author: BOWEN W. SIMMONS, Retired Circuit Judge. BOOKOUT, Judge,

text:
    John Henry LEE v. STATE.
    7 Div. 417.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Earl F. Hilliard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

It appears from the record here on file that appellant was indicted for an unlawful homicide and convicted therefor.

It further appears that within the time provided by law that he appealed from the judgment of conviction and certificate of appeal was filed with this court.

Subsequently thereto, and before the present transcript was mailed or sent to this court, he moved the trial court to withdraw his appeal. The motion was granted, inter alia, by judgment on May 3, 1976, T. 15, Section 381, Recompiled Code 1958, authorizes this procedure.

Thereafter, on June 24, 1976, this court, as an incident to the trial court’s dismissal of the appeal, dismissed the appeal, thereby terminating this court’s jurisdiction.

Thereafter, on August 10,1976, appellant, through his attorneys, filed in the circuit court his motion in writing to vacate and set aside its order granting petitioner’s motion for withdrawal of appeal dated May 3, 1976, and to reinstate petitioner’s notice of appeal.

The trial court, on August 13, 1976, ordered and adjudged that the motion to vacate the order of dismissal be granted and that the appeal be reinstated.

We do not know of any statutory or other authority for the trial court to reinstate the appeal as it undertook to do in this case. Dismissal of the appeal at nisi prius level is authorized by statute, supra, but a subsequent reinstatement is not authorized.

This court dismissed the appeal at the time and in the manner provided by law and so far as this court is concerned the appeal is not now pending.

The motion of the State to strike the record here filed as an incident to the dismissed appeal has merit. The record is stricken.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

MOTION GRANTED; RECORD STRICKEN:

Order of June 24, 1976, dismissing the appeal remains in effect.

TYSON, P. J., and HARRIS, DeCARLO, and BOWEN, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

I concur in the result of this opinion, however, I do not concur with any implication that an appeal cannot be reinstated after dismissal if the reinstatement is within the time for filing an original appeal. That is, within six months pursuant to Title 15, § 368, Code of Alabama 1940 in the instant case, or within forty-two days after judgment pursuant to Rules 3 and 4, Alabama Rules of Appellate Procedure (effective December 1, 1975).

Since the attempted reinstatement in this case took place more than six months after rendition of judgment, the trial court had no jurisdiction over the appeal and neither do we.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Henry MASSLER, Jr. v. TROY STATE UNIVERSITY.
    SC 2020.
    Supreme Court of Alabama.
    March 4, 1977.
    Kenneth R. Cain, Ozark, for appellant.
    Champ Lyons, Jr., Mobile, for appellee.
   PER CURIAM.

Affirmed on the authority of Ellison v. Abbott et al., Ala., 337 So.2d 756 (1976).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

MADDOX and FAULKNER, JJ., recuse themselves.

JONES, Justice

(dissenting):

See my dissent in Ellison v. Abbott et al, supra.

      . The appeal in this case affirmed the granting of summary judgment filed by only one of the named defendants, Jacksonville State University.


author: PER CURIAM.

text:
    Larry Anthony CALHOUN v. STATE.
    3 Div. 590.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Frank W. Riggs, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   PER CURIAM.

On an indictment charging robbery, appellant, Larry Anthony Calhoun, was convicted, and sentenced to twenty-nine years imprisonment in the penitentiary.

From the record it appears that on the afternoon of February 15, 1975 the appellant, together with two young men, drove from Montgomery, on Highway 31, to a small grocery store in the Pintlalla Community operated by Mrs. Tom Ganey. The appellant held a .22 rifle on Mrs. Ganey while one of his companions took about two hundred fifty to three hundred dollars out of the cash register, and took her husband’s pistol, and some old coins which were under the counter. The appellant put Mrs. Ganey in a back room of the store, and told her not to come out. The appellant admitted that he rode in the car to the store with two young men, but that he did not know of their plans to rob the store, and did not take part in it.

The verdict of the jury was fully supported by the evidence.

This cause was submitted to this Court on briefs. Appellant is here, and was at all times during the proceedings in the lower court, represented by counsel.

Counsel for appellant argues that the conviction of the appellant should be set aside because the trial court overruled his objections to two questions propounded on cross-examination to the appellant by state’s Attorney. In the record we find the following:

“Q. Okay. Now, so, as you would have the jury consider, you had no motive and no reason to rob a widow lady of her money; neither did Gregory Anthony, did he? He had everything to live for; he had a scholarship to Alabama A & M University this year; according to you his daddy owned skads of property, had a good job, ran the store — owned the store. What motive would he have had, now, to rob—
MR. DUBINA: I object. That calls for a mental operation.
MR. TEAGUE: Judge, this is cross examination.
THE COURT: Overrule the objection. Q. (Mr. Teague continuing) Could you look at these ladies and gentlemen and give them an answer to that?
A. Well, I am not Gregory Anthony.”
“Q. How come he got down to the police station and squealed that you were the one who went in there with the rifle? He told you he told the police that, didn’t he?
MR. DUBINA: Object. That hasn’t been offered in testimony, Your Honor.
MR. TEAGUE: Judge, he can testify as to what he was told by a co-defendant.
THE COURT: Overrule the objection. Q. (Mr. Teague continuing) When you all got down there to the police station, didn’t Gregory Anthony tell you that he told the police about you?
A. About what?
Q. About going in there and putting that rifle on Mrs. Ganey?
A. I don’t know nothing about that.”

We hold that the above questions were not answered. We adhere to the opinion declared by Justice Lawson in the case of Kemp, Jr. v. State, 278 Ala. 637, at page 640, 179 So.2d 762, at page 765, where he said:

“Even if it be conceded that the questions were improper, the court’s action in overruling the objections to them would not work a reversal, since the rule is that improper questions not answered are harmless. Strickland v. State, 269 Ala. 573, 114 So.2d 407; Gosa v. State, 273 Ala. 346, 139 So.2d 321.”

Crowe v. State, Ala.Cr.App.1976, 333 So.2d 902; Cartlidge v. State, 52 Ala.App. 495, 294 So.2d 462, certiorari denied, 292 Ala. 715, 294 So.2d 467; Haisten v. State, 50 Ala.App. 504, 280 So.2d 209.

Appellant contends that we should set aside his conviction, and remand the case for a new trial, because the state’s Attorney asked the appellant on cross-examination the following question about Anthony Gregory who the appellant had testified was a good friend of appellant:

“Q. Have you asked him to come here and testify for you?
A. No, sir.”

There being no objection in the record to this question, there is nothing for us to review. Crowe v. State, supra; Wade v. State, 49 Ala.App. 601, 274 So.2d 626; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 828, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

TYSON, P. J., and HARRIS, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., recused.


text:
    Clarence Robert PURDY, Appellant, v. STATE of Florida, Appellee.
    No. 47074.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Rehearings Denied March 25, 1977.
    James A. Gardner, Public Defender, and Harold H. Moore, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

This is an appeal from a conviction for involuntary sexual battery of a child under eleven years of age, a capital offense pursuant to Section 794.011(2), Florida Statutes (Supp.1974). The jury recommended and the trial court imposed the death penalty. We have jurisdiction.

The principal issues concern the appellant’s contention that the seven-year-old child’s out-of-court declaration made immediately following the assault was inadmissible, and that the death sentence was inappropriate. We find the evidence admissible and the conviction proper, but the sentence should be reduced to life imprisonment since affirmance of this sentence would require an unconstitutional mandatory death sentence for every person convicted of this crime.

