author: BOYD, Justice. SUNDBERG, Justice

text:
    Willie Jasper DARDEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 45056, 45108.
    Supreme Court of Florida.
    Feb. 18, 1976.
    Rehearing Denied April 19, 1976.

      James A. Gardner, Public Defender, and Harold H. Moore, Asst. Public Defender, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   BOYD, Justice.

Pursuant to Article V, Section 3(b)(1), Florida’ Constitution, this Court takes jurisdiction over a direct appeal from a final judgment imposing the death penalty.

Carl’s Furniture Store in Lakeland, Florida was robbed on September 8, 1973. During the course of the robbery, the proprietor, Carl Turman, was shot and killed and a neighbor boy, Phillip Arnold, was wounded. Soon afterwards, the Appellant, Willie J. Darden, who was on furlough from the Division of Corrections, lost control of the borrowed automobile he was driving and smashed into a telephone pole some three miles from the site of the murder, assault and robbery. After returning to his girl friend’s house in Tampa that night, the Appellant was arrested on a traffic charge, leaving the scene of an accident. Soon thereafter, he was arrested and charged with murder, assault with intent to commit murder, armed robbery, and assault with intent to commit rape. The grand jury returned indictments charging first degree murder, robbery, and assault with intent to commit murder in the first degree.

Both before and during trial, Mr. Dar-den was identified as the guilty party by Phillip Arnold and by Mrs. Helen Turman, the decedent’s wife, who was present and assaulted during the commission of the robbery and murder. The trial jury found the defendant guilty of murder in the first degree, assault with intent to commit murder in the first degree, and robbery. After the second phase of the bifurcated trial mandated by Florida Statutes Section 921.-141, the jury recommended the imposition of the death penalty. After enumerating its findings of aggravating and mitigating circumstances as required by Section 921.-141, the trial court sentenced the Appellant to death by electrocution.

Appellant alleges eight grounds for reversal. The racial composition of the ve-nire, the exclusion of prospective jurors because of their expressed attitudes toward the death penalty, and the alleged unconstitutionality of the sentencing provisions of Florida Statutes Section 921.141 provide three of these grounds. Another is the court’s eliciting from a state witness a comment regarding other murder cases in which Darden was, at least initially, a suspect. The courtroom identifications of the defendant by Mrs. Turman and Phillip Arnold respectively, are alleged to be'tainted by impermissibly suggestive pre-trial procedures and provide two more allegations of reversible error. A further ground is the allegedly erroneous admission into evidence of a gun asserted to have been used in the holdup and murder. Appellant’s final point on appeal is that certain remarks made by assistant state attorneys during closing arguments were so prejudicial to Appellant’s cause as to require the granting of a new trial.

We have reviewed all the points raised on appeal by the Appellant and conclude that only one merits consideration for reversal of the conviction below, i. e., whether statements made by the assistant state attorneys in closing argument were so inflammatory and abusive as to have deprived the Appellant of a fair trial. The law requires a new trial only in those cases in which it is reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done or in which the comment is unfair.

It should be noted that the first denunciation of the criminal who committed the acts was by Appellant’s own attorney, who made the following statement to the jury:

“I intend to just briefly summarize the evidence that has been before you. I’m going to attempt to be as objective as possible. The first witness that you saw was Mrs. Turman, who was a pathetic figure; who worked and struggled all of her life to build what little she had, the little furniture store; and a woman who was robbed, sexually assaulted, and then had her husband slaughtered before her eyes, by what would have to be a vicious animal.” (emphasis supplied)

The defense counsel was saying only that the person who committed the crimes was an animal, and he would have had the jury find that someone other than Appellant was the perpetrator of the criminal acts. Although Appellant further complains of the expression of his personal views by the Assistant State Attorney about Appellant, the defense counsel made the following statement which showed his personal reac-' tion:

“But can you get the pistol back to Mr. Turman? Can you get the pistol back to Mr. Darden? No, we can’t do that, but we got the pistol, and it’s good enough for us. It’s not good enough for me. I wouldn’t do what you’re being asked to do on that, really, I wouldn’t . . . . ” (emphasis supplied)

The record shows the following remarks were made in the State Attorney’s portion of the closing arguments:

“ . . . As far as I am concerned, and as [defense counsel] said as he identified this man, this person as an animal, this animal was on the public for one reason . . . (emphasis supplied)
* * * * * *
“ . . . I am sure that I want you to remember [defense counsel’s] opening statement, opening argument when he called this person an animal. Remember that, because I will guarantee you I will ask for the death. There is no question about it. (emphasis supplied)
“The second part of the trial I will request that you impose the death penalty. I will ask you to advise the Court to give him death. That’s the only way that I know that he is not going to get out on the public. It’s the only way I know. It’s the only way I can be sure of it . . . . (emphasis supplied)
******
“I don’t know, he said on final argument I wouldn’t lie, as God is my witness, as God is my witness, I wouldn’t lie. Well, let me tell you something: - If I am ever over in that chair over there, facing life or death, life imprisonment or death, I guarantee you I will lie until by teeth fall out. (emphasis supplied)
“What does he have to lose to lie? Nothing. Nothing ....
******
“Mr. Turman, not knowing anything happened, not knowing what was going on. I wish he had had a shotgun in his hand when he walked in the back door and blown his face off. I wish that I could see him sitting here with no face, blown away by a shotgun, but he didn’t. He had no gun. He had no chance. He didn’t give it to him. With a gun in the woman’s back about to attempt his lust, his greed, the poor man opened the door and he shoots him between the eyes. Between the eyes, isn’t that enough? Not for Darden it’s not enough. There’s more, (emphasis supplied)
******
“ . . . I wish someone had walked in the back door and blown his head off at that point.” (emphasis supplied)

In light of the “animal” characterization by the defense, when the jury found Appellant guilty, the statements of prosecuting counsel that Appellant was an animal do not seem unduly inflammatory. It seems inappropriate to reverse the State’s conviction because the prosecutor was making the same alleged errors as defense counsel. A careful examination of the record leads this Court to conclude that, although the prosecutor’s remarks under ordinary circumstances would constitute a violation of the Code of Professional Responsibility, in this particular case they •amount to harmless error when the totality of the record is considered in these uniquely vicious crimes.

Let us briefly review the conduct condemned by the prosecutor. The Appellant was a career criminal who admitted at least five convictions and who was on a weekend furlough from the state prison to visit his family when these felonies were committed. His family, including his wife, was out of the State, so Appellant stayed with another woman in Tampa. On the day of the crimes he took the woman to work and then used her car to visit various bars where he drank alcohol and gambled in a pool hall contrary to standards imposed by the conditions of the furlough, even neglecting to pick up the woman when she left work.

Appellant said he was paid to drive an unidentified stranger named Roy to Lake-land, that he had car trouble, and that he was racing back to Tampa where he was supposed to be best man in a wedding. He admitted speeding in a rainstorm and creating great danger to other motorists when he wrecked the car on the same road taken by the killer according to witnesses. The wreck was near the murder scene and occurred about the same time as the crimes; furthermore, the car Appellant drove fit the description of the getaway vehicle used by the criminal after his crimes were committed. The pistol admitted into evidence was identified as probably being the death weapon and was of the same type; it was found the day after the killing, robbery and attempted murder only thirty-nine feet from where Appellant’s car was wrecked. Four cartridges had been fired, the very same number fired at the scene of the crime.

The record shows that Appellant first robbed Mrs. Helen Turman and that, when her unarmed husband Carl started to enter the store, Appellant shot him between the eyes scattering blood and brains. As a sixteen year old boy, Phillip Arnold, tried to aid the wounded man, Appellant shot him in his mouth, neck, and side, leaving permanent injuries, including a bullet still in his neck at time of trial. While her bleeding husband lay in a rainstorm at the door, Appellant tried to force Mrs. Turman to commit an unnatural sex act upon him at gun point. She refused, and after shooting the boy Appellant left the area.

