text:
    J. D. ABSTON v. STATE of Mississippi.
    No. 50515.
    Supreme Court of Mississippi.
    Sept. 13, 1978.

      Cumbest & Cumbest, Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    A. F. Summer, Atty.Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice, for the Court:

J. D. Abston appeals from a conviction of murder and sentence of life imprisonment by the Circuit Court of Jackson County.

Appellant was indicted for murdering his ex-wife who was living with him and their four children at the time of her demise. Katherine Abston and the appellant were married for approximately fourteen years when they were divorced in 1968 and thereafter lived apart with the appellant caring for and supporting the children. In September 1975 she returned and resided in the Abston home in Gautier, Mississippi.

On the evening of July 24, 1976, Abston and his ex-wife quarreled and a vicious struggle ensued between them. During the course of the affray, the weapons at hand were used, including a knife, “coke” bottle, hammer, meat saw, razor and “grease gun.” The appellant directed the children, who were either observing or in the way of the struggle, to move to another room and he himself left through the back door. After waiting outside for some ten or twelve minutes, Abston reentered armed with a “grease gun” which he thought would frighten his ex-wife. Instead, according to him, she attacked him with a broken knife and he responded by striking her on the head with the “grease gun” and then with a meat saw he had obtained. Ultimately, the battle climaxed in the bathroom which the appellant had entered, according to his version, to tend a wound he had received from a knife wielded by his ex-wife when she followed and attacked him with something “shiny;” whereupon he pushed her backward and she fell into the tub and moved no more.

Mary Abston, the fourteen-year-old daughter of the couple, testified she was unaware who started the fatal fight although she did observe her father strike her mother with a glass, coke bottle, meat saw, and finally, the “grease gun” in the bathroom. At one time, she stated, her mother, bleeding from the head, came out of the bathroom and was later heard to call for help. She never saw her mother or father with a knife or razor blade in their hands. Regina, the thirteen-year-old daughter, also testified to the violence visited upon her mother by her father.

Casey Carr, a friend of the appellant, entered the Abston house that night but left after hearing loud noises. He returned to see the victim in the bathroom and it appeared to him that something was sticking from her head although he was unable to describe it. He testified that he saw the appellant enter the house with the “grease gun,” go into the bathroom, close the door and heard Mrs. Abston say she “wasn’t going to do it no more.”

On July 27, 1976, the Jackson County Sheriff’s Department first investigated a report that Katherine Abston was missing. Jackie Walker of that office talked with Abston that day after administering the Miranda warnings and explaining a “waiver of rights” form which the appellant signed. The following day several officers went to the Abston residence with a search warrant to collect evidence. Detective Cox testified he interrogated the appellant but ceased questioning when Abston asked for an attorney as well as indicated he wanted to talk to Assistant Sheriff Kennedy.

Although the testimony is confusing, it is apparent that prior to questioning by Kennedy the appellant asked other officers, and was permitted, to speak by telephone with his attorney, Arvis V. Cumbest, whom Ab-ston beseeched to come talk with him. According to Kennedy, the Miranda “rights” were administered before the interrogation and when Abston requested an attorney, he attempted to reach Cumbest but was unable to do so. Thereafter, according to Kennedy, they continued their conversation. “We just talked in general after he told me that he wanted his attorney and I didn’t question him any more after that concerning this. My independent recollection of what we discussed was politics and whatever. I didn’t stay in there with him the whole time ... He asked to speak with Mr. Cumbest, his attorney, before he made the statement to me in reference to the location of Katherine Abston.” While thus engaged, Kennedy stated Abston volunteered to show him the burial site of his ex-wife and her body was recovered. Although decomposition of the body prevented ascertaining the precise reason for the cause of death, the autopsy did reveal three lacerations upon the forehead.

The following afternoon Abston agreed to give Officers Walker and Cox a statement. Officer Walker testified that the appellant was again advised of his “rights” and executed a waiver after he had it read and explained to him. The tape-recorded and transcribed statement corroborated to a great degree the other testimony concerning the struggle between Abston and his ex-wife, her death and burial. Walker testified that he read the incriminating statement to Abston who understood and signed it on August 9, 1976.

The appellant filed a motion to suppress, contending his statements, including those leading to the body, were inadmissible because they were the result of “threats, promises, coercion, offer of reward and hope of leniency” and were therefore involuntarily made. He asserted also that he was deprived of counsel in violation of the Sixth Amendment, thereby invalidating both statement and confession.

The state assumed the burden of proof, on the motion and offered Officers Cox and Walker as witnesses in opposition to it. The sum of Walker’s testimony concerning coercion is that he gave the appellant his Miranda warnings on the first day of the investigation, which were understood by Abston, and discontinued the interrogation when Abston requested an attorney. And, the day after the body was found, he again advised Abston of his Miranda rights in the presence of Detective Cox and subsequently Abston’s statement was tape-recorded, transcribed and later signed by Abston. The recorded statement was given without threats or offer of leniency by either Cox or himself and was apparently understood because it was read to Abston and signed by him. This evidence was corroborated by Cox who testified, as did Walker, that Ab-ston’s statement concerning the location of the body was given to Assistant Sheriff Kennedy in a separate room and not in their presence.

The appellant and his attorney gave evidence in support of the motion. Abston testified that he requested an attorney after he had been in jail “a couple or so days.” He stated that upon being returned to the jail after going with Officers Walker and Cox to his home, Assistant Sheriff Kennedy advised him, while they were alone, that the best thing he could do, if he knew the location of the body, was to show it to him. According to Abston he then requested an attorney and Kennedy responded by telling him Cumbest did not have a home phone and that if he would reveal the whereabouts of the body, he would talk to the judge and “it would go pretty light on him;” whereupon Kennedy was directed to the construction site where the body was buried. The appellant then related that he was unable to read or write, having gone to school for only a very short time.

Attorney Cumbest, who had handled other legal matters for Abston, testified that he received a call from the sheriff’s department and talked with Abston by telephone. He stated Abston did not disclose his reason for needing an attorney, but only stated he was worried, scared and needed someone with whom to talk and he replied, “I’ll be right there. Give me an hour and I’ll be right there.” However, upon arriving at the sheriff’s office at about 4:30 p.m., and within the hour, he was informed that Ab-ston was not present, “that he had left several minutes ago with Larry Kennedy.” Although he drove about in search of Ab-ston, he was not located until approximately 10:30 that night. Cumbest testified: “I did not get to talk to him until the body had been found and he was in jail.”

Kennedy was not called as a direct or rebuttal witness by the state on the motion to suppress. Moreover, the record on the motion makes no explanation as to his absence, leaving Abston’s testimony uncontra-dicted that he was offered hope of leniency if he would disclose the whereabouts of his ex-wife’s body. After the motion to suppress was overruled, the cause was continued for ten days for trial.

The paramount issues raised by the assignments of error are whether the first statement and directions to the body were admissible into evidence and whether Ab-ston was deprived of counsel in derogation of his Sixth Amendment right so that the first statement and his confession the day following the location of the body were inadmissible.

In our opinion, the court erred in overruling the motion to suppress because the testimony of the state’s witnesses, as well as Abston’s, placed the appellant and Assistant Sheriff Kennedy in isolation at the time the uncóntradicted suggestion of leniency was made to Abston and the only witness who could rebut such testimony was Kennedy and he was not offered by the state as a witness on the motion.

In Agee v. State, 185 So.2d 671 (Miss.1966), we stated:

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).
(185 So.2d at 673)

See also Hicks v. State, 355 So.2d 679 (Miss.1978); Curry v. State, 328 So.2d 328 (Miss.1976); Booker v. State, 326 So.2d 791 (Miss.1976); White v. State, 306 So.2d 299 (Miss.1975); Younger v. State, 301 So.2d 300 (Miss.1974); Rowell v. State, 239 So.2d 917 (Miss.1970); Stevens v. State, 228 So.2d 888 (Miss.1969); and Williams v. State, 220 So.2d 325 (Miss.1969).

