform such services for any person or persons within the State of Florida.
“C. That the Supreme Court of this State, based upon the foregoing allegations find that the Respondent was in contempt of court and so adjudicate Respondent.
“D. The Respondent be fined for such contempt of Court and that such further punishment be imposed as the court shall deem necessary and appropriate under the circumstances.”

The record and the report of the Referee have been examined by this Court. We hereby approve the Referee’s finding of guilt and agree that the foregoing conduct on Respondent’s part constitutes the unauthorized practice of law. Furthermore, we adopt the Referee’s recommendation that Respondent be held in contempt of court and assess a fine against him in the amount of two hundred and fifty dollars ($250.00) to be paid to the Clerk of this Court plus the costs of these proceedings. It is further ordered that Respondent, Marco Tulio Escobar, be and hereby is permanently enjoined from engaging in the acts complained of and from otherwise engaging in the unauthorized practice of law in the State of Florida.

It is so ordered.

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

      . State ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla.1962), judgment vacated on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).


text:
    THE FLORIDA BAR, Petitioner, v. Jesus Secundino RETURETA-CABRERA, Respondent.
    No. 44003.
    Supremo Court of Florida.
    July 30, 1975.
    E. Richard Alhadeff, Leonard Rivkind, Miami Beach, Marshall R. Cassedy, Executive Director, Richard C. McFarlain, Tallahassee, David W. Walters, Miami, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for petitioner.
    Neal R. Sonnett, Bierman & Sonnett, Miami, for respondent.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule and charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides:

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section IS, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law. . ..” This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

We issued a Rule to Show Cause, to which Respondent filed his answer; thereafter, this Court appointed Judge Francis X. Knuck as Referee and directed that he hold such hearings and take such testimony as might be necessary to establish the facts of the case. After a hearing before the Referee the parties negotiated a formal settlement and presented the following stipulation to the Referee:

“STIPULATION TO FACTS AND TO ENTRY OF INJUNCTION
“THE FLORIDA BAR, Petitioner, and JESUS SECUNDINO RETURETA-CABRERA, Respondent, stipulate to the following facts:
“1. That this cause is properly brought by the Petitioner pursuant to the provisions of the Florida Constitution and the Immigration Rules of the Supreme Court.
“2. That the Respondent is sui juris, a resident of Dade County, Florida, and is not and never has been licensed to practice law in the State of Florida or any other jurisdiction within the United States.
“3. That during the year 1971 the Respondent engaged in the unauthorized practice of law in the State of Florida, and in particular, Dade County, Florida, doing the following acts:
“a. Maintaining an immigration consultant business, wherein he appeared in immigration cases, either in person or in the preparation of or filing of documents, papers, applications or petitions on behalf of other persons before the Immigration Service.
“b. By undertaking to represent one RICARDO CALDAS-MANRIQUE and CONSUELO CALLE-de CALDAS, before the United States Immigration Service in a deportation matter.
“c. By soliciting one JOSE ENRIQUE URENA-CRUZ to represent him before the United States Immigration Service.
"d. By undertaking the representation of one MELVA GARNICA, before the United States Immigration and Naturalization Service.”

Based thereon, the Referee made the following recommendation:

“THIS CAUSE comes on the stipulation of facts for the entry of injunction by and between the Florida Bar and [Respondent],
“This Court recommends:
“1. That JESUS SECUNDINO RE-TURETA-CABRERA be found to have engaged in the unauthorized practice of law within the State of Florida.
“2. That JESUS SECUNDINO RE-TURETA-CABRERA be restrained and enjoined from the preparation of Immigration and Naturalization forms for others, with or without charge, from advertising or holding himself out to perform such services, and from otherwise engaging in the practice of law within the State of Florida.”

The record and the report of the Referee have been examined by this Court. We hereby approve the Referee’s finding of guilt and adopt his recommendation that Respondent be restrained from the unauthorized practice of law. We do, therefore, issue a permanent injunction restraining Respondent from the preparation of immigration and naturalization forms for others, with or without charge, from advertising or holding himself out to perform such services, and from otherwise engaging in the practice of law within the state of Florida.

It is so ordered.

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

      . State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).


text:
    Robert HUCKEBA, Petitioner, v. STATE of Florida, Respondent.
    No. 46223.
    Supreme Court of Florida.
    July 30, 1975.

      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause is before us on a petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision in Huckeba v. State, 299 So.2d 104 (Fla.App.2d 1974), is one which involves a question of great public interest.

Petitioner was informed against for grand larceny. He pled not guilty, but was found guilty by the jury, and was sentenced to five years. The trial court denied the petitioner’s requested jury instruction under Florida Rule of Criminal Procedure 3.390(a) as to the maximum penalty for said crime. The Second District affirmed per curiam and certified the question of whether the language of the above rule is mandatory or merely directory.

The identical question was certified to this Court in Johnson v. State, 308 So.2d 38 (Fla.1974). Therein, we found the language of the rule to be directory and not mandatory. Thus, the granting or denying of a request for such an instruction lies within the discretion of the trial judge.