The record reflects the witness Roberta Stephens testified that shortly before 8:00 a. m., November 8, 1974, she had begun to enter the front door of the victim’s dwelling when she saw the appellant, nicknamed Chico, lying naked on the floor. The victim was standing in the doorway with a dress on and her panties in her hand. Roberta Stephens and her landlord, Levon Smith, examined the child and found she had been the subject of a recent sexual assault. Both asked, following their examinations of the child, what had happened, and she replied on each occasion, “Chico stuck his dick in me.”

The victim’s mother was located and the sheriff’s department was called. The victim and her mother went to the hospital, where she was examined and treated, and appellant was arrested on the scene. There was no other evidence of physical abuse, and the child showed no signs of extreme emotional or psychological distress.

At trial, expert medical testimony established that the victim’s age was no more than seven or eight years, and certainly not eleven years. The treating physician concluded from the condition of the tissue in the area, the progression of infections within the vagina and the rectum, and the presence of freshly clotted blood, that she had been similarly assaulted three or four times during the previous week as well as that morning. He also testified that penetration of both the vagina and anus had occurred. A pediatrician who upon the State’s request examined the victim said she “probably would not understand taking an oath and giving testimony,” and while he thought her capable of telling the truth, he also thought she might not. He responded “yes” to the assertion by defense counsel that she was “no different than another little girl of that same age . . . .” No other testimony was offered to determine the competency of the victim to testify.

Levon Smith and Roberta Stephens both testified of the victim’s declaration at the scene that appellant had been the perpetrator of the act. Two others testified that appellant was at or near the scene at the time of the alleged occurrence. Appellant by his own testimony denied the act, saying he was not naked when found by Roberta Stephens, and he had been in the house only an hour when she arrived. Testimony from other witnesses indicated he had been in the house four to seven hours.

Appellant principally contends that the admission of the victim’s out-of-court declaration was improper and was the only evidence that he assaulted the victim. He contends it violates his right to confrontation and cross-examination, and constitutes an improper exception to the hearsay rule, citing Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948).

We disagree. The facts in the Custer case are not similar. It held inadmissible answers by a rape victim’s mother to some nineteen questions quoted in the opinion which were put to her at trial. The answers were not merely what the daughter told her but included the mother’s own inferences and conclusions. The testimony in Custer went far beyond a simple restatement of the declaration made at or about the time of the crime.

In the instant case there is sufficient physical evidence from which a jury could find that it was appellant who committed the offense: specifically, his nakedness in the room, his proximity to the child, and the actual physical condition of the child. The child’s out-of-court declaration refuted any inference questioning the identity of the assailant. Such testimony properly may be admitted for that purpose. Turner v. State, 66 Fla. 404, 63 So. 708 (1913); Thomas v. State and Vinson v. State, 220 So.2d 638 (Fla.3d DCA 1969). We hold it was properly allowed in evidence as an exception to the hearsay rule. See generally Annot., 83 A.L.R.2d 1368 (1962).

The other points raised by the appellant concerning his conviction are without merit.

Our final responsibility under the Florida death sentence law, Section 921.141, Florida Statutes, is to review the death sentence. The trial jury recommended the death sentence upon a ten-to-two vote. The trial court found the aggravating circumstances outweighed those in mitigation, and imposed the death sentence. Under the provisions of Section 921.141, Florida Statutes, aggravating circumstances enumerated in the statute must be found to exist before a death sentence may be imposed. The specified statutory circumstances are exclusive; no others may be used for that purpose. The statute was enacted and subsequently interpreted by this Court and the United States Supreme Court to provide for the constitutional application of the death penalty.

Although the trial judge found the act for which appellant was convicted to be “especially heinous, atrocious or cruel,” nothing was shown to distinguish this crime from any other violation of the same statute. The findings and the evidence do not show how this involuntary sexual batter of a child not more than eleven years of age was especially aggravated under the terms of the death sentence law. The possible previous acts against this victim were not charged. The victim was not physically harmed except for what occurred as a result of the sexual assault. Unquestionably, the crime is a heinous offense which may scar a child for life. Nevertheless, to affirm the death penalty in this instance would mean imposition of the death penalty for all individuals convicted of this crime. Recent decisions of the United States Supreme Court have held such practices to be unconstitutional. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). We must, under these circumstances, direct his sentence be reduced to life imprisonment.

The conviction of appellant is affirmed, and the cause remanded to the trial court to impose a sentence of life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

ROBERTS (Retired), J., not participating.

      . Art. V, § 3(b)(1), Fla.Const.

        .“FINDINGS OF THE COURT

      “Pursuant to Fla.Stat. Section 921.141(3)(b) the Court makes these findings of fact relative to the imposition of the Sentence of Death. The Court notes that of the aggravating circumstances designated by the legislature in Section 5 of the above referred to act, only Subsection (h) could be made to apply in this case. This may result from the later enactment of Fla.Stat. Section 794 [794.011] creating the offense of Involuntary Sexual Battery and the punishments designated when a child 11 years or younger is the victim. Notwithstanding what the Court considers as a legislatively created handicap, the Court will attempt to comply with the legislative mandate when the Court concludes the Death Sentence to be an appropriate penalty.

      “After careful consideration and review of the evidence presented in both phases of this trial the Court finds that the only applicable aggravating circumstance was proved beyond a reasonable doubt, to-wit:
      “(h) The capital felony was especially heinous, atrocious or cruel.
      “The evidence presented by lay witness supports the finding that the female child was seven years of age when the Sexual Battery occurred on November 3, 1974. She was in pain and unable to walk in a normal manner; upon examination her vaginal and anal areas revealed evidence of penetration in that there was obviously torn tissues in these areas and there was in addition to blood and body waste in those areas, a white glue like substance, all of which was wiped off with a rag prior to the report to the Sheriff and the medical examination.
      “From the corroborative medical testimony the Court finds that penetration of the vagina and anus occurred on November 3, 1974, but because of the noted infection that existed in these parts of her body; penetration may have occurred on prior occassions [sic] within the proceeding [sic] week.
      “With respect to the mitigating circumstances the Court finds that of those listed in Fla. Stat. 921.141(6) only Subsection (a) would apply, to-wit:
      “(a) The defendant has no significant history of criminal activity.
      “It should be noted that the defendant presented no evidence with regard to mitigating circumstances, nor was there any evidence of mitigation presented at the trial.
      “The Court is of the opinion and finds that the mitigating circumstance is overcome by the aggravating circumstance and therefore the Court concurs with the Jury and is of the opinion that the death sentence is appropriate.” (Emphasis supplied)

      . State v. Dixon, 283 So.2d 1 (Fla.1973).

      . Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

      . § 794.011(2), Fla.Stat. (Supp.1974).


author: BOYD, Justice.

text:
    Lidia GONZALEZ, Appellant, v. BADCOCK’S HOME FURNISHINGS CENTER, Appellee.
    No. 48293.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Rehearing Denied March 31, 1977.
    Stephen J. Press, Delray Beach, for appellant.
    J. Brian Brennan, West Palm Beach, for appellee.
   BOYD, Justice.

Badcock Home Furnishings Center filed a complaint in the County Court of Palm Beach County under Florida’s replevin statute, Chapter 78, Florida Statutes, alleging entitlement to property in possession of Lidia Gonzalez. After examination of the complaint and a showing by Badcock in its support, the court ordered Gonzalez to show cause why the property should not be taken from her possession and delivered to Bad-cock. Gonzalez filed a motion to quash service of the order on the ground that Section 78.065, Florida Statutes, which provides for such orders, regulates court practice and procedure in violation of Article V, Section 2(a), Florida Constitution:

“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”

The section of the replevin statute alleged to be constitutionally offensive is Section 78.065(2), Florida Statutes, which provides that orders to show cause shall:

“(a) Fix the date and time for hearing on the order. However, the date for the hearing shall not be set sooner than five days nor more than 10 days after the service of the order.
“(f) State that if the defendant fails to appear he shall be deemed to have waived his right to a hearing and that in such case the court may order the clerk of the court to issue a writ of replevin.”