Although we are of the opinion the trial court erred in overruling the motion to suppress the first statements leading to the body, this does not dispose of the case. It does bring into focus the issue of whether a necessary witness, under the Agee rule, may be called during the trial in chief to rebut testimony previously offered on a suppression hearing that has been concluded by the court in overruling the motion. We think this procedure would thwart the very purpose of a pretrial suppression hearing, which is to evaluate the evidence so that the parties may determine before the trial the evidence available to them and prepare for trial accordingly. Such piecemeal procedure would leave both the prosecution and the defense in a quandary as to trial preparation and greatly affect the conduct of the trial itself. For example, we can only surmise as to the course this trial would have taken had the motion to suppress been properly sustained. In direct violation of Agee, supra, Kennedy was not called as a witness at the suppression hearing nor was reason given for his absence. Because of this, in our opinion he was incompetent to testify during the trial in chief to facts concerning the voluntariness of the first statement.

The dispositive issue is whether the statement and confession which were obtained from the appellant after he had requested an attorney were admissible. To review, Detective Cox testified while they, including Detective Walker, were at the Abston home, the appellant requested an attorney and the questioning ceased. Detective Walker corroborates this request for an attorney and the cessation of the interrogation. Additionally, just prior to the questioning by Assistant Sheriff Kennedy, Abston talked with his attorney over the phone and was advised by Cumbest he would be over within the hour.

Kennedy testified he advised Abston of his rights and apparently unaware that Ab-ston had asked the other officers for a lawyer, began questioning him at approximately 5:00 p.m. when' Abston asked him for a lawyer. He thereupon stopped the interrogation and attempted to reach Attorney Cumbest several times by phone. However, before the attorney arrived, Abston voluntarily agreed to and did show him the location of the body.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), designated the procedure to be followed once warnings have been given an individual:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. (384 U.S. at 474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d at 723)
******
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, note 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 986. (384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724)

In support of his argument appellant cites U.S. v. Priest, 409 F.2d 491 (5th Cir. 1969), in which a nineteen-year-old suspect with an eighth-grade education made incriminating statements to a Federal Bureau of Investigation agent during custodial interrogation. Although the youth had received the Miranda warnings and advised the agent he did not desire to sign the warning form until he had consulted with an attorney, the interrogation proceeded and a confession was obtained. It was held the statement was the product of compulsion.

The question is whether Abston effectively waived his right to counsel once his request had been made known to the officials so their interrogation should have ceased.

In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the accused after consulting with attorneys was transported by law enforcement officers to another city and repeatedly stated while in transit that he would tell the whole story after seeing his attorney in the second city. During the journey the officers elicited information concerning the whereabouts of the victim’s body. The Court stated:

Despite Williams’ express and implicit assertions of his right to counsel, Detective Learning proceeded to elicit incriminating statements from Williams. Learning did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.
The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not. (430 U.S. at 405-406, 97 S.Ct. at 1243, 51 L.Ed.2d at 440-441)

This language leads to the belief that a waiver is possible after a request for counsel, but that Williams did not under those particular facts waive such rights.

The state argues that appellant waived his rights after his request for counsel citing as authority in support of its argument Nash v. Estelle, 560 F.2d 652 (5th Cir. 1977), and other cases. In Nash the defendant made an indecisive request for an attorney, wanting an attorney but also desiring to talk about the crime without waiting for an attorney to be appointed. The opinion discusses two lines of cases, one prescribing a strict interpretation of right to counsel and the other following a more lenient approach. The first line includes Priest, supra, and U.S. v. Blair, 470 F.2d 331 (5th Cir. 1972), cert. den. 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197, which holds that when a suspect makes an unequivocal request to have counsel present during questioning which police ignore and the interrogation continues, a finding of a knowing and intelligent waiver of right to counsel is impossible. The case of U.S. v. Massey, 550 F.2d 300 (5th Cir. 1977), cites Priest with approval but then goes on to say:

However, a valid waiver will not be presumed simply from the fact that a confession was in fact eventually obtained, Miranda, 384 U.S. at 475, 86 S.Ct. 1602, or that a waiver was eventually signed. The record must show that “an accused was offered counsel but intelligently and under standingly rejected the offer. Anything less is not a waiver.”
(550 F.2d at 307-308)

Although approving the strictness of the Priest decision, the language of Massey indicates that a waiver is possible under certain circumstances.

A much more lenient attitude toward admissibility of confessions once an attorney has been requested is expressed in some cases. These include U.S. v. Cavallino, 498 F.2d 1200 (5th Cir. 1974), U.S. v. Hodge, 487 F.2d 945 (5th Cir. 1973), and U.S. v. Anthony, 474 F.2d 770 (5th Cir. 1973). In Cavalli-no, supra, the in-custody defendant received the Miranda warnings and understood them. Questioning began, but ceased as soon as Cavallino indicated he wanted to talk to an attorney. Later the defendant requested to speak with a police sergeant to see if they could make a “deal.” The officer made no “deal” and the defendant made no incriminating statement; whereupon the conversation terminated. Again defendant sought out the officer, was administered the' warnings and with full understanding of them confessed. That Court stated the waiver by a defendant of his constitutional right to consult with or have an attorney present did not require an express disavowal. The court found that defendant in the interim between requesting an attorney and waiving his rights engaged in a course of conduct calculated to ascertain how much the police knew and whether there was any prospect for a deal, thereby waiving the right.

In Hodge, supra, the military police arrested a soldier who was informed of his rights upon arrest and prior to questioning at which time he requested an attorney. The interview terminated and the defendant was explained the military procedure to obtain counsel and was further advised of the charges and evidence against him. Defendant changed his mind and volunteered to make a statement which was not accepted until he waived his right to counsel. The Court upheld the confession, stating that an arrestee can change his mind after requesting an attorney. And, in Anthony, supra, although the defendant had requested an attorney but later volunteered statements which were not the product of interrogation, the Court held the facts established a waiver of the constitutional privilege.

These cases reflect the difficulty in determining waiver through continued conversation after a suspect has requested counsel. More directly put, the question is whether continued conversation is just that, or is conversation, subtle or otherwise, maneuvered toward an incriminating statement, or is continued interrogation despite the request, or is conversation incriminating in substance knowingly and willfully given by a suspect implicit in which is the waiver of a previously expressed constitutional right.

The more recent case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), expresses the rule for this Court to follow in deciding such issue. It reiterated the words of Mr. -Justice Frankfurter that questions of waiver require “ ‘application of constitutional principles to the facts as found. . . . and went on to hold the standard to be applied in determining waiver as a matter of constitutional law — that it was incumbent upon the state to prove “ ‘an intentional relinquishment or abandonment of a known right or privilege’ ” and “courts indulge in every reasonable presumption against waiver,” citing cases. In McDougle v. State, 355 So.2d 1386 (Miss.1978), we held the Miranda opinion does not proscribe further interrogation once a desire to remain silent has been expressed, but that it does require cessation of interrogation when requested, but if there is a reasonable basis subsequently for inferring that a suspect has voluntarily changed his mind, new and adequate warnings must be given. Compare Holifield v. State, 275 So.2d 851 (Miss.1973).

Finally, in giving application to the Brewer standard we conclude the state did not meet the heavy burden of establishing a knowing and intentional waiver by Abston of his constitutional right and that the statements and direction to Assistant Sheriff Kennedy and the confession to Detectives Walker and Cox were inadmissible in evidence. In reaching this conclusion we have considered Abston’s illiteracy, his repeated requests for an attorney! his first talk with his attorney, the assurance the attorney would be there within the hour, the cessation of interrogation and shunting to another officer, unaware of the request, for further interrogation. These circumstances do not meet the requirement of a knowing and intelligent waiver. Indeed, by indulging “every reasonable presumption against waiver” commanded by Brewer, supra, a contrary result must be reached.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . He was a state witness in the trial in chief over the defendant’s objection.

      . In chief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patricia Lee VOGT, Appellant, v. STATE of Florida, Appellee.
    No. 51439.
    Supreme Court of Florida.
    June 22, 1978.
    Rehearing Denied Sept. 28, 1978.
    Robert W. Pope of Law Offices of Robert W. Pope, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. State v. Bales, 343 So.2d 9 (Fla.1977). The issues raised by appellant that do not go to the constitutional validity of Section 796.07, Florida Statutes, are without merit.