How is it possible to use language which is fair comment about these crimes without shocking the feelings of any normal person? The language used by the prosecutor would have possibly been reversible error if it had been used regarding a less heinous set of crimes. The law permits fair comment. This comment was fair.

When the work product of a criminal is a mortally wounded husband, a wife who is sexually assaulted and robbed, and a sixteen year old boy who is shot three times while trying to help the wounded man, there is little basis to complain of the State Attorneys’ expressions in reasonably describing what happened and what should be done to the guilty party.

There was overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges and a recommendation of a death sentence for first degree murder. There were absolutely no mitigating circumstances to reduce the penalty from death to life imprisonment.

While the rule against inflammatory and abusive argument by a state’s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements are made, and, if there is ample basis in the record to support the remarks, a conviction will be affirmed. Our review of the record convinces us that the remarks complained of were not sufficient to deprive Appellant of a fair trial when the totality of the evidence is considered.

Additionally, Appellant admits that his attorney voiced but a single objection to the prosecutor’s closing arguments, that it was not directed to any of the allegedly inflammatory matter, and that his attorney waited until the fifth occasion to object at all. This Court has held that a prosecutor’s challenged argument will be reviewed on appeal only when a timely objection is made.

Accordingly, the judgments and sentences are affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS and OVER-TON, JJ., and FERRIS, Circuit Judge, concur.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, J., concurs.

SUNDBERG, Justice

(dissenting).

I dissent. Remarks made by the prosecutors during closing argument were so inflammatory and prejudicial that appellant should be afforded a new trial.

The fact that defense counsel characterized a person who would commit the offenses for which defendant was being tried as “an animal” did not excuse the prosecutor’s subsequent, repeated personal descriptions of the defendant in this manner:

“. . . But let me tell you something. As far as I am concerned, there should be another Defendant in this courtroom, one more, and that is the division of corrections, the prisons. As far as I am concerned, and as Mr. Maloney said as he identified this man, this person as an animal, this animal was on the public for one reason. Because the division of corrections turned him loose, lets him out, lets him out on the public. Can we expect him to stay in a prison when they go there? Can’t we expect them to stay locked up once they go there? Do we know that they’re going to be out on the public with guns, drinking?
“Mr. Darden said, oh, I don’t know, no, I can’t know, it’s all right to drink, it’s all right to drink alcoholic beverages, except the last. Remember one comment he made? Unless, well, as long as they don’t find out. Find out? He shouldn’t be out of his cell unless he has a leash on him and a prison guard at the other end of that leash.
“This man admitted that he is a prisoner, that he had a gun in his possession. He doesn’t work, he is in the pool halls, he is in the bars, he is in the lounges. He is a prisoner, supposed to have been. He is not a prisoner. No, I wish that person or persons responsible for him being- on the public was in the doorway instead of Mr. Turman. I pray that the person responsible for it would have been in that doorway and any other person responsible for it, I wish that he had been the one shot in the mouth. I wish that he had been the one shot in the neck, instead of the boy.
“Yes, there is another Defendant, but I regret that I know of no charges to place upon him, except the public condemnation of them, condemn them. Turn them loose to visit his family, to visit his family, that turns out his family is a girl friend in Tampa, his family is in, I think he called her his sponsor, his sponsor. . . .”

Perhaps the reference to a leash, although certainly inflammatory, was excusable as being evoked by two references in argument by appellant’s counsel to the crimes being “the work of an animal”; however, I find no provocation by the defense for the balance of the prosecutor’s above-quoted statements.

Another area of improper comment is exemplified by the following remarks:

“. . . The second part of the trial I will request that you impose the death penalty. I will ask you to advise the Court to give him death. That’s the only way that I know that he is not going to get out on the public. It’s the only way I know. It’s the only way I can be sure of it. It’s the only way that anybody can be sure of it now, because the people that turned him loose — this man served his time and if this man served his time as the Court has sentenced him, that’s fine. If he’s rehabilitated, fine. But let him go home on furloughs, weekend passes — not home, strike that, excuse me — go over with his girl friend for the weekend, go shoot pool for the weekend, go sell his guns, or gun, for the weekend, go consume drink in the bars over the weekend. . . .”

The precise implication in this and the foregoing excerpt is that the parole authorities and the Division of Corrections are being “soft on criminals” and the jury should remedy such situation by finding the appellant guilty on the first degree murder charge. This inserts a wholly immaterial issue into the proceedings which the jury could try rather than the defendant who was on trial; however, the defendant had to be the recipient of any verdict brought back by the jury.

Nor could the remarks of defense counsel be construed to serve as an invitation for the prosecutor’s inflammatory expressions of regret that appellant had not been killed during his alleged commission of the crimes :

“ . . . Mr. Turman, not knowing anything happened, not knowing what was going on. I wish he had had a shotgun in his hand when he walked in the back door and blown his face off. I wish that I could see him sitting here with no face, blown away by a shotgun, but he didn’t. He had no gun. He had no chance. He didn’t give it to him. With a gun in the woman’s back about to attempt his lust, his greed, the poor man opened the door and he shoots him between the eyes. Between the eyes, isn’t that enough? Not for Darden it’s not enough. There’s more. . . .”

After describing further conduct surrounding the commission of the crimes the prosecutor expressed once again concerning the appellant, “I wish someone had walked in the back door and blown his head off at that point.” Later,

“. . . Okay. He’s testified, Mr. Cunningham also testified that that cylinder turns to the left. As you fire the gun, pull the trigger, it turns to the left. I asked him to put the one marked in red —couldn’t use a live one — under the hammer and pull the trigger. He did. When he was through pulling it five times, five times, because Darden shot Turman between the eyes; he clicked in the boy’s face, that’s number two; he fired in the boy’s face is number three; he fired in the boy’s neck„is number four; and he fired in the boy’s back, number five, saving one. Didn’t get a chance to use it. I wish he had used it on himself.
“. . . And Mr. Darden saved one. Again, I wish he had used it on himself.

In asserting that the appellant had attempted to change his appearance subsequent to the date of the crimes the prosecutor concluded with the remark, “The only thing he hasn’t done that I know of is cut his throat.”

At this juncture counsel for appellant objected:

. . Your Honor, that’s about the fifth time that he has commented he wished someone would shoot this man or that he would kill himself. . .

Upon which the trial court ruled:

. . All right, gentlemen. Proceed with your argument. Objection will be overruled. Go ahead, sir. . .”

In Stewart v. State, 51 So.2d 494 (Fla. 1951), Mr. Justice Terrell cautioned prosecutors to refrain from inflammatory and abusive argument, directing trial judges to restrain and rebuke counsel from engaging in such tactics. The reason for inhibiting such conduct was concisely stated by him in the following terms:

“. . . Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament. . . .” (p. 495)

The implication in the remarks by the prosecutor in that case was that if the defendant were not punished by the jury he would go on to commit a more serious and heinous crime. This can be equated with the argument of the prosecutor in the case at bar wherein he implies that unless the defendant is convicted on the first degree murder charge he will be set free “on the public”.

Reference by the prosecution on repeated occasions to the defendant’s conduct while on furlough directed the jury’s attention to matters totally immaterial to the offenses charged, and it can be concluded that the only purpose of such references was to inflame and prejudice the jury in their deliberations upon the charges at issue. In Gluck v. State, 62 So.2d 71 (Fla.1952), the prosecutor, in the words of Justice Mathews, “hurled epithets at the accused so foul, vile, abusive and obscene as to be un-quotable in this opinion”. The trial judge refused to caution and admonish the state attorney that such conduct is highly irregular, as urged by the defense. Earlier in the rape prosecution, the prosecutor had referred to the accused’s unemployment, family, religion, character, and had introduced detailed evidence respecting an alleged similar act, although the accused’s identity and carnal knowledge of the prose-cutrix were admitted. This court reversed the conviction and granted a new trial since the prosecution at issue was not “a fair and impartial trial”. Rather than a fair commentary upon the evidence or reasonable inferences to be drawn therefrom, the above-quoted remarks by the prosecution in the case at bar can only be characterized as vituperative personal attacks upon the appellant and as appeals to passion and prejudice.

As was stated by this Court in Collins v. State, 180 So.2d 340 (Fla.1965):

“. . . The rule is clear against inflammatory and abusive argument — the problem is applying the rule to the particular facts at hand. The history of the legal profession is clear also in its love of florid arguments and dramatic perorations. The line between the inflammatory and the dramatic is not clear. . . ”

Here that line has been crossed. Vigorous and diligent' advocacy on the part of the state is not only commendable, but necessary to make our system of jurisprudence work. The strenuous advocacy by each of the parties to a criminal proceeding of the facts and evidence which best establish their respective positions provides the basis upon which the jury may synthesize all such facts and evidence to arrive at that most desired result in our system — the truth. However, appeals to passion and prejudice distort the system and must be condemned if our system is to function and endure.

Appellee asserts that timely objection to inflammatory argument must be made to preserve the point for appellate review. There has heretofore been quoted the objection made by the appellant’s counsel to the remarks by the prosecution and the court’s ruling thereon. I deem this sufficient to preserve the matter on appeal since it afforded the trial court the opportunity to at least attempt to cure the effects of the remarks. It is not clear at all, however, that it was even within the power of the trial court to disabuse the minds of the jurors of the cumulative effect of the patently inflammatory remarks of the prosecution even had it sustained the objections to the remarks and admonished the jury accordingly. The issue really is, did the appellant receive a fair trial in the atmosphere created by the prosecution’s remarks. As pointed out by the court in Wilson v. State, 294 So.2d 327 (Fla. 1974) :

“The State points out that in some instances there was an absence of objection in the present trial and in other instances an objection to the improper inferences was sustained. Such absence will not suffice where the comments or repeated references are so prejudicial to the defendant that neither rebuke nor retraction may entirely destroy their influence in attaining a fair trial.” (pp. 328-329)

See also Pait v. State, 112 So.2d 380 (Fla. 1959); Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945); and Knight v. State, 316 So.2d 576 (Fla.App. 1st 1975). I conclude that the remarks set out herein were such that would unduly create, arouse and inflame the sympathy, prejudice and passions of the jury so as to effectively deprive the appellant of a fair trial. Barnes v. State, 58 So.2d 157 (Fla.1952).

It is appropriate to comment upon another category of remarks made by the prosecution in final argument. In expressing their personal beliefs concerning the guilt and lack of veracity of the defendant the prosecutors argued:

“. . . I am convinced, as convinced as I know I am standing before you today, that Willie Jasper Darden is a murderer, that he murdered Mr. Turman, that he robbed Mrs. Turman and that he shot to kill Phillip Arnold. I will be convinced of that the rest of my life.
* * * * * *
"... I don’t know, he said on final argument I wouldn’t lie, as God is my witness, as God is my witness, I wouldn’t lie. Well, let me tell you something: If I am ever over in that chair over there, facing life or death, life imprisonment or death, I guarantee you I will lie until my teeth fall out.
“What does he have to lose to lie? Nothing. Nothing. The only person who took that stand, Mr. Maloney said no one took that stand and lied under oath. He was wrong. One did. Sitting over there with a yellow shirt on with the stripe down the front at this time.

These statements clearly violate the letter and spirit of Section 5.8(b), American Bar Association Standards for Criminal Justice and D.R. 7-106(C)(4), Code of Professional Responsibility. Such argument has been condemned by this Court long before the adoption of the cited Standards and Code. As stated in Tyson v. State, 87 Fla. 392, 100 So. 254 (1924):

“It is generally understood that the expression by counsel in argument before the jury of personal opinion of guilt is not only bad form, but highly improper, as counsel is not a witness, nor under oath to speak the truth, not called as an expert to give his opinion. Adams v. State, 54 Fla. 1, 45 So. 494.”

To reiterate the standard of conduct expected of a representative of the State in the prosecution of a criminal trial as heretofore enunciated by several of our district courts of appeal:

“. . . It is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. His duty is not to obtain convictions but seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client. . . .”
Knight v. State, supra; Cochran v. State, 280 So.2d 42 (Fla.App. 1st 1973); and Kirk v. State, 227 So.2d 40 (Fla. App. 4th 1969).

Yet the majority opinion suggests that this welter of highly prejudicial comment was fair, or if not exactly fair, then at least not so improper as to constitute reversible error “when the totality of the evidence is considered”. In other words, any error underlying the conviction of the appellant must have been harmless. When one considers that Darden has been sentenced to die by the court which heard these arguments after recommendation of death by the jury to which they were made, it is evident that any assigned error should be given very careful consideration before the harmless error doctrine is invoked. Obviously, resort to the doctrine in cases of capital punishment should be carefully limited.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), a California state prosecutor had commented upon defendants’ failure to testify and the trial judge had charged the jury that defendants’ silence could be used as the basis for adverse inferences. On appeal, the Supreme Court of California held that, while these comments at trial had denied defendants their constitutional rights, such error did not constitute a “miscarriage of justice” and was therefore harmless. The United States Supreme Court reversed the conviction, holding that in order for the denial of a federal constitutional right to be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to a defendant’s conviction. The court further held that the burden of proving lack of harm rests on the State. Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.

Surely there is a federal constitutional right to a fair and impartial trial in the courts of this State. U.S.Const. Amends. VI, XIV. Recognizing that no defendant is entitled to a perfect trial, nonetheless, I am not satisfied that Darden’s fundamental right to a fair trial was unharmed by the prosecution’s improper commentary and believe that under the Chapman test this conviction cannot stand. The Florida cases cited heretofore also lead me to this conclusion.

Accordingly, I would vacate the judgment and sentence of death and remand this cause for a new trial.

ENGLAND, J., concurs.

      . cf. Arline v. State, 303 So.2d 37 (Fla.App. 1974).

      . Collins v. State, 180 So.2d 340 (Fla.1965).

      . Sanders v. State, 241 So.2d 430 (Fla.App. 1970) ; Hamrick v. State, 235 So.2d 360 (Fla.App.1970), cert. den. 238 So.2d 421 (Fla.) cert. den. 400 U.S. 994, 91 S.Ct. 466, 27 L.Ed.2d 443.

      . State v. Jones, 204 So.2d 515 (Fla.1967).


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    John David ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 47345.
    Supreme Court of Florida.
    March 17, 1976.
    James A. Gardner, Public Defender, and Dennis J. Plews, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for ap-pellee.
   BOYD, Justice.

This cause is before us on direct appeal from the County Court of Manatee County where Appellant was charged by complaint with having operated a motor vehicle while having an unlawful blood alcohol level in violation of Section 316.028(3), Florida Statutes Annotated. Appellant filed a Motion to Dismiss with the trial court attacking the constitutional validity of the statute. The trial court denied the Motion, thus passing on the statute’s constitutionality. We have appellate jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

Section 316.028(3), Florida Statutes Annotated, provides:

“It is unlawful . . . for any person with a blood alcohol level of 0.10 percent, or above, to drive or be in actual physical control of any vehicle within this state.”

The constitutionality of the statute is attacked on two grounds: (1) that it is not reasonably related to the police power of the State of Florida, and (2) that it is vague and indefinite.

Appellant concedes that the prohibition of intoxicated drivers from Florida highways is an inherent police power. However, he argues that the challenged statute is not a reasonable means of achieving that end. Suffice it to say that we reject Appellant’s argument because we consider the method of prohibition of intoxicated drivers contained in Section 316.-028(3), Florida Statutes Annotated, to be a reasonable one.

Appellant alleges that the statute is vague and indefinite and so violative of due process in two ways. First, Appellant claims that consumers of alcoholic beverages are unable to determine how much alcohol they may consume before their alcohol blood level will make it unlawful for them to drive. An identical argument was made against a Utah statute, substantially similar to the challenged statute, in Greaves v. State, 528 P.2d 805 (Utah 1974). The Utah Supreme Court stated:

“We can see no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.” (Id. at 808.)

The above language is the view of this Court and accordingly we reject Appellant’s first argument of “vagueness.”

Appellant’s second “vagueness” argument is meritorious but the statute’s defect is easily cured. Appellant correctly points out that the statute fails to state whether the prohibited percentage of alcohol in the driver’s bloodstream is by weight or by volume. We recognize the scientific difference. To determine the legislative intent we turn our attention to Section 322.262(2) (c), Florida Statutes Annotated, which provides as follows:

“If there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. Moreover, such person who has a blood alcohol level of 0.10 percent or above shall be guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood alcohol level.” (Emphasis supplied)

Because the above statute and the challenged statute are in pari materia we construe them together and hold that the legislative intent is that the standard of weight be applied in the enforcement of the challenged statute.

Section 316.028(3), Florida Statutes Annotated, withstands each of Appellant’s constitutional attacks. Accordingly, Appellant’s conviction and the judgment of the trial court is affirmed.

It is so ordered.

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

SUNDBERG, J., concurs in result only.

      . Appellant was adjudged guilty of violating Section 316.028(3), Florida Statutes Annotated. He was sentenced to 90 days in the county jail; placed on probation for 2 years ; and ordered to pay $152 into the Fine and Forfeiture Fund. His driver’s license was suspended for 3 months.


author: BY THE COURT:

text:
    CARNER BANK OF MIAMI BEACH, a Florida Banking Corporation, Petitioner, v. R. G. WOLFF & COMPANY, INC., a Florida Corporation, Respondent.
    No. 47,517.
    Supreme Court of Florida.
    March 17, 1976.
    Stephen H. Cypen of Cypen & Nevins, Miami Beach, for petitioner.
    Michael H. Weisser, North Miami Beach, and Stanley D. Caidin, Miami, for respondent.
   BY THE COURT:

We issued a writ of certiorari' in this case to review a decision without opinion rendered by the Third District Court of Appeal and reported at 312 So.2d 555. That decision conflicts with Perkins v. Salem, 249 So.2d 466 (Fla.App. 1st 1971). The rule of law announced in Perkins is correct.

The decision of the Third District Court of Appeal is vacated and this case is remanded with instructions to reinstate the order of the trial judge dated October 21, 1974.

ROBERTS, Acting C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

       The only issue on appeal involves the propriety of a series of trial court orders which constitute “record proper” under Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965). We have jurisdiction under art. Y, § 3(b)(3), Florida Constitution.


text:
    Michael ERCOLI, Appellant, v. STATE of Florida, Appellee.
    No. 47441.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Edward L. Harvey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   BOYD, Justice.

Based on the opinion filed in Hamilton v. State, Fla., 329 So.2d 283, opinion filed February 25, 1976, the judgment of the trial court is affirmed.

It is so ordered.

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

ENGLAND, SUNDBERG and HATCHETT, JJ., dissent.


author: ROBERTS, Justice.

text:
    STATE of Florida, Petitioner, v. Thomas Edward PHILLIP and Cathy Josephine Phillip, Respondents.
    No. 47546.
    Supreme Court of Florida.
    March 17, 1976.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    Murray M. Wadsworth of Thompson, Wadsworth, Messer & Turner, Tallahassee, for respondents.
   ROBERTS, Justice.

This cause is before us on certiorari granted without oral argument to review the decision of the District Court of Appeal, First District, 311 So.2d 796, which directly conflicts with this Court’s recent decision in State v. Laiser, 322 So.2d 490 (Fla.1975), thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Constitution of Florida.

In a decision affirming an order of the trial court granting a motion to suppress based on an allegation that a search warrant was defective on its face because it failed to command a return of the property to the issuing court, the District Court relied upon the decision of the District Court of Appeal, Fourth District, in Laiser v. State, 299 So.2d 39 (Fla.App. 4th, 1973), which decision was quashed by this Court in State v. Laiser, supra. In State v. Laiser, supra, this Court stated:

“We reject as unworkable and unnecessarily technical any suggestion that a statute requires a warrant to direct the physical return of evidence to the issuing magistrate himself in all cases.”

The decision of the District Court of Appeal, First District, is quashed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    Leonard J. HYMAN, Petitioner, v. Mary K. HYMAN, Respondent.
    No. 47306.
    Supreme Court of Florida.
    March 17, 1976.

      C. Eugene Jones, Ginsburg, Ross Dent & Byrd, P. A., Sarasota, for petitioner.
    William C. Strode, Strode, Hereford & Taylor, Sarasota, for respondent.
   ENGLAND, Justice.

In this case petitioner seeks a writ of certiorari asking us to review a decision rendered by the Second District of Appeal and reported at 310 So.2d 378. We tentatively issued the writ based on an apparent conflict between that decision and other Florida appellate cases, principal among which are Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948) and Sistrunk v. Sistrunk, 235 So.2d 53 (Fla.App. 4th, 1970).

The point which petitioner suggests creates conflict in the jurisprudence of this state is whether, in light of Section 689.15, Florida Statutes (1975), the trial judge in a marriage dissolution proceeding has the power to reserve jurisdiction for the purpose of settling property rights after the decree of dissolution is entered. After hearing argument and reviewing the parties’ briefs, we conclude that the apparent direct conflict of decisions does not exist.

In Finston, a dissolution of marriage and settlement of property rights were adjudicated at the same time in the same decree. This Court simply held that a reservation of jurisdiction in that decree to enter effectuating orders which may later be required did not provide the authority to change the earlier property disposition. In Sistrunk, as amplified in Becker v. King, 307 So.2d 855, 860 (Fla.App. 4th, 1975), cert, dismissed, 317 So.2d 76 (Fla.1975), it was simply held that a modification petition filed after a final adjudication of property rights could not be the basis on which to change the earlier property disposition.

In this case, the district court had for review the initial property adjudication between these parties. The court’s decision that the trial court could properly dissolve the marriage and reserve jurisdiction to settle property rights which had never been adjudicated, including an award of special equity in property as to which title had been converted by the operation of Section 689.15, does not conflict with any other Florida appellate decision.

Accordingly, the writ is discharged.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR.
    No. 45692.
    Supreme Court of Florida.
    June 14, 1974.
   PER CURIAM.

Charges were filed against the attorney and a referee was appointed. The attorney moved to disqualify the trial referee on the basis of bias, prejudice and personal animosity the referee had toward the attorney. The motion was supported by two affidavits, one made by the attorney himself and the other by his law partner and counsel. The referee denied the motion to disqualify on the ground that the affidavits were not in compliance with Fla.Stat. § 38.10, F.S.A. The Integration Rules of The Florida Bar, Rule 11.06(5) (h), provide that a referee may be disqualified “in the same manner and to the same extent” that a circuit judge may be disqualified under existing law. Fla.Stat. § 38.10, F.S.A., relating to the disqualification of circuit judges, requires that the facts stated as a basis for disqualification must be supported in substance by affidavit of at least two reputable citizens of the county “not of kin to defendant or counsel to the defendant.”

The attorney seeks a review of the referee’s order denying the motion by a petition for interlocutory review, as well as by a suggestion for a writ of prohibition. The Florida Bar’s motion to dismiss the petition for interlocutory review is granted, and the suggestion for a writ of prohibition is denied without prejudice to the right of the attorney to raise the question of the referee’s disqualification in the course of the proceedings and have such questions reviewed in the event any recommendations of the referee are adverse to the attorney.

The Integration Rules of The Florida Bar, Rule 11.09(1), provides only for appellate review of final reports of referees or portions thereof.

Since the referee lacks the power either to reach a final decision or to implement that decision, prohibition is an inappropriate remedy. See State ex rel. Swearingen v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444 (1920). The grievance procedure is an adjunct of the judicial branch of government and shares responsibility with the Supreme Court in matters involving discipline of attorneys. It is the Supreme Court which must take the final action. The power to render the ultimate judgment is vested in this Court. Prohibition is that process by which a superior court prevents an inferior court or tribunal possessing judicial or quasi-judicial powers from exceeding its jurisdiction in matters over which it has cognizance or usurping matters not within its jurisdiction to hear or determine. DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).

It is so ordered.

ADKINS, C. J., and ROBERTS, ERVIN, BOYD and DEKLE, JJ., concur.


author: HATCHETT, Justice. ADKINS, Justice BOYD, Justice

text:
    CHICKEN’N’THINGS and Insurance Company of North America, Petitioners, v. Martha MURRAY and the Florida Department of Commerce, Industrial Relations Commission, Respondents.
    No. 47034.
    Supreme Court of Florida.
    March 17, 1976.

      Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for petitioners.
    Lawrence U. L. Chandler, of Hamilton, James, Merkle & Young, Delray Beach, for respondents.
   HATCHETT, Justice.

This case, which is indistinguishable from the run of cases decided by the Industrial Relations Commission, presents the question whether the industrial claims judge’s fact findings, which the Industrial Relations Commission upheld, should now be overturned. We decline petitioner’s invitation to interject ourselves at random as the primary finder of fact in workmen’s compensation cases, and deny the petition for writ of certiorari.

In Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla. 1974) (reh. den. 1975), the Court adopted “the traditional standard of ‘departure from the essential requirements of law,’ ” at 168, for reviewing decisions of the Industrial Relations Commission. As was there pointed out, this standard has been employed in other contexts, and has a well-defined meaning. The standard we recently decided to apply in cases like the one at bar is “the same standard currently applied in certiorari review of orders of the Public Service Commission and in interlocutory petitions and common law certiorari.” Id.

The writ of common law certio-rari is a means for review and correction of jurisdictional or other equally fundamental irregularities, and is not the proper procedure for challenging findings of fact, unless the fact-finding process has been marred by a departure from essential procedural requirements. In common law certiorari proceedings, findings of fact in the lower court are ordinarily conclusive. Metropolitan Life Insurance Co. v. Poole, 147 Fla. 686, 3 So.2d 386 (1941) (“It is not the province of this Court in reviewing a case on certiorari to go behind the judgment of the court below entered upon conflicting testimony.” At 386.) An encyclopedia of Florida law states the rule as follows :

On certiorari, the reviewing court will not ordinarily review conflicting evidence. In other words, it is not the province of the reviewing court to go behind the judgment of the court below entered upon conflicting evidence. Thus, the reviewing court will not ordinarily weigh the effect of the evidence, or consider its probative force if the conflicting evidence is legally sufficient to sustain the judgment. It will not even determine the sufficiency of the evidence if there was some evidence to support the verdict or judgment complained of, since to do so would confound the supervisory power of the reviewing court with its appellate jurisdiction. Nor will the higher court review the evidence to reconcile conflicting testimony. But the reviewing court will examine the record to determine whether there was any evidence at all to support the verdict or judgment, or whether there was such an absence of evidence, with resulting injury, as to amount to a departure from the essential requirements of the law. In doing so, the court will give the evidence a construction most favorable to the prevailing party.
S Fla.Jur. Certiorari § 29 (1955) (footnotes omitted)

This is the standard for review which this Court decided in Scholastic Systems, Inc. v. LeLoup, supra, would govern in cases like the present one.

In appellate proceedings, trial judges’ findings of fact are insulated against attack to a significant but somewhat lesser extent. We are bound by the trial court’s view of the facts on appeal, unless the findings are clearly erroneous. Greenwood v. Oates, 251 So.2d 665, 669 (Fla.1971); A.B.C. Business Forms, Inc. v. Gelvan, 300 So.2d 64 (Fla.App. 3d Dist. 1974); Hudson Pulp & Paper Corp. v. Butler & Co., 297 So.2d 103 (Fla.App. 1st Dist. 1974). When proceedings begun in an administrative agency reach this Court by petition for writ of certiorari, however, the showing necessary to overturn fact findings is greater than the showing an appellant must make. Not only are agency fact finders, like trial judges, closer to the evidence than we are, they are presumably better equipped, because of their expertise, to resolve conflicts in the evidence. Although we may believe that an agency’s findings of fact are mistaken, we are not at liberty to disregard them, unless there is no competent evidence, or only insubstantial evidence, to support the findings. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957); Tamiami Trail Tours, Inc. v. Carter, 80 So.2d 322, 324 (Fla. 1955). Cf. Federal Power Comm’n v. Florida Power & Light Co., 404 U.S. 453, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972); NLRB v. Walton Mfg. Co., 369 U.S. 404, 407, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This rule serves the legislative purpose to insulate agency decision making from interference by us, except where intervention is warranted because agency action has been arbitrary and capricious.

Like final orders of the Industrial Relations Commission, final orders of the Public Service Commission are initially judicially reviewable here. When orders of the Public Service Commission are challenged in this Court as being unsupported by the facts, this Court will uphold the orders even though it differs with the Commission’s view as to the effect of the evidence as a whole, so long as there is competent substantial evidence to support the orders. Gulf Oil Co. v. Bevis, 322 So.2d 30 (Fla.1975); DeGroot v. Sheffield, supra at 916; Tamiami Trail Tours, Inc. v. Carter, supra at 324. The same rule applied on review of orders of the Public Service Commission’s predecessor, the Railroad Commission. See State ex rel. Railroad Comm’rs v. Florida East Coast Ry. Co., 67 Fla. 83, 64 So. 443, 448 (1914) ; Note, Judicial Review of Administrative Findings of Fact: The Doctrine of Jurisdictional Facts in Florida, 2 U.Fla. Law Rev. 86, 93 (1949). An early statement of the rule, quoted in part and cited with approval in Gulf Oil Co. v. Bevis, supra, reads as follows:

The findings and conclusions and orders thereon . . . may be reviewed on certiorari, but such review is not appellate to determine whether error was committed in such findings and conclusions or in the orders as where writ of error or appeal is authorized or used. The review on certiorari is to determine whether the order as made is illegal as matter of law or was made without observing the provisions of law regulating the matters to be considered or the procedure for such findings and conclusions, or whether in its operation the order will violate organic or fundamental rights, or is merely arbitrary and without sufficient support in the evidence or proceedings had. If there is substantial competent evidence that is legally sufficient to support the findings and conclusions, and no rule of law was violated in the proceedings, and the whole record does not show an abuse of authority or arbitrary action, the findings and conclusions of the commission will not be set aside on certiorari even though the reviewing court might have reached different conclusions on the evidence.
Florida Motor Lines, Inc. v. State Railroad Comm’n, 101 Fla. 1018, 1044, 132 So. 851, 862 (1931).

We applied this rule in Mahler v. Lauder-dale Lakes Nat’l Bank, 322 So.2d 507 (Fla. (1975), a case decided after Scholastic Systems, Inc. v. LeLoup, supra, which, like the present case, arose from the Industrial Relations Commission.

In Mahler, the Industrial Relations Commission reversed a determination of total permanent disability by the Judge of Industrial Claims. On petition here for writ of certiorari to review the Commission’s order, this Court upheld the Commission, even though we indicated that we would also have upheld the Commission if it had not overturned the industrial claims judge’s findings. Cf. Sentinel Star Express Co. v. Florida Public Service Comm’n, 322 So.2d 503 (Fla.1975); Scheuerman v. Florida Real Estate Comm’n, 215 So.2d 29 (Fla.App. 1968). This illustrates the great deference due the Commission’s fact finding under the standard adopted in LeLoup. Even in a case where we would have reached precisely the opposite conclusion from the evidence (if we had been the finder of fact) we are bound by the Commission’s findings, unless they lack any substantial support in the record. Fact finding must be begun anew when there has been a breakdown in the original fact-finding process. But mere dissatisfaction with the result of the process is no justification for dishonoring the legislative judgment that the agency fact finders, rather than a second tier appellate tribunal like this Court, should have the responsibility and authority for resolving conflicting factual claims.

The fact findings in the present case are amply supported in the record. Dr. Cunningham (who did not testify himself) performed an electromyelogram which “showed definite evidence of an ir-ritative process involving the fifth lumbar and first sacral nerve roots on the left side.” Dr. Smith, whose testimony was generally accepted by the Judge of Industrial Claims, had treated the respondent before the accident out of which the present claim arose, and examined her some 31 times after her fall. Dr. Brandon, whose testimony as to respondent’s medical condition was rejected where it conflicted with Dr. Smith’s, saw respondent Murray on a single occasion. Every nonmedical conclusion of fact was predicated on un-controverted evidence. The judge of industrial claims accepted Dr. Brandon’s 50 per cent anatomical-functional rating as an accurate assessment of respondent Murray’s physical condition. An anatomical-functional rating bears importantly on the question of wage earning capacity, although this rating of physical disability constitutes only one of several relevant factors. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960); Dennis v. Brown, 93 So.2d 584 (Fla.1957) (“It is settled in this state that the disability is determined not by the functional loss, but by the loss of wage earning ability.” At 586.) The claimant in Gibson v. Minute Maid Corp., 251 So.2d 260 (Fla.1971) “suffered a 15 per cent permanent partial disability rating of the body as a whole on an organic basis.” At 261. Taking other factors into account, the Court reversed the Industrial Relations Commission for failing to award Gibson compensation for permanent total disability. Accord, Ross v. Roy, 234 So.2d 99 (Fla.1970) (claimant should have been adjudicated totally disabled where he had “20 per cent permanent partial disability of his body as a whole”. At 100.)

A trial is a notoriously expensive way to resolve any dispute. The legislature has taken from the courts original jurisdiction over industrial accident claims and created a specialized agency for settling disputes arising out of such accidents. By removing these controversies from the court system and providing for their resolution in a more informal manner, substantial economies can be effected, making possible more compensation for injured workmen at less expense to their employers. Or so the legislature could reasonably have concluded. But administrative costs are increased rather than lessened if review of Commission proceedings in this Court involves re-litigating facts which have already been found by the judge of industrial claims and which thereafter withstood attack in review proceedings before the Industrial Relations Commission.

Petitioner asks us to draw our own factual conclusions de novo from the cold record. To do so would only serve to encourage proceedings in this court to review purely factual questions; create additional uncertainty both for claimants and employers ; and do considerable violence to the legislative purpose of creating a specialized fact finder for expeditious resolution of workmen’s compensation cases. Accordingly, the petition for writ of certiorari is denied.

ROBERTS, Acting C. J., and ENGLAND, J., concur.

ADKINS, J., concurs with an opinion.

BOYD, J., dissents with an opinion.

ADKINS, Justice

(concurring).

I concur in the opinion of the majority for the reasons stated therein and in my concurring opinion in Hughes v. Public Finance Service, Inc., 319 So.2d 18 (Fla. 1975). While the principal issue in Hughes was whether an appellate court departs from the essential requirements of law when it reverses a lower court’s judgment which is supported by competent, substantial evidence, I stated there that the Industrial Relations Commission, acting as an appellate court, may not re-weigh the evidence and reverse the findings of the Judge of Industrial Claims if supported by competent, substantial evidence and that this Court’s review by certiorari is limited to a departure from the essential requirements of law. There is no departure from the essential requirements of law sub ju-dice and there can therefore be no review by this Court.

BOYD, Justice

(dissenting).

Claimant, Martha Murray, is a 28-year old high school graduate who was employed as a short-order cook at the Pie-Tisserie, a division of Chicken’N’Things. On March 3-, 1973, claimant slipped and fell in the kitchen of the restaurant, injuring her back. Claimant had previously suffered a similar back injury in 1970, as a result of which a herniated disc necessitated a laminectomy performed by Dr. William Smith. Dr. Smith, who treated her for the first back injury and the back injury from which this claim arises, testified regarding his treatment of the claimant. He stated that claimant had recovered well from her 1970 surgery; according to him, her disability due to the first accident was about 5%. After the second accident Dr. Smith saw her on March 5, 1973, and treated her conservatively until May when he suggested that she have another lami-nectomy to relieve the pain. Claimant rejected further 'surgery. Following the compensable accident in March 1973, claimant was involved in an automobile accident in December; while she had some neck problems after that accident, she did not suffer any permanent disability as a result thereof. Dr. Smith testified that claimant could do a certain amount of lifting, and according to him, claimant is 50% disabled, 5% of which is attributable to the first accident. Dr. Smith testified that claimant can do some things, that she can work, that she could certainly be rehabilitated, and that he advised claimant to attempt to do some sort of work. Dr. James Brandon also testified at the hearing; after examining claimant Dr. Brandon recommended conservative, non-surgical treatment, such as the use of a back brace. With such a brace claimant would be able to lift pans and dishes ranging in weight from 20 to 25 lbs. Dr. Brandon suggested that claimant, who was overweight, reduce her weight as a means of alleviating her back complaints. Dr. Brandon gave claimant a 15% permanent partial disability.

Claimant’s work experience includes working on a farm and as a short-order cook and dishwasher. When queried whether she was willing to take rehabilitative training in order to equip herself to do some sort of work, claimant stated she did not want to take any training because she figured she already had her education. She admitted that she refused to go to vocational rehabilitation. Upon professional testing claimant’s literacy level was stated to be that of a second or third grade student. Claimant testified that she would not be willing to work even if she could find a job which did not require her to sit for long and where she could get up and walk around. She has not sought work since her accident at the Pie-Tisserie. If her workmen’s compensation were cut off, claimant stated she would just have to ask her sister to help out.

At trial the parties stipulated as to jurisdiction, venue, the employer-employee relationship, the compensation rate, the date of accident and the date of maximum medical improvement. The Judge of Industrial Claims found that claimant was possessed of a 50% disability of her body as a whole and, due to her educational background, her injury, and her personality, she was found permanently and totally disabled. The Industrial Relations Commission affirmed the Judge of Industrial Claims in a 2-1 per curiam decision. It is from that decision that this petition is brought.

I agree with the dissenting opinion of Commissioner Friday for the following reasons.

It is recognized that an injured party may reject serious surgical operations, particularly where the party is aware of the nature of such an operation and is genuinely afraid to undergo it. Nevertheless, as this Court stated in South Atlantic Shipbuilders, Inc. v. Taylor

“We must disagree with the findings of the Full Commission. The employer-carrier has the burden of showing that suitable employment is available for a claimant only after the claimant has proven by competent, substantial evidence that he is not able to acquire and uninterruptedly perform even light work in the open labor market. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960).

The record in this case shows that Respondent cannot do the same work as she did before her second industrial accident, but it also reflects that she is not willing to be trained so that she might receive new skills or improve old ones which would enable her to do work of some sort.

I do not believe that the Legislature of Florida has ever intended that those seeking workmen’s compensation benefits can voluntarily withdraw themselves from the work force of this state and receive full compensation benefits for life without demonstrating a greater physical incapacity than is evidenced in this record. Respondent has shown certain anatomical disabilities which do not render her totally incapacitated; on the contrary, she has demonstrated that her present attitude concerning her own welfare and economic improvement is the major factor in her present failure to work. We share Commissioner Friday’s concern regarding the need for a greater “awareness of the responsibilities attendant upon claimants themselves.”

The record indicates a lawful basis to establish benefits equal to 50% of that ordered by the Judge of Industrial Claims, but there is insubstantial evidence to support an award of benefits of 100%. Claimant has clearly failed to exhaust available means of rehabilitation. It is not the intent of the Legislature in enacting the Workmen’s Compensation Act to permit a person to gain benefits by resigning from society.

I must dissent.

      . Neither side has advanced any suggestion that any procedural right has been infringed in the course of these agency proceedings.

      . The pertinent finding of fact are (R. 179-182) :
      6. The issue to be resolved at the hearing in this cause was the extent of the claimant’s permanent disability based upon the claimant’s loss of wage earning capacity. The claimant’s position is that she has suffered a permanent and total disability as a result of the merger of her prior disability with that arising from the subject accident to produce a total loss of wage earning capacity. The carrier took the position that the claimant’s loss of wage earning capacity was not more than 50 per cent functional or anatomical rating as given by the treating physician.
      7. The claimant is a 28-year old female of the Negro race who is separated from her husband, and has two children. She was born in Cairo, Georgia; attended elementary and high school in Cairo, Georgia, where she lived with her parents and assisted her parents in working as a farm laborer, doing essentially harvesting work in the fields. She was graduated from high school in 1965 and migrated to Florida in December 1966, to join some of her relatives who were already living in West Palm Beach. In West Palm Beach, Florida, she obtained employment in approximately 1967 at the George Washington Hotel as a dishwasher. She worked there for several years as a dishwasher until she had an accident when she slipped and fell on a wet floor, which resulted in a disc injury and back surgery which was performed in March, 1970. This surgery produced a relatively good result and the claimant was able to return to her work as a dishwasher in approximately 1971, when she became employed by the employer herein. She continued in this employment until March 3, 1973, when she again fell on the kitchen floor and which caused the herniation of a disc in her low back. She has been treated conservatively for her back condition since the accident, and surgery has been recommended by her treating physician, Dr. Smith. The claimant steadfastly refuses to have additional surgery performed on her back, stating that she is genuinely afraid of the consequences of additional surgery, having heard of and being acquainted with other people who have had poor results from back surgery. Dr. Smith agrees that a second back operation is more likely to produce poorer results than first operative procedures to the low back. The type of surgery involved is major surgery, and I find that the claimant’s refusal to undergo additional surgery is reasonable under all the circumstances and in view of her past experience.
      8.The claimant currently suffers pain in her low back and this pain is aggravated by extended walking or sitting for periods of time. Standing for periods of time in excess of an hour or so aggravates her back condition. She has experienced this in non-employment activity. Repetitive type lifting, stooping or bending would cause aggravation of her back condition and because of this she would be unable to lift trays of dishes, packages and/or boxes in eonnection with employment for which she has previously had experience. The claimant’s entire work background involves employment that requires relatively heavy lifting, stooping or bending. Mr. John Spagnoli, a reading specialist and director of reading services for the Palm Beach County School system, performed a reading, writing and literacy test upon the claimant. Although the claimant states that she did in fact attend and graduate from the public high school in Cairo, Georgia, her present reading level is at the fourth grade level, with inadequate ability to express herself in writing. She is incapable of performing jobs which require verbal fluency at either receptive or expressive levels. The claimant is functioning below the level of functional literacy expected for any but the most simple requirements of our society. The claimant was evaluated by Mr. J. A. Mor-koski, an employment expert, who had the benefit of the test results from the evaluation made by Mr. Spagnoli, and which are in evidence. He opined that the claimant was unemployable.
      9. The claimant has made little or no effort to return to work since her injury involved herein. However, I find that this claimant’s failure to seek employment is reasonable and justified by reason of the physical limitations placed upon her ability to work.. She is not qualified to perform work which would be compatible with her physical limitations and disability. Based-upon the testimony of Mr. Spagnoli, Mr. Morkoski and corroborated by my own observation of the claimant at the hearing, I find that it would be useless and futile for the claimant to seek employment because of her previous industrial background; her personality; her inability to function from a literacy standpoint, and her physical restrictions, disability and limitations on account of the industrial accidents above mentioned.
      10. Because of her injury and disability in connection with the subject accident, which merged with the pre-existing disability, the claimant is no longer able to work in jobs involving repetitive lifting, stooping or bending, or work demanding physical labor. I, therefore, find that the claimant is unemployable in the open, competitive labor market, and is, therefore, from a wage earning standpoint, permanently and totally disabled.

      . Henderson v. Booth, 281 So.2d 350 (Fla. 1973).

      . 234 So.2d 97, 98 (Fla.1970).


author: OVERTON, Chief Justice. BOYD, Justice

text:
    STATE of Florida, Petitioner, v. Gaylon E. BOATMAN, Respondent.
    No. 46891.
    Supreme Court of Florida.
    March 17, 1976.
    Boyd, J., filed dissenting opinion in which Adkins, J., concurred.

      Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for petitioner.
    Jack F. White, Jr., Clearwater, for respondent.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari to review the decision of the Second District Court of Appeal reported at 306 So.2d 592 (Fla.App.2d 1974). This decision conflicts with State v. Bryant, 276 So.2d 184 (Fla.App. 1st 1973). We have jurisdiction.

This cause concerns the application of the speedy trial rule to a juvenile. At issue is the computation and applicability of Rule of Criminal Procedure 3.191 in circumstances where a juvenile has been certified to be tried as an adult. The instant factual situation is unique. Its circumstances traverse the consolidation of the juvenile court with the circuit court under the provisions of Article V, Florida Constitution, and the initial promulgation of Rules of Juvenile Procedure, both effective January 1, 1973.

The defendant-respondent initially was picked up by juvenile authorities on August 4, 1972, for delivery of marijuana exceeding five grams in weight. On October 16, 1972, the State filed a motion in juvenile court to have him adjudicated delinquent. At the hearing on said motion on October 24, 1972, the mother of the respondent requested that the court delay its decision. The defendant-respondent was then represented by counsel. The mother indicated that she wished a transfer of the case to the circuit court, criminal division, but equivocated and asked the juvenile judge to withhold his determination until she retained and conferred with a new attorney. New counsel was employed, and he filed a demand for jury trial in the Pi-nellas County juvenile court on November 16, 1972. On this date the juvenile court was a separate statutory court without jury trial jurisdiction. Pursuant to the provisions of Article V, Florida Constitution, the juvenile court of Pinellas County became a division of the circuit court on January 1, 1973. On February 12, 1973, the juvenile division certified the case to the criminal division for trial, and in his order of certification the juvenile judge explained the delay as follows:

“The Court finds that this Order has been delayed for signing inasmuch as there had been a change of attorneys and an indication from the mother, Ethel Boatman, that she wished to change her mind concerning request for certification to the Circuit Court at the time of the child’s appearance in Court on October 24, 1972; that after consultation with the present attorney, Jack White, Jr., it does now appear to the Court that the child and his mother are not requesting a rehearing in this matter, however, do wish that the matter be transferred to the Circuit Court as originally requested.”

Information was filed in the criminal division of the circuit court on April 3, 1973. He was arraigned on April 13, 1973, and trial was set for May 30, 1973. The defendant-respondent’s pretrial motion for discharge for failure to provide a speedy trial filed on May 29, 1973, was denied by the trial judge. The defendant-respondent was tried and found guilty by a jury on May 30, 1973. Although tried as an adult, the respondent was sentenced as a juvenile pursuant to Section 959.115, Florida Statutes. The respondent was released to the custody of this mother on the date of his initial arrest and either has been in her custody or released on his own recognizance during this entire proceeding.

The Second District Court reversed the trial court’s denial of the defendant-respondent’s discharge motion, holding that:

“ . . . [WJhatever appellant’s rights were prior to his having been certified to the circuit court, when he was so certified he was an adult for all intents and purposes and all rules applicable to adults then and there came to fruition as to him. This would include, of course, Rule 3.191, supra, which obviously must be applied according to its terms. . . .” 306 So.2d at 594.

The Second District computed the 180 days from the date the defendant was taken into custody, August 4, 1972.

This holding indicated the defendant-respondent became entitled to discharge twelve days after certification to the circuit court for trial since 180 days, by the District Court’s calculation, had expired on February 24, 1973.

No speedy trial procedural rule was applicable to juveniles in 1972, the time the respondent was taken into custody. The Rules of Juvenile Procedure, including RJP 8.120, providing for a speedy trial, were effective on January 1, 1973, and although applicable at the time of the certification, the speedy trial provision was not retroactive to the date the respondent was taken into custody.

We hold that the procedural 180-day period did not commence to run for this defendant-respondent until January 1. 1973. The contention that the speedy trial period commenced to run when the demand for a jury trial was filed in a statutory juvenile court lacking jury trial jurisdiction is without merit. The demand was a nullity. The initial delay in the certification of this juvenile to the criminal division of the circuit court was occasioned by the actions of the juvenile’s mother. The record reflects that subsequent delay, until February 12, 1973, was occasioned by the failure of new counsel to communicate to the court his desire for certification to the circuit court. The demand for jury trial did not adequately apprise the court of counsel’s apparent desire for certification. There is no contention nor does the record establish any delay in the certification after the mother’s wishes were made know to the juvenile judge.

The certification of a juvenile to be tried as an adult is an important proceeding. The juvenile judge must consider the interests of both the child and the public. Factors for consideration have been established in our statutes and by case law. The parent has no power to order the certification of a child to the adult court. That decision is in the discretion of the juvenile judge; however, parents’ desires are a factor that should properly be considered.

The defendant has conceded there is no specific evidence of prejudice, and we can discern no aspect of the delay which is presumptively prejudicial. Accordingly, we conclude there was no Sixth Amendment denial of a speedy trial to defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The defendant-respondent does, however, contend that the Fourteenth Amendment Equal Protection Clause has been violated. He asserts the rule for adults must apply for juveniles. With this contention, we disagree. The procedural rights of juveniles and adults do differ as illustrated by the United States Supreme Court’s decision in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), where that court held no right to a jury trial existed for a juvenile. The argument concerning equal protection is unavailing .in this proceeding in any event, in light of our decision that the adult speedy trial rule operated for this defendant from January 1, 1973.

We agree with the result of the First District Court in State v. Bryant, supra, cited for conflict with the instant case, but not for the reasons expressed therein. Juvenile delinquency proceedings are neither wholly criminal nor civil in nature. The United States Supreme Court has refused to simplistically categorize juvenile proceedings as either “criminal” or “civil,” avoiding thereby a “wooden approach.” McKeiver v. Pennsylvania, 403 U.S. at 541, 91 S.Ct. at 1984, 29 L.Ed.2d at 658 (plurality opinion). While certain federal constitutional rights obtain in juvenile proceedings, others do not. The First District Court’s decision in State v. Bryant, supra, effectively has been superseded by Rule of Juvenile Procedure 8.-120, establishing a procedural right to speedy trial in juvenile proceedings.

The decision of the Second District Court is quashed, and this cause is remanded with directions to reinstate the judgment and sentence of the trial court.

It is so ordered.

ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

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

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion because I consider it a violation of respondent’s right of both equal protection and due process of law, as guaranteed by the Federal and State Constitutions.

If professional and hardened criminals are permitted release from incarceration because they are not tried within 180 days from time of arrest, certainly a juvenile should be accorded the same immunity.

In this case the juvenile was taken into custody and detained for an unreasonable period of time before the judicial determination was made that he be tried as an adult offender. It has been argued that juvenile confinement is actually not criminal in nature, but governmental involuntary confinement of a child can, in many instances, be more traumatic than confinement of an adult in maximum security. I am totally unable to understand why, in computing the 180-day rule, he should not be given credit for the time spent in juvenile confinement. From the inside all jails look alike.

I would affirm and adopt the view expressed by the District Court of Appeal, Second District, herein reviewed.

ADKINS, J., concurs.

      . Art. V, § 3,(b) (3), Fla.Const.

      . § 39.02(6), F.S. (1971), was applicable at the time of this proceeding. It has since been amended by § 39.09(2), F.S. (1973), as construed by Davis v. State, 297 So.2d 289 (Fla. 1974), and Bryant v. State, 313 So.2d 711 (Fla.1975).

      . Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) ; Davis v. State, supra note 2. Bryant v. State, supra note 2.

        . Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117, identifies four factors assessable in speedy trial determinations : (1) length of delay; (2) reason for delay; (3) defendant’s assertion of right to speedy trial; and (4) prejudice from alleged denial. The latter of these is considered to be a threshold requirement.

      . See, e. g., In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (right to counsel and a record of proceedings, right against self-incrimination) ; Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, 43 LW 4644 (May 25, 1975) (right against double jeopardy) ; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (burden of proof beyond reasonable doubt).

      . McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (right to jury trial does not obtain).

      . State ex rel. Argersinger v. Hamlin, 236 So.2d 442, 445 (Fla.1970).


text:
    Kenneth E. PADGETT et al., Petitioners, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LAKE WORTH, a United States Corporation, Respondent.
    No. 46096.
    Supreme Court of Florida.
    Feb. 4, 1976.
    Rehearing Denied April 20, 1976.

      Michael O’Haire of Smith, Heath, Smith & O’Haire, Vero Beach, for petitioners.
    Mitchell W. Legler of Mahoney, Had-low, Chambers & Adams, Jacksonville, and Richard L. Johnson of McGee, Johnson, Jordan, Hutcheson & Young, Lake Worth, for respondent.
    Daniel J. Goldberg and Harold B. Shore, Washington, D.C., for the Federal Home Loan Bank, Bd., amicus curiae.
   PER CURIAM.

Certiorari was granted in this cause because of apparent conflict between the instant decision of the Fourth District Court of Appeal reported at 297 So.2d 101 (Fla.App.4th 1974), and. the decision of this Court in Tel Service Co., Inc. v. General Capital Corporation, 227 So.2d 667 (Fla.1969), concerning the applicability of Section 687.071, Florida Statutes. We find no conflict and, further, that the decision of the District Court is in accordance with our decision in Wilensky v. Fields, 267 So.2d 1 (Fla.1972), and the decision of the First District Court of Appeal in Staros v. Avalon Shores, Inc., 249 So.2d 448 (Fla. App.lst 1971).

The District Court further considered whether a Federal Home Loan Bank fell within the purview of a usury exemption as prescribed by Section 665.395, Florida Statutes, when that issue was raised in a motion to dismiss, holding it could not properly determine that issue under the circumstances of this case, and remanded the cause with the suggestion that the issue should be raised as an affirmative defense. This action was neither improper nor determinative to give us jurisdiction.

We hold that this Court is without jurisdiction. The writ heretofore issued is therefore discharged.

It is so ordered.

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