The motion to quash service was denied and the interlocutory order was appealed to this Court. We have jurisdiction by certiorari since the interlocutory order passed upon the constitutional validity of a state statute, a matter which upon final judgment would have been directly appealable to this Court. Article V, Section 3(b)(3), Florida Constitution.

Gonzalez argues that the Legislature has absolutely no positive rule-making power over procedural court rules. The answer to her argument is quite simple.

It is true that the Constitution, through Article V, Section 2(a), grants the Legislature only the power to repeal such rules by a two-thirds vote of each House and that by itself the Legislature has no constitutional authority to enact any law relating to practice and procedure. In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). However, this Court has adopted Rule 1.010, Fla.R.Civ.P., which provides that the form, content, procedure and time for pleadings in all statutory special proceedings (such as in replevin) shall be prescribed by the statutes for such proceedings, unless the civil rules specific ally provide to the contrary. We do not find 1.140 and 1.500, Fla.R.Civ.P. to be specifically contrary to the portions of Sec. 78.065(2) here under attack. Therefore, the statute does not violate the Constitution and the trial court correctly denied the motion to quash service.

Certiorari is denied and the cause is remanded for further proceedings.

It is so ordered.

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

      . “Rule 1.010. Scope and Title of Rules. These rules apply to all suits of a civil nature and all special statutory proceedings in the circuit courts and civil courts of record and other trial courts except those to which the probate and guardianship rules or the summary claims procedure rules apply but the form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceedings unless these rules specifically provide to the contrary. These rules shall be construed to secure the just, speedy and inexpensive determination of every action. These rules shall be known and cited as the Rules of Civil Procedure and may be abbreviated as ‘RCP’. Amended effective Oct. 1, 1968 (211 So.2d 206).”


author: SUNDBERG, Justice. ENGLAND, J.,

text:
    STATE of Florida, Appellant, v. Linda Carol BALES and Stephen Peter Cataldo, Appellees.
    No. 48981.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Rehearing Denied March 31, 1977.

      Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for appellant.
    David A. Demers, of the Law Offices of Robert W. Pope, St. Petersburg, for appel-lees.
   SUNDBERG, Justice.

This cause is here on appeal from the County Court in and for Orange County. Appellees were allowed to file cross-assignments of error to challenge a portion of the trial court order which is interlocutory in nature. We have assumed jurisdiction of both the appeal and the cross-appeal under Article V, Sections 3(b)(1) and (3), Florida Constitution.

On November 19, 1975, appellee Linda Carol Bales was employed in a massage parlor called “Garden of Paradise” located in Orlando, Florida. On that day appellee Bales allegedly offered for monetary consideration to fondle or masturbate the sexual organs of a male person who was not her spouse and who was, in fact, an Orange County deputy sheriff. She was charged by information with violating Section 796.-07, Florida Statutes:

“(l)(b) The term ‘lewdness’ shall be construed to include any indecent or obscene act.”
“(3) It shall further be unlawful in the state:
(a) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.”

In a second count, Ms. Bales was accused of violating Section 480.02(1), Florida Statutes:

“(1) It shall be unlawful for any person or persons to engage in the practice or attempt to practice massage for a fee, or for a gratuity, or to conduct or teach in a school of massage without a certificate of registration issued pursuant to the provisions of this chapter.”

Furthermore, Stephen Peter Cataldo, allegedly the owner or operator of the “Garden of Paradise,” was charged in the same two-count information with aiding and abetting the commission of both offenses.

Appellees filed separate but identical motions to dismiss the information alleging, inter alia, that Section 796.07 is unconstitutionally vague and that Chapter 480 is unconstitutionally vague, overly broad and that there is no reasonable relationship between the requirements of the latter statute and the public safety and welfare. The trial court denied appellees’ motion as to Section 796.07 but granted as to Chapter 480, ruling that “the definitions of masseur are vague, overbroad and an inordinate use of the police powers of the State of Florida.”

The State appeals from this ruling, while appellees Bales and Gataldo cross-appeal their unsuccessful challenge to Section 796.-07, Florida Statutes.

For appellees’ argument to be accepted, this Court must find the challenged statutes to be unconstitutional on their face. In determining this issue, we must bear in mind that any legislative enactment carries a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support in its provisions. Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 210, 55 S.Ct. 187, 79 L.Ed. 281 (1934). If any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends. United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Questions as to wisdom, need or appropriateness are for the Legislature. Olsen v. State of Nebraska, ex rel. Western Reference & Bond Ass’n, 313 U.S. 236, 246, 61 S.Ct. 862, 85 L.Ed. 1305 (1941). Furthermore, since no fundamental right or suspect classification is at issue here, all we need find is the existence of a rational basis for this attempted legislative exercise of the State’s police power.

Keeping the foregoing standards in mind, we are unable to agree that Section 480.02(1), either by itself or as part of the larger regulatory scheme of Chapter 480, fails to give due notice of the conduct which is proscribed. Limited as it is to regulating those who perform or attempt to perform massage for financial consideration, Section 480.02(1) hardly gives rise to the parade of horribles advanced in appel-lees’ brief. For example, it is argued that the statute trespasses upon the enjoyment of sexual relations between married couples, that it seeks to regulate a simple handshake or a slap on the back. Some of the difficulty stems from erroneous interpretation of the phrase “for a gratuity” in Section 480.02(1), supra; it should be clear that “gratuity” means “tip” and that the phrase does not mean “for free.” This construction should put at rest any confusion which might develop on that score.

A complex and multi-faceted regulatory statute must be read as a whole before a determination of its constitutionality can be wisely made. The phrase “to practice massage,” found in Section 480.02(1), is defined at Section 480.01(4):

“Massage. — For the purpose of this chapter, the term ‘massage’ shall be deemed and held to include all or any one or more of the above named subjects or methods of treatments as defined in paragraph (b) of subsection (1); the practice of massage, however, shall include paragraphs (a) and (b) of subsection (1).”

One must then turn to the indicated paragraphs from Subsection 480.01(1):

“Masseur and masseuse.—
(a) For the purpose of this chapter the term ‘masseur’ or ‘masseuse’ shall be deemed to be a person who practices, administers or teaches all or any one or more of the following subjects and methods of treatments, viz: who administers or teaches treatments with any mechanical or electrical apparatus for the purpose of body slenderizing, body reducing or body contouring.
(b) Further, a person who has studied the underlying principles of anatomy and physiology, including the theory of massage, its indications and contraindications, and administers or teaches all or any one or more of the following subjects and methods of treatments, viz: Oil rubs, salt glows, hot or coldpacks, all kinds of baths including steamrooms, cabinet baths, sitz baths, colon irrigations, body massage either by hand or by any mechanical or electrical apparatus or device, excluding fever therapy, applying such movements as stroking, friction, rolling, vibration, kneading, cupping, petrissage, rubbing, effleurage, tapotement.”

So read, the careful definitional scheme enacted by the Legislature is understood.

Vagueness and overbreadth are related but different concepts. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). That which is vague obviously cannot also be specific, and it is difficult to imagine a more specific cataloging of prohibited activity than Section 480.01(1)(b). We reject the argument that the challenged statute is unconstitutionally vague.