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


text:
    FLORIDA TELEPHONE CORPORATION, Petitioner, v. William T. MAYO et al., Respondents.
    No. 50330.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Sept. 28, 1978.
    Robert R. Feagin, III, Hume F. Coleman, George L. Varnadoe and Anthony J. McNi-cholas, III, of Holland & Knight, Tallahassee, J. Thomas Gurney, Jr., of Gurney, Gurney & Handley, Orlando, and W. W. Hill, Vice President, Rate Counsel, United Telecommunications, Inc., Kansas City, Mo., for petitioner.
    Prentice P. Pruitt, Legal Director, and Norman H. Horton, Jr., and Donald R. Alexander, Staff Counsels, Florida Public Service Commission, Tallahassee, for respondents.
    Larry Levy, Public Counsel, and C. Earl Henderson, Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida, intervenor-respondents.
   PER CURIAM.

The Florida Telephone Corporation is petitioning this Court to correct errors of law it contends the Public Service Commission committed in proceedings ending in an order that raises the telephone company’s annual rates by $4,520,000. Florida Telephone had requested a rate increase just under $10,000,000. We have considered the arguments of the parties and the record and conclude the Commission did not depart from the essential requirements of law.

Order No. 7419 in Public Service Commission Docket No. 750712 — TP is affirmed.

It is so ordered.

ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


author: SUNDBERG, Justice. BOYD, Justice,

text:
    Craig MILLS and H. Savely McQuagge, Trustees of the Presbytery of Florida, Frank L. Elvery, Richard L. Scoggins, C. Franklin Beall, Louise Eyster, Reeves Bowen and Fred McGehee, as and constituting the Administrative Commission of the Presbytery of Florida of the Presbyterian Church in the United States; Henry Ragans and Oscar Beck, Jr., as and constituting the Session of the Madison Presbyterian Church in Madison, Florida, Petitioners, v. John P. BALDWIN, Individually and claiming to be Moderator of the Session of the Madison Presbyterian Church in Madison, Florida, Bruce M. Bryan, Julian DuRant, Julian Gibson, Theodore Gibson, A. L. Hughes, and Kirby Reichmann, Individually and claiming to be members of the Church Session of the Madison Presbyterian Church in Madison, Florida, Respondents.
    No. 51588.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Sept. 28, 1978.
    C. Graham Carothers of Ausley, McMul-len, McGehee, Carothers & Proctor, Tallahassee, for petitioners.
    F. E. Steinmeyer, III, of Folsom & Stein-meyer, Tallahassee, for respondents.
    Raymer F. Maguire, Jr., of Maguire, Voo-rhis & Wells, Orlando, for James E. Andrews, Stated Clerk of the General Assembly of the Presbyterian Church in the United States, amicus curiae.
    Edward D. Foreman and James W. Martin of Brickley & Martin, St. Petersburg, for William P. Thompson, Stated Clerk of the General Assembly of The United Presbyterian Church in The United States of America, and for Robert L. Thompson, Executive Presbyter of The Presbytery of West Florida, Synod of The South, of The United Presbyterian Church in the United States of America, amicus curiae.
   SUNDBERG, Justice.

This cause is a petition for writ of certio-rari to review a decision of the District Court of Appeal, First District, reported at 344 So.2d 259, which is alleged to be in conflict with St. John’s Presbytery v. Central Presbyterian Church, 102 So.2d 714 (Fla.1958) and Froelich v. Rowley, 102 So.2d 720 (Fla.1958). On petition for rehearing of our prior denial of writ of certiorari in this cause, we have concluded that this Court is possessed of jurisdiction under Article V, Section 3(b)(3), of the Florida Constitution.

Essentially this case involves a dispute over the ownership of property of the Madison Presbyterian Church in Madison, Florida, or stated more accurately, a controversy as to who constitutes the Madison Presbyterian Church in Madison, Florida. The dispute is occasioned by the withdrawal of a majority of the congregation from the Presbyterian Church in the United States (PCUS) and its claim of title to the church property as against the claim of the minority of the congregation who did not withdraw but remained faithful to the parent church. Applying “neutral principles of law” the majority of the district court concluded that there was no implied trust in favor of the mother church as was found to exist in Central Presbyterian Church, supra, and, accordingly, held the property of the church to be vested in the withdrawing members. The factual background of the controversy is stated in the district court opinion thus:

Plaintiffs in the trial court, [petitioners], were Craig Mills and H. Savely McQuagge, Trustees of the Presbytery of Florida of the Presbyterian Church in the United States; Frank L. El very, Richard L. Scoggins, C. Franklin Beall, Louise Eyster, Reeves Bowen and Fred McGehee as and constituting the Administrative Commission of the Presbytery of Florida of the Presbyterian Church in the United States; Henry Ragans and Oscar Beck, Jr. as members of and recognized by the Presbytery of Florida of the Presbyterian Church in the United States as constituting the Church Session of the Madison Presbyterian Church in Madison, Florida. The defendants, [respondents], were (as named and designated by the plaintiffs) John P. Baldwin, individually, and claiming to be Moderator of the Session of the Madison Presbyterian Church in Madison, Florida; Bruce M. Bryan, Julian DuRant, Julian Gibson, Theodore Gibson, A. L. Hughes and Kirby Reichmann, individually and claiming to be members of the Church Session of the Madison Presbyterian Church in Madison, Florida, and Florida First National Bank at Madison, a bank holding funds on deposit in the name of the church. The attorneys for the respective parties entered into a lengthy stipulation which was filed in evidence before the trial judge agreeing upon numerous facts many of which, although not relevant to the application of sterile legal doctrines, are necessary in order to understand the factual basis of the controversy.
A Church Session is the governing body of a local church. A Presbytery is composed of several churches in a geographical area; a Synod is generally composed of all Presbyteries within a state or other designated geographical area and the General Assembly is the highest governing body in the hierarchical spiritual structure of the Presbyterian Church.
The first Presbyterian Church was established in America on the Virginia coast in 1607. Originally there was one main body of Presbyterianism which was known as the Presbyterian Church in the United States of America. (PCUSA) The Madison Presbyterian Church located at Madison, Florida was founded in 1840. It was originally a part of the Presbytery of Georgia but later became a congregation of the Presbytery of Florida. It is, and at all times has been, an unincorporated-entity. Since its formation in 1840 all of the church property has been held by trustees elected by a majority of the congregation of the church. The primary church property was acquired by deed executed in March of 1851 to the “Trustees of the Presbyterian Church at Madison aforesaid and their successors in office * * * To Have and To Hold the said lots of land to and for the use of the Presbyterian Church at Madison.” In 1861 the Presbytery of Florida met at the Madison Presbyterian Church in Madison and unanimously adopted a resolution severing its affiliation with the Presbyterian Church in the United States of America (PCUSA) and concurred in a call for Commissioners for the organization of a General Assembly with power to organize a new church. The Madison Church sent a delegate to the meeting of the General Assembly held in 1861 (held incidentally at the Madison Church) at which time a resolution was unanimously adopted by which a denomination was formed bearing the name Presbyterian Church in the Confederate States of America. Thereafter, the name of that denomination was changed to the Presbyterian Church of the United States (PCUS). The parties have stipulated that neither the General Assembly of the Presbyterian Church in the United States nor the Synod of Florida nor the Presbytery of Florida has ever contributed any property to the Madison Presbyterian Church, nor has it provided any funds with which the property of said church was acquired.
On March 11, 1973, John P. Baldwin, then the regular ordained and installed Pastor of the Madison Presbyterian Church, presided over a meeting of the congregation. Upon a vote taken at such meeting, a petition was adopted requesting the Presbytery of Florida to dismiss the Madison church and its property from the Presbytery and to dismiss and dissolve the relationship between Rev. Baldwin and the Presbytery of Florida and the PCUS. Following various intra-church maneuvers a resolution was adopted by the congregation of the Madison Presbyterian Church on May 20, 1973 withdrawing from and severing all relationship with the Presbytery of Florida and the PCUS. On June 5, 1973 the Presbytery of Florida removed the name of John Baldwin from the roll of the Presbytery and declared the pulpit of the Madison Presbyterian Church to be vacant. The Presbytery declared and recognized Messrs. Beck and Ragans, among others, as constituting the Church Session of the Madison Presbyterian Church with full authority to assume control of the congregation and all land, buildings, personal property and monies of the local church.
On August 7, 1973 plaintiffs [petitioners] filed an action in Circuit Court asking that the individual defendants [respondents] and all others associated with them be restrained from interfering with the plaintiffs and other “loyal” members of the PCUS in the use of the property of the Madison Presbyterian Church; from using or attempting to use the property of the Madison Presbyterian Church for any purpose except in conformity with and subject to the government and discipline of the PCUS; from selling, disposing of or encumbering the property of the Madison Presbyterian Church; from paying or delivering to any person or corporation any money, funds, bonds, securities, or other property in their possession or under their control constituting the property of the Madison Presbyterian Church and from occupying the Manse of the Madison Presbyterian Church. The foundation of the plaintiffs’ cause of action as alleged in their complaint was a “trust originally imposed upon said property [of the Madison Presbyterian Church] for the promulgation of the trusts and doctrines of the Presbyterian Church in the United States * * At the conclusion of a lengthy trial, final judgment was entered for the plaintiffs.

344 So.2d at 260-62 (footnotes omitted).

The majority below determined that the structure of the Presbyterian Church, being hierarchical as opposed to congregational, was immaterial to its resolution of the case because, through application of “neutral principles of law” to the facts, neither form of accepted implied trust (constructive or resulting) could be recognized. This conclusion of the district court was based primarily upon its finding that no funds were provided by either the Presbytery of Florida or PCUS with which any of the property of the Madison Church was acquired. Consequently, the necessary ingredient for a constructive trust was absent. Likewise, there was no evidence at trial that any of the properties conveyed to the Madison Church “were intended to be conveyed for the benefit of any entity other than the congregation of the Madison Presbyterian Church” and therefore, no resulting trust could arise. Its position with respect to the absence of a resulting trust was bolstered by the fact that PCUS did not come into existence until some 21 years after the Madison Church was organized. St. John’s Presbytery v. Central Presbyterian Church and Froelich v. Rowley, supra, were distinguished by the district court on the premise that the facts in those cases demonstrated the existence of elements necessary to support a constructive trust.

Most respectfully we must disagree with the analysis of the majority of the district court. This Court subscribes to the reasoning and conclusion of Judge Smith’s dissent below, and it would be of little benefit to restate what was so ably put by him. However, since it bears upon the jurisdiction of this Court as well as the merits of the controversy, we deem it appropriate to elucidate why we believe Central Presbyterian Church and Froelich are controlling here.

The salient facts as found by the chancellor in Central Presbyterian Church were:

(1) During the year 1953, defendant, Central Church, withdrew from the Presbyterian Church in the United States (Southern), hereinafter referred to as Presbyterian Church. It is shown that Central Church was organized or established by the First Presbyterian Church of St. Petersburg and received financial assistance from it; that the original deed of conveyance was made to the “Trustees of the West Central Presbyterian Church and their successors.” The church was later incorporated under the laws of Florida and title to the realty was conveyed to “Central Presbyterian Church of St. Petersburg, Florida, a corporation.”
(2) The chancellor further found that none of these deeds created a trust but were absolute conveyances to the grantees named, the first grantee being Central Church, a corporation; that the will of H. H. and Harriet Victory, deceased, directs their trustees to pay over the balance remaining after certain bequests are paid to certain beneficiaries including “Central Presbyterian Church of St. Petersburg.”

102 So.2d at 715.

Based upon his comparison of Chapter 27, paragraphs 9 and 10, Constitution of the Presbyterian Church of the United States of America (PCUSA) with paragraph 163, Book of Church Order of the Presbyterian Church of the United States (PCUS), the chancellor concluded that while the government of PCUS A was hierarchical in nature, that of PCUS was congregational. In reversing the chancellor, this Court stated:

The admissions in the answer and the evidence without contradiction show that the Presbyterian churches in the United States are not congregational in government but are representative, they are governed by an ascending series of judicatories known as the session, the presbytery, the synod and the general assembly, which is governed by a constitution and an ecclesiastical code giving it legislative, executive and judicial powers. Questions of usage, custom or practice relating to the local church or its members are governed by these judicatories and each is bound to the other by church or ecclesiastical law.

102 So.2d at 716.

After reviewing the substance of the documents creating title in the “Central Presbyterian Church of St. Petersburg” (a nonprofit corporation), including the original conveyance to the “Trustees of West Central Presbyterian Church and their successors in office,” the Court applied the doctrine of Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 (1872), and held that the property in question should not be diverted from the parent church by the withdrawing members. Consequently, the faithful minority were awarded the use of the property as the rightful representatives of the original church as it existed before the schism.

The district court opinion herein places great emphasis upon the fact that the affected church in Central Presbyterian Church had been organized and established by an existing Presbyterian church in St. Petersburg from which it received financial assistance and a gift of the disputed property. This, together with the language of the original conveyance of the disputed property, was persuasive to the court as distinguishing the case at bar from Central Presbyterian Church. The district court was bolstered in its conclusion by the reference of Justice Terrell in Central Presbyterian Church to Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927). However, we can draw no such inference from Justice Terrell’s discussion of Reid v. Barry. He simply distinguished the latter case from Central Presbyterian Church on the premise that on the face of the deed in Reid there was no reference to a trust for the benefit of the Roman Catholic Church, whereas in Central Presbyterian Church the root deed ran to “Trustees of West Central Presbyterian Church of St. Petersburg and their successors in office.” As stated by Justice Terrell:

In Reid v. Barry the complaint nowhere alleges “that the deed was a trust deed, or that it was made to the bishop for the benefit of the Roman Catholic Church.” It is silent as to the purpose for which it was made and the Roman Catholic Church is nowhere named therein, while here it is alleged and admitted that the property was acquired by the First Presbyterian Church of St. Petersburg and was given and conveyed to “Trustees of West Central Presbyterian Church of St. Petersburg and their successors .

102 So.2d at 719.

The conveyances here under consideration run to the “Trustees of the Presbyterian Church at Madison” and the “Trustees of the Madison Presbyterian Church of Madison.” In the Reid case the conveyance was absolute on its face with no intimation of beneficial enjoyment in others except the reference to the grantee’s office. As the Court pointed out in Reid:

It can hardly be argued that the language of this deed necessarily implies the intention to create a trust, for any particular purpose, or for the benefit of any particular beneficiary, none being named, and there being no precatory words contained therein.

112 So. at 857.

Justice Terrell simply sought to distinguish Reid on the obvious basis that the deed therein contained no language to imply a trust, whereas the deed in Central Presbyterian Church connoted a trust relationship and the object thereof.

The basis for the decision in Central Presbyterian Church is indicated by two excerpts from the opinion. After citing numerous authorities in accord with Watson v. Jones, supra, the Central Presbyterian Church Court said:

This is an abounding array of authorities but they all treat some phase of litigation growing out of church schisms in which both factions lay claim to the church property. When the church is representative, republican or episcopal in government, the authorities uniformly hold that the church property whether held by an express or an implied trust cannot be diverted from the parent church by those who withdraw from it and form a separate denomination. It matters not whether those who withdraw from the mother church constitute a majority or a minority faction, the church property remains with the mother church. There are exceptions to this rule when the schism occurs in a church whose government' is congregational in form like the Baptist or Congregational denominations but in churches bound together by associated ecclesiastical government when the local church is obedient to a larger or more important religious organization and is governed by it, such as the Presbyterian, Catholic, Episcopal, Methodist and Lutheran, I have found no exception to this rule. They could not function under any other rule.

102 So.2d at 718 (emphasis supplied).

That the real basis for the decision in Central Presbyterian Church was the principle of church structure, and not neutral principles of trust law, is borne out by the judgment therein:

It follows that the final decree of the chancellor must be, and is, hereby reversed with directions to enter a decree holding that, on account of the circumstances shown an implied trust existed in the property in question in favor of the Central Presbyterian Church of St. Pe-tersburg for the use of the Presbyterian Church in the United States and awarding the use of said property to appellants as the rightful representatives of the original church as it existed before the schism.

102 So.2d at 719-20 (emphasis supplied).

Furthermore, Froelich v. Rowley, supra, decided the same day as Central Presbyterian Church, is even more instructive on this point. In Froelich, another church schism case, where neither the source of the property nor whether it was acquired before or after the congregation’s affiliation with the parent church is indicated, Justice Terrell described the substantive issue and its resolution:

The first question presented is whether or not the majority of the congregation of a Presbyterian^ Church in the United States can withdraw from said church and the presbytery and claim title to the church property as against the claim of title of the minority group who did not withdraw but remained faithful to the parent church.
This is the identical question that was presented and decided in St. John’s Presbytery v. Central Presbyterian Church of St. Petersburg. What we said in that case concludes the point raised here contrary to the contention of appellants [the withdrawing majority].

102 So.2d at 721.

In short, a careful reading of the cases makes clear that the issue in a case such as this is not who owns the property.. The Madison Presbyterian Church of Madison, Florida, owns the property. The true issue is — who represents the Madison Presbyterian Church? The authorities from Watson v. Jones forward clearly respond that petitioners represent that church because of the structure and government of PCUS. As pointed out in Judge Smith’s dissent, the fact that PCUS was formed by the secession of Presbyterian churches in the Confederacy a generation after organization of the Madison Church affects not at all the commitment of the Madison Presbyterian Church to PCUS in 1861 and continuously for generations thereafter.

Accordingly, the petition for certiorari is granted, the opinion of the District Court of Appeal, First District, is quashed and the dissenting opinion is adopted as the opinion of this Court.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON and ALDERMEN, JJ., concur.

BOYD, J., dissents with an opinion, with which HATCHETT, J., concurs.

BOYD, Justice,

dissenting.

I would discharge the writ of certiorari because I do not believe there is conflict. As the majority acknowledges, the court below decided the church property dispute based on trust law, while the alleged conflicting decisions, just as the majority’s, find the disputes over church property to turn on which group constitutes the church. The questions, one legal, the other, at least partially ecclesiastical, are wholly dissimilar. Nor do I see a misapplication of St. John’s Presbytery v. Central Presbyterian Church, 102 So.2d 714 (Fla.1958) and Froelich v. Rowley, 102 So.2d 720 (Fla.1958), since principles of trust law were applied in those two cases to factual situations that are, as detailed in the opinion now quashed, dissimilar to the factual situation in this case.

Moreover, I am distressed, Central Presbyterian Church and Froelich notwithstanding, that the Court is so willing to step into a dispute over church property that it believes should be resolved under a “principle of church structure” rather than “neutral principles of . law,” opinion of the Court, before, at 7, when the decision of the court below can stand on the legal principles alone. While a civil court may open its. doors to a dispute over church property, the court has no role in settling the matter through a determination on the basis of whether one group departed from church doctrine. Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). To assume such a role involves the civil courts in an ecclesiastical question solely within the purview of the church contrary to the Freedom of Religion clauses in the First Amendment to the U. S. Constitution. The Court today treads dangerously close to the boundary of territory of religious freedom protected constitutionally from civil court interference. It may be that a determination of church structure is properly within a civil court when church property js at stake, especially in a case in which another forum, such as an ecclesiastical court, will be partial or is unavailable. But the Court in this case need not take the risk of impinging on religious freedom since the case is clearly litigable under trust law.

HATCHETT, J., concurs.

      . It should be noted that the trial judge in the instant case made the identical finding that PCUS is hierarchical and not congregational in structure.

      . To be distinguished from ecclesiastical and military courts rather than criminal courts.

      . Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . .


author: ENGLAND, Chief Justice.

text:
    Harry L. COE, Jr., etc., Petitioner, v. ITT COMMUNITY DEVELOPMENT CORPORATION et al., Respondents.
    No. 52616.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Sept. 28, 1978.

      Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for petitioner.
    Janet Reno, Talbot D’Alemberte and Donald M. Middlebrooks of Steel, Hector & Davis, Miami, for respondents.
    Kate L. Walton and William L. Townsend, Jr., Palatka, for John Seay, as Property Appraiser, the 1976 Property Appraisal Adjustment Board and Dale Brown, Jr., as Tax Collector, Flagler County, Florida, co-petitioners.
   ENGLAND, Chief Justice.

This case comes to us by petition for a writ of certiorari directed to the First District Court of Appeal, which recently held that a complaint challenging an ad valorem real property tax assessment need not be filed within the 60-day period prescribed by Section 194.171(2), Florida Statutes (1975). Recognizing that its decision would be in conflict with decisions of this Court and those of other district courts of appeal, the First District nonetheless held that the statute does not create a jurisdictional bar to the commencement of a tax assessment challenge and indicated that the “resulting conflict . . . may be remedied in the Supreme Court.” To remedy the conflict, we now quash the district court’s decision.

We have consistently held that the 60-day time limitation expressed in Section 194.171(2), and in its predecessor statutes, is a jurisdictional statute of non-claim rather than a statute of limitations. Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942); Chatlos v. Overstreet, 124 So.2d 1 (Fla.1960). The Third District Court of Appeal has consistently followed our interpretation. Henry v. County of Dade, 149 So.2d 89 (Fla. 3d DCA), cert. denied, 155 So.2d 549 (Fla.1963); Harvey W. Seeds Post No. 29 v. Dade County, 230 So.2d 696 (Fla. 3d DCA), cert. denied, 238 So.2d 420 (Fla.1970); Chaves Construction Co. v. Metropolitan Dade County, 256 So.2d 545 (Fla. 3d DCA 1972); Blake v. R. M. S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977).

Neither the district court below nor respondents here have suggested any invalidity or defect in the reasoning which prompted an early characterization of this statute as one of jurisdictional non-claim, rather than as one establishing an affirmative defense of the statute of limitations. Respondents’ principal basis for now challenging the formulation announced in Rudi-sill stems from an inartful use of the term “statute of limitations” in a recent decision of this Court, and a consequential reluctance of other Florida appellate courts to treat the statute as jurisdictional. While an inapt label may have been ascribed to Section 194.171(2) by our recent decision, the substance, purpose, and rationale for the statute have not been altered since Ru-disill. We therefore see no reason to recede from our earlier decisions.

The decision of the First District Court of Appeal is quashed.

It is so ordered.

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

      . Coe v. ITT Community Development Corp., 349 So.2d 654 (Fla. 1st DCA 1977).

      . “No action shall be brought to contest a tax assessment after sixty days from the date the assessment being contested is certified for collection . .

      . Id. at 656. The decisional conflict identified by the district court, of course, provides the basis of our jurisdiction. Art. V, § 3(b)(3), Fla.Const.

      . See Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1, 4 (Fla. 1972).

      . Maccabee Investments, Inc. v. Markham, 311 So.2d 718 (Fla. 4th DCA 1975), rev’d on other grounds, 343 So.2d 16 (Fla. 1977); Bailey v. Plaza Hotel Corp., 335 So.2d 16 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1079 (Fla. 1977). The Maccabee court’s conclusion that this provision constitutes a statute of limitation rather than a jurisdictional requisite was based largely on our misappellation in Gerstung. 311 So.2d at 726. Bailey, in turn, relied entirely upon Maccabee for the same proposition. 335 So.2d at 17.

      . Respondents also contend that if Section 194.171(2) is held to be jurisdictional, it would be an unconstitutional encroachment upon our rule-making power under Article V, Section 2(a), Florida Constitution. This argument is without merit. See Fla.R.Civ.P. 1.010; cf. Gonzalez v. Badcock’s Home Furnishings Center, 343 So.2d 7 (Fla. 1977); Berry v. Clement, 346 So.2d 105 (Fla. 2d DCA 1977).


text:
    STATE of Florida, Appellant, v. Roosevelt ALLEN, Larry W. Edwards, Randy Heath, Elmore L. Henderson, Wallace Reed, Willie Singletary and Herman Cruse, Appellees.
    Nos. 53675 to 53680.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Sept. 27, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb and Elliot H. Scherker, Asst. Public Defenders, and Melvin Schaffer of Pilafian & Schaffer, Miami, for appellees.
   PER CURIAM.

By consolidated appeals from the Circuit Court of the Eleventh Judicial Circuit, we are asked to review substantially identical orders which passed upon the constitutionality of Florida’s theft statute, Section 812.-014(1), Florida Statutes (1977). The trial judge, in granting appellees’ motions to dismiss the informations charging them with various offenses under that provision, concluded that the legislature’s revision of the statute to encompass other activities left it worded in such a way as to render it unconstitutionally vague and overbroad. We reverse.

Section 812.014(1) provides:

“A person is guilty of theft if he obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.”

The trial judge found two features of the statute to be fatally defective. First, noting that the predecessor larceny statute specifically proscribed commission of the offense “with unlawful intent,” she ruled that the legislature’s deletion of the word “unlawful” in this revised provision had the effect of eliminating the element of specific criminal intent, thereby contravening the requirements of due process. Second, she found that the term “endeavors” as used in Section 812.014(1) was impermissibly vague.

We find no evidence to support the notion that the 1977 legislature intended by its omission of the word “unlawful” to eliminate specific criminal intent as an element of this offense. At best, the deletion of that term signifies a return to the state of the law existing before 1975, when the immediate predecessor to Section 812.014(1) took effect. For 24 years prior to that time, the jurisprudence of this state recognized the element of specific criminal intent as a necessary requisite to a larceny conviction, notwithstanding that the larceny statute during that period, as now, lacked an express directive that the intent be “unlawful.”

As regards the asserted vagueness of the statute, it is obvious that the term “endeavors” means an overt act manifesting criminal intent, rather than merely the formulation of a mental intent. The trial court’s construction of the statute to the contrary is unduly technical.

The orders of the trial court, dismissing the informations against appellees, are reversed, and these cases are remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

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

      . We have jurisdiction by virtue of Article V, Section 3(b)(1), Florida Constitution.

      . Section 812.014(1) was enacted by the 1977 legislature as part of the overall revision of the criminal statutes relating to theft and stolen property. Ch. 77-342, § 4, Laws of Fla. As indicated by its title, the Florida Anti-Fencing Act (Section 812.005, Florida Statutes (1977)), one object of this legislation was to expand the larceny statute to reach “fencing” of stolen goods and attempted larceny.

      . § 812.021(1), Fla.Stat. (1975). This section was repealed simultaneously with the enactment of the present statute. Ch. 77-342, § 16, Laws of Fla.

      . This resolution obviates consideration of whether this statute involves constitutionally protected expression and is thus subject to challenge on the basis of asserted overbreadth. See, e. g., State v. Bales, 343 So.2d 9 (Fla. 1977).

      . Ch. 74-383, §§ 40 and 67, Laws of Fla.

      . Compare § 811.021(1), Fla.Stat. (1951) with § 812.021(1), Fla.Stat. (Supp.1974).


text:
    THE FLORIDA BAR, Complainant, v. Ellis RUBIN, Respondent.
    Nos. 53329, 53110.
    Supreme Court of Florida.
    July 27, 1978.
    Rehearing Denied Oct. 2, 1978.

      Cecyl L. Pickle, Bar Counsel, Miami, Nicholas R. Friedman, Fort Lauderdale, and G. Lynn Kilpatrick, Tallahassee, Asst. Staff Counsel, for complainant.
    Ellis Rubin, in pro per.
   PER CURIAM.

This proceeding involves The Florida Bar’s efforts to take disciplinary action against Ellis Rubin, a member of The Florida Bar, and Rubin’s attempt to prohibit the Bar’s action on the ground that the Bar has failed to comply with various provisions of our disciplinary rules. The Bar acknowledges some violations of the rules, but suggests that while we might mitigate any punishment that would otherwise be imposed by this Court, we should not by reason of its errors exonerate Rubin’s conduct. The implications of the question thus presented bear a significance that reaches far beyond this single proceeding.

In 1972 and 1974, Rubin was formally charged with six violations of the Code of Professional Responsibility and the Integration Rule stemming from a variety of allegations that he had neglected clients’ cases. In 1975, Rubin was charged with three additional Code violations. Hearings were in due course held on all of the Bar’s charges. On October 29, 1976, referee Richard M. White filed his report with the Bar as to the first set of charges, finding Rubin guilty on three counts and recommending as punishment a public reprimand with two years probation. On May 9, 1977, referee Wesley G. Carey filed his report with the Bar on the other charges, finding Rubin guilty on two counts and recommending a private reprimand accompanied by six months probation.

On November 16, 1977, the Bar served Rubin with the reports of both referees, noted the approval of all findings by the Bar’s Board of Governors, and stated that the Board had voted to waive confidentiality “in the limited manner provided for in Rule 11.12(4).” The letter further stated that the Board intended to waive confidentiality “in total pursuant to Rule 11.12(5)” unless Rubin petitioned within 15 days to maintain confidentiality. On November 23, well before the 15-day grace period had expired, the Bar issued a press release informing the public that Bar referees had found Rubin guilty of neglecting legal matters and that the Board of Governors intended to petition the Court for disbarment. This information made headlines in several Florida newspapers and was reported nationwide.

On January 6,1978 — fourteen months after the Bar received referee White’s report and eight months after it had received referee Carey’s — the Bar filed both referees’ reports with the Court. Rubin promptly sought to prohibit further action on the referees’ reports pursuant to Rule 11.09(5), and shortly thereafter the Bar filed its petition for review of the referees’ reports with its request for disbarment. After further procedural skirmishing between the parties, we granted Rubin’s motion to stay proceedings on the Bar’s petition for review pending disposition of the' prohibition matter, and we directed the Bar to show cause why all disciplinary action against Rubin should not be dismissed as a result of the Bar’s apparent failure to comply with the mandates of the Integration Rule. The Bar’s response, the various other pleadings which have been filed, and the parties’ briefs have sufficiently framed the issues before us so as to warrant our dispensing with oral argument. Our analysis of the four points raised by Rubin in support of this effort to prohibit our consideration of the referees’ reports and the Bar’s recommended discipline reveals that they are dispositive of the entire proceeding.

(1)Throughout the course of these proceedings, Rule 11.06(9)(b) has provided that any referee’s report recommending a public reprimand shall be “filed promptly . . . in the Supreme Court.” Referee White’s report, which recommended a public reprimand, was not filed with us until fourteen months after its receipt by the Bar. Rubin contends that this filing clearly was not prompt, and that the Bar’s violation of the rule denies him due process. The Bar attributes the delay to its internal procedures for processing disciplinary cases, the difficulty of reviewing the voluminous records in this case, and its desire to hold referee White’s report for consolidation with referee Carey’s report. While conceding that this case “could have been handled more expeditiously,” the Bar argues that the delay here was not so inordinate as to justify dismissal of the charges, and that an appropriate judicial response might be to consider the delay as a factor going to mitigation of punishment.

(2) Rule 11.06(9)(b) states that a report recommending a private reprimand, such as referee Carey’s, “shall not be filed in the Supreme Court unless review is sought as hereinafter provided,” and Rule 11.09(3)(b) directs that such a report “shall be promptly filed in the Supreme Court upon the filing of a petition for review.” In the present case, the Bar submitted referee Carey’s report to us before a petition for review was filed. Rubin contends that this action was obviously improper under the rules and that by proceeding in this way the Bar was able prematurely to breach the confidentiality which otherwise surrounds a private reprimand.

(3) Rule 11.09(3)(a) provides that proceedings to review a referee’s report, whether initiated by the Bar or by the affected attorney, “shall be commenced [by filing a petition for review with the Supreme Court] within 30 days after the mailing date of a letter . . . serving a copy of the referee report on the respondent,” and that “[t]he filing of such petition . shall be jurisdictional as to a review to be procured as a matter of right.” The Bar did not file its petition for review with the Court until 81 days after its November 16 letter to Rubin. Even the referees’ reports were not filed until 51 days after the Bar’s letter. Although the Bar now concedes that the rule’s 30-day period commenced with the mailing of its letter to Rubin, it suggests that the untimely filing of its petition does not preclude the Court from hearing the case on the merits. Rather, the Bar reads the rule to mean that an untimely filing is only jurisdictional as to a review “as a matter of right,” and that the Court may exercise its discretion to consider the merits where the interests of the public and the integrity of the Bar are at stake.

(4) Rules 11.12(4) and 11.12(5) relate to confidentiality. The first prohibits disclosure of “information concerning the pend-ency or status of an investigation or trial or other confidential matter” until the case is filed in the Court, “or unless authorized by the Board of Governors.” The second, which authorizes additional disclosure with respect to certain matters, states that “pri- or to any waiver of confidentiality, the accused shall have 15 days to petition the full Board of Governors to maintain confidentiality . . . .” Notwithstanding that the Board’s letter of November 16 purported to give Rubin 15 days to petition to maintain confidentiality, the Bar issued its press release seven days after its letter to Rubin and thereby precipitated widespread publicity that was both unfavorable to and unanticipated by him. The Bar now claims that the waiver of confidentiality represented by its press release was not a total waiver under Rule 11.12(5), but rather a “limited” waiver under Rule 11.12(4).

Whether the Bar’s violations of the Integration Rule warrant the dismissal of all charges, as Rubin urges, depends we believe upon the purpose for our procedural requirements, the severity of their breach, and the gravity of the consequences for the accused attorney whose rights are thereby abridged.

(a) The purpose for requiring a “prompt” filing of a recommendation for public reprimand obviously relates to the fact that the Court alone can issue a public reprimand, and that once the report is prepared, the fact-finding, record-developing process is completed and the cause is ripe for final Court disposition. Whatever other objects the rule may seek to achieve, it obviously contemplates that the Bar should not be free to withhold a referee’s report which it finds too lenient until additional cases can be developed against the affected attorney, in an effort to justify the more severe discipline which might be warranted by cumulative misconduct. The Bar’s violation of the prompt filing requirement in this case, to allow a second grievance proceeding against Rubin to mature, is directly antithetical to the spirit and intent of the rule. In addition, it has inflicted upon Rubin the “agonizing ordeal” of having to live under a cloud of uncertainties, suspicions, and accusations for a period in excess of that which the rules were designed to tolerate.

(b) Our requirement that a referee’s recommendation of private reprimand shall not be filed with the Court until either the Bar or the affected attorney seeks to have it reviewed relates both to the Bar’s ability to issue a private reprimand without Court approval, and to the preservation of confidentiality when that authority is exercised. These rules contemplate that an attorney who has run the gauntlet of the grievance process and a trial by referee, and has emerged with only a private reprimand as recommended discipline, is entitled to be admonished for his errant conduct without the severe reputational damage which accompanies a public revelation of acts violative of his professional code. By prematurely filing referee Carey’s report with the Court in this case, the Bar inexcusably opened to public scrutiny facts which, although found to be violative of the code, had not been considered sufficiently egregious by referee Carey to warrant public disclosure.

(c) The purpose for the rule requiring the filing of a petition to review a referee’s report within 30 days of sending the report to the affected attorney is readily apparent. After the attorney has been subjected to the grievance process and a trial, he is entitled to know (and required on his part to decide) whether the matter is concluded on the basis of the referee’s recommendation or whether judicial review will follow. The 30-day requirement parallels the time limit for seeking judicial review of trial proceedings in the courts of Florida. That review, though often characterized as “a matter of right”, is constrained by the time requirement on the basis of being “jurisdictional”. Rule 11.-09(3)(a) is similarly jurisdictional, though not as rigid. We accept the Bar’s position that review after the 30-day time limitation should be available on a purely discretionary basis. We find no justification to exercise our discretion in this case, however, since there is no showing of good cause for the Bar’s 51-day default.

(d) With respect to the effect of the Bar’s press release on Rubin’s right under Rule 11.12(5) to request that confidentiality be maintained, and the Bar’s claim that its press release was merely a limited waiver of “information concerning the pendency or status of an investigation or trial or other confidential matter,” we are satisfied that •the press release in this case exceeds any reasonable interpretation of the terms “pendency or status” in the limited waiver provision. Indeed, it is difficult to conceive of a more detailed and damaging disclosure than that which the Bar made here under the guise of a “limited” waiver of confidentiality. Both the press release and the justification, we regret to say, are inexcusable.

The Bar has consistently demanded that attorneys turn “square corners” in the conduct of their affairs. An accused attorney has a right to demand no less of the Bar when it musters its resources to prosecute for attorney misconduct. We have previously indicated that we too will demand responsible prosecution of errant attorneys, and that we will hold the Bar accountable for any failure to do so.

“We have pointedly held that the responsibility for exercising diligence in the prosecution rests with the Bar. When it fails in this regard the penalizing incidents which the accused lawyer suffers from unjust delays, might well supplant more formal judgments as a form of discipline. This is so even though the record shows that the conduct of the lawyer merits discipline.”

The power to render ultimate judgment in attorney disciplinary proceedings rests solely with this Court, and we have often stated that the exercise of that power should achieve a result which, in light of the circumstances of each case, will best protect the interests of the public, maintain the integrity of the Bar, and ensure fairness to the accused attorney. The totality of circumstances in this case preponderates in favor of granting the relief sought by Rubin.

Accordingly, the Bar’s petition for review is stricken, the referees’ reports are quashed, and these disciplinary proceedings are hereby dismissed. The Florida Bar shall bear its own costs for these proceedings.

It is so ordered.

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

      . We have original and exclusive jurisdiction over the discipline of attorneys in Florida pursuant to Article V, Section 15 of the Florida Constitution.

      . By his application for relief, Rubin properly seeks to invoke our authority to issue extraordinary writs in attorney disciplinary proceedings. Fla.Bar Integr. Rule, art. XI, Rule 11.-09(5). See also Ciravolo v. The Florida Bar, 361 So.2d 121, No. 50,249 (1978); The Florida Bar v. McCain, 330 So.2d 712 (Fla.1976); Murrell v. The Florida Bar, 122 So.2d 169 (Fla. 1960).

      .See note 9 below.

      . Fla.App.R. 3.10(e), made applicable to bar disciplinary proceedings by Fla.Bar Integr. Rule, art. XI, Rule 11.09(6).

      . See, e. g., The Florida Bar v. Fussell, 179 So.2d 852 (Fla. 1965). As to the applicability of federal substantive and procedural due process concepts to proceedings for revocation of an attorney’s license, see Annotation, 98 L.Ed. 851 (1954).

      . Delays in the Bar’s prosecution, akin to a late filing of referees’ reports, have occasionally influenced the Court to mitigate punishment. See, e. g., The Florida Bar v. Papy, 358 So.2d 4, No. 50,810 (1978); The Florida Bar v. Pritikin, 259 So.2d 138 (Fla.1972); The Florida Bar v. Randolph, 238 So.2d 635 (Fla. 1970).

      . Fla.Bar Integr. Rule, art. XI, Rule 11.12.

      . The Bar initially asserted that the 30-day period began to run with the filing of the referees’ reports and record with the Court, and so informed Rubin in its letter of November 16.

      . Appended to Rubin’s pleadings are reproductions of news articles published in the November 24th editions of The Miami Herald, The Fort Myers News-Press, The Pensacola News Journal, The Tampa Tribune, and The Los An-geles Times. In The Miami Herald, which ran the article under banner headlines on page one, Rubin was quoted as saying in response to the news that the Bar would seek his disbarment:
      “I am, of course, shocked and stunned. I didn’t get prior notice of this.”

      . Fla.Bar Integr. Rule, art. XI, Rules 11.-06(9)(c)(i) and 11.10(2).

      . The Court will, of course, tend to deal more severely with cumulative misconduct than with isolated misconduct. See State ex rel. Florida Bar v. Murrell, 74 So.2d 221, 223 (Fla. 1954).

      . The Florida Bar v. Randolph, 238 So.2d 635, 638 (Fla. 1970).

      . Fla.Bar Integr. Rule, art. XI, Rule 11.-06(9)(c)(i).

      . Fla.Bar Integr. Rule, art. XI, Rule 11.06(12).

      . Fla.R.App.P. 9.110(b) (1977); Fla.App.Rule 3.2(b) (1962).

      . See Williams v. State, 324 So.2d 74 (Fla. 1975).

      . The Florida Bar v. Randolph, 238 So.2d 635, 639 (Fla. 1970). See also The Florida Bar v. McCain, 361 So.2d 700, at 705 (Fla. 1978) (“After all, The Florida Bar acts for and is an agency of this Court. When the child falters the parent shall correct.”).

      . See, e. g., The Florida Bar v. McCain, 330 So.2d 712 (Fla.1976); The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968); The Florida Bar v. Abramson, 199 So.2d 457 (Fla.1967).

      . The Florida Bar v. Scott, 197 So.2d 518 (Fla. 1967).

      . See, e. g., The Florida Bar v. Blalock, 325 So.2d 401 (Fla.1976); The Florida Bar v. Riccardi, 264 So.2d 5 (Fla.1972); The Florida Bar v. Beaver, 259 So.2d 143 (Fla.1972).

      . In re The Florida Bar, 301 So.2d 448 (Fla. 1974).

      . The Florida Bar v. Thomson, 271 So.2d 758 (Fla. 1972); State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142 (Fla. 1961); State ex rel. The Florida Bar v. Bass, 106 So.2d 77 (Fla. 1958)

      . See The Florida Bar v. McCain, 361 So.2d 700, at 707 (Fla. 1978).


author: HATCHETT, Justice.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Petitioner, v. Myrtice Mae SWAIN, as personal representative of the Estate of Gerney Lee Swain, Deceased, and Myrtice Mae Swain, a widow, Respondent.
    No. 52060.
    Supreme Court of Florida.
    July 28, 1978.
    Rehearing Denied Sept. 27, 1978.
    Joseph P. Milton and Robert E. Warren of Toole, Taylor, Moseley, Milton & Joyner, Jacksonville, for petitioner.
    Beckham, McAliley & Proenza, Jacksonville, and Robert Orseck of Podhurst, Or-seck & Parks, Miami, for respondent.
    DuBose Ausley and William M. Smith of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Fla. Railroad Ass’n, amici curiae.
   HATCHETT, Justice.

By Petition for Writ of Certiorari, Seaboard Coast Line Railroad Company requests this court to review a decision of the First District Court of Appeal, reported at 347 So.2d 138 (Fla. 1st DCA 1977), on the basis of a conflict with the decision in Houston v. Caldwell, 347 So.2d 1041 (Fla. 4th DCA 1977). We have jurisdiction pursuant to Article V, Section 3(b)(3). We affirm.

Respondent brought a wrongful death action against petitioner in Duval County Circuit Court for the wrongful death of her husband resulting from injuries he sustained in a railroad crossing accident in Ware County, Georgia. Respondent is a resident of Ware County, Georgia. The trial court denied petitioner’s motion to dismiss, which urged the application of forum non conveniens, under authority in Adams v. Seaboard Coast Line Railroad Co., 224 So.2d 797 (Fla. 1st DCA 1969). The court in Adams and in the present case recognized that petitioner’s principal place of business is Jacksonville, Duval County, Florida. Under Adams and other similar Florida decisions, a case may be dismissed from the Florida courts in favor of a more convenient forum in another state only where none of the parties involved in the suit are residents of this state. If a suit is filed in Florida between non-resident parties seeking to litigate a cause of action accruing in a foreign jurisdiction, a trial court is accorded a sound discretion in determining whether it should retain jurisdiction of the action, or dismiss it without prejudice to the plaintiff’s right to reinstitute the action in a more appropriate and convenient forum.

Our recent opinion in Houston v. Caldwell, 359 So.2d 858 (Fla.1978), approved the applicable rule of law as set forth in Adams. Therefore, we affirm the decision of the First District Court.

It is so ordered.

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


author: NATHAN, Judge.

text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. Edith H. BROIDA and Alvin E. Horowitz, as personal representatives of the Estate of Ann Horowitz and Toby Prince Brigham, as administrator ad litem of Moe Horowitz, Deceased, Appellees.
    No. 77-1587.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Sept. 27, 1978.
    Joseph A. Wanick, City Atty., for appellant.
    Brigham, Reynolds & Byrne and Toby Prince Brigham, Miami, for appellees.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by the City of Miami Beach from an order dismissing a petition in an eminent domain action seeking to condemn the property of Moe and Ann Horowitz for a public purpose, namely, completion of the civic-convention center complex land plan, based on Miami Beach City Council Resolution No. 73-14217, authorizing the acquisition for that purpose.

Following an evidentiary hearing pursuant to Section 73.061, Florida Statutes (1977), the trial court entered an order denying the city’s petition and finding, among other things, that the city failed to show that the taking was reasonably necessary for public use, and that the city abused its discretion in the exercise of its eminent domain power. The court further found that although a civic-convention center complex land plan was alluded to, no plan was ever officially adopted by the city.

The sole point raised on appeal by the city is that the court erred in ruling against it on the issues of necessity and public purpose for the proposed taking. We agree and reverse.

The record discloses that the city does have a plan and that the plan has been partially completed. The Horowitz property lies within the boundaries of the plan. More than one use has been proposed for such property, but one of the city’s witnesses explained that master planning is a process that evolves over time, and must be flexible and subject to change as conditions warrant. As stated in Wright v. Dade County, 216 So.2d 494, 496 (Fla. 3d DCA 1968),

“. . . it is not necessary that the officials proceed to make immediate use of the property thus acquired or that they have ‘plans and specifications prepared and all other preparations necessary for immediate construction before it [the county] can determine the necessity for taking private property for a public purpose.’ Carlor Co. v. City of Miami, Fla. 1953, 62 So.2d 897.”

As a general rule, the matter of necessity for the taking of private property in order to serve a public purpose rests within the discretion of the appropriate county or municipal authority, in this case the Miami Beach City Council. See City of Miami Beach v. Hogan, 63 So.2d 493 (Fla. 1953); Jones v. City of Tallahassee, 266 So.2d 382 (Fla. 1st DCA 1972), overruled on other grounds, 281 So.2d 333 (Fla.1973), modified 281 So.2d 341 (Fla.1973). In Jones v. City of Tallahassee, supra, the First District Court of Appeal, citing Rott v. City of Miami Beach, 94 So.2d 168, 173 (Fla.1957), held that the findings by a city on the question of necessity in eminent domain proceedings cannot be easily upset by the courts. It also held that proof of bad faith and gross abuse of discretion shown by strong and convincing evidence of the most conclusive character would be required to overthrow the findings of the appropriate authority. This principle was overruled by the Florida Supreme Court in Ball v. City of Tallahassee, 281 So.2d 333 (Fla.1973), following a line of cases holding that abuse of discretion, standing alone, can override the condemning authority’s exercise of its eminent domain power, without respect to bad faith or oppression, which is another independent basis of sufficient proof to refute a prima facie case of necessity. Wilton v. St. Johns County, 98 Fla. 26,123 So. 527 (1929); Sibley v. Volusia County, 147 Fla. 256, 2 So.2d 578 (1941); Canal Authority v. Miller, 243 So.2d 131 (Fla.1970); Canal Authority v. Litzel, 243 So.2d 135 (Fla.1970).

Ball v. City of Tallahassee, supra, was modified by City of Jacksonville v. Griffin, 346 So.2d 988, 990 (Fla.1977), to the extent that the condemning authority need only present some evidence showing a reasonable necessity for the taking, and that once such a reasonable necessity has been shown, the exercise of the condemning authority’s discretion should not be disturbed. Compare Knappen v. Division of Administration, State Department of Transportation, 352 So.2d 885, 890 (Fla. 2d DCA 1977).

In the record presented in the case before us, the City of Miami Beach demonstrated preliminary sufficient evidence of necessity of taking. There was no showing by the defendants Horowitz of abuse of discretion in the exercise of the city’s power of eminent domain, nor was there a showing of bad faith or oppression on the part of the city. Rather, the record reflects that the property lies within the geographical boundaries of the city’s plan for its civic-convention center complex, and that the possible suggested uses of the property are public purposes. Therefore, the trial court erred in entering the order dismissing the city’s petition.

Reversed.