text:
    The CITIZENS OF the State of FLORIDA, Petitioner, v. Paula F. HAWKINS, Chairman, William T. Mayo, Commissioner, and William H. Bevis, Commissioner, as and constituting the Florida Public Service Commission, et al., Respondents.
    No. 51399.
    Supreme Court of Florida.
    Feb. 16, 1978.

      Larry Levy, Public Counsel, and Peter A. Knocke, Associate Public Counsel, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, Donald R. Alexander, Staff Counsel, and Joseph A. McGlothlin, Staff Counsel, Tallahassee, for Florida Public Service Commission, respondent.
    John Robert Jones, Columbus, Ohio, Hugh C. Macfarlane, Tampa, Wilton R. Miller, Tallahassee, James V. Carideo, Jr., and James F. Bell, Tampa, for General Telephone Co. of Florida, respondent.
   ENGLAND, Justice.

Public counsel for the State of Florida asks us to review a rate increase awarded to General Telephone Company by the Florida Public Service Commission. The only aspects of the Commission’s decision which are challenged in this proceeding are the Commission’s use of a year-end rate base, rather than an average year rate base, and the Commission’s application of a so-called “subsidiary approach” to the computation of General Telephone’s income tax expense for the test year, rather than a “consolidated approach”.

In mid-1976, General Telephone sought a rate increase from the Commission of approximately $71,000,000, pursuant to Section 364.05, Florida Statutes (1975). Public counsel and several other interested parties intervened in the proceeding, and extensive public hearings were conducted in the area serviced by General Telephone. In due course the Commission’s staff recommended approval of a rate increase aggregating approximately $46,000,000, after which the Commission, with the chairman dissenting, approved a rate increase of approximately $41,000,000.

Among other matters, the dissent criticized the use of a year-end rate base and the application of a subsidiary approach in calculating the company’s income tax expense, estimating that a $5.8 million and $3.2 million saving, respectively, would accrue to ratepayers by use of an average rate base and a consolidated approach. In challenging the same rulings here, public counsel contends that the company’s revenue increase should be reduced by nearly $13 million. General Telephone and the Commission, appearing in defense of the rate award, argue that the Commission’s rulings on these two issues are consistent with established principles of law and accounting, and that they are properly supported by competent substantial evidence.

Year-End Rate Base

Public counsel’s basic contention in this proceeding is that the allowance of a year-end rate base has been routinely permitted by the Commission since 1968, in contravention of our directive that this rate-making tool should be used only in “extraordinary” situations. City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968). Public counsel has selected the allowance of a year-end rate base for General Telephone as typical of the Commission’s consistent pattern in responding to utilities’ requests for this “extraordinary” accounting procedure, and has attempted to show that the allowance in this case is unsubstantiated by any factual findings of extraordinary growth or circumstances. Both the Commission and General Telephone defend the allowance on a record that they contend supports findings of both attrition and plant expansion, two features they suggest justify use of a year-end rate base. They also challenge public counsel’s basis for showing in this proceeding that the Commission has been guilty of approving rote year-end rate base awards. Our analysis of the respective arguments of the parties persuades us that public counsel’s contentions are well-taken.

The test year or period is an analytical device used in rate-making proceedings to compute current levels of investment and income in order to determine the amount of revenue that will be required to assure the company a fair rate of return on its investment. Gulf Power Company v. Bevis, 289 So.2d 401 (Fla.1974). In Gulf Power, we recognized that because “[rjates are fixed for the future rather than for the past,” test year data may be adjusted “in order properly to reflect typical conditions in the future period for which the rates [are] being fixed.” Use of a year-end rate base, rather than the more traditional average rate base, is one method by which the Commission adjusts any imbalance between the test-year data and the known future needs of the utility.

Rate base is the total amount which a utility has invested in capital items to provide its service. The ratio of the company’s net income to its rate base provides its rate of return. Since the level of investment reflected on the company’s books may vary during its test year period, the rate of return is susceptible of variations attributable to the choice of an average or a year-end rate base — the rate of return appearing to be lower when rate base at year end exceeds the yearly average.

To offset the effects of intra-year rate base fluctuations, and to ensure that the figures employed in computing the rate of return accurately reflect a company’s capital position, regulatory authorities have traditionally calculated the rate base as the average investment during the test year. Since it rests on the assumption that, with minor adjustments for known changes, the relationship between investment and income during the test period will remain unchanged, this method of computation provides a relatively dependable measure of predictability as to future conditions in times of market stability and orderly economic growth.

It is apparent, however, that the average rate base approach can produce a distorted picture of future conditions when the company is experiencing extraordinary growth due to rapidly increasing demands for its services, as in periods of great population influx, or when other factors are forcing investment costs upward without a concomitant increment in revenues. This latter phenomenon, commonly referred to as “attrition”, is principally a by-product of inflation. To compensate for the problems of extraordinary growth and attrition, regulatory bodies have developed several methods of adjusting rate computations, one of which is to measure investment at the end of the year, including property under construction, rather than taking the test period average.

The year-end rate base was first utilized by the Commission in Florida in 1953. Re: Florida Power Corp., 99 P.U.R. 129 (1953). This Court approved its use in the City of Miami case. We carefully stressed, however, that the year-end rate base is to be regarded as a deviation from the norm, and that it should properly be employed only in the most exceptional of cases:

“We wish to make it clear that in not disturbing the use of the year-end method ... in fixing rates in these cases rather than average investment during the test year, we do so because of the strong unrebutted evidentiary showing that . . . utilities are endeavoring to cope with extraordinary needs for their services due to abnormal population and economic growth conditions within their service areas.
. [I]t is our belief that in the absence of the most extraordinary or emergency conditions or situations, average investment during the test year should be the method employed by the Commission in determining rate base. Our study of the subject discloses that average investment during the year is the better choice of methods and we commend it to the Commission in future eases — -and suggest it should not be departed from except in the most unusual and extraordinary situations where not to do so would result in rates so low as to be confiscatory to the utility.”

Notwithstanding our admonition, a review of the Commission’s decisions indicates that, with one exception, a year-end rate base has been applied in every major electric and telephone utility case to come before it since 1968.

General Telephone and the Commission argue that the combined effects of company growth (requiring plant expansion to meet increasing consumer demands) and attrition (due to increased operating costs brought on by inflation) necessitate the application of a year-end rate base for this, as well as other Florida utilities. As evidence of this need, they point to the fact that General Telephone has not earned its authorized rate of return at any time since 1973 and that, notwithstanding the consistent use of a year-end rate base, major utilities have been repeatedly forced to return to the Commission for rate relief during the past nine years. Distilled to its essence, respondents’ position is that so long as Florida continues to experience high levels of population growth and inflation, the year-end rate base should properly be the rule rather than the exception in rate-making determinations.