We have found the petitioner’s other points to be without merit. Accordingly, the writ of certiorari is discharged.

It is so ordered.

ADKINS, C. J., ROBERTS, BOYD, McCAIN and OVERTON, JJ., and MELTON, Circuit Judge, concur.

      . Winston v. State, 308 So.2d 40 (Fla.1974) was also before us on the same certified question and was decide on the authority of Johnson, supra.


author: BOYD, Justice. ENGLAND, Justice

text:
    GULF OIL COMPANY et al., Petitioners, v. William H. BEVIS et al., Respondents, and McKenzie Tank Lines, Inc., et al., and Motor Fuel Carriers, Inc., Intervening Respondents.
    Nos. 45152 to 45154, 45169, 45156.
    Supreme Court of Florida.
    Oct. 17, 1975.
    Rehearings Denied Dec. 4, 1975.

      Edward C. Adkins and William D. Keet-tel, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for Gulf Oil Co., Shell Oil Co. and Exxon Co.
    James E. Wharton and David J. Fuller, Akerman, Senterfitt, Eidson & Wharton, Orlando, for Fleet Transport Co., Inc.
    George L. Varnadoe, Holland & Knight, Tallahassee, for Union Oil Co. of California.
    William L. Weeks and Donald R. Alexander, Tallahassee, for the Florida Public Service Commission.
    W. Guy McKenzie, Jr. and Thomas F. Panebianco, Carswell, McKenzie, Dean & Owen, Tallahassee, for McKenzie Tank Lines, Inc.
    Edwin L. Mason, David B. Erwin and Philip S. Parsons, Mason & Erwin, Tallahassee, for Motor Fuel Carriers, Inc.
    Richard H. Wilson, Tampa, for Redwing Carriers, Inc. and Petroleum Carrier Corp. of Florida, Inc., amicus curiae.
   BOYD, Justice.

These causes are before us on petitions for writ of certiorari to the Public Service Commission.

In these consolidated cases we are primarily reviewing Order No. 11045 of the Public Service Commission, dated November 6, 1973, which order changed the incentive rate of shippers from fifteen percent to five percent. Also before us is Order No. 11221 which denied petitioners’ request, for reconsideration of Order No. 11045. Supersedeas was posted pending this review.

The crucial question is whether the Public Service Commission acted according to law in changing the incentive rate from fifteen percent to five percent in Order No. 11045. Objections to the prior fifteen percent discount came from trucking companies which were, generally, too small to enter into such agreements. They complained that discrimination against them arose by unfair competition because shippers would use the big transportation companies which were able to provide service at cut-rates. After taking testimony and relying upon its own knowledge of conditions, the incentive rate change was made by the Respondent Commission.

Petitioners argue that the Commission acted without competent and substantial evidence before it. It was argued that the effect of Order No. 11045 was to substantially eliminate incentive rates, since shippers probably would not agree to use a vehicle one hundred hours per week for a mere five percent reduction in rates.

Petitioners rely upon this Court’s definitions of competent and substantial evidence in Public Service Commission proceedings, which definitions still control. In 1931 in a major case, Florida Motor Lines, Inc. v. State Railroad Commission, this Court said:

“ . . .If there is substantial competent evidence that is legally sufficient to support the findings and conclusions, and no rule of law was violated in the proceedings, and the whole record does not show an abuse of authority or arbitrary action, the findings and conclusions of the commission will not be set aside even though the reviewing court might have reached different conclusions on the evidence. . . . ”

In the much-cited case of De Groot v. Sheffield, this Court defined what it meant by “competent substantial evidence” when used in the context of judicial review of agency action:

“We have used the term ‘competent substantial evidence’ advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion ... In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed . . . We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent.’ . . . ”

We have applied the above standards to the evidence in the record and feel the Commission had competent and substantial evidence along with its own knowledge and expertise to arrive at a legally sufficient conclusion in the matter. It is our opinion that reasonable men could have reached this or a different result, but in the absence of a showing of insufficient evidence or of a departure from the essential requirements of law, we are compelled to sustain the orders of the Commission.

Section 350.12(2)(m), Florida Statutes, provides:

“ . . . Every . . . order heretofore or hereafter made by the commissioners shall be deemed and held to be within their jurisdiction and their powers, and to be reasonable and just

Thus, the order on review carries a presumption of correctness. Further, the scope of this Court’s review and the petitioners’ burden has been enunciated on a number of occasions by this Court. It was succinctly summarized in the case of Tamiami Trail Tours, Inc. v. Carter as follows :

“ . . . It is only in those instances, as we have said on many previous occasions, where it is made clearly to appear to us that the Commission has done án illegal or unauthorized act, has exceeded its jurisdiction or failed to accord with the essential requirements of the law, that we are authorized to interfere with its actions. It is indeed a narrow corridor through which the petitioner must pass and we should be most circumspect not to transgress its limitations. Proper restraint in this connection on the part of this Court clearly preserves the true historical purpose of the Courts and leaves the Commission the power effectively to function within its limited field of operation under the Constitution and Statutes.”