Appellees’ overbreadth challenge is more troublesome. A statute is overly broad when its proscriptive reach includes constitutionally protected activity. See Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947). Common words such as “stroking, friction, rolling”, which appear in the statute under consideration superficially support appellees’ assertion. However, such words may properly be interpreted in the context of the more technical terms with which they appear; indeed an attempt to construe statutory language without regard to context would frequently lead to absurd results. The language at issue does not proscribe casual back scratches or back rubs. What is prohibited, inter alia, is the performance of a “body massage” for financial consideration by an unlicensed person “either by hand or by any mechanical or electrical apparatus or device.” We believe that the qualifying examples of the “movements” which constitute the practice of massage is sufficient notice to those who, like appellee Bales, hold themselves out before the public as massagists, of the kind of conduct which can be undertaken only after procurement of a license. See State v. Weeks, 335 So.2d 274 (Fla.1976).

We have not overlooked the decision of a New York trial court invalidating for unconstitutional overbreadth a city ordinance which sought to regulate the practice of massage by limiting it to those people approved by a licensing agency. New York State Soc. of Medical Masseurs, Inc. v. City of New York, 74 Misc.2d 573, 345 N.Y.S.2d 866 (1973), aff’d, 44 A.D.2d 913, 355 N.Y. S.2d 1015 (1974). .We note that the language of the New York ordinance differs in .some significant particulars from that of the Florida statute, and furthermore we are unpersuaded by the reasoning of the New York court.

The United States Supreme Court has three times dismissed for want of a substantial federal question appeals from state supreme court decisions upholding the constitutionality of local ordinances restricting or prohibiting the practice of cross-sexual massage. Smith v. Keator, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974); Rubenstein v. Township of Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136 (1974); Kisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972). Since these decisions constitute an adjudication on the merits within the meaning of Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), it is clear that there is no federal constitutional impediment to the enactment of legislation embodying an irrebuttable presumption that the massage of a person by a member of the opposite sex is inconsistent with the public health, safety, or welfare. If this be the case, surely a minimum regulatory statute such as ours cannot offend Bales’ constitutional right to employment and to freedom of association, as her counsel has contended. Nothing prevents her from pursuing the course of study and training required by regulations promulgated under authority of Chapter 480, Florida Statutes.

It is true that our licensing statute differs from other massage establishment regulatory schemes in that it antedated the proliferation of “massage parlors” whose advertisements carry strong overtones of promised sexual gratification. That this is so does not lessen Chapter 480’s jurisdiction over those who operate such establishments or hold themselves out to the public as masseurs or masseuses employed therein. It is difficult to conceive an alternative regulatory scheme which could better protect the substantial interest of the public in ensuring that those to whom is entrusted the type of sensitive physical activity undertaken by massagists are competent and able. The potential injury to members of the public justifies the instant legislative attempt to regulate this skilled profession.

We therefore find Section 480.02(1), Florida Statutes (1975), and its companion legislation, as herein read and interpreted, to be constitutional vel non.

Appellees cross-assign as error the trial court’s denial of their motion to dismiss the lewdness count entered under Section 796.07(3)(a), Florida Statutes, supra. This Court has often upheld the constitutionality of that legislative enactment. E. g., Bell v. State, 289 So.2d 388 (Fla.1973); Cheseborough v. State, 255 So.2d 675 (Fla.1971). In the instant case as recited in the trial court’s order, the State alleges that the deputy was led naked onto a water bed, where he was asked by Ms. Bales whether he realized that the massage for which he had paid was to relieve his sexual tension as well. When he replied in the affirmative, Bales allegedly asked him where he would like her to place her hand to relieve such tension. Later in the conversation she allegedly repeated the inquiry. Appellee argues that her query could have been designed to elicit an answer such as “the back, neck, ear lobe, breast or any other area of the body besides the penis.” Brief of Appellees, p. 23. This is an argument which she is free to make to a judge and/or jury, and we intimate no opinion whatsoever as to its credibility. However, the State is equally free to argue that, given all the surrounding circumstances, Bales’ inquiry constituted an “offer to commit” lewdness. If the trier of fact finds that such a remark was made and, considering the surrounding factual context, amounted to such an offer, thus constituting criminal conduct, a verdict of guilty may properly be entered.

The judgment is affirmed in part and reversed in part, and the cause remanded to the County Court in and for Orange County for further proceedings not inconsistent herewith.

OVERTON, C. J., and ADKINS, BOYD, HATCHETT and ROBERTS (Retired), JJ., concur.

ENGLAND, J.,

concurs with majority opinion on F.S. § 480.02(1), and dissents from majority opinion on F.S. § 796.07 for reasons expressed in Campbell v. State, Fla., 331 So.2d 289, 290 (1976).

      . “It is true that the Florida Statute excludes physicians and certain other persons, but nevertheless, although no one can be sure, it apparently would include shaking hands, marital showers, the use of a vibrator in the privacy of one’s home, a back rub by a friend and an absolute myriad of activity . . . ”
      Brief of Appellees, p. 10.


author: OVERTON, Chief Justice.

text:
    STATE of Florida, Petitioner, v. George Bell HEATH, Respondent.
    No. 47316.
    Supreme Court of Florida.
    Feb. 10, 1977.
    Rehearing Denied March 31, 1977.

      Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, Elliot R. Brooks, Chief Public Defender, and James R. Bean, III, Asst. Public Defender, for respondent.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari seeking review of a decision by the Fourth District Court of Appeal, reported in Heath v. State, 310 So.2d 38 (Fla. 4th DCA 1975). Conflict is asserted with the Third District decision in Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Statements by the respective District Courts are conflicting although the factual circumstances are not identical. We find decisional conflict which requires resolution to avoid confusion. We have jurisdiction. The issue is whether the Fifth Amendment privilege against self-incrimination protects a probationer from being compelled to testify in a probation revocation hearing.

In the instant case, the alleged probation violation was an arrest for armed robbery. The respondent probationer was brought before the circuit court for a revocation hearing and was compelled by the court, over the objection of counsel, to testify and answer to the charges of an armed robbery. He was specifically required by the court upon the request of the prosecutor to account for the circumstances in which he was apprehended and explain “why he was arrested for robbery.”

The record reveals that the respondent was apprehended by law enforcement personnel in the woods near Disney World with a toy cap pistol and two bags containing money believed to be the proceeds of a robbery of the Top of the World Nightclub in the Contemporary Hotel. The victim was unable to identify the respondent as the individual who had worn a bag over his head, but did state that there was similarity between the gun and bags used in the robbery and those introduced into evidence as found on the respondent. Respondent in his directed testimony explained only the circumstances pertaining to his arrest and apprehension on the Disney World property. Upon completion of the hearing, the court found that the respondent,

“has in fact violated condition H of his probation, and that he committed an offense against the laws of the State of Florida, and your probation will be revoked.”

The actual criminal charge was dismissed subsequent to the revocation hearing. The Fourth District held the compulsion to testify by the trial court in reliance on the condition of probation requiring a probationer to “promptly and truthfully answer all inquiries directed by the court and probation supervisor” was erroneous. Citing State v. Gansz, 297 So.2d 614 (Fla.App. 4th 1974). The Fourth District concluded that compulsion to answer was unconstitutional and that it “injuriously affected the substantial rights.” It reversed and remanded for a new hearing.

The State contends that the Third District decision in Holmes v. State, supra is in conflict. In Holmes the court held the trial court’s requirement that a probationer in a revocation proceeding identify himself as “the man on probation in [that] case’! did not infringe upon his right against compulsory self-incrimination. In so holding the court stated that it,

“simply [did] not believe that a revocation of probation hearing is ‘criminal’ in the sense that defendant probationer had the right of the criminally accused not to testify.” 311 So.2d at 782.