We perceive in respondents’ rationale for the year-end rate base a concern more for the effects of attrition than for evidence of extraordinary or unusual growth. For example, the Commission states, after concluding with little discussion that comparative statistics reflect extraordinary company growth:

“We also observe the basic proposition that the use of a year-end rate base may be necessary and appropriate notwithstanding the fact that growth in certain categories may not be unusual or extraordinary. . . . The three types of attrition affect public utilities and occur whenever inflation is present irrespective of the growth rate that may be experienced . . . . There are, then, clear and compelling circumstances when a mismatch between investment and revenues is required.even though extraordinary growth rates may not exist . [T]he record discloses that ... attrition [has] had a pervasive effect on the Company and the use of a year-end rate base is clearly required . . . and our decision shall rest upon the application of the same.”

In holding that the use of a year-end rate base may be justified in the absence of extraordinary growth, the Commission clearly departed from the rationale of our decision in the City of Miami case.

Our review of the record indicates that the Commission’s concern for the erosive effect of attrition on the company’s ability to earn its fair rate of return is indeed well-founded. We do not, however, conclude from that fact alone, as the Commission did, that a year-end rate base “is the most practical way by which to alleviate the problem.” Rather, we hold that a separate attrition allowance is the appropriate tool. For one thing, attrition is more easily quantifiable than growth. An example is this case, where the Commission awarded General Telephone a separate attrition allowance for increased plant expansion, in the form of a rate base increase of approximately $20,600,000. For another, we ensure a more workable basis on which to review a rate award if we require independent determinations of growth and of attrition. By this means we avoid the dual difficulties encountered here of guessing what record evidence of attrition supports the year-end rate base and whether the Commission would have used that base if attrition had been isolated from growth. In future rate cases, and on remand here, these uncertainties will be eliminated by having the Commission predicate its decision regarding the use of a year-end rate base solely on considerations of extraordinary growth, and by requiring all adjustments for attrition to be encompassed within a separate allowance.

Income Tax Effect

General Telephone is a wholly-owned subsidiary of General Telephone & Electronics (GTE), a nationwide conglomerate of utility and other diversified corporations. General Telephone has filed a consolidated federal income tax return with GTE. In computing the amount of federal income tax expense to be considered in determining General Telephone’s net operating revenue for the test year, the Commission was unable to ascertain from the company’s books a particular dollar amount for these taxes — there is no such figure because income taxes are paid by the parent and allocated by accounting entries among GTE’s various subsidiaries. In the absence of a specific dollar figure available from the books of General Telephone, the Commission applied its traditional “subsidiary approach” and computed an allowance for federal income tax expense equal to the hypothetical tax which would have been paid if General Telephone had filed a separate federal income tax return.

The effect of this computation, according to public counsel, is to treat the capital structure of General Telephone as consisting entirely of equity held by GTE, ignoring the fact that GTE’s capital structure is an admixture of debt and equity. Public counsel contends that this is misleading, resulting in overcharges to General Telephone’s ratepayers, because the actual dollars paid in federal income tax on behalf of General Telephone are computed from a debt-equity mix in the capital structure of GTE. He asserts that a failure to recognize the parent’s debt-equity mix in the computation of tax effect produces “double leverage”, permitting General Telephone to receive an allowance for income tax expense greater than the actual income tax liability for which it is properly responsible under GTE’s consolidated return. The dollar difference between actual tax payments on General Telephone’s behalf by GTE and the hypothetical tax for which the ratepayers will be charged is alleged to be $4,755,560.

Both the Commission and General Telephone defend the subsidiary method of calculating tax effect on the ground that the choice of proper accounting treatment is discretionary with the Commission. They maintain that public counsel may not rely on the Commission’s recent order directing Southern Bell Telephone and Telegraph to compute tax effect based on a consolidated approach, since in that case Southern Bell also consolidated its capital structure for rate base computations. They further assert that the Commission’s action here is consistent with Southern Bell because in this case the Commission has approved a subsidiary approach for the rate base computation, as it did for the tax effect, and the former was approved without public counsel’s objection. Respondents do not, however, suggest why a subsidiary approach should not be used for one purpose and a consolidated approach for the other, and the only reasoning offered to support parallel treatment is a declaration of the need for consistency which appears in specially concurring opinions authored by the prevailing commissioners.

After weighing the arguments presented and attempting to discern a rationale for a rule of consistency, we are unable to conclude with the majority of the Commissioners that the use of the subsidiary approach for determining cost of capital automatically dictates the use of the same approach for tax effect calculations. Each determination must be based on specific independent findings supported by competent substantial evidence. See Section 120.59(1), Florida Statutes (1975); International Minerals and Chemical Corp. v. Mayo, 336 So.2d 548, 552-53 (Fla.1976). There was no such independent finding in this case, and what evidence there is in the record supports the consolidated approach as being more accurate. Accordingly, we are compelled to reverse the Commission on this issue. Section 120.-68(10), Florida Statutes (1975).

For the reasons expressed, we remand this case to the Commission to adjust General Telephone’s rate award by application of the consolidated approach to the computation of federal income tax expense, and to reconsider the use of a year-end rate base for General Telephone in light of the principles enunciated.

It is so ordered.

ADKINS, Acting C. J., BOYD, HATCH-ETT and KARL, JJ., concur.

      . Re: Petition of General Tel. Co. of Florida, Order No. 7669, Docket No. 760464-TP (CR) (Fla.Pub.Serv.Comm’n 1977). The office of public counsel was created by Chapter 74-195, Laws of Florida, now codified in Sections 350.-061-.0614, Florida Statutes (1975). Having been granted the right to intervene in General Telephone’s rate application proceeding, public counsel is authorized to seek a review of the Commission’s final decision in this Court. Art. V, § 3(b)(3), Fla.Const.; §§ 350.0611(3) and 366.10, Fla.Stat. (1975); § 120.68(1), Fla.Stat. (1975).

      . Public counsel notes that, although the Commission used an average rate base in one case which came before it shortly after the City of Miami decision, the year-end rate base has otherwise been uniformly applied in over thirty major electric and telephone utility cases decided by the Commission since 1968.

      . 289 So.2d at 404. The usual form of adjustment, and the type approved in Gulf Power, is an allowance for items which can be classified as “known changes which will occur within a reasonable time after the end of said period". 289 So.2d at 404.

      . See generally Jones, Judicial Determination of Public Utility Rates: A Critique, 54 B.U.L. Rev. 873 (1974).

      . In its brief, the Commission explains that the two most commonly used methods of computing average rate base are “to add the ending balances for the 12 months comprising the test period plus the preceding month and divide by thirteen, or to take the beginning and ending balances and divide by two.”

      . See United Tel. Co. v. Mayo, 345 So.2d 648, 650 n. 1 (Fla.1977).

      . See, e. g., Re: Florida Power Corp., 99 P.U.R. 129, 134 (1953).