The Public Service Commission is a creature of the Florida Legislature and its duties are primarily administrative, although it performs many quasi-judicial functions. If it is not doing the will of the Legislature as to public policy or if it is not otherwise serving the public as intended, it becomes a legislative function to modify its course of conduct. It is only in those limited instances in which violations of the legal standards mentioned above occur that this Court may modify or reverse its actions. We find no basis in the record to quash or change Public Service Commission Order No. 11045 or any other matters presently before us.

Accordingly, the petitions for writ of certiorari are denied.

It is so ordered.

ADKINS, C. J., ROBERTS, J., and FERRIS, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion, with which OVERTON and SUNDBERG, JJ., concur.

ENGLAND, Justice

(dissenting).

I respectfully dissent. This proceeding was initiated at the request of the conference of petroleum haulers, in order to obtain a 10% increase in all of their regulated rates. Subsequent to the commencement of the proceeding and at the request of one conference member, the Commission was asked to eliminate incentive rates entirely. The Commission eventually ruled that all rates except the incentive rate should be increased by 10%. The latter was reduced from 15% to 5%.

In the posture of this proceeding, those who sought to eliminate incentive rates have the burden of proof with respect to that change in the existing rate structure. That burden is not met by unsupported opinion testimony of those advocating a result. Even in an administrative proceeding, some relevant evidence must be developed to sustain the agency’s conclusions.

The record of the Commission proceeding in this case indicates that the opponents of incentive rates produced no probative evidence whatsoever, and that the Commission impermissibly fashioned relief equivalent to revocation upon unfounded expressions of personal opinion. The Commission has essentially acknowledged as much. After describing the pure testimony of independent dealers who oppose incentive rates, and after reciting that the record was essentially devoid of supportive figures or evidence, the Commission stated in Order No. 11221:

“We are faced, then, with opposing contentions on the part of two different segments of the public served by petroleum common carriers. The large major oil companies want to retain the 15% volume incentive discount rate while the smaller, independent petroleum marketers feel the incentive plan is discriminatory and that they cannot hope to get the’ lower hauling rate due to allocation and other current supply problems. Gasoline and fuel oil supplies are generally controlled by the major oil companies. It appears the independents are being squeezed on one end by supply problems and, on the other end, by the necessity of paying a 15% higher hauling rate than their major oil company competitor. The present allocation of fuel supplies by major refiners limits an independent marketer’s ability to increase volume. Under allocation he cannot build sufficient gallonage to qualify for the 15% discount volume incentive hauling program.”

These recitations, buttressed by concessions in the Commission’s brief, departed from the record of this proceeding in order to relieve the plight of small, independent marketers. The Commission’s fear for their ability to survive and compete in today’s energy-short economy is commendable. The Commission may not, however, depart from the essential requirements of law in a contested administrative proceeding in order to decide interesting social questions. The Commission, like all other agencies of government, is obliged to protect the public interest by using lawful procedures.

It may be in the interest of the general public — small, independent marketers and energy consumers as well — to eliminate incentive rates entirely, but that issue is not before us. The Commission will require a new evidentiary proceeding to reach that result. This proceeding contains no competent evidence whatsoever to support a reduction or elimination of incentive rates, and the order of the Commission reducing incentive rates to 5% should be quashed.

OVERTON and SUNDBERG, JJ., concur.

      . Article V, Section 3(b)(3), Florida Constitution ; Sections 350.641 and 366.10, Florida Statutes; Rule 4.1, Florida Appellate Rules.

      . Incentive rates are discount rates which the carriers may offer to shippers who agree to obligate themselves to use a carrier’s vehicle not less than 100 hours per week in shipping his product. The discount has been 15% less than the otherwise prescribed lawful rate.

      . 101 Fla. 1018, 1044, 132 So. 851, 862 (1931).

      . 95 So.2d 912, 916 (Fla.1957).

      . 80 So.2d 322, 324 (Fla.1955).

      . See Clay Utility Co. v. Jacksonville, 227 So.2d 516, 518 (1st DOA Fla.App.1969).

      . The opponents’ witnesses were not qualified as “experts” on incentive rates. Each acknowledged the lack of any experience using them.

      .The evidence is uncontroverted that a 5% incentive rate is tantamount to none at all.

      .In its brief to this Court, the Commission candidly concedes that “reliance upon [its] ratemaking expertise was necessary to reach the 5% rate and certainly its judgment played a large part, but that is necessarily the function of the Commission.” As good as that judgment may be, it is no substitute for competent or substantial evidence.

      . See Florida East Coast Ry. v. King, 158 So.2d 523, 525 (Fla.1963).

      . The scope of our review does not permit an opinion as to whether the existing 15% incentive rate should be increased or maintained on the basis of the evidence which was before the Commission.