author: HATCHETT, Justice. BOYD, Justice,

text:
    CENTURY VILLAGE, INC., Appellant, v. WELLINGTON, E, F, K, L, H, J, M, & G, CONDOMINIUM ASSOCIATION, Appellee.
    No. 52528.
    Supreme Court of Florida.
    July 13, 1978.

      John B. McCracken of Jones, Paine & Foster, West Palm Beach, for appellant.
    Rod Tennyson of Ombres, Powell, Tennyson & St. John, West Palm Beach, for ap-pellee.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for intervenor.
    Jeffrey E. Streitfeld and Mark B. Schorr of Becker, Poliakoff & Sachs, Curtin R. Coleman of Coleman, Leonard & Morrison, and Davis W. Duke, Jr. of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, for amicus curiae.
   HATCHETT, Justice.

We have for review an order upholding the constitutionality of Section 711.63(4), Florida Statutes (Supp.1974), which requires condominium unit owners to deposit rents into the court registry pending litigation involving recreational leases. Jurisdiction vests pursuant to Article V, Section 3(b)(1), Florida Constitution. The order of the trial court is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

FACTS

In March, 1975, appellee condominium associations filed suit against Century Village, Inc., the appellant herein, challenging the validity of certain recreation leases and the rent escalation clauses contained therein. Pursuant to Section 711.63(4), as amended by Chapter 75-224, Section 10, Laws of Florida [renumbered Section 718.-401(4)] the escalated portion of the disputed rents was deposited by the associations into the registry of the court to be held pending litigation. By stipulation, the parties later agreed to deposit the rents into an interest bearing account at a commercial bank to be distributed upon termination of the lawsuit to the prevailing party. The unescalated portion of the rents was remitted directly to appellant. Approximately one year later appellant challenged, by various motions and in several hearings, the rent deposit procedure. In an order denying appellant’s motion to dissolve the escrow account, the trial court upheld the constitutionality of Section 711.63(4), determined that as amended by Chapter 75-224, Section 10, Laws of Florida, it was applicable to suits by condominium associations, and held that it applied retroactively. In a subsequent order, the trial court denied a motion to enter immediate defaults against the appel-lee associations for failure to make timely payments. These orders are consolidated for appeal.

The issues presented for our consideration are: (1) whether Section 711.63(4) applies retroactively; (2) whether, applied retroactively, it impairs vested contractual rights in violation of Article I, Section 10, Florida Constitution, and Article I, Section 10, United States Constitution; and (3) whether a condominium association may avail itself of the deposit provisions of Section 711.63(4), when it is bringing the action. In addition, appellant challenges the validity of the statute on due process grounds. We need not reach this issue, however, since it was raised for the first time on appeal. South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla.1958).

I

Section 711.63(4), Florida Statutes (1975) provides a procedure whereby a condominium unit owner bringing or defending an action on a recreational facilities lease pays rent accruing during the pendency of litigation into the court registry. It states:

(4) The lease shall provide, and if it does not so provide shall be deemed to provide, that in any action by the lessor to enforce a lien for rent payable with respect to leases under this section or any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor’s obligations under the lease. If the unit owner initiates any such action or interposes any defense other than payment of rent under the lease, the unit owner shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the unit owner to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the unit owner’s defenses other than payment, and the lessor shall be entitled to an immediate default. When the unit owner has deposited funds into the registry of the court as provided herein, the lessor may apply to the court for disbursement of all or part of the funds as may be shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution.

The leases sued upon antedate the passage of Section 711.63(4) by the 1974 Legislature, its amendment by the 1975 Legislature, and its renumbering by the 1976 Legislature. Therefore, the statute must be applied retroactively if it is to apply in this case. The presumption is that legislation is effective prospectively and will be given retroactive effect only when the act clearly and explicitly provides for such application. In Trustees of Tufts College v. Triple R. Ranch, Inc. 275 So.2d 521 (Fla.1973) we stated:

The bias against retroactive legislation is deeply rooted in the Anglo-American law. . A statute will be construed as prospective only unless the .intention of the Legislature to give it a retroactive effect is expressed in language to [sic] clear and explicit to admit of reasonable doubt, (footnotes omitted) At 524.

This principle was recently applied by this court to prohibit the retroactive application of Section 711.231, Florida Statutes (1975) (the escalation clause statute) in Fleeman v. Case, 342 So.2d 815 (Fla.1976) and Section 711.66(5)(e), Florida Statutes, (1975), in Avila South Condominium Assn. Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977).

The effective date of Section 711.63(4) is found in Section 19 of Chapter 74-104, Laws of Florida, which provides as follows:

Section 19. This act shall take effect October 1, 1974; provided however that nothing contained in sections 711.63 other than 711.63(4), and 711.64, Florida Statutes, shall affect:
(a) Rights established by contract for sale of a unit by a developer to a prospective unit owner prior to July 1, 1974.
(b) A condominium or a cooperative as to which rights are established by contract for sale of a unit in the condominium or cooperative by the developer to a prospective unit owner prior to July 1, 1974.
(c) The form of a lease that would be otherwise subject to the requirements of section 711.63, Florida Statutes, if the lease form is established by contract for sale of a unit in any condominium or any cooperative by the developer to a prospective unit owner prior to July 1, 1974, which lease form may be used in the making of all leases of the leased property and as to such other property that may be added to the leased property in accordance with the terms of the lease;
(d) And provided further that if on October 1, 1974 there are less than six remaining unsold units in a condominium or cooperative in which there have been binding contracts for the sale of other units executed prior to October 1, 1974, then the requirements of 711.69, Florida Statutes, shall not be applicable to the sale or offering of such remaining unsold units; and provided further that nothing contained in section 711.65, Florida Statutes, shall affect a condominium or a cooperative as to which rights are established by contracts for sale of ten percent (10%) or more of the units in the condominium or cooperative by the developer to prospective unit owners prior to July 1, 1974, or as to condominium or cooperative buildings on which construction has been commenced prior to July 1, 1974. (emphasis added)

This section clearly and explicitly exempts Section 711.63(4) from the October 1, 1974 effective date and expressly provides for application to pre-existing contracts. As appellant points out, in Avila South we relied upon the same portion of Chapter 74-104 to hold that Section 711.66(5)(e) was not intended to apply retroactively. In that case we stated:

In support of the contention that Section 711.66(5)(e) was intended to have retroactive effect, appellants-petitioners rely on certain language in Ch. 74-104, § 19, Laws of Florida, creating Section 711.66 et seq., etc. Appellants-petitioners argue that Section 711.66(5)(e) “was not among those sections specifically deemed not to apply to pre-existing condominium contracts, thereby manifesting a legislative intent that it should apply.” Brief for Appellants, page 9. But a statute “is not to be given retrospective application unless it is required by the terms of the Statute or it is unequivocally implied,” Keystone Water Co. v. Bevis, 278 So.2d 606, 608 (Fla.1973). The title of the enactment did not give notice of retroactivity, see Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, 645 (1944), and the language on which appellants-petitioners rely does not “unequivocally imply” a legislative intent that Section 711.66(5)(e) operate retroactively, (footnotes omitted) At 604.

From a reading of Section 19 it is clear that Section 711.66(5)(e) was not specifically excluded from the operative date. It is just as clear that Section 711.63(4) is excluded. We therefore hold that the provisions of Section 711.63(4) were intended by the Legislature to apply retroactively.

II

Next, we are asked to decide whether retroactive application of Section 711.-63(4) may be accomplished without unconstitutionally abridging vested contractual rights. Because we find that appellant in this case, by specific language contained in its Declaration of Condominium, expressly agreed to be bound by all future amendments to the Condominium Act, including, but not limited to Section 711.63(4), we need not reach this constitutional question.

The submission statement contained in Century Village’s Declaration of Condominium provides:

[the developer] hereby states and declares that said realty, together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 Et. Seq. (hereinafter referred to as the “Condominium Act”), and the provisions of said Act are hereby incorporated by reference and included herein thereby . . . (emphasis added)

The “Condominium Act” referred to above is defined in Section 1(G) as follows:

Condominium Act means and refers to the condominium act of the State of Florida (Florida Statute 711, et seq.) as the same may be amended from time to time. (emphasis added)

By express language, the declaration provided for the adoption of future legislative acts as amendments to the original declaration. Thus, the provisions of Section 711.-63(4) were specifically incorporated by reference. This holding is consistent with that reached by the Third District Court of Appeal in Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. den., 355 So.2d 517 (Fla.1978). In that case, the Third District Court interpreted a similar provision, also contained in a declaration of condominium and held:

The contested clause unequivocally states that provisions of the Condominium Act are adopted “as it may be amended from time to time.” (Emphasis added.) We perceive no ambiguity in this language, and thus find that it was the express intention of all parties concerned that the provisions of the Condominium Act were to become a part of the controlling document of Fifth Moorings whenever they were enacted. Even if we were to find an ambiguity, we would be forced to construe it against the defendant developer/lessors as authors of the Declaration of Condominium. See Bouden v. Walker, 266 So.2d 353 (2d DCA 1972); see generally 49 Am.Jur.2d, Landlord and Tenant, § 143. (footnotes omitted) At 628.

We therefore hold that because Section 711.63(4) is incorporated by reference as part of the controlling document of Century Village, no constitutional question of impairment of contract is raised.

Ill

Finally, we must determine whether a condominium association, suing on behalf of its unit owners, may avail itself of the deposit provisions of Section 711.63(4). Appellant argues that since the plaintiffs/ap-pellees in this case are condominium associations, the deposit provisions of the statute are inapplicable. We agree. The language in Section 711.63(4) is clear and explicit. Only where a unit owner initiates an action or interposes a defense are the deposit provisions applicable. In cases where an association brings the action the unit owners must continue to pay accrued rent in accordance with the terms of the lease agreement. We reject the argument advanced by appellees that under the new class action rule adopted in Avila South, an association is identical to and standing in the place of the unit owner. In Avila, we extended a class action to an association under certain defined circumstances, but in no way attempted to equate an association with a unit owner for all purposes or for the purpose of the statute here under review. The terms “association” and “unit owner” are not interchangeable in this statutory context.

In Florida, condominiums are creatures of statute and as such are subject to the control and regulation of the Legislature. That body has broad discretion to fashion such remedies as it deems necessary to protect the interests of the parties involved. Section 711.63(4) requires a unit owner to deposit rents with the court, and in the event he prevails, the return of any excessive rents paid is guaranteed without delay. It was within the discretionary power of the Legislature to extend this protection to cases where an association initiated suit. They did not and we cannot.

However, under Fla.R.Civ.P. 1.600, in any action in which part of the relief sought is judgment for a sum of money or the disposition of a sum of money, a party may deposit all or any part of such sum with the court upon notice to each party and with permission of the court. Thus, by rule, if not by statute, deposit of rents is authorized.

In addition, a trial judge may, in his discretion, fashion suitable remedies based upon the facts of particular cases to carry out the purposes of the rule and statute.

We hold that Section 711.63(4) was intended by the Legislature to be applied retroactively; that the Declaration of Condominium incorporated the Condominium Act as amended; that a condominium association bringing suit on behalf of its unit owners may not avail itself of the deposit provisions of the statute; and that trial judges are free to use Fla.R.Civ.P. 1.600, or other equitable deposit plans, to hold rent payments during litigation.

Accordingly, the order of the trial court is affirmed in part and reversed in part and remanded for proceedings consistent with the opinions expressed herein.

It is so ordered.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

It has long been constitutional law that temporary deprivation of payment under contract is impairment of the obligation of contract. Louisiana ex rel. Ranger v. New Orleans, 102 U.S. 203, 26 L.Ed. 132 (1880). At no time could it be more true than today, when rampant inflation is the norm.

The majority avoids this constitutional issue by ascribing to the landlord at the time it entered the Declaration of Condominium the intent to be bound by any amendment to the Condominium Act. I concede that the declaration contained an agreement to be bound by future amendments to the Act. But, in finding intent and construing contracts there is always room for common sense. To my mind, it defies reason to say that the landlord intended when it entered the declaration that it could be deprived of rental payment, even temporarily, by what it thought was an innocuous reference to the Condominium Act, a reference that is undoubtedly condominium contract boilerplate. If the Condominium Act were amended to take the full rental payments away from condominium landlords permanently I doubt the majority would so easily dismiss the constitutional issue. And I cannot dismiss the issue here since the deprivation suffered by the landlord so obviously is an impairment of his constitutional right to timely receipt of rental payments.

      . Section 711.63(4), Florida Statutes (Supp. 1974), provides:
      The lease shall provide, and if it does not so provide, shall be deemed to provide, that in any action by the lessor to enforce a lien for rent payable- with respect to leases under this section or any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may interpose any defenses, legal or equitable, that he may have with respect to the lessor’s obligations under the lease. If the unit owner interposes any defense other than payment of rent under the lease, the unit owner shall pay into the registry of the court the accrued rent as alleged in the complaint, or as determined by the court, and the rent which accrues during the pendency of the proceeding, when due. Failure of the unit owner to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the unit owner’s defenses other than payment and the lessor shall be entitled to an immediate default. When the unit owner has deposited funds into the registry of the court as provided herein, the lessor may apply to the court for disbursement of all or part of the funds as may be shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution of the cause.

      . Section 718.401(4), Florida Statutes (Supp. 1976) provides:
      In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor’s obligations under the lease. If the unit owner initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner fails to pay the rent into the registry of the court, it shall constitute an absolute waiver of the unit owner’s defenses other than payment, and the lessor shall be entitled to default. When the unit owner has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement for all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or part of the funds on deposit to the lessor for such purpose.

      . The decision not to reach the constitutional question is not suggestive of how that issue will be determined if squarely presented. The principle that courts will not determine constitutional questions where the case may be decided on other grounds is so central and elementary in the jurisprudence of this state and nation as not to be open to argument. State v. Dye, 346 So.2d 538 (Fla.1977); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Division of Beverage v. Foremost-McKesson, Inc., 330 So.2d 143 (Fla.1976); McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

      . Except where variances permitted by law appear in this Declaration or in the annexed ByLaws or in the annexed charter of Fifth Moorings Condominium, Inc., or in lawful amendments thereto, the provisions of the Condominium Act as presently existing or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference.

      . In light of this determination, we need not reach the issue of whether or not the deposit provisions were available to a unit owner/plaintiff when this action was commenced.

      . In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party may deposit all or any part of such sum or thing with the court upon notice to every other party and by leave of court. Money paid into court under this rule shall be deposited and withdrawn by order of court.


source: Caselaw Access Project

author: BOYD, Justice. ENGLAND, Chief Justice,

license: Public Domain

text:
    William Lamar ROSE, etc., Petitioner, v. PALM BEACH COUNTY, etc., Respondent.
    No. 52124.
    Supreme Court of Florida.
    July 13, 1978.
    David H. Bludworth, State’s Atty., and Stephen R. Koons and Joel M. Weissman, Asst. State’s Attys., West Palm Beach, for petitioner.

      R. William Rutter, Jr., County Atty., and Charles P. Vitunac, Asst. County Atty., West Palm Beach, for respondent.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for amicus curiae.
   BOYD, Justice.

In the course of a criminal prosecution in Palm Beach County Circuit Court, the indigent defendant’s appointed counsel moved successfully for a change of venue. This change made it necessary for the state and defense witnesses, numbering more than seventy-five, to travel from Palm Beach County to Duval County, a distance of some three hundred miles. Many of these witnesses were indigent. The prosecution asked the trial court for an order compelling the Palm Beach County Commission to make payments for the benefit of state and defense witnesses in excess of the amounts provided for witness compensation and travel expenses in Section 90.14, Florida Statutes (1975). This section provides that witnesses are to receive $5.00 per day and six cents per mile. The court granted the petition and directed that the witnesses be paid $9.25 per day and 10 cents per mile. The county sought review of the order by certiorari in the District Court of Appeal, Fourth District. The district court quashed the order, holding that the circuit court judge was without authority to issue it. The judge who ordered the payments now seeks a writ of certiorari to the district court. Our jurisdiction has been properly invoked in light of the fact that, pursuant to Article V, Section 3(b)(3) of the Florida Constitution, the district court has certified to this Court as a matter of great public interest the following question:

Does a trial court have inherent power to order prepayment of traveling and lodging expenses to ensure a fair trial to a criminal defendant and the state in excess of the statutory maximum of $5 a day and $.06 a mile when the witnesses are indigent?

Petitioner contends that he should have the power to go beyond the statutory amounts for witness fees and expenses since it is necessary to the performance of the special judicial function of ensuring to both the state and the accused a fair trial of the case. He asserts that this case calls into play the rights of equality before the law, due process, and compulsory process against witnesses guaranteed by sections 2, 9 and 16 respectively, of the Declaration of Rights of the Florida Constitution. Petitioner argues that the protection of these rights, in the last analysis, is the function of courts and that the power to issue the order under consideration is necessary to the performance of this function. Not only is the protection of the rights of the accused at stake, but also the interests of the state in securing a conviction of a guilty party which will not be overturned for failure of a fair trial. Frequently, the ultimate result of a clear denial of due process is freedom for the accused, who may be guilty. Therefore, argues petitioner, it is essential to the judicial function that courts have the inherent power to protect against such a denial, in the interest of both the state and the accused.

The respondent county commission points out that at common law there was no right in an accused to compulsory process against witnesses. It argues that the development of the right of compulsory process against witnesses has not given rise to any right in witnesses to be compensated or in those accused of crime to have their witnesses appear at public expense. The rights of witnesses to compensation and to reimbursement for expenses are purely creatures of statute.

Furthermore, argues respondent, the doctrine of inherent judicial power invoked by petitioner is a derivative of the concepts of separation of powers and judicial independence. As such, it is a very narrow doctrine positing only that courts have authority to do things that are absolutely essential to the performance of their judicial functions. Since the asserted judicial problem of ensuring for the state a fair opportunity to gain a conviction of the accused can be remedied by appropriate legislation and since the judicial function of effectuating the right of compulsory process can be performed through use of the contempt power against the subpoenaed, nonresponding witness, it is not necessary for courts to have the power to order the payment of fees and expenses of witnesses. Fees, concludes respondent, are strictly a legislative matter.

We agree with respondent that the responsibility for the adequate and efficient prosecution of violations of law is a matter lying with the policy-making branches of government. But where the fundamental rights of individuals are concerned, the judiciary may not abdicate its responsibility and defer to legislative or administrative arrangements. We agree with petitioner that this situation involves the right of an accused to compulsory process against witnesses.

Every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions. The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by the executive and legislative branches of government has developed as a way of responding to inaction or inadequate action that amounts to a threat to the courts’ ability to make effective their jurisdiction. The doctrine exists because it is crucial to the survival of the judiciary as an independent, functioning and co-equal branch of government. The invocation of the doctrine is most compelling when the judicial function at issue is the safe-guarding of fundamental rights.

But the courts find themselves in the position of one who must play the dual role of being both a referee and a partisan participant in an athletic contest. Like the other two branches, the judiciary is interested in preserving its prerogatives and may sometimes be in an adversary position, vis-a-vis the other branches, with regard to the ongoing contest over governmental power. Yet it is the judiciary that must decide upon the ultimate delineation of power. The doctrine of inherent power should be invoked only in situations of clear necessity. The courts’ zeal in the protection of their prerogatives must not lead them to invade areas of responsibility confided to the other two branches. Accordingly, it is with extreme caution that this Court approaches the issue of the power of trial courts to order payments by local governments for expenditures deemed essential to the fair administration of justice. The same extreme caution should be used by trial courts in seeking solutions to practical administrative problems that have not been resolved or provided for by the Legislature.

The district court reasoned that the use of the contempt power to enforce subpoenas is a workable method of effectuating the rights of the state and the accused to compulsory process against'witnesses. Every citizen has a duty to respond to a subpoena regardless of statutory provisions for compensation or expenses. But this solution raises the possibility of serious practical problems. Contempt is an after-the-fact judicial tool that does not avoid disruption and delay of the trial proceedings. The costs of apprehension, incarceration, and transportation of the nonresponding witness will generally be borne by the public in any event. Moreover, to imprison an indigent person for not responding to to a subpoena ordering him to appear in court three hundred miles away would be akin to imprisonment for debt. It would deprive him of liberty without due process of law as surely as would using the contempt power to compel an indigent person to make monetary payments.

The amounts provided by the Legislature for witness compensation and travel expenses are probably quite adequate for the vast majority of proceedings. Ordinarily witnesses stay in their own homes and may even work part of the day on which they are testifying. Their travel expenses are minor. Even without compensation giving testimony will not be a major sacrifice. When venue is changed, the fees of witnesses are paid “in like manner as if the trial had not been removed.” Usually the witness will only have to travel a few miles to a neighboring county, and will neither lose much working time nor require lodging for an overnight stay. It appears to us that the Legislature in making provision as it has expressed the public will with regard to trials held under normal circumstances.

If the statute is deemed to establish an absolute maximum in all situations, then it must be said to improperly infringe the prerogative of the court in effectuating the constitutional right to compulsory process. If, on the other hand, the statute on witness fees is deemed merely declaratory of a guideline pertaining to a matter within the competence of the court to determine, then it need not be declared an infringement. In this most unusual situation where a group of indigent witnesses had to travel three hundred miles and back and be lodged in a large metropolitan area, we construe the statute not to preclude the order entered by petitioner. Expenditure of public funds was required to protect the rights of the defendant. The order requiring payments did not conflict with the Legislature’s intention to grant constitutionally sufficient criminal court trials. In this exercise of inherent judicial power we find no conflict between legislative and judicial goals in the administration of justice.

Actions taken by trial courts and purporting to be based strictly on inherent judicial authority are subject to judicial review and the burden must be on the issuing court to show that the action is necessary to enable the court to perform one of its essential judicial functions.

The decision of the district court is quashed and, subject to the qualifications set out in this opinion, the certified question is answered in the affirmative.

It is so ordered.

ADKINS, OVERTON and HATCHETT, JJ., concur.

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

ENGLAND, Chief Justice,

dissenting.

I respectfully dissent. The Court’s decision today is wholly inconsistent with Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973), in which the Court refused to increase by judicial fiat a statutory limitation on attorney’s fees, saying that “if a change in the [statutory level of] compensation be called for, it is within the province of the Legislature, not the courts, to make such change.” 288 So.2d at 201. This case, moreover, is particularly inappropriate for an application of the inherency doctrine. Not only has the legislature spoken directly to the subject matter of these expenses, but it apparently contemplated within the prescribed expense limitation precisely the type of occurrence (change of venue) for which the Court has now supplanted that legislative judgment. See Section 142.16, Florida Statutes (1975).

SUNDBERG, J., concurs.

      . 90.14 Witnesses; pay. — Witnesses in all cases, civil and criminal, in all courts, now or hereafter created, and witnesses summoned before any arbitrator or master in chancery shall receive for each day’s actual attendance five dollars and also six cents per mile for actual distance traveled to and from the courts.
      In general, these amounts are paid by the party calling the witness. But in criminal cases when the defendant is indigent, § 914.11, Fla. Stat. (1977), provides that the costs of witnesses necessary to the defense be paid by the county. A nonindigent criminal defendant would have to pay the prescribed fees in order to subpoena witnesses, but where the defendant is not convicted, “the fees of witnesses and officers” are to be paid by the county. § 142.-09, Fla.Stat. (1977).

      . Palm Beach County v. Rose, 347 So.2d 127 (Fla. 4th DCA 1977).

      . “Inherent powers” of courts have been described as “all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the court is, therefore it has the powers reasonably required to act as an efficient court.’’ Carrigan, Inherent Powers of the Courts 2 (1973). With regard to inherent power to ensure fair criminal trials, see Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

      . The right of one accused of crime to compulsory process for obtaining witnesses in his favor “stands on no lesser footing than the other Sixth Amendment rights that [the United States Supreme Court has] held applicable to the States.” Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1022 (1967).

      . 8 Fla.Jur. Courts § 74 (1956). Some previous decisions of this Court indicate generally that the will of the Legislature is to prevail on the matter of compensation for court-appointed public prosecutors and defenders. Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973); Strauss v. Dade County, 253 So.2d 864 (Fla.1971); Carr v. Dade County, 250 So.2d 865 (Fla.1971).

      . “It the separation of powers is to be maintained, it is essential that the judicial branch of government not be throttled by either the legislative or administrative branches, and that the courts be empowered to mandate what is reasonably necessary to discharge their duties.” McAfee v. State ex rel. Stodola, 258 Ind. 677, 681, 284 N.E.2d 778, 782 (Ind.1972).
      “. . . [T]he Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a co-equal, independent branch of our Government.” Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 52, 274 A.2d 193, 197 (1971).

      . “It is axiomatic that the courts must be independent and must not be subject to the whim of either the executive or legislative departments. The security of human rights and the safety of free institutions require freedom of action on the part of the court. Courts from time immemorial have been the refuge of those who have been aggrieved and oppressed by official and arbitrary actions under the guise of governmental authority. It is the protector of those oppressed by unwarranted official acts under the assumption of authority. Our sense of justice tells us that a court is not free if it is under financial pressure, whether it be from a city council or other legislative body, in the consideration of the rights of some individual who is affected by some alleged autocratic or unauthorized official action of such a body. One who controls the purse strings can control how tightly those purse strings are drawn, and the very existence of a dependent. Justice, as well as the security of human rights and the safety of free institutions requires freedom of action of courts in hearing cases of those aggrieved by official actions, to their injury. Carlson, et al. v. State ex rel. Stodola, 247 Ind. 631, 633-634, 220 N.E.2d 532, 533-534 (Ind.1966).

      . “It is incumbent upon each department to assert and exercise all its power whenever pub-lie necessity requires it to do so; otherwise, it is recreant to the trust reposed in it by the people.” State ex rel. Schneider v. Cunningham, 39 Mont. 165, 168, 101 P. 962, 963 (Mont.1909).

      . Inherent power should be exercised only after established methods have failed or an emergency has arisen. In re Salary of Juvenile Director, 87 Wash.2d 232, 250, 552 P.2d 163, 173 (Wash.1976). “Judges should constantly be aware that their constitutional responsibility to maintain the judicial system carries with it the corresponding responsibility to limit their requests to those things reasonably necessary in the operation of their courts and to refrain from any extravagant, arbitrary, or unwarranted expenditures.” McAfee v. State ex rel. Sto-dola, see note 6, above.

      . Art. I, § 11 of the Constitution of the State of Florida provides: “No person shall be imprisoned for debt, except in cases of fraud.”

      . See, e. g., Naster v. Naster, 163 So.2d 264 (Fla.1964).

      . § 142.16, Fla.Stat. (1977).

      . See Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948).

      . “A statute which attempts to restrict the inherent powers will be broadly interpreted as laying down reasonable guidelines within which the power operates rather than as a sole or actual source of the power. See, e. g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); State ex rel. Bailey v. Webb, 215 Ind. 609, 21 N.E.2d 421 (1939); Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (I960).” Carrigan, note 3, above, at 8.


author: SUNDBERG, Justice.

text:
    Gordon G. OLDHAM, Jr., State Attorney of the Fifth Judicial Circuit, Appellant, v. Ralph F. ROOKS, Appellee.
    No. 48034.
    Supreme Court of Florida.
    July 20, 1978.
    Robert L. Sheviri, Atty. Gen., and Mary Jo Carpenter and Charles W. Musgrove, Tallahassee, and Richard G. Pippinger, Tampa, Asst. Attys. Gen., for appellant.
    Gary E. Wagner, of Bradshaw, Wagner & Mountjoy, Inverness, for appellee.
   SUNDBERG, Justice.

The instant cause is an interlocutory appeal from the Circuit Court of Citrus County which held Section 839.07, Florida Statutes (1973), unconstitutional. We accept jurisdiction and treat the interlocutory appeal as a petition for writ of certiorari pursuant to Article V, Section 3(b)(3), Florida Constitution. Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974).

On October 16, 1973, appellee, Rooks, a county commissioner, participated in a meeting of the Board of County Commissioners, where sealed bids for material were considered. King Roberts Asphalt & Pavement, Inc., a Florida corporation, was the low bidder for certain sand seal material and asphaltic concrete material. By unanimous vote these two bids were awarded to this corporation. Rooks owned less than 10 percent of the capital stock of the corporation.

On February 2,1974, the Board of County Commissioners considered sealed bids for contract road work. Allen Contracting and Paving, Inc., was the low bidder for paving on certain roadways. The board voted unanimously in favor of awarding the contract to this company. Rooks owned less than 10 percent of the capital stock of this company.

The state attorney of the circuit advised Rooks by letter that he intended to file an information charging Rooks with a violation of Chapter 839, Florida Statutes. Rooks immediately filed a complaint seeking an injunction on the ground that Section 839.07, Florida Statutes (1973), was unconstitutional. He alleged that if an information were filed by the state attorney the Governor would remove Rooks from his official office as county commissioner; that Rooks would be suspended from his profession as a real estate broker by the Florida Real Estate Commission; and that his minority stock ownership in the involved corporation would be placed in jeopardy.

The trial court, after an evidentiary hearing, entered an order declaring the statute unconstitutional, but reserved ruling on Rooks’ application for a restraining order pending receipt of memorandum of law from each party pertaining to the question of whether the court has the right to enjoin the filing of the information. This interlocutory appeal resulted.

Rooks says the statute under attack was in direct conflict with Section 286.012, Florida Statutes (1973), which reads as follows:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is or appears to be a possible conflict of interest under the provisions of § 112.311, § 112.313, § 112.-314, § 112.315 or § 112.316. In such cases said member shall comply with the disclosure requirements of § 112.313. (Emphasis supplied)

The provisions of Chapter 112, Florida Statutes, referred to are the standards of conduct for public officers and employees. Section 112.314(1), Florida Statutes (1973), reads as follows:

No officer or employee of a state agency or of a county, city, or other political subdivision of the state shall transact any business in his official capacity with any business entity of which he is an officer, director, agent, or member or in which he owns a controlling interest.

“Controlling interest” means ownership, directly or indirectly, of 10 percent or more of the outstanding capital stock in a corporation. Section 112.312(3), Florida Statutes (1973).

Rooks says he was literally “between the rock and the hard place.” Under Section 286.012, Florida Statutes (1973), he was required to vote because he owned less than 10 percent of the capital stock in the corporation. On the other hand, under Section 839.07, Florida Statutes (1973), it was unlawful for him to vote if he were “in any way interested” in the contract awarded to the corporation. The state recognizes the conflict but says that Rooks need only enter a vote against the awarding of the contract to the company in order to reconcile the application of the two statutes. The State further says that a negative vote would not make the commissioner a party to the letting of the contract for the purposes of Section 839.07, Florida Statutes (1973). The fact that Rooks registered a vote would place him in compliance with Section 286.-012, Florida Statutes (1973).

While we affirm the result reached by the trial court in its order, we find it unnecessary to reach the question of whether Section 839.07, Florida Statutes (1973), is unconstitutional because it is our view that the statute was repealed by implication by Sections 112.312(3) and 112.314(1), Florida Statutes (1973). Because there are other grounds which support our judgment and dispose of the issues presented, we will not decide this cause on constitutional grounds. Singletary v. State, 322 So.2d 551 (Fla.1975); Metropolitan Dade County Transit Authority v. State Department of Highway Safety and Motor Vehicles, 283 So.2d 99 (Fla.1973). This well-established principle is particularly applicable where this Court has recently ruled Section 839.07, Florida Statutes (1973), constitutional, albeit on a different ground of attack. State v. Dinsmore, 308 So.2d 32 (Fla.1975).

Section 839.07 was enacted by the legislature in 1891 [Chapter 4020, Laws of Florida (1891)] and has remained in force essentially unchanged until the present day. The only amendment to the law occurred in 1971 which amendment was part of an act designed to reclassify criminal penalties generally. See Section 1017, Chapter 71-136, Laws of Florida. The significance of the amendment was to reclassify the penalty for violation of the statute from a maximum term of one year imprisonment in the county jail or a fine of $500 to a maximum term of one year imprisonment and/or a fine of $1,000.

Sections 112.312(3) and 112.314(1) find their origin in Chapter 67-469, Laws of Florida. Section 112.312(3) defining “controlling interest” remained unchanged until 1974 when it was substantially amended by Chapter 74-177, Laws of Florida. Section 112.314(1) was amended by Chapter 69-335, Laws of Florida, to add officers and employees “of a county, city or other political subdivision of the state” within its purview. Other pertinent sections of Part III, Chapter 112, were also amended by Chapter 69-335 to make the law applicable to officers and employees of counties, cities and other political subdivisions of the State as well as officers and employees of a state agency who were encompassed within the original legislation.

Also relevant to the issue here presented was the amendment in 1970 to Section 112.-317, Florida Statutes (1969), dealing with violations of any provision of Part III, Chapter 112, Florida Statutes. By Chapter 70-144, Laws of Florida, the criminal penalty of fine not exceeding $1,000 or imprisonment not exceeding one year was added to the civil sanctions for violation of any provision of Part III, Chapter 112. As originally enacted and until 1970, the sanctions included dismissal from employment, removal from office, “or other penalty as provided by law.” Section 7, Chapter 67-469, Laws of Florida.

As originally enacted and as amended to include officers and employees of counties, cities and other political subdivisions of the State, the declared legislative policy of Part III, Chapter 112, Florida Statutes, was:

Section 1. Declaration of policy. — It is hereby declared to be the policy of the legislature that no officer or employee of a state agency, and no member of the legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. To implement such policy and to strengthen the faith and confidence of the people of Florida in their government, there is herein enacted a code of ethics setting forth standards of conduct to be observed by state officers and employees in the performance of their official duties. It is the intent of the legislature that this code shall serve not only as a guide for official conduct of the state’s public servants but also as a basis for discipline of those [sic] violate the provisions of this act.

Section 1, Chapter 67-469, Laws of Florida.

It is apparent that by Chapter 67-469, Laws of Florida, the legislature intended to deal pervasively with the subject matter of conflict between the official duties and private interests of public officials and employees. Section 839.07, Florida Statutes (1973), deals with this very subject matter although not in as broad terms because it is limited to public works contracts, whereas Section 112.314(1), Florida Statutes (1973), proscribes the transaction of “any business in his official capacity with any business entity of which he [the public official or employee] is an officer, director, agent, or member or in which he owns a controlling interest [10% or more].” (Emphasis supplied)

There is a general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication. City of Punta Gorda v. McSmith, Inc., 294 So.2d 27 (Fla. 2d DCA 1974); State Department of Public Welfare v. Galilean Children’s Home, 102 So.2d 388 (Fla. 2d DCA 1958); accord, State ex rel. Myers v. Cone, 139 Fla. 437, 190 So. 698 (1939). Nevertheless, when the legislature makes a complete revision of a subject it serves as an implied repeal of earlier acts dealing with the same subject unless an intent to the contrary is shown. Orange City Water Co. v. Town of Orange City, 255 So.2d 257 (Fla.1971); State v. Newell, 85 So.2d 124 (Fla.1956); Brevard County v. Board of Public Instruction of Brevard County, 159 Fla. 869, 33 So.2d 54 (1947). It could be argued that there was a continued field of operation for Section 839.07, Florida Statutes (1973), after enactment of Chapter 67-469, Laws of Florida, because the former imposed criminal penalties for self-dealing by public officials and employees whereas the latter did not. However, with the amendment of Part III, Chapter 112, Florida Statutes, by Chapter 70-144, Laws of Florida, adding criminal penalties, any espoused vitality for Section 839.07 disappeared and a real repugnancy between Section 112.314(1) and that statute occurred. Consequently, we conclude that as of October 1, 1970 (the effective date of Chapter 70-144), there can be no question of the implied repeal of Section 839.07, Florida Statutes (1973).

This conclusion is unaffected by the amendment to Section 839.07 in 1971. As a general rule of statutory construction, an act amending a section of an act repealed, even by implication, is void. State v. Holt, 121 Mont. 459, 194 P.2d 651 (1948). Although the Holt case was decided under Montana’s nonrevival statute the opinion relies upon Ex Parte Naegele, 70 Mont. 129, 224 P. 269 (1924), which latter opinion concludes that the common law rule is in accord.

A refinement of the rule enunciated in Holt, supra, appears to be that if the language intended to be inserted in a repealed statute, when read alone, has a clear and definite meaning, it will be treated as a valid and effective act. Mayor and Council of Wilmington v. State, 5 Terry 332, 44 Del. 332, 57 A.2d 70 (1947); State of Maine v. Taplin, 247 A.2d 919 (Me.1968). Even applying this refinement, the amendment reclassifying the penalty for violating the provisions of Section 839.07, Florida Statutes, is not sufficiently complete, standing alone, to revitalize that statute.

The conclusion that Section 839.07, Florida Statutes (1973), was impliedly repealed and not revived in 1971 is buttressed by the fact that Section 286.012, Florida Statutes (1973), was enacted in 1972 as Chapter 72-311, Laws of Florida. A review of Section 286.012 discloses no reference to Section 839.07. If it retained any vitality in the mind of the legislature after the passage of Chapter 70-144, it seems unreasonable that Section 839.07, Florida Statutes (1973), would not have been referred to in Section 286.012 which catalogued the conflict of interest statutes.

Accordingly, we hold that Section 839.07, Florida Statutes (1973), is void as having been repealed by implication. For this reason, the order of the trial court is affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.

      . § 839.07, Fla.Stat. (1973), reads as follows:
      “It is unlawful for any commissioned or other officer of this state, or for any officer elected or otherwise of any county or incorporated town or city therein, to bid or enter into, or be in any way interested in, a contract for the working of any public road or street, the construction or building of any bridge, the erecting or building of any house, or for the performance of any other public work in which the said officer was a party to the letting, and any person who violates the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.-083.”


author: ADKINS, Justice.

text:
    Ray CARROLL, Dolores Savarese, and Lilyan Schlesser, Appellants, v. The STATE of Florida, Appellee.
    No. 49342.
    Supreme Court of Florida.
    July 20, 1978.

      Max B. Kogen, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., Miami, for appellee.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 849.093, Florida Statutes (1975), (the bingo law) was constitutional. We have jurisdiction.

Appellants, hereinafter referred to as defendants, were charged in an 18-count indictment alleging various violations of the lottery laws. By motion to dismiss defendant attacked the constitutionality of Section 849.093, Florida Statutes (1975). The motion was denied and the court directly passed upon the constitutionality of the statute.

After a non-jury trial, the defendants were found and adjudged guilty. Defendant Savarese was found guilty under one count of the indictment and sentenced to pay a fine of $1,000. • Defendants Carroll and Schlesser were convicted under several counts of the indictment and by general sentence, Carroll was fined $1,500, and Schlesser was fined $900.

The statute under attack is constitutional. Statutes are presumed to be constitutional until the contrary is shown; and it is only when they manifestly infringe some provision of the Constitution that they can be declared void for that reason. Greater Loretta Improvement Association v. State ex rel. Boone, 234 So.2d 665, 669 (Fla. 1970). As we stated:

When the Legislature has once construed the Constitution, for the courts then to place a different construction upon it means that they must declare void the action of the Legislature. It is no small matter for one branch of the government to annul the formal exercise by another of power committed to the latter. The courts should not and must not annul, as contrary to the Constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the Constitution. This is elementary. (Greater Loretta Improvement Association v. State ex rel. Boone at p. 670)

The defendants contend that the exclusionary privileges granted to non-profit and veterans’ organizations by Section 849.-093 constitute class legislation that is discriminatory, arbitrary, and without any reasonable relationship to the police power of this state. To support this contention, defendants have relied solely on the 1953 Indiana Supreme Court case of Fairchild v. Schanke, 232 Ind. 480, 113 N.E.2d 159 (1953).

The statute which the court was confronted with in Fairchild v. Schanke, supra, was titled “An Act concerning the crime of gambling, and providing penalties therefor.” The Indiana Court found that the exception of bona fide religious, patriotic, charitable, or fraternal clubs from this gambling statute rendered the law unconstitutional. The Court held that the anti-gambling enactment was not based upon a substantial distinction with reference to the subject matter of the act.

In contrast to the Florida Statute now under consideration, the Indiana law permitted religious, patriotic, charitable, and fraternal clubs to engage in all forms of gambling. Section 849.093, Florida Statutes (1975) permits non-profit and veterans’ organizations to play bingo and guest games only. The difference between the exclusionary privileges granted the Indiana organizations and the Florida organizations is therefore abundantly clear.

In holding the statute unconstitutional, the court in Fairchild v. Schanke, supra, further observed that the exclusion created by the statute didn’t embrace all within the class to which it was related. As the court stated:

In determining the construction of the act here in question this court will take judicial notice of the fact that there are many social clubs and service clubs in Indiana which do not come within the excluded class in the act, but which are by their nature related to those excluded and are similarly situated as to organization and general purpose. These clubs are subject to the act. They cannot, with immunity, operate gambling devices or conduct lotteries or gambling enterprises at any time or for any purpose, while the excluded clubs are exempt from the provisions of the act, thereby extending to them privileges and immunities which, upon the same terms, are not granted to other clubs and individuals similarly situated. The exclusion does not embrace all within the class to which it is related. Fairchild v. Schanke, at pps. 164-165.

Defendants assert that this is equally true in the case at bar. It is not.

Subsection (1) of Section 849.093, Florida Statutes (1975) permits non-profit and veterans’ organizations which have been in existence for three years and which are engaged in charitable, civic, community, benevolent, religious or scholastic works or other similar activities to conduct bingo or guest games provided the proceeds are donated to their respective endeavors. Subsection (2) of Section 849.093, Florida Statutes (1975) permits any other non-profit organization, not engaged in efforts of the type set out in subsection one, to conduct bingo or guest games, provided all of the proceeds are returned to the players in the form of prizes. Taken together, subsections (1) and (2) permit non-profit or veterans’ organizations to conduct bingo or guest games so long as the purpose is either to raise money for certain broad categories of social welfare or for the pure recreation and enjoyment of their members. In contrast, then, to the Indiana statute, the Florida law is broad enough to cover any group not organized for profit. The many social clubs and service clubs which did not come within the excluded class in the Indiana Act are all encompassed within the excluded class in the Florida statute. The exclusion does embrace all within the class to which it is related.

Defendants contend that Section 849.093, Florida Statutes (1975) is without any reasonable relationship to the police power of the state to regulate the morals, public health, or welfare of the citizens of this state. This argument is without merit.

Police power is the sovereign right of the state to enact laws for the protection of lives, health, morals, comfort, and general welfare. State ex rel. Municipal Bond and Inv. Co. Inc. v. Knott, 114 Fla. 120, 154 So. 143, 145 (1934). It is generally accepted that the state is the primary judge of, and may by statute or other appropriate means, regulate any enterprise, trade, occupation, or profession if necessary to protect the public health, welfare, or morals, and a great deal of discretion is vested in the legislature to determine public interest and measures for its protection. Burnsed v. Seaboard Coastline Railroad Company, 290 So.2d 13, 18 (Fla. 1974). When a particular attempted exercise of the police power by a state, or under its authority, passes the bounds of reason and assumes the character of a merely arbitrary fiat, it will be stricken down and declared void. Burritt v. Harris, 166 So.2d 168, 172, 173 (1st DCA Fla. 1964). However, every reasonable doubt must be indulged in favor of the act. If it can be rationally interpreted to harmonize with the Constitution, it is the duty of the court to adopt that construction and sustain the act. Holley v. Adams, 238 So.2d 401, 404 (Fla. 1970).

The Constitution of Florida is a limitation of power, and while the legislature cannot legalize any gambling device that would in effect amount to a lottery, it has inherent power to regulate or to prohibit any and all other forms of gambling. Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 490 (1935). In exercising this power to regulate, the legislature, in its wisdom, has seen fit to permit bingo as a form of recreation, and at the same time, has allowed worthy organizations to receive the benefits. Greater Loretta Improvement Association v. State ex rel. Boone, supra.

Recognizing the vice of lotteries, which infests the whole community, and the mischief or nuisance of gambling generally, the legislature has written into Section 849.093, Florida Statutes (1975) stringent limitations against abuse. For example, the authorized bingo may be conducted only two nights a week and the prizes are limited to $25.00 each, except that one grand prize is allowable in the amount of $100.00 per night. Perlman v. State, 269 So.2d 385, 387 (4th DCA Fla. 1972); Section 849.093(4)(5), Florida Statutes (1975).

The general thrust of the classification allowing non-profit and veterans’ organizations to conduct bingo and guest games, is that in addition to providing a source of recreation, relaxation, and social intercourse, the proceeds are donated to charitable, civic, community, benevolent, religious, scholastic, or other similar endeavors. This is for the general welfare and removes bingo profits from the purview of organized gambling.

The discretion of the legislature when exercised for the public welfare in selecting the subjects of police regulations and in determining the nature and extent of such regulation is limited only by the requirements of fundamental law that the regulations shall not invade private rights secured by the Constitution. Everglades Sugar and Land Co. v. Bryan, 81 Fla. 75, 87 So. 68, 70 (1921). There is no constitutional right to conduct a gambling business, and therefore Section 849.093, Florida Statutes (1975) does not “invade the private rights secured by the Constitution.”

The motivating forces behind granting exclusionary privileges to non-profit and veterans’ organizations by Section 849.093, Florida Statutes (1975) and granting' tax exemptions to qualified non-profit organizations by Congress in the Internal Revenue Act are identical; namely the promotion of participation and support for charitable, civic, community, benevolent, religious, scholastic or other similar activities. Statutes of other jurisdictions, exempting legalized gambling schemes for the benefit of public, religious, or charitable purposes, from the operation of statutes directed against gambling in general have been sustained as within the power of state legislatures. See e.g. Commonwealth of Massachusetts v. Thomas A. O’Connell, 293 Mass. 459, 200 N.E. 269, 103 A.L.R. 872, 875 (Mass. 1936).

Section 849.093, Florida Statutes (1975) does not violate the due process and equal protection clauses of either the Florida or the United States Constitutions.

The trial court did not commit error in refusing to grant defendants’ motions for judgments of acquittal. The evidence is sufficient to sustain the findings and judgments of the trial court, so the judgments are affirmed.

The trial court imposed general sentences upon defendants Carroll and Schles-ser. Each defendant was convicted of three separate crimes. A general sentence, of course, occurs when the trial court imposes only one sentence after a defendant has been convicted of several offenses. It is distinguished from consecutive sentences, where one sentence succeeds another, or concurrent sentences, where several sentences are served simultaneously. General sentences are no longer proper and may not be imposed by any trial court. Dorfman v. State, 351 So.2d 954 (Fla.1977). (Dorfman was decided subsequent to the imposition of the sentences in the case sub judice.)

The judgments of the lower court are affirmed. The sentences imposed upon defendant Carroll and defendant Schlesser are vacated and the cause is remanded to the trial court for imposition of an appropriate sentence.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.

SUNDBERG, J., dissents.


author: ENGLAND, Chief Justice.

text:
    Chester COXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 51013.
    Supreme Court of Florida.
    July 20, 1978.
    Timothy D. Harley and M. Howard Williams of Williams, Gibson & Harley, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., Tallahassee, for appellee.
   ENGLAND, Chief Justice.

Chester Coxwell was convicted of first degree murder for having procured the killing of his wife, and in accordance with the jury’s recommendation he was sentenced to death by the trial judge. His conviction and sentence are brought to us for review pursuant to Article V, Section 3(b)(1), Florida Constitution, and Section 921.141(4), Florida Statutes (1975).

The pertinent facts preceding and surrounding Mrs. Coxwell’s death are relatively uncomplicated. Coxwell and his wife owned a thriving bait shop in Liberty County and lived in a trailer on the same property. For some time prior to the slaying, their marriage had grown increasingly discordant because Coxwell, age 58, had become romantically involved with a 26-year-old girl who worked at the bait shop, Judy Barnes. Mrs. Coxwell, an extremely jealous and high-tempered woman, discovered the illicit relationship and fired Barnes. The affair between Coxwell and Barnes continued nonetheless, causing recurring disharmony in the Coxwell home and a series of threats among the characters in this love triangle.

The evidence adduced at trial indicated that Coxwell first attempted to procure someone to murder his wife approximately six months before the events which actually led to her death. The first individual contacted, a friend of Judy Barnes, declined Coxwell’s offer of $5,000. A second prospect for the job participated with Barnes in one unsuccessful attempt on Mrs. Coxwell’s life, but then declined further involvement.

When these efforts proved fruitless, Cox-well asked George Kilpatrick, who sometimes supplied bait to Coxwell’s store, to assist in finding someone who would commit the crime. Kilpatrick testified that he and Coxwell discussed the matter almost daily over a period of two months, but that they were unable to settle on a satisfactory plan. At some point during these conversations, Coxwell raised his compensation offer and persuaded Kilpatrick to do the job himself. Approximately one week before the crime, Kilpatrick told Nelson Hughley, a 16-year-old boy who lived with Kilpatrick and assisted him in gathering bait, that he had accepted Coxwell’s proposal.

The dates of the criminal sequence, June 24 and 25, 1976, now become important. On the 24th Coxwell informed Kilpatrick that Judy Barnes had entered the hospital to create an alibi for herself, and that he wanted Kilpatrick to “hurry up” so that he could bring her home to his trailer. Shortly after midnight, Kilpatrick came to the trailer, lured Mrs. Coxwell out to the store on the pretext of having some bait to sell, and bludgeoned her on the head with an iron pipe. With Hughley’s assistance, Kilpatrick then placed her body in the trunk of his car and proceeded to a secluded wooded area to dispose of the corpse. At some point along the way, they heard Mrs. Coxwell moaning in the trunk. Kilpatrick stopped the car and delivered another, and fatal, blow to her head. Three days later, the victim’s body was discovered in a boat on Syfrett Creek.

Coxwell, who had apparently remained in the trailer until after the killers left, summoned the sheriff and reported his wife missing. Subsequent investigation led to his arrest, and he ultimately identified Kil-patrick and Hughley as the individuals who had come to his trailer on the night of the murder. After they were apprehended, tried, and convicted, both Kilpatrick and Hughley testified against Coxwell at his trial.

In this appeal, Coxwell alleges six procedural errors in his trial and asserts that the death sentence was improperly imposed. We have determined that one of the alleged errors will necessitate a new trial, so that we need not address all of the points presented.

The state’s principal witness against Cox-well was Kilpatrick, who testified that he agreed to commit the crime when Coxwell promised to give him $5,000 and a red truck. During the course of direct examination, the state sought to elicit from Kil-patrick a detailed account of his conversations with Coxwell regarding various plans which were discussed by them over the period of months leading up to the day of the crime. The transcript of the proceeding tells what occurred:

Q [prosecution continuing] Mr. Kilpa-trick, you have had several conversations with Mr. Coxwell, then, about killing his wife, is that correct?
A Yes.
Q Did you go through with any of those plans you had previously talked about?
A Did we go through with those plans?
Q Yes, did you ever carry it out, the ones you talked about?
A No.
Q George, the 24th day of June, 1976, do you remember that day?
A Yeah, I does.
Q Did you go to Chester Coxwell’s bait shop on that day?
A Yes.
Q What time did you get there?
A It was in the afternoon in between 3:30 and 4:00 o’clock.
Q Did you talk with Chester on that day?
A Yes. Our conversation was that he said he had put his girlfriend in the hospital and he said when she come out of the hospital he wanted to bring her home, and he said his wife was in the way, and to hurry up.
Q To hurry up?
A. Yes.
[prosecutor]: Thank you. Nothing further.
The Court: All right, Mr. Mann [defense counsel]
CROSS EXAMINATION
BY MR. MANN:
Q How many conversations, approximately, do you recall having with Mr. Coxwell, Mr. Kilpatrick, concerning the various different plans to kill his wife?
A Well, I went to Bristol every day, and from the time this year since I been hauling baits over there to the time I got arrested, I’d say it was every day that I come over there, every day until that time. I’ll say better than fifty or sixty times.
Q And every time he talked with you about killing his wife?
A Right.
Q The State just asked you a question, did you go through with any of those plans, and you answered no. Is that correct?
A Correct.
Q Did you kill Lela Mae Coxwell pursuant to any of these plans?
MR. RICHMOND: I object, Your Honor, as being beyond the scope of direct examination.
MR. MANN: I think he opened the door, Your Honor, with the question, “Did you go through with any of these plans.”
MR. RICHMOND: The prior plans, Your Honor, the ones he testified about, before. It’s beyond the scope of direct.
THE COURT: It is beyond the scope of direct examination. I will sustain the objection.

Coxwell suggests that the trial court abused its discretion in sustaining the state’s objection, and that the court’s curtailment of defense inquiry at this crucial juncture constituted a deprivation of his absolute and fundamental right to cross-examine a witness who testifies against him, as guaranteed by the sixth amendment of the federal constitution. The ruling of the trial court that the question on cross-examination went beyond the scope of direct examination, Coxwell argues, was not merely erroneous as being plainly related to Kilpa-trick’s testimony regarding the plans and conversations with Coxwell on the day of the crime, but was also prejudicial to Cox-well’s defense because it forestalled the development of the defense theory that Judy Barnes had procured Mrs. Coxwell’s death, as to which Kilpatrick obviously would have first-hand knowledge. In urging that curtailed cross-examination was reversible error, appellant basically relies on Coco v. State, 62 So.2d 892 (Fla.1953).

Coco was a first degree murder case in which the state’s fingerprint expert gave detailed testimony on direct examination as to his method of lifting and analyzing fingerprints from the murder weapon. He then identified certain exhibits as being fingerprint cards bearing the defendant’s prints. When defense counsel sought on cross-examination to inquire concerning the results of the witness’ comparison between defendant’s fingerprints and those taken from the murder weapon, the state interposed an objection which was sustained by the trial court on the ground that the question exceeded the scope of direct examination. By aborting defendant’s cross-examination, the state successfully conveyed to the jury a mistaken impression that the fingerprints matched, although the same expert had written a report concluding that the fingerprints on the murder weapon were not the defendant’s.

On appeal, the state contended that the trial court’s ruling was proper, but that if there was an error it was harmless since the defendant’s identity had been independently established by eyewitness testimony. This Court nonetheless reversed Coco’s conviction observing that:

“a fair and full cross-examination of a witness upon the subjects opened by the direct examination is an absolute right, as distinguished from a privilege, which must always be accorded to the person against whom the witness is called and this is particularly true in a criminal case such as this wherein the defendant is charged with the crime of murder in the first degree. . . . Cross-examination of a witness upon the subjects covered in his direct examination is an invaluable right and when it is denied to him it cannot be said that such ruling does not constitute harmful and fatal error.”

The Court then quoted the following passage with approval:

. . . when the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts . or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief

The Court emphasized that the inquiry was essential both as to the identity issue and to defense counsel’s ability to lay a predicate for impeachment of the state’s witness.

The state would distinguish Coco from this case by noting that no physical evidence of the crime was involved and that no proffer was made of matters which the defense intended to establish by the proposed cross-examination. It also argues that the limitation ruling was not erroneous because Kilpatrick had never mentioned the details of any of the alleged plans to kill Mrs. Coxwell, because prosécutorial inquiry was carefully limited to plans discussed pri- or to the day of the crime, and because Coxwell could have made Kilpatrick his own witness if he desired to develop testimony encompassing plans formulated by another on the day of the crime. Finally, the state argues that any improper limitation of appellant’s inquiry on this matter was harmless because the theory which the defense proposed to construct could have been established through the testimony of other witnesses, and because Coxwell’s culpability for the offense would in no way be diminished by evidence that Kilpatrick committed the crime pursuant to a plan other than one which they had actually discussed.

Acknowledging that there are certain factual differences, we are nonetheless convinced that Coco is controlling authority in every material respect. Here, as in Coco, the defendant in a capital case was denied the opportunity to elicit testimony from a key prosecution witness as to the most critical factual issue in the case — identification. Here, as in Coco, the state’s narrow characterization of the scope of direct examination ignores the expansive perimeters of subject matter relevance which the constitutional guarantee of cross-examination must accommodate to retain vitality. And here, as in Coco where the fingerprint expert “purportedly gave the jury a complete picture” yet in reality did not, Kilpa-trick’s abridged testimony concerning his conversations with Coxwell left an accusatory implication which Coxwell was barred from refuting..

The record shows that defense counsel simply asked Kilpatrick whether he had killed Mrs. Coxwell pursuant to any of the plans allegedly discussed with appellant. It is clear that the question was germane to Kilpatrick’s discussion of plans on direct examination, whether defense counsel’s goal was to uncover an intervening principal or to establish a foundation for subsequent impeachment. As in Coco, “we can only conjecture or surmise what the outcome would have been had the appellant been granted, rather than denied, his inalienable right of cross-examination.”

Our conclusion here should not be construed to suggest that the scope of cross-examination is wholly without bounds, nor that a discretionary curtailment of the inquiry before it exceeds those limits can never be harmless error if no prejudice can be demonstrated. We only hold that where a criminal defendant in a capital case, while exercising his sixth amendment right to confront and cross-examine the witnesses against him, inquires of a key prosecution witness regarding matters which are both germane to that witness’ testimony on direct examination and plausibly relevant to the defense, an abuse of discretion by the trial judge in curtailing that inquiry may easily constitute reversible error. In the present case, it clearly did.

Appellant’s conviction is reversed, the sentence of death is vacated, and this case is remanded for a new trial.

It is so ordered.

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

      . Both Barnes and Wallace Atkins were subsequently charged with conspiring to murder Mrs. Coxwell as a result of this incident, and Barnes was convicted.

      . At least one of these plans apparently was abandoned because it required Barnes’ assist-anee. She refused to participate due to the notoriety of her relationship with Coxwell and a concern for being implicated in the killing.

      . See, e. g., Duke v. State, 134 Fla. 456, 185 So. 422 (1938) (on rehearing).

      . Trial Transcript at 170-73.

      . See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). See also Art. I, § 16, Fla.Const.; Knight v. State, 97 So.2d 115 (Fla. 1957).

      . 62 So.2d at 894-95.

      . 62 So.2d at 895, quoting 58 Am.Jur. Witnesses § 632, at 352 (1948).

      . For this proposition the state refers us to Shargaa v. State, 84 So.2d 42 (Fla. 1955), where the relevance of a defense inquiry was never established. The same can hardly by said of the question propounded by defense counsel in the present case, and for that reason we find Shargaa unpersuasive. The same point was also rejected in Coco.

      . Without regard to the plausibility of either contention, it is clear that alternate methods of proof or theories of defense are exclusively within the province of defense counsel through direct or cross-examination. This Court has no role in limiting counsel on the basis of later-developed alternatives. Cf. Busby v. Holman, 356 F.2d 75 (5th Cir. 1966). The credibility of any witness or theory rests, of course, with the jury. Here, for illustration, Coxwell’s effort to implicate Barnes as Kilpatrick’s principal could be supported by the fact that she admitted having plotted to kill the victim, knew who was to commit the crime and when it was to take place, had an ample motive for hating the victim apart from her relationship with Coxwell, and was actually convicted of conspiring to kill the victim on another occasion. Taken together with other facts of record, it cannot be said that the possibility of her involvement is so remote that it could not give rise to a reasonable doubt among intelligent jurors.

      . 62 So.2d at 897.

      . See Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953), suggesting that trial judges should be inclined to afford greater latitude on cross-examination when the object is to impeach a key prosecution witness. See also Vickery v. State, 50 Fla. 144, 38 So. 907 (1905); Sweet v. State, 235 So.2d 40 (Fla. 2d DCA 1970); Kirkland v. State, 185 So.2d 5 (Fla. 2d DCA 1966).

      . 62 So.2d at 896.

      . Tischler v. Apple, 30 Fla. 132, 11 So. 273 (1892).

      . See Johnson v. Reynolds, 97 Fla. 591, 121 So. 793 (1929).


author: HATCHETT, Justice.

text:
    In re the ESTATE of Daymon C. BURRIS, Deceased.
    No. 52330.
    Supreme Court of Florida.
    July 20, 1978.

      W. K. Lally, Jacksonville, for appellant.
    Wayne D. Clance, Jacksonville, for appel-lees.
   HATCHETT, Justice.

This case involves the constitutionality of former Section 731.29(1), Florida Statutes (1973), which required a written acknowl-edgement of paternity by the father of an illegitimate child in order for that illegitimate child to inherit from the natural father under our state laws governing intestate succession. We have jurisdiction to review this case pursuant to Article V, Section 3(b)(1), Florida Constitution (1968), based upon the trial court’s express determination that this statute is unconstitutional. We affirm the decision below, and hold that the deceased’s illegitimate children are entitled to share equally in the intestate’s estate with the other natural but legitimate children.

Burris died without a will on May 9,1975. The Florida Statutes in effect at that time allowed an illegitimate child to be an heir of his father, for purposes of intestate succession, only if the father had acknowledged his paternity in writing, and signed such acknowledgement in the presence of a competent witness. In spite of these statutory restrictions, the illegitimate claimants in this case contended that they should receive shares of the decedent’s estate even though their paternity had not been acknowledged in writing. The trial court held a full factual inquiry and determined that claimants were, in fact, natural children of the decedent. In addition, the trial court held that Section 731.29(1), Florida Statutes (1973) was unconstitutional, in violation of the equal protection clauses of the state and federal constitutions. Therefore, the trial court concluded that the four illegitimate children should share equally in the estate with the three legitimate children of the deceased.

In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the United States Supreme Court reviewed and held unconstitutional an Illinois statute which allowed illegitimate children to inherit by intestate succession only from their mother, while permitting legitimate children to inherit by intestate succession from both their mothers and their fathers. In Trimble, the claimant’s mother had previously won a paternity suit against the child’s natural father, and had been awarded support payments. Subsequently, the putative father openly acknowledged his paternity. However, upon the father’s death, the state courts refused to allow the illegitimate child to inherit from her father’s estate. The Illinois statute, which is similar in many respects to the statute here under review, was held to be unconstitutional by the United States Supreme Court because it violated the equal protection clause of the Fourteenth Amendment.

In recent years, Florida courts have decided numerous cases involving the legal relationship between the illegitimate child and his parents. Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Wilcox v. Jones, 346 So.2d 1037 (Fla. 4th DCA 1977); Williams v. Estate of Long, 338 So.2d 563 (Fla. 1st DCA 1976). These cases have generally recognized the principle of constitutional law which precludes a state from enforcing legislative or judicial policies which would unreasonably deprive a person of equal protection of the laws. In Wilcox, the district court construed the wrongful death statute to allow the father of an illegitimate child to maintain an action for recovery of damages for the wrongful death of his illegitimate child. In that case, the court stated:

To recognize the right of the natural mother of an illegitimate child to maintain a wrongful death action but in the same breath to refuse to recognize the corresponding right of the natural father, would violate the equal protection clauses of the state and federal constitutions. Wilcox, 346 So.2d at 1038.

If it is a violation of the equal protection clauses of our state and federal constitutions to deny to a natural father his right to bring an action for the wrongful death of his illegitimate child, can it be constitutional to deny an illegitimate child the right to inherit from his natural father? To resolve this issue, we must compare the state’s interest, in enacting such a statutory restriction on the method of proof of paternity for inheritance purposes, against the constitutional rights of illegitimate children to protection of the laws equal to that afforded to other natural but legitimate children. The test, as expressed by the United States Supreme Court in Trimble, requires an analysis of whether the statutory differentiation on the basis of illegitimacy is justified by the promotion of recognized state objectives.

Clearly, the state has an interest in the orderly descent of property of its citizens. The determination of paternity is far more difficult than determination of maternity. Therefore, in order to foreclose spurious claims, the state may be justified in imposing a higher degree of proof for paternity than is necessary when a determination of maternity is involved. However, the statute here under attack does not address the “standard of proof,” but merely sets forth the kind of evidence required to prove the fact of paternity, to the exclusion of all other kinds of evidence. Even proof beyond a reasonable doubt would be insufficient unless the illegitimate child introduced evidence of a written acknowledgement, signed by the natural father in the presence of a competent witness. The court in Trimble recognized the difficult problems involved in the proof of paternity, but concluded that they cannot be made into an “impenetrable barrier that works to shield invidious discrimination.”

In response to the arguments that the statutory scheme under attack did not present an insurmountable bar to the inheritance of property by an illegitimate child, because of the availability of alternative methods of inheritance, the Supreme Court in Trimble answered that:

By focusing on the steps that an intestate might have taken to insure some inheritance for his illegitimate children, the analysis loses sight of the essential question: constitutionality of discrimination against illegitimates in a state intestate succession law. If the decedent had written a will devising property to his illegitimate child, the case no longer would involve intestate succession law at all. Similarly, if the decedent had legitimated the child by marrying the child’s mother or by complying with the requirements of some other method of legitimation, the case no longer would involve discrimination against illegitimates. Trimble, 430 U.S. at 774, 97 S.Ct. at 1467.

Statutes, such as the one here under review, constitute a reflection of traditional moral and social values disapproving extra marital sexual relations. The fundamental unfairness of legal attempts to enforce these social and moral values by stigmatizing illegitimate children was recognized by the United States Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972), where the court stated:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust— way of deterring the parent, (footnote omitted)

Since no sufficient reason has been asserted to justify these former restrictions on an illegitimate’s right to inherit intestate property, we hold former Section 731.29(1), Florida Statutes (1973) to be unconstitutional under our state and federal constitutions. We note that this statute has been amended by the Legislature to allow an illegitimate child to take an intestate share if the paternity of the child is adjudicated, either before or after the death of the father. This new statutory modification, Section 732.108, Florida Statutes (1977), did not take effect until January 1, 1976, and is therefore inapplicable to this case.

The evidence presented below was sufficient to support the trial judge’s determination that claimants were the natural children of the decedent. We also agree with the trial court’s conclusion that this finding entitles them to take equal shares in the decedent’s estate with all his other natural children. The judgment below is affirmed.

It is so ordered.

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

BOYD, J., dissents.

      . Section 731.29(1), Fla.Stat. (1973) provided: Illegitimate child as heir.—
      (1) Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been bom in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.
      The trial court’s order mistakenly cited Sec. 371.29(1) as the applicable, unconstitutional provision. However, it is clear that this was merely a typographical error.

      . Illinois Rev.Stat., Chapter 3, Sec. 12 (1961), stated:
      An illegitimate child is heir of its mother and of any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. An illegitimate child whose parents inter-marry and who is acknowledged by the father as the father’s child shall be considered legitimate.

      . Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1466, citing Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973).

      . Section 732.108(2), Fla.Stat. (1977) states:
      For the purpose of intestate succession in cases not covered by subsection (1), a person bom out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father’s family, if:
      (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
      (b) The paternity of the father is established by an adjudication before or after the death of the father.
      (c) The paternity of the father is acknowledged in writing by the father.
      See also, Chapters 74-106; 75-220; 77-87, Laws of Florida. This modification is in substantial conformity with the Uniform Probate Code model statute, Uniform Laws Annotated, Vol. 8, p. 328, West Publishing Co. (1972).

      . The new Probate Code clearly states in Sec. '731.011, Fla.Stat. (1977) it is inapplicable to determine the substantive rights of persons that have vested prior to this effective date. Further Sec. 732.101, Fla.Stat. (1977) states that for the purposes of intestate succession, “the decedent’s death is the event that vests the heir’s right to intestate property.” See also, former Sec. 731.21, Fla.Stat. (1973). Since Burris died on May 9, 1975, his childrens’ right to his property vested on that date. We disagree with the conclusion of the district court in Tenopir v. Boles Estate, 342 So.2d 130 (Fla. 1st DCA 1977), which held that the date of the probate court’s determination of paternity, rather than the date of death, is decisive as to whether the present or former probate code provisions are applicable to the controversy.