      . Id.

      . Other methods include a separate attrition allowance added to the rate base, as was also done by the Commission in this case, and an upward adjustment in the allowable rate of return. For a discussion of these and other methods, see C. Phillips, The Economics of Regulation 243-44 (rev.ed.1969).

      . City of Miami v. Florida Pub. Serv. Comm’n, 208 So.2d 249, 258 (Fla.1968).

      . See Appendix to petitioners’ main brief. The Commission’s use of a year-end rate base has been challenged in only two cases since 1968. In Shevin v. Yarborough, 274 So.2d 505, 511 (Fla.1973), we upheld the Commission’s determination that, because Florida Power & Light was “the fastest growing electric utility in the United States,” it would be “completely unrealistic . . to say that a year-end rate base is not valid and proper.” In Citizens of Florida v. Mayo, 335 So.2d 809 (Fla.1976), a concurring opinion responded to public counsel’s contention that the use of a year-end rate base constituted an exercise of discretion in excess of the Commission’s lawful authority by stating that public counsel had “failed in his burden of demonstrating that the Commission acted unreasonably under the circumstances of the . . . request for interim relief.” 335 So.2d at 810 (Sundberg, J., concurring).

      .Commissioner Mayo obviously recognizes that year-end rate base has already become the rule. In his concurring opinion he states:
      “The use of a year end rate base is consistent with the approach that has been followed by this Commission in cases such as this for 24 years. . . . [T]he use of an average rate base would represent a clear departure from the principles which we have adhered to over the years.”

      . General Telephone had requested two special allowances for plant expansion attrition, one based on proposed capital investments for the 12-month period following the test year and another based on construction projects placed in service within 90 days after the end of the test year. Following the strict requirement for out-of-period adjustments which is discussed in note 3 above, namely that they must reflect “known” changes, the Commission rejected the first requested allowance. The Commission accepted a dollar allowance for known additions to plant within 90 days of the end of the test year, which the Commission could verify and which it had used in other telephone proceedings. It rejected the “proposed” capital investment allowance, among other reasons, as both speculative and incapable of audit verification.

      . Interest on debt is deductible for federal income tax purposes, while dividends on stock are not. Public counsel argues that tax computations which disregard debt, as in the subsidiary approach, understate deductions actually taken in computing the tax dollars which are ultimately paid by GTE and then allocated by bookkeeping entries to General Telephone (and to other subsidiaries).

      . Re: Southern Bell Telephone & Telegraph Co., Order No. 7018, Docket No. 74805-TP, 12 P.U.R.4th 252,262 (Fla.Pub.Serv.Comm’n 1975).

      . In one concurring opinion, Commissioner Mayo states that because the order “specifically rejected the use of GTE’s consolidated capital structure for determining General’s rate of return costs, . . consistency dictates that the tax effect of the parent company debt not be used in this proceeding.” In the other, Commissioner Bevis concludes that “[sjince we have rejected the use of a consolidated capital structure in this case, it simply would be inappropriate to take into consideration the tax effect of the parent company debt.”

      .In its rate award order, the Commission nowhere identified a record basis for preferring the hypothetical computation of tax on the subsidiary approach over a calculation on the consolidated approach. Only one witness testified as to which would more accurately reflect actual tax payments made by GTE, and his testimony was unrebutted. All discussion in the Commission’s rate award order concerning this witness’ testimony is directed at his treatment of the double leverage effect of General Telephone’s consolidation on the company’s capital structure for rate of return purposes.

      . Actualities, which in this case would reflect actual federal tax payments, are always to be preferred over hypotheticals such as the subsidiary approach procedures. See Re The New York Telephone Co., 7 P.U.R.4th 496, 506 (Conn.P.U.C.1974); Re The Seymour Water Co., 97 P.U.R.3d 315, 318 (Conn.P.U.C.1972): “[W]hile the stockholder of the applicant company is entitled to a fair rate of return, . [the utility] may not earn in excess of a fair rate of return by claiming a tax charge that is larger than the actual liability therefor.”
      The Commission recognized a preference for actualities in rejecting the company’s proposed allowance for estimated capital investment. See note 13 above. While noting General Telephone’s poor track record for estimating projected main station growth, the Commission observed the different effect which projections might have as compared with “actual” station gains.

      . This rate base issue is intertwined with the Commission’s selection of nationwide, as opposed to intra-state, growth statistics. Public counsel and the dissenting commissioner reflect less growth for General Telephone by using comparative figures from independent telephone companies in Florida. We decline to enter into this dispute. The appropriate bases for comparative growth, both in terms of external referents and choice of account items to be compared, are properly determined by the Commission in the exercise of its rate-making discretion.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    James F. TAYLOR, Jr., etc., Petitioner, v. TAMPA ELECTRIC CO., etc., et al., Respondents.
    No. 50049.
    Supreme Court of Florida.
    Feb. 16, 1978.

      John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, for petitioner.
    James V. Lau, of Holland & Knight, Tampa, for respondents.
    Fred W. Baggett, General Counsel, Tallahassee, for Florida Ass’n of Court Clerks as amicus curiae.
   BOYD, Justice.

We have before us a petition by James F. Taylor, Jr., Clerk of the Circuit Court for Hillsborough County, for certiora-ri to the District Court of Appeal, Second District. We have jurisdiction because the decision of the District Court in this cause affects a class of constitutional officers: Clerks of the Circuit Courts of this State. The issue presented by the petition is whether a circuit court clerk may exact a commission on funds disbursed to eminent domain defendants which had been deposited in the court registry through the supplemental “quick taking” proceedings of Chapter 74, Florida Statutes.

Under the authority of Chapter 73, Florida Statutes, Tampa Electric Company, a public utility, filed in the Circuit Court in Hillsborough County a petition to exercise its power of eminent domain. In its petition the utility sought to avail itself of the provisions of Chapter 74, Florida Statutes, which give eminent domain petitioners the right to take possession and title of the land to be condemned by way of a supplemental proceeding, in advance of final judgment in the main proceeding. A sum of money double the value of the utility’s estimate of the land in issue was deposited by the utility in the court registry, as ordered by the Circuit Court pursuant to Section 74.051(2). The utility directed the Clerk of the Court to refrain from exacting a commission from the defendants for the funds disbursed to them out of the registry. After disbursement to the defendants and final judgment, the utility requested a refund of the remainder of its deposit in the registry. The Clerk did not attempt to exact a commission on the refund, but he demanded payment by the utility of $1,378.82 as a commission on the funds disbursed to the defendants. Under protest the utility paid the commission and then moved the Court for an order directing the Clerk to return it. The Court entered the order and on appeal by Circuit Clerk Taylor the Second District Court of Appeal affirmed. Taylor v, Tampa Electric Co., 335 So.2d 349 (Fla.1976).

In affirming the lower court order the District Court referred to City of Sarasota v. Burch, 192 So.2d 9 (Fla.2d DCA 1966). It was held in that case that a clerk was prohibited from collecting a commission on sums paid to eminent domain defendants from registry funds deposited in a “quick taking” proceeding. Burch based its holding on Section 74.05, Florida Statutes (1965), which reads:

“. . . [N]o sum paid into the registry of the court pursuant to this chapter shall be charged with commissions or poundage.”

The foregoing statute clearly forbade the exaction of a commission on any sum paid into the court registry pursuant to the “quick taking” provisions of Chapter 74, Florida Statutes. But in 1967, after the Burch decision, Section 74.051(3) was amended by Chapter 67-370, Laws of Florida, to prohibit the exaction of a clerk’s commission on “quick taking” sums “refunded to the petitioner” rather than on all “quick taking” sums “paid into the registry.” Circuit Court Clerk Taylor argued before the District Court that, since the statute’s amendment, Clerks are no longer prohibited from exacting commissions on sums paid into the registry in a Chapter 74 proceeding except for those refunded to the eminent domain petitioner, and, therefore, it was proper to exact a commission on that portion of the utility’s deposit disbursed to the defendants. The District Court held otherwise because Section 74.051(3) had been amended a second time to authorize Clerks to invest “quick taking” deposits and to provide that the interest from such investments be credited to the county secondary road fund. See Chapter 70-365, Laws of Florida. The Court reasoned that since the second amendment allowed Clerks to receive income from monies on “quick taking” deposits and since this amendment occurred in 1967, the same year as the first amendment,

“. . . the legislative intent in changing the language of Fla.Stat. § 74.051(3) was to allow the clerk of the court to make investments and not to authorize the collection of commissions.” 335 So.2d at 350.

Circuit Clerk Taylor now renews his argument that the present statute does not prohibit exaction of commissions on funds disbursed to “quick taking” defendants. His position is supported by a brief filed by the Florida Association of Court Clerks as a friend of the Court. The Association’s brief stresses the detrimental impact on the offices of Circuit Court Clerks statewide that the District Court’s decision is likely to have.

Section 28.24, Florida Statutes (1975), sets out a schedule of charges for services rendered by the offices of the Circuit Court Clerks. Among the services to be charged is the receipt of money into the registry of the Court. Since the language of the statute is mandatory, “The Clerk of the Circuit Court shall make the following charges for services rendered by his office,” (emphasis ours) any exception to the statute should be clear. Section 74.051(3), Florida Statutes, upon which the utility pins its refusal to pay the commission does not except “quick taking” sums disbursed to eminent domain defendants from deposits received in the court registry. In fact, the section does not even mention such disbursements. Rather the section’s exception is limited to sums “refunded to the petitioner.”

The District Court’s reliance on the “investment” amendment misses the mark in two ways. First, the office of the Clerk receives no income from the investment’s earnings. All such interest is earmarked for the county’s secondary road fund. Second, the “investment” amendment was not enacted in the same year as the amendment which narrowed the exception to the Clerk’s charge. The latter amendment was enacted in 1967, Chapter 67-370, Laws of Florida, while the former amendment was not enacted until three years later in 1970. Chapter 70-365, Laws of Florida.

Section 74.051(3) by its plain language does not except from Clerk charges funds disbursed to defendants. The Legislature should be taken to intend what it plainly states by statute unless circumstances can be shown which substantiate intent to depart from the plain language. Tampa Electric Company has not shown such circumstances and the District Court’s reliance on the “investment” amendment for establishment of such circumstances is mistaken. The District Court of Appeal erred in affirming the order of the trial court.

The Clerk of the Hillsborough County Circuit Court, therefore, has the statutory authority to exact from the “taker” a commission on those “quick taking” monies deposited in the registry which are disbursed to the landowner. Exaction of a commission on the monies deposited in the “quick taking” proceeding that are refunded to the taker is clearly in violation of Section 74.051(3), Florida Statutes, and, of course, is forbidden.

One point remains to be clarified. Article X, Section 6(a) of the Florida Constitution requires for the taking of private property that “full compensation” be “paid to each owner or secured by deposit in the registry of the Court and available to the owner." The constitutional provision mandates full compensation to the landowner. As applied to this case, it means that the commission may not be deducted from those deposited funds to be disbursed to the landowner. Rather, it is simply computed on the basis of the disbursed funds and paid by the taker, either out of the remainder of the deposit or by another separate means. Under no circumstances may the commission be required to be paid, directly or indirectly, by the landowner.

The opinion of the District Court is quashed and the cause is remanded with directions to vacate the order to return the commission.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla.Const.

      . See Art. V, § 16, Fla.Const.

      . See Chapter 361, Florida Statutes.

      . The amendment deleted: “. . . [N]o sum paid into the registry of the court pursuant to this chapter shall be charged with commissions or poundage.” And, in its place, inserted: “No sum refunded to the petitioner from the registry of the court pursuant to this chapter shall be charged with commissions or poundage.”

      . § 28.24(14), Florida Statutes.


author: PER CURIAM.

text:
    Samuel Essie BARKET, Petitioner, v. STATE of Florida, Respondent.
    No. 51192.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Rehearing Denied April 11, 1978.
    Albert J. Datz and Samuel S. Jacobson, of Datz, Jacobson & Dusek, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Following his conviction for receiving stolen property, Samuel Barket appealed to the First District Court of Appeal challenging the validity of former Florida Standard Jury Instruction 2.06, insofar as it allowed the jury to find him guilty without proof of his actual knowledge that property in his possession was stolen. The district court affirmed Barket’s conviction and certified its decision to us as having passed upon a question of great public interest. We accept jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution.

The district court correctly rejected each of Barket’s challenges to the jury instruction, and properly affirmed his conviction. When our instruction on the type of proof necessary to attribute to a defendant knowledge that goods in his possession were stolen is considered with all other instructions given to the jury relative to the state’s burden of proof, we cannot say that there is error which requires a reversal of Barket’s conviction. Forrest v. State, 133 Fla. 310, 182 So. 849 (1938). The certified question is answered accordingly, and the decision of the district court is affirmed.

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

ADKINS, J., dissents.

      .The challenged portion of the jury instruction provides:
      “It is not necessary for the state to prove that the defendant knew beyond a reasonable doubt that the property had been stolen. It is sufficient if the circumstances of the transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and, nevertheless, the defendant did buy it, receive it or aid in concealing it.” This instruction has been amended to reflect changes to former § 811.16, Fla.Stat. (1973), which now appear in § 812.031, Fla.Stat. (1975).

      . The district court’s opinion is reported at 342 So.2d 526.

      . Having determined the certified question, we decline to entertain other issues raised here by petitioner but resolved by the district court.


author: HATCHETT, Justice.

text:
    KONSLER STEEL COMPANY, Petitioner, v. John PARTIN, Respondent.
    No. 50238.
    Supreme Court of Florida.
    Feb. 20, 1978.

      Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for petitioner.
    Michael D. Jones of Jones & Bishop, Alta-monte Springs, for respondent.
   REVISED OPINION

HATCHETT, Justice.

This case involves the operation of Florida’s Mechanic’s Lien Law, Chapter 713, Florida Statutes. The question we must decide is whether a materialman who fails to furnish timely notice to owner, but who nevertheless files a claim of lien and furnishes notice within 90 days from the date he last furnished materials, is entitled to share in a final payment improperly made by the owner by virtue of the owner’s failure to obtain a contractor’s affidavit. The Fourth District Court of Appeals answered this question in the negative in a decision reported at 336 So.2d 684 (Fla.4th DCA 1976). That decision directly conflicts with Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). Jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution. We reverse.

The facts are as follows: Respondent is the owner of property who contracted to have a building constructed on his property by a person not a party to this litigation and who will hereinafter be referred to as ‘contractor.’ Petitioner, Konsler Steel Company, was a supplier of materials to the job between June 7 and June 13, 1974, but was never compensated for those materials by the contractor. Consequently, on September 5, 1974, petitioner filed a claim of lien against respondent’s property in the amount of $6,415. Preliminary notice to owner was mailed the same day. The claim was filed within 90 days from the final furnishing of material as is required by Section 713.08(5). Preliminary notice, however, was not made within the statutory time frame. Section 713.06(2)(a) states:

. notice must be served before commencing or not later than 45 days from commencing to furnish his services or materials .

Prior to receipt of notice, respondent paid all sums due under the contract except $1,164.46. Final payment was made without obtaining the statutorily required contractor’s affidavit. See Section 713.-06(3)(d)(l).

After receipt of notice, respondent paid to petitioner the remaining $1,164.46 and filed suit to cancel its lien. Petitioner counterclaimed for foreclosure and both parties moved for summary judgment. The trial judge ruled in favor of petitioner and ordered foreclosure. The Fourth District Court of Appeal reversed, holding that petitioner’s failure to comply with Section 713.-06(2)(a) prevented perfection of the lien. The Court further held that “ . strict compliance with the Mechanic’s Lien Statute is an indispensible prerequisite to seeking affirmative relief thereunder.” Partin v. Konsler Steel Company, supra, at 685.

We reverse the opinion of the District Court and adopt the opinion of the trial judge, which in essential part states:

Neither the Plaintiff [owner] nor the Defendant [materialman] has complied with Section 713.06, F.S. The Defendant did not timely serve the preliminary notice upon the owner and the Plaintiff owner did not require from his Contractor a final payment affidavit. Consequently, both the Plaintiff and the Defendant have called upon able counsel to extricate them from their respective predicaments.
In the leading case of Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), the Florida Supreme Court held that while a notice to the owner given in compliance with the time limitations provided in Section 713-06(2)(a) placed the lienor in a priority position, such a notice given after the expiration of the 45-day period could be the basis for perfecting a valid lien provided such notice was given within the requisite 90-day period and before the owner has properly paid that portion of the sums due under the direct contract to which such lienor would be entitled.

1800 North Federal Corporation v. Westinghouse Electric Supply Company, 224 So.2d 384 (4th DCA 1969); Moretrench Corporation v. Bronson & Veal Enterprises, Inc., 262 So.2d 206 (4th DCA Fla. 1972); Warren v. Bill Ray Construction Co., Inc., 269 So.2d 25 (3rd DCA Fla. 1972).

In the last cited case of Warren v. Bill Ray Construction Co., Inc., supra, 269 So.2d 25 at page 27 the District Court states:

“That delay in furnishing the preliminary notice did not vitiate the lien, but could affect the amount of recovery thereon. This is so because failure to file the preliminary notice within 45 days after the commencement date would operate to deprive the lienor of the priority which timely filing thereof would have assured, but the lien would be effective for recovery by the lienor (pro rata with others similarly situated) out of funds represented by progress payments or final payment not made prior to the filing of the preliminary notice (or which were not properly paid under the lien law. Section 713.06(3) Fla.Stat., F.S.A.) See Crane Co. v. Fine, Fla.1969, 221 So.2d 145, 153.” (Emphasis supplied)

In the case of Moretrench Corporation v. Bronson & Veal Enterprises, Inc., supra, 262 So.2d 206, at page 207, the Fourth District Court of Appeal stated as follows:

“If funds remained available after all lien-holders filing timely notice had been discharged, then the tardy lien-holder could also receive payment.”

In the instant case, the Plaintiff did not comply with Section 713.06(3)(d)(5), Florida Statutes, which requires that the owner shall retain the last payment due under a contract or ten per cent (10%) of the original contract price, whichever is larger, and further requires that said sum shall not be dispersed until the Contractor’s affidavit required under Section 713.06(3)(d)(l), Florida Statutes, has been delivered to the owner.

Section 713.06(3)(d)(6), Florida Statutes, provides that failure of the owner to comply with Section 713.06(3)(d)(5), supra, renders his property subject to the full amount of valid liens.
However, Section 713.06(3)(d)(6)(h), Florida Statutes, specifically limits the liability of the owner’s property only to the extent of retentions and improper payments.
The contract price was $25,164.46 and the last payment was to be twenty per cent (20%) of such amount or $5,032.89. Under Section 713.06(3)(d)(5), supra, the amount of $5,032.89 should have been withheld by the Plaintiff owner until he received the final payment affidavit of the Contractor. An owner can rely fully upon such an affidavit from the Contractor to the extent that it states there are no sums due any materialman or subcontractor and to the extent the Contractor has not received any notice of any lien claim. Crane Co. v. Fine, supra, 221 So.2d 145, at page 153.
In the instant case, the plaintiff owner only retained the sum of $1,164.64 and which sum the Defendant received, but the Plaintiff owner improperly paid without having required a contractor’s final payment affidavit the sum of $3,868.43 (the difference between the amount that should have been retained and the actual amount retained by the Plaintiff).
Consequently, the Court finds Plaintiff is liable to the Defendant only for the sum of $3,868.43.
The Plaintiff argues rather persuasively that the Defendant did not give the preliminary notice to the Plaintiff owner béfore filing its claim of lien and therefore its lien is invalid. In the instant case, the notice was served by mail shortly prior to the filing of the claim of lien. However, no notice is required for the lienor to share in the final payment as set forth in Crane Co. v. Fine, supra, 221 So.2d 145, at pages 150-153.

Accordingly, the opinion of the Fourth District Court of Appeal is quashed and the cause .remanded for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, ENGLAND, SUNDBERG and KARL, JJ., concur.

OVERTON, C. J., and BOYD, J., dissent.

ORDER

Counsel for Respondent having filed in this cause petition for rehearing, and it having been considered, it is ordered that the petition for rehearing is visited to the revised opinion and said petition is hereby denied.

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

BOYD, J., dissents.


author: ENGLAND, Justice.

text:
    STATE of Florida ex rel. CITY OF CASSELBERRY, Florida, a Municipal Corporation, Relator, v. Honorable Gerald MAGER, Spencer C. Cross, James E. Alderman, James C. Downey, Harry L. Anstead and James C. Dauksch, and Seminole County, Florida, Respondents.
    No. 51543.
    Supreme Court of Florida.
    Feb. 23, 1978.

      Ned N. Julian, Jr., of Stenstrom, Davis & McIntosh, Sanford, for relator.
    Joe Horn Mount, Seminole County Atty., and Gary Siegel, Asst. Seminole County Atty., Sanford, for respondents.
   ENGLAND, Justice.

By request for a writ of prohibition, we are asked by the City of Casselberry to prevent the Fourth District Court of Appeal from exercising jurisdiction to review an annexation of lands by Casselberry in Seminole County. For the reasons developed below, we have determined that prohibition is an appropriate remedy for the relief sought and that the writ should be issued.

Casselberry is a municipal corporation located within the boundaries of Seminole County, Florida. In January of 1977, the City Council of Casselberry adopted an ordinance annexing lands located in Seminole County into its corporate limits, in accordance with the voluntary annexation provisions of Section 171.044, Florida Statutes (Supp.1976). In an effort to obtain judicial review of the annexation of these lands, but being in doubt as to the appropriate forum in which to do so, Seminole County filed petitions for certiorari both in the Circuit Court of Seminole County and in the Fourth District Court of Appeal. The dual filings were made as a result of a patent inconsistency in the applicable statute for review, entitled “Appeal on annexation or contraction”, which provides that parties aggrieved by annexation under Chapter 171

“may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certiorari pursuant to s. 120.31.”

The directive for filing a petition in the circuit court conflicts with the reference to certiorari review pursuant to Section 120.31, because the latter section provides for review in the district court of appeal. The confusion is compounded by the fact that Section 120.31 was repealed during the same legislative term in which the referencing annexation review provision was adopted.

After various motions were filed by both Casselberry and Seminole County, the circuit court stayed its proceedings until the jurisdictional question could be determined by the Fourth District Court of Appeal. In due course the district court refused to quash Seminole County’s petition for certio-rari in that court, thus prompting Cassel-berry’s present request for a writ of prohibition from us to prevent the district court from exceeding its jurisdiction.

The arguments of the parties in this proceeding represent sophisticated attempts to make sense out of a statute which contains an irreconcilable internal conflict. It profits no one to restate those arguments here. A busy 1974 Legislature simply created an anomaly which we must clarify as best we can.

Based on our best estimate of the legislative intent, we find that the reference to “certiorari pursuant to s. 120.31” was intended to define the nature and scope of the review proceeding, but that the locale for annexation review was intended to be set, as the statute expressly directs, in the circuit court for the county in which the municipality or municipalities are located. We reach this conclusion principally on the basis of the Legislature’s specificity in describing the location for review. It is also persuasive, of course, that by doing so we avoid constitutional difficulties raised by Casselberry with regard to setting jurisdiction in the district courts.

At oral argument in this proceeding both parties requested that we address not only the location for annexation review, but also the form and scope of review. The request is reasonable, although again we must divine legislative will with no sure guidance. Despite the title reference to “appeal” and the attractive policy arguments suggested for treating annexation review as a full appeal as of right, we think it apparent that the Legislature intended to limit the review of voluntary annexations to the less rigorous analysis provided by certiorari review.

The district court erred in denying Cas-selberry’s motion to quash the petition for certiorari presented by Seminole County. The rule nisi in prohibition previously issued is made absolute, and the Fourth District Court of Appeal is prohibited from entertaining the petition for certiorari filed by Seminole County to review Casselberry’s voluntary annexation.

It is so ordered.

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

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

      . Art. V, § 3(b)(4), Fla.Const.

      . § 171.081, Fla.Stat. (1975).

      . Ch. 74-310, Laws of Florida, enacting § 120.-72(1), Fla.Stat. (1975). § 120.31 provided for judicial review under the 1961 administrative procedure act, which was repealed in its entirety by the 1974 enactment. The fact that § 120.31 has been repealed, however, does not render its provisions ineffective for the purposes of § 171.081. We have held that the repeal of one statute which the Legislature has by reference incorporated into another will not affect the referencing statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

      . We note that the Fourth District Court of Appeal has recently reached the same conclusion with respect to its lack of jurisdiction in a proceeding determined subsequent to the application for review in the case now before us. County of Seminole v. City of Lake Mary, 347 So.2d 674 (Fla. 4th DCA 1977).

      . A statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts. See, e. g., Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960).

      .Courts always endeavor to preserve statutes and to avoid constitutional issues. See Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641 (1944).


author: SUNDBERG, Justice.

text:
    Carmelos SOVERINO, Appellant, v. STATE of Florida, Appellee.
    No. 51681.
    Supreme Court of Florida.
    Feb. 23, 1978.

      Robert E. Jagger, Public Defender, and Robert Dillinger, Asst. Public Defender, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr. and C. Marie King, Asst. Attys. Gen., Tampa, for appellee.
   SUNDBERG, Justice.

Appellant has prosecuted an appeal in this Court following an order of the trial judge denying his motion to dismiss. Because the order upheld the validity of Section 784.07, Florida Statutes (Supp.1976), in the face of appellant’s constitutional challenge to the statute, this Court has jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

On November 27, 1976, appellant was arrested by officers of the St. Petersburg police department for the offense of disorderly intoxication. He was then transported to the police station to be booked. In the police station appellant struck a law enforcement officer in the mouth.

On December 13, 1976, a felony information was filed in the Circuit Court of the Sixth Judicial Circuit charging appellant with battery of a law enforcement officer pursuant to Section 784.07, Florida Statutes (Supp.1976). He was arraigned and pleaded not guilty.

On January 20, 1977, by a motion to dismiss, appellant challenged the constitutionality of Section 784.07 on the grounds that it reclassifies the offense of battery of a police officer from a misdemeanor of the first degree to a felony of the third degree, and that such reclassification in this instance is violative of equal protection of the law. The motion to dismiss was denied. Thereafter, appellant changed his plea to nolo contendere, specifically reserving his right to appeal the denial of the pretrial motion. Appellant was then sentenced to two years probation.

Appellant now contends that Section 784.07, Florida Statutes (Supp.1976), is vio-lative of his right to equal protection under the law because (1) it punishes more stringently those who commit assault or battery upon law enforcement officers or firefighters than those who commit the same act upon any other person, without there being any rational basis to support such disparity of treatment; (2) it vests unlimited discretion in the prosecutor to file, on identical conduct, either a felony or a misdemeanor information because the prosecutor may charge someone who commits an assault or battery upon a police officer under either Section 784.07, Florida Statutes (Supp. 1976), or Section 784.03, Florida Statutes (1975); and (3) it imbues the prosecutor with unlimited discretion to determine who constitutes a member of the class of “law enforcement officers” protected by the statute because the language of the statute specifically states that the term “law enforcement officer” is not limited to the officers enumerated in the statute. Because we find appellant’s arguments unpersuasive, we uphold the constitutionality of Section 784.07, Florida Statutes (Supp.1976), and affirm the order of the trial judge.

With respect to appellant’s first point, the test to be utilized in examining whether a statutory classification satisfies the Equal Protection Clause is whether it rests on some difference bearing a reasonable relation to the object of the legislation. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); State v. Canova, 123 So.2d 672 (Fla.1960). In the case sub judice, we find that such a reasonable relation exists. The statute reclassifies the offense only if the law enforcement officer or firefighter “is engaged in the lawful performance of his duties.” Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public. Thus, contrary to appellant’s assertion that the legislature has created “an elite class, of untouchables,” in reality it merely has passed a law which fosters the public safety and welfare. See Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Holley v. Adams, 238 So.2d 401 (Fla.1970).

With regard to his second point on appeal,- appellant notes that prior to the enactment of Section 784.07, Florida Statutes (Supp.1976), battery on a police officer constituted an offense under Section 784.03, Florida Statutes (1975), the misdemeanor statute. Since Section 784.03 was not repealed or modified by the enactment of Section 784.07, appellant suggests that the prosecutor may file under the felony or the misdemeanor statute. Appellant concludes this unbridled discretion in the prosecutor must invalidate the statute at issue. While we agree that the prosecutor has the discretion to charge under either Section 784.07, Florida Statutes (Supp.1976), or Section 784.-03, Florida Statutes (1975), when a police officer has been the victim of a battery, we cannot endorse appellant’s conclusion that such discretion creates a constitutional infirmity. The prosecutor is often free to charge the accused under one of a number of statutes which overlap or duplicate one another. See Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967). As this Court stated in Fayerweather v. State, 332 So.2d 21 (Fla.1976):

It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975), and Steele v. Mayo, 72 So.2d 386 (Fla.1954). Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender.

Id. at 22.

In sum, simply because the Government could have proven a violation by appellant of both Sections 784.03 and 784.07 but decided to prove its case under Section 784.07, appellant’s right to equal protection is not violated. See United States v. Coppola, 296 F.Supp. 903 (D.C.Conn.1969), 300 F.Supp. 932 (D.C.Conn.1969), aff’d, 425 F.2d 660 (2d Cir. 1969).

Appellant also distinguishes Section 843.-01, Florida Statutes (1975), which statute is entitled “Resisting officer with violence to his person,” from the enactment under which he was charged. Appellant maintains that while both statutes concern the impermissible touching of an officer, Section 843.01 requires the additional elements of knowingly and willfully resisting, obstructing or opposing the specifically designated class of officers by offering or doing violence to the person of the officer while the officer is in the lawful execution of a legal duty. Conversely, Section 784.07 subjects the accused to prosecution for a felony without regard to the seriousness of the injury which he causes. Appellant concludes that the requirement of violence is just and reasonable in that it is a workable attempt to protect the officers from serious injuries without overextending the scope of a felony level statute. Consequently, while appellant concedes that Section 843.01 falls within the legislative purview of legislating for the public health, safety, morals, or general welfare, he argues that Section 784.07 does not.

Sections 843.01 and 784.07 will frequently overlap, and a prosecutor is imbued again with the discretion to decide under which statute he wishes to charge. Although appellant is correct in noting that Section 843.01 contains different elements which must be proven, it does not necessarily follow that Section 784.07 falls outside the legislative authority to denominate conduct as criminal. For the reasons heretofore stated, the legislature was well within its reach in enacting the challenged statute. In those situations where an accused may be charged under either statute but the elements of Section 843.01 are difficult to prove, Section 784.07 effectively “closes the gap” by permitting prosecution under the latter statute.

Finally, appellant contends that the statute gives the prosecutor the additional discretion of determining who constitutes a law enforcement officer, thereby allowing him to decide who is within the purview of the increased penalty aspect of Section 784.07, Florida Statutes (Supp. 1976). Appellant points to the language of the statute which states that “the term ‘law enforcement officer’ includes, but shall not be limited to, any sheriff, deputy sheriff, municipal police officer, highway patrol officer, beverage enforcement agent, county probation officer, officer of the Parole and Probation Commission, and law enforcement personnel of the Game and Fresh Water Fish Commission and the Departments of Natural Resources and Criminal Law Enforcement.” (Emphasis added.) We reject appellant’s assertion. Under the well-established doctrine of ejusdem gener-is, where general words follow the enumeration of particular classes of persons, the general words will be construed as applicable only to persons of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown. See Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Dunham v. State, 140 Fla. 754, 192 So. 324 (1939); Children’s Bootery v. Sutker, 91 Fla. 60, 107 So. 345 (1926). This rule of statutory construction is based on the principle that if the legislature had intended the general words to be used in their unrestricted sense, they would not have made mention of the particular classes. 82 C.J.S. Statutes § 332, pp. 658-60 (1953). Accordingly, the prosecutor may charge under Section 784.07, Florida Statutes (Supp.1976), only those individuals specifically enumerated in the statute and those persons within the class of “law enforcement officers.”

Finding appellant’s arguments to be without merit, we hold the statute to be devoid of the constitutional deficiencies asserted and, accordingly, affirm the order of the trial judge denying appellant’s motion to dismiss.

It is so ordered.

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

      . § 784.07, Fla.Stat. (Supp.1976), reads:
      “Assault or battery of law enforcement officers or fire fighters; reclassification of offenses.—
      “(l)(a) As used in this section, the term ‘law enforcement officer’ includes, but shall not be limited to, any sheriff, deputy sheriff, municipal police officer, highway patrol officer, beverage enforcement agent, county probation officer, officer of the Parole and Probation Commission, and law enforcement personnel of the Game and Fresh Water Fish Commission and the Departments of Natural Resources and Criminal Law Enforcement.
      “(b) ‘Firefighter’ as used in this section shall mean any person employed by any public employer of this state whose duty it is to extinguish fires, to protect life or property, [or to enforce] * municipal, county, and state fire pre-
      * Note: Bracketed language substituted for “and the enforcement of” by the editors, vention codes as well as any law pertaining to the prevention and control of fires.
      “(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
      “(a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.
      “(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.”

      . We note that appellant might have an equal protection argument if a violation of the misdemeanor statute invariably constituted a violation of the felony statute. Palmore v. United States, 290 A.2d 573 (D.C.1972). In the instant case, a violation of § 784.03 would not invariably constitute a violation of § 784.07.

      . § 843.01, Fla.Stat. (1975), reads as follows:
      “Resisting officer with violence to his person. —Whoever knowingly and willfully resists, obstructs, or opposes any sheriff, deputy sheriff, officer of the Florida Highway Patrol, municipal police officer, beverage enforcement agent, officer of the Game and Fresh Water Fish Corn-mission, officer of the Department of Natural Resources, any member of the Florida Parole and Probation Commission or any administrative aid or supervisor employed by said commission, any county probation officer or any personnel or representative of the Department of Criminal Law Enforcement or other person legally authorized to execute process, in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . If the prosecutor is in need of guidance in determining what individuals fall within the class of “law enforcement officers,” he may look to § 790.001(8), Fla.Stat. (Supp.1976), wherein that term is defined.


text:
    STATE of Florida, Petitioner, v. Martin CARRIZALES, Respondent.
    No. 51788.
    Supreme Court of Florida.
    Feb. 23, 1978.
    Robert L. Shevin, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for respondent.
   SUNDBERG, Justice.

By petition for writ of certiorari, the State seeks review of a decision of the District Court of Appeal, Second District, reported at 345 So.2d 1113 (Fla. 2d DCA 1977), which is alleged to be in conflict with Snell v. State, 302 So.2d 770 (Fla. 1st DCA 1974), upon the issue of whether the trial judge must instruct the jury on Section 782.11, Florida Statutes (1975), when the accused’s defense is self-defense and where the trial judge instructs on the applicable degrees of homicide, excusable homicide, justifiable homicide, and self-defense. In Snell, the District Court of Appeal, First District, held that the trial judge was not required to instruct on Section 782.11 while in the instant cause, the District Court of Appeal, Second District, found that the judge is so required (Boardman, C. J., dissenting). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Respondent was charged by indictment with the first degree murder of Faustino Gonzalez. The homicide arose after respondent and a group of friends were joined by Gonzalez. All had consumed a substantial quantity of alcohol. As a result of such consumption, Gonzalez began firing a previously concealed revolver into the air, causing some apprehension among the group. '

Later in the day, Gonzalez and respondent engaged in a quarrel which resulted in a fistfight. The fight was stopped but Gonzalez continued to push and shove the respondent. Gonzalez then raised his revolver whereupon respondent ran to a nearby filling station. There, he met one Jose Lopez who drove him home. Respondent equipped himself with a rifle and returned to the general scene of the fight, parking some distance from where Gonzalez was situated. He then asked Lopez to inform Gonzalez that he wished to make friends. Lopez left to approach Gonzalez, however, before Lopez reached Gonzalez, respondent fired two shots at Gonzalez, one of which was fatal.

According to respondent’s testimony, his sole purpose in returning was to “make friends with Gonzalez.” He brought the rifle only to protect himself in the event Gonzalez again threatened him with his revolver. Respondent testified further that when he exited Lopez’s ear, he heard gunshots and saw Gonzalez aiming his pistol at him. Consequently, he was forced to fire at Gonzalez in self-defense. However, two witnesses for the State gainsaid this testimony, stating that Gonzalez was only talking to friends when he was shot.

During the charge conference, counsel for respondent requested a jury instruction on Section 782.11, Florida Statutes (1975). The trial judge denied respondent’s request for such instruction. However, he gave the standard jury instructions covering self-defense, excusable homicide, justifiable homicide, and manslaughter.

The jury rejected the respondent’s theory of self-defense and found him guilty as charged. By a separate sentencing proceeding, the jury recommended a life sentence. Respondent was adjudicated guilty of first degree murder and sentenced to imprisonment for life.

A timely direct appeal to the District Court of Appeal, Second District, resulted in a decision reversing and remanding for a new trial on the grounds that respondent was entitled to a jury instruction on Section 782.11, Florida Statutes (1975).

The competing philosophies as to whether an accused who relies on self-defense is entitled to an instruction on Section 782.11 are ably articulated by Judge McCord who concurred specially in Snell and by the majority opinion of the District Court of Appeal, Second District, in the instant cause. For the reasons enunciated by Judge McCord, we are persuaded by and therefore adopt the holding of the District Court of Appeal, First District, as the response of this Court in the instant cause. Judge McCord’s concurrence is set forth in pertinent part below:

Appellee contends that it was not the intent of this statute to embrace an unnecessary killing under a claim of self-defense. I agree. The foregoing statute was originally enacted by the legislature in 1868 and from my research, I have not found that it has ever been applied as appellant seeks to have it applied here. Throughout the years and in our present standard jury instructions, trial courts have included in their instructions upon the law of self-defense in homicide cases the following:
“Every person has the right to defend himself from a wrongful assault and, in doing so, may use such reasonable force as is necessary under the circumstances. But one who uses more force than is reasonably necessary to defend himself from attack, even though the attack be wrongful, by using more force than is reasonably necessary makes himself the aggressor and cannot justify his act as being in self-defense. A person is not justified in killing or inflicting great bodily injury upon another in order to protect himself from slight or insignificant injury . He cannot justify a killing in self-defense unless the circumstances were such that a reasonably cautious and prudent person situated as he was would have believed, and unless he did believe, that what he did was necessary to protect himself from death or great bodily injury.
A person cannot justify the killing of another on the ground of self-defense unless he has used all reasonable means within his power' and consistent with his own safety to avoid the danger without the necessity of such killing. If attacked by another, even though the attack be wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of killing his attacker without increasing his own danger . . .
In a first degree murder trial where the defense is self-defense, if the jury finds that the defendant unnecessarily killed the decedent, it can find him guilty of either first degree murder, second degree murder, or manslaughter. If, however, § 782.11, Florida Statutes were applicable in such a case and the court charged the jury thereon, the charge would create an erroneous impression in the minds of the jurors that if the defendant was not acquitted, he could only be found guilty of manslaughter. In view of the statute’s long history of not having been applied to modify the common law responsibility for the use of excessive force in self defense, I would not now construe it as doing so. The standard jury instructions on self-defense adequately cover an unnecessary killing under a claim of self-defense.

302 So.2d at 771-772.

Respondent raised additional points on appeal before the District Court of Appeal, Second District, which that court did not decide in view of its opinion requiring a new trial on the jury instruction issue. He reiterates those points in his brief before this Court. We decline to review those points not considered by the District Court of Appeal, Second District, but upon remand to that court, we trust that such points will be entertained.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Second District, is quashed, and this cause is remanded to that court for proceedings not inconsistent with the views expressed herein and for consideration of respondent’s remaining points on appeal.

It is so ordered.

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

      . § 782.11, Fla.Stat. (1975), reads as follows:
      “Unnecessary killing to prevent unlawful act. —Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”