This latter statement places the two District Court decisions in direct conflict.

It is the position of the State in the instant case that probationers have no right to remain silent at probation revocation hearings, contending that probation is a matter of judicial grace and that it is accepted under the condition that the probationer answer “inquiries directed by the court and the probation supervisor.” The State further contends that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and State v. Gansz, 297 So.2d 614 (Fla.App. 4th 1974), do not unequivocally find Sixth and Fourth Amendment rights respectively in probationers. Further, that United States v. Johnson, 455 F.2d 932 (5th Cir. 1972), refused to recognize that Miranda was applicable in the instance where probationer upon the direction of his probation officer had informed him verbally and in writing of his probation violations.

Respondent on the other hand contends that the Fifth Amendment right at issue may be invoked in any sort of proceeding, citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

A probationer does not enjoy the same status as an ordinary citizen, but even so a probationer is entitled to some but not all due process rights. In Gagnon v. Scar-pelli, supra, the United States Supreme Court held that these include the right to preliminary and final revocation hearings under the same conditions provided in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). According to the court, the due process rights to be afforded the probationer in the final hearing include the following:

‘(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’ Morrissey v. Brewer, supra, at 489, 92 S.Ct. at 2604.

The purpose of a revocation hearing is to determine whether the probationer has given cause to the court to revoke his probation. We recently noted that evidence obtained in violation of the Fourth Amendment may be admissible against the probationer at a revocation hearing even though it must be excluded at a criminal trial. Croteau v. State, 334 So.2d 577 (Fla.1976). We now hold that a probationer, upon a specific request and at periodic intervals, may be required to identify himself and provide all necessary information for his supervision including the place of his residence and his employment. He may also be required to confirm or deny his location at a particular place at a particular time, to explain his noncriminal conduct, and to permit the search of his person and quarters by the supervisor. Failure to do so may itself be grounds for revocation or probation. His agreement to accept the terms of probation effectively waives his Fifth Amendment privilege with regard to this information. There would be no practical means to properly supervise an individual on probation without a requirement that the probationer respond to directions and requests for information from the probation supervisor. On the other hand, the Fifth Amendment privilege against self-incrimination must be applicable to specific conduct and circumstances concerning a separate criminal offense. There was absolutely no need in this case to test this point and require testimony from the probationer. There appears sufficient testimony and evidence available from other sources to establish that the petitioner defendant violated the terms of his probation.

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

It is so ordered.

BOYD, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, J., concurs in result only.

      . Art. V, § 3(b)(3), Fla.Const.


text:
    William MARKHAM, as Broward County Property Appraiser, Petitioner, v. MacCABEE INVESTMENTS, INC., a Florida Corporation, Respondent.
    No. 47433.
    Supreme Court of Florida.
    Feb. 10, 1977.
    Rehearing Denied March 30, 1977.
    Gaylord A. Wood, Jr., and Martin H. Cohen of Wood & Cohen, Fort Lauderdale, for petitioner.
    Mallory H. Horton of Horton, Perse & Ginsberg, and Dubbin, Schiff, Berkman & Dubbin, Miami, for respondent.
    William M. Barr, of Raymond, Wilson, Conway, Barr, Burrows & Abraham, Dayto-na Beach, for James Bailey, as Tax Assessor of Volusia County, and Volusia County, am-ici curiae.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Fourth District Court of Appeal reported at 311 So.2d 718 (Fla. 4th DCA 1975).

The trial court held that a private party’s leasehold interest in a municipally owned facility used primarily for theater productions was taxable. The Fourth District Court of Appeal reversed, holding the leasehold was tax exempt because the use of the facility served a public purpose within the meaning of Chapter 196, Florida Statutes. We have jurisdiction because the decision of the District Court conflicts with Brandes v. City of Deerfield Beach, 186 So.2d 6 (Fla.1966).

During the pendency of this action we rendered our decision in Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla.1976), which is controlling and which also conflicts with the decision of the Fourth District Court of Appeal. The decision below is quashed, and the cause is remanded for action consistent with our Volusia County opinion, supra.

It is so ordered.

ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


author: KARL and ADKINS, Justices,

text:
    In re ADVISORY OPINION OF the GOVERNOR REQUEST OF NOVEMBER 19, 1976 (CONSTITUTION REVISION COMMISSION).
    No. 50611.
    Supreme Court of Florida.
    Feb. 15, 1977.

      John E. Mathews, Jr., and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, and Donald M. Middlebrooks, Orlando, Gen. Counsel for the Governor, for Reubin O’D. Askew, Lew Brantley and Donald Tucker.
    Thomas H. Barkdull, Jr., Miami, amicus curiae.
    Richard T. Earle, Jr., of Earle, Earle & Forizs, St. Petersburg, amicus curiae.
    Jon L. Mills and R. Lee Andersen, Gaines-ville, for Center for Governmental Responsibility, amicus curiae.
    Edward J. Atkins, Miami, President, Louis de la Parte, Jr., Tampa, Chairman, Fla. Constitution Committee, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for The Florida Bar, amicus curiae.
    Robert L. Shevin, Atty. Gen., and James D. Whisenand, Asst. Atty. Gen., for amicus curiae.
    Chesterfield Smith and Martha W. Barnett of Holland & Knight, Lakeland, for The League of Women Voters of Fla., ami-cus curiae.
   The Honorable Reubin O’D. Askew

Governor, State of Florida

The Capitol

Tallahassee, Florida

Dear Governor Askew:

We have the honor to acknowledge your communication of November 19, 1976 requesting our advice, pursuant to Article IV, Section 1(c) of the Florida Constitution and Rule 2.1(h) of the Florida Appellate Rules, in regard to your executive powers and duties relative to the Constitution Revision Commission authorized by Article XI, Section 2 of the Constitution. Omitting its formal parts your letter reads:

“The Florida Constitution, 1968 Revision, was adopted at the general election held on November 5, 1968, and became effective on January 1, 1969. Article XI, Section 2, quoted in full below, established by constitutional mandate a Constitution Revision Commission:

(a) Within thirty days after the adjournment of the regular session of the legislature convened in the tenth year following that in which this Constitution is adopted, and each twentieth year thereafter, there shall be established a constitution revision commission composed of the following thirty-seven members:
(1) the attorney general of the state;
(2) fifteen members selected by the governor;
(3) nine members selected by the speaker of the house of representatives and nine members selected by the president of the senate; and
(4) three members selected by the chief justice of the supreme court of Florida with the advice of the justices.
(b) The governor shall designate one member of the commission as its chairman. Vacancies in the membership of the commission shall be filled in the same manner as the original appointments.
(c) Each constitution revision commission shall convene at the call of its chairman, adopt its rules of procedure, examine the constitution of the state, hold public hearings, and, not later than one hundred eighty days prior to the next general election, file with the secretary of state its proposal, if any, of a revision of this constitution or any part of it.

Pursuant to this section, the Governor has the express duty to select fifteen members of the Constitution Revision Commission and to designate its chairman, who in turn will convene the Constitution Revision Commission.

Due to an apparent conflict between Section 2 of Article XI and Section 3(b) and (d) of Article III, Section 5 of Article VI and Section 5 of Article XI, I am uncertain as to when the Constitution Revision Commission should convene and undertake its assignment, and therefore, when I should select fifteen members and designate the chairman. Intimately connected therewith is the question of when the final report of the Constitution Revision Commission is to be filed with the Secretary of State and whether it is to be submitted to the electors at the general election in November of 1978 or 1980.

The apparent conflict can be illustrated by a review of the respective sections of the Constitution referred to above. Article III, Sections 3(b) and (d), require the Legislature to convene its regular session on:

. the first Tuesday after the first Monday in April of each odd-numbered year, and on the first Tuesday after the first Monday in April, or such other date as may be fixed by law, of each even-numbered year .

to continue for not more than sixty consecutive days. At present there is no law fixing another date for the regular session of the Legislature in even-numbered years. Likewise, Article VII, Section 5, mandates that:

(a) general election shall be held in each county on the first Tuesday after the first Monday in November of each even-numbered year .

Finally, Article XI, Section 5, requires

(a) proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than ninety days after the . . . report of revision commission is filed with the secretary of state .

If the quoted sections are interpreted to require the Constitution Revision Commission first to convene after the adjournment of the 1978 regular session of the Legislature (“the tenth year following that in which this constitution is adopted”), then its proposed revisions, if any, apparently should be submitted to the electors at the general election in November of that same year. Such a time frame appears to be a practical impossibility. If the Legislature convenes, as now required, on April 4, 1978, then the regular session will probably adjourn about June 3, 1978. Thus, if the Constitution Revision Commission is not convened until the 1978 Legislature adjourns, then the earliest date it could convene would be after June 3, 1978, but before July 3, 1978. But Article XI, Section 2(c) requires the Constitution Revision Commission to file its proposals with the Secretary of State at least 180 days prior to the general election in November of 1978, or on or before May 11, 1978.

It is of course theoretically possible to accomplish the constitutional revision envisioned by Article XI, Section 2, completely within the calendar year of 1978. However, to do so would require affirmative legislation providing for an early, regular legislative session in 1978 pursuant to Article III, Section 3(b). Additionally, advance preparation would obviously have to be undertaken by a legislatively established revision commission, or committee, or some other entity designated by law for that purpose. No such steps have been taken by the Legislature; indeed, no legislative implementation of the constitutional provisions relating to the Constitution Revision Commission are mandated by the Constitution.

It has also been suggested to me by constitutional scholars that Article XI, Section 2, can possibly be construed to require the Constitution Revision Commission first to be convened at any time during 1978 so long as it is convened no later than thirty days after adjournment of the regular session of the 1978 Legislature. Under such circumstances, its proposals, if any, would then be presented to the electors for acceptance or rejection either at the general election in November of 1978, which would require the simultaneous meetings of the regular session of the 1978 Legislature and the Constitution Revision Commission, and thus as a practical matter prevent legislators from serving as members of the Constitution Revision Commission contrary to the obvious constitutional intent that at least some present members of the Legislature do so; or at the general election in November of 1980, which to me seems contrary to the manifest constitutional intent that the people have an opportunity to review the Constitution at the general election held exactly ten years after its adoption at the general election held in November of 1968.

What otherwise appears, when viewed in isolation, to be the plain language of Article XI, Section 2, thus presents a serious and perhaps irreconcilable conflict with other sections of the Constitution when the document is considered as a whole. Faced with such ambiguities or conflicts, and in order to properly discharge my constitutional duties, I ask this Court to interpret such language so that it harmonizes so far as possible the related sections and effectuates the intent of the framers and the people adopting the Constitution.

Each of the two alternative constructions above outlined when considered in light of the task to be accomplished seem to me to be wrong, impractical and improper. If time constraints are imposed on the mandated constitution revision, such restraints will be both counterproductive to the sound deliberation essential to proper constitutional revision and contrary to the manifest intent of the people as expressed in the Constitution. The Constitution itself specifically indicates that the Constitution Revision Commission must be given broad time parameters for its work so as to foster a thorough and cautious review; the Constitution Revision Commission must have the opportunity to seek the advice and counsel of laymen, academicians, legislators, public officials, lawyers, judges and interested citizens, to hold the required public hearings, and to timely file its report with the Secretary of State.

A feasible alternative interpretation suggested to me by other constitutional scholars is that the members of the Constitution Revision Commission be appointed promptly after the adjournment of the 1977 Legislature and that the Constitution Revision Commission be convened at the call of its chairman within thirty days following the adjournment of the 1977 regular session. It would then have the balance of that year and the early part of 1978 in which carefully to consider constitutional revision and to timely present its proposal, if any, for a revision. Under such an interpretation, the electors would have at least 180 days before the general election in November of 1978 to decide whether to accept or reject such proposals.

Due to doubts above expressed about the proper constitutional interpretation of my duties, I request that you resolve the following specific questions relating to my responsibilities as Governor:

1. Do I have the authority to initiate the convening of the Constitution Revision Commission by appointing, not later than thirty days after the adjournment of the regular session of the 1977 Legislature, the fifteen members I am required to select and to appoint its chairman and direct that the chairman file with the Secretary of State the proposals, if any, of the Constitution Revision Commission for a revision of the Constitution or any part thereof, not later than 180 days prior to the general election to be held in November of 1978?
2.If the answer to the foregoing question is negative, when should I initiate the convening of the Constitution Revision Commission by appointing the fifteen members I am required to select and by designating its chairman; and further, when should I direct the chairman of the Constitution Revision Commission to file the proposals, if any, of the Constitution Revision Commission for a revision of the Constitution or any part thereof with the Secretary of State?

Constitutional revision is a matter of great moment and import to this state and its people. Therefore, I respectfully suggest that this Court under its rules of procedure permit all interested parties to be heard on the questions presented herein through both written briefs and oral arguments, and further that this Court favorably consider applications to do so by those persons, who because of their previous experience in constitutional revision and interpretation might be of assistance to this Court as amicus curiae.”

Upon receipt of your letter, we made a preliminary determination that your request was answerable and that we would exercise our discretion to do so. We then authorized interested persons to file briefs and participate in oral arguments. The following persons and groups appeared and presented their views:

(1) the Governor, jointly with the president of the Florida Senate and the speaker of the Florida House of Representatives;
(2) the Attorney General;
(3) the League of Women Voters of Florida;
(4) Judge Thomas H. Barkdull, Jr. and Richard T. Earl, Jr., members of the 1965 Constitution Revision Commission;
(5) the Center for Governmental Responsibility of the University of Florida College of Law; and
(6) the Florida Bar.

Counsel for some of the parties also served on the 1965 Commission.

All parties urged us to answer your first question in the affirmative, and in our opinion this is the proper response to your inquiry. We have gone further, however, since the need for guidance beyond the questions posed was brought to light during oral argument.

We do not deem it essential to review in detail the history of the 1965 Constitution Revision Commission, or the events which transpired between its formation in January 1966 and the adoption of our present Constitution on November 5,1968. All parties agree on four points basic to your inquiry:

1. The language of the Constitution in its present form is defective if read literally, in that all of its terms cannot be carried out in accordance with the time directives set out in the various sections of Article XI. Your letter makes clear the problems in that regard.

2. The technical errors in language were caused by the retention of language originally put into the proposed Constitution when it was scheduled for adoption in 1967, which the framers did not change when the original timetable was disrupted by Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), and adoption deferred to 1968.

3. This Court is the only place in which the inherent ambiguities of the Constitution can be resolved.

4. No matter what rationale we adopt or what interpretation we supply to the words in the Constitution, the fact of the matter is that we are being asked to rewrite one or more of its provisions in order to make the document work. (We are asked, of course, to make it work in the way-most consistent with the intent of the people of Florida at the time of its adoption, as that intent is now manifest through hindsight, recollection, and various documents.)

Our review of the constitutional materials supplied in this case, as well as our independent research, persuades us that the parties are correct in their assertion that the drafters of the 1968 Constitution simply failed to adjust the timetable set forth in Article XI, Section 2 of their proposal when the Legislature was inadvertently prevented from submitting the document for adoption in 1967. Additionally, we are persuaded by the parties and our own analysis that there is absolutely no way to reconcile without judicial gloss the disharmonious provisions which appear in that section. Under these circumstances, we must abandon as fruitless any notion that we can “interpret” or “construe” particular language within the Constitution to achieve a result which is not only workable but reasonably consistent with the intent of the people. We must, therefore, look outside the document to verify the intent behind mandatory periodic Constitution review, and then suggest those adjustments or accommodations which we believe are necessary. to the performance of your duties as chief executive.

The touchstone for determining the intent of a constitutional provision has always been the intent of the people at the time the document was adopted. The documents which were submitted to the voters of Florida in mid-1968 as explanatory material for the proposed Constitution uniformly indicate (to the extent they bear on the issue before us) an intention to create constitution revision commissions (i) which would act without intervention of the Legislature (ii) in the tenth year after the Constitution was adopted and (iii) in each twentieth year thereafter. It is persuasive to our conclusion that we can satisfy those intentions by answering your first question in the affirmative. It is also persuasive that such an affirmative answer will carry out the apparent goals of the framers of the Constitution (i) that the process of constitution revision should take place with commissioners selected in an odd numbered year (when there are no public elections to compete for the time of commissioners), and (ii) that the commissioners should have adequate time to perform the responsibilities assigned to them.

Militating against the creation of a commission in 1977 is the notion that the people of Florida obviously intended to have an initial ten years of experience under the 1968 Constitution before revisions were brought to them for consideration. If the commissioners first meet in 1977, they will not have the full benefit of that experience for their deliberations. Nonetheless, the voters of the state will have had éxactly ten years’ experience at the time they are asked to pass on any proposals emanating from a 1977 commission, since the election would be held in November 1978. Thus/any governmental experiences not available to the commission before its report is filed (not later than 180 days before the November general election) will be known to the voters before they accept or reject the commission’s proposals. It seems, then, that an affirmative answer to your first question is not necessarily inconsistent with the notion that the Constitution should “settle” for ten full years before revisions are considered at the polls.

Finally, we are persuaded toward an affirmative answer to your first question by two other general considerations. First, since there is an acknowledged ambiguity it seems preferable to allow the people of the state to vote on proposals for change (which might include a correction of these problems for future revision commissions) at the earliest possible opportunity. That is, assuming there is doubt as to whether the commission process or the people’s vote was intended to occur in 1978, it is, in our view, better policy to obtain a resolution of the ambiguity by an early vote of the people rather than one deferred until 1980. Second, we cannot ignore the fact that appointing authorities for 34 out of the 37 prescribed positions on the commission are represented in this proceeding and of the view that your first question should be answered in the affirmative. All of these appointing authorities will be in office whether the commission is convened in 1977 or 1978, so there is no unrepresented group of potential officeholders whose appointment rights could be affected by our response to your inquiry.

We recognize that an argument can be made in support of a 1978 commission and 1980 vote on its proposals, based on a con-. struction of Article XI which emphasizes the formation of the commission “in the tenth year” as prescribed in Section 2(a). Those of our colleagues who prefer that emphasis recognize they must construe Section 2(c) to postpone the electors’ vote on constitution revision from the “next general election” after the commission convenes to the general election next following the conclusion by the commission of its constitutional responsibility to meet and hold public hearings. They would do so, however, in order to gain the “advantages” of longer deliberations, interim elections, votes on legislatively proposed constitutional amendments, and a change in governmental leadership. We sharply disagree with the view that these events are “advantages” to the revision process, let alone consistent with the rationale of having this process at all.

For one thing, by placing an emphasis on the time for convening the commission over the time for ending its deliberations, the effect is to free the commission from any time limitation on its very existence. The members could, under that construction of Section 2(c), hold public hearings indefinitely if a majority of members decide, for whatever reasons, to co-opt the public spotlight. This is obviously at odds with the Constitution’s express directive for a vote on the commission’s proposals, if any, at the “next” general election.

For another thing, it seems to be at odds with the intent of the people to infuse into a constitution revision process which was patently designed to bypass input from the legislative branch, the election of new legislators or an accommodation to the positions candidates for those offices may voice in their election bids. Elective political activity is antithetical to this constitutional review process, unlike the other two reserved in Article XI.

Finally, we view as disadvantageous, rather than advantageous, the addition of influences brought to the process by a second attorney general, governor, and set of legislative leaders. Sound constitution revision must stem from experiences which suggest the need for change. We fail .to see any advantage in making the last and most important phase subject to the influence of persons with no experience in office, over those who have had extensive practical experience as Florida’s chief legal officer, chief executive, and legislative heads under the existing Constitution.

Without regard to'our view of the merits or demerits of these perceived advantages, however, we are satisfied that none of them can be traced to the evolution of the commission revision scheme which appears in Article XI of our present Constitution. We view our role as limited to providing advice to the governor consistent with the purposes for which the people adopted Article XI, without the expression of our philosophical approach to the revision process.

For the foregoing reasons, we respectfully advise you that in our opinion, the 1968 Constitution requires the following acts:

1. You should initiate the convening of a constitution revision commission by appointing 15 members and a chairman during the 30 day period following adjournment of the regular session of the 1977 Legislature (“within” that 30 day period, as the Constitution directs);

2. You should direct the chairman to file the commission’s proposals, if any, for Constitution revision with the Secretary of State not later than May 11, 1978, which date is 180 days prior to the general election next succeeding the commission’s convening in 1977;

3. The proposed amendments or revisions to the Constitution, or any parts of it, if any, shall be submitted to the electors of the state on November 7, 1978, in accordance with Article XI, Section 5(a) of the Constitution; and

4. Absent any intervening alteration of the provisions of Article XI, Section 2, the constitutional timetable for future commission revisions shall be that

(a) a constitution revision commission having the same composition as set forth in Section 2(a) should be convened during (“within”) the 30 day period following adjournment of the regular session of the 1997 Legislature,

(b) the proposal for revision of the Constitution, if any, presented by that commission shall be filed with the Secretary of State at least 180 days prior to the general election scheduled in November 1998 and shall be voted on by the people of Florida at that general election, and

(c) the cycle for the commission revision process shall continue at 20 year intervals from the time frames set out in the preceding paragraphs.

Respectfully,
BEN F. OVERTON Chief Justice
JOSEPH A. BOYD, Jr.
ARTHUR J. ENGLAND, Jr.
ALAN C. SUNDBERG
JOSEPH W. HATCHETT
Justices

KARL and ADKINS, Justices,

dissenting.

We must disagree with the majority of the Court because we are inexorably drawn to the conclusion that the members of the Constitution Revision Commission should be appointed within thirty days after the adjournment of the regular session of the Florida Legislature in the year 1978 and that their product should be considered by the people in the general election to be held in November, 1980, unless placed on the ballot earlier by the Legislature. We would, therefore, answer the Governor’s first question in the negative.

We are obliged to construe the Constitution in such a way that all provisions may stand and have effect. In Burnsed v. Seaboard Coastline Railroad Company, 290 So.2d 13 (Fla.1974), this court said:

“Where a constitutional provision will bear two constructions, one of which is consistent and the other which is inconsistent with another section of the constitution, the former must be adopted so that both provisions may stand and have effect. State v. Butler, supra; Advisory Opinion to Governor, 96 So.2d 541 (Fla.1957). Construction of the constitution is favored which gives effect to every clause and every part thereof. Unless a different interest is clearly manifested, constitutional provisions are to be interpreted in reference to their relation to each other, that is in pari materia, since every provision was inserted with a definite purpose, [cases cited].”

Moreover, we should be ever so reluctant to extract only the essence of a constitutional provision and proceed to fabricate a new section based upon our own retrospective view of what the people intended. Justice Terrell, in Ervin v. C

“We are called on to construe the terms of the Constitution, an instrument from the people, and we are to effectuate their purpose from the words employed in the document. We are not permitted to color it by the addition of words or the en-grafting of our views as to how it should have been written. ... As pointed out by the chancellor, it must be presumed that those who drafted the Constitution had a clear conception of the principles they intended to express, that they knew the English language and that they knew how to use it, that they gave careful consideration to the practical application of the Constitution and arranged its provisions in the order that would most accurately express their intention.”

We should construe with judicial restraint the words and phrases which the people wrote into their constitution. To do otherwise is to disregard the Constitution and to ignore the caveat of Mr. Justice Mathews, writing for the Court in Thomas v. State, 58 So.2d 173 (Fla.1952):

“Disregard for the Constitution in order to accomplish some reform, or worthwhile purpose, can only lead to the ultimate destruction of Constitutional government.”

From the representations made to the Court, we may properly conclude that the technical errors in language were caused by the retention of language which was originally put into the proposed constitution when it was scheduled for adoption in 1967 and which the framers did not change when the original timetable was disrupted and adoption deferred to 1968. This, alone, does not make it appropriate for us to construct a different timetable. It cannot be assumed that, in every instance in which it is represented to the Court that the framers intended but somehow failed to revisit and update a provision in the Constitution, we may ignore the entire provision, decide what the people really meant and then write our views into the Constitution.

For whatever reason, and notwithstanding any alleged errors of the framers, the people of Florida adopted Sections 2 and 5 of Article XI of the Constitution of 1968 in the words and phrases that now come to us for consideration. They should be preserved and construed to avoid conflict. Advisory Opinion to Governor, 96 So.2d 541 (Fla.1957); State ex rel. West v. Butler, 70 Fla. 102, 69 So. 771 (1915). Section 2, Article XI, provides:

“(a) Within thirty days after the adjournment of the regular- session of the legislature convened in the tenth year following that in which this constitution is adopted, and each twentieth year thereafter, there shall be established a constitution revision commission composed of the following thirty-seven members:
(1) the attorney general of the state;
(2) fifteen members selected by the governor;
(3) nine members selected by the speaker of the house of representatives and nine members selected by the president of the senate; and
(4) three members selected by the chief justice of the supreme court of Florida with the advice of the justices.
(b) The governor shall designate one member of the commission as its chairman. Vacancies in the membership of the commission shall be filled in the same manner as the original appointments.
(c) Each constitution revision commission shall convene at the call of its chairman, adopt its rules of procedure, examine the constitution of the state, hold public hearings, and not later than one hundred eighty days prior to the next general election, file with the secretary of state its proposal, if any, of a revision of this constitution or any part of it.”

No conflict exists between Section 2(a) and (b), and any other provisions of the Constitution, nor is there any ambiguity. It is provided that there shall be a revision commission and that it shall be appointed within thirty days after the adjournment of the regular session of the Legislature in the tenth year following that in which the Constitution was adopted. The composition of the commission is prescribed, and provisions are included for designating a chairman and filling vacancies.

Patently, the people intended that the new constitution would be in effect for the better part of ten years before a new commission was appointed to review it. The emphasis is on the date of the appointment of the commission, not on the date of their proposal, if any, or the vote on any such proposal. If the people intended that the commission be appointed in nine years or in the year 1977 or at any other time, they would not have said “in the tenth year.”

We are given to understand from the records of the activities of the 1965 commission that the early drafts provided for a first general review of the new constitution in the twentieth year following its adjournment but that the input from the citizens convinced the commission members that the initial review should be sooner, and that the tenth year was ultimately determined to be the most desirable year to begin the important undertaking.

It is understandable that the constitutional scholars wanted a twenty year trial period since the Constitution should be relatively stable and unchanging over the years. The people should have the opportunity to live under its terms, and and there should be enough time for judicial interpretations to refine the document. Any needed intermediate amendments can always be accomplished by proposals from the Legislature or by the process of the initiative provisions. Convening a constitution revision commission each twenty years comports with good constitutional practice and with logic and reason. Making an initial review after ten years’ experience with a new constitution will serve a useful purpose. However, to shorten further the time is to relegate the Constitution to the status of a statute and to take from it the stability to which it is entitled.

. If the language used in the Constitution is plain and unambiguous, it is not subject to interpretations or construction by the courts. In re Advisory Opinion to Governor, 223 So.2d 35 (Fla.1969); Advisory Opinion to Governor, 156 Fla. 48, 22 So.2d 398 (1945); City of Jacksonville v. Glidden Co., 124 Fla. 690, 169 So. 216 (1936); Carlton, et al. v. Mathews, 103 Fla. 301, 137 So. 815 (1931); State ex rel. West v. Butler, supra. Here we not only have plain and unambiguous language that mandates the appointments in 1978, but the effects are reasonable and logical. This part of the Constitution should be preserved as it was written and adopted by the people, and it should be given its clearly expressed meaning.

A degree of confusion surfaces when Section 2(c), providing for the filing of the proposals of the commission, is considered. There was near unanimity among the persons and groups presenting briefs and arguments with respect to when the report must be filed that the words “not later than one hundred eighty days prior to the next general election” relate to the next general election following the appointment of the commissioners. This interpretation renders the entire time scheme unworkable.

It is self-evident that, if the appointments are made in June, 1978, as is clearly required by Section 2(a), unless the Legislature moves the date of the session, the commission will begin its labors in default. At that time, there would remain less than one hundred eighty days before the general election of 1978. The suggestion that the Legislature could change the date of the regular session so that the appointments could be made in March of 1978 is also unworkable because only about two months would intervene between the appointments and the report date.

There is no disagreement about the inability of the commission to prepare and present well-reasoned proposals in May of 1978 if the appointments are made during the year 1978. But Section 2(c), Article XI, does not mandate either a report or a vote of the people in 1978.

Section 2(c) contains no date for the first meeting of the commission; it convenes at the call of the chairman. The commission is required to adopt rules of procedure and make an examination of the Constitution but is in no way limited as to the amount of time it may devote to that process. Public hearings are required with no mention of number, locations or time frame. If a proposal for the revision of the Constitution is forthcoming, it must be filed with the Secretary of State not later than one hundred eighty days prior to the next general election. No date is specified, nor is it clear just what general election would be the next one.

If there is to be a proposal for revision from the commission, it should be a product of the people and should be offered only after sound deliberation. In the request for an advisory opinion, the Governor said:

“ . . . commission must be given broad time parameters for its work so as to foster a thorough and cautious review; the revision commission must have the opportunity to seek the advice and counsel of laymen, academicians, legislators, public officials, lawyers, judges and interested citizens.”

There must be ample time to fulfill ajl of those responsibilities, and the people can be presumed to have understood this need when they adopted the language used.

Since no time limits are imposed and such important and time consuming duties are mandated, it must be concluded that the people wanted to consider the revision product at a general election following completion of those responsibilities. If that premise is correct, there is no way the appointments can be made in the year 1978 and the proposals of the commission voted on in the same year.

There is no support in the Constitution for the contention that the people who voted to adopt the Constitution of 1968 intended to vote on revision proposals in 1978, ten years hence. The people did not require that in specific terms, and such a requirement is not implicit. Conversely, the people contemplated the possibility of no vote at all. Section 2 requires no more than that the commission be appointed, study the Constitution and conduct public hearings. If proposals for revision are developed, they are filed with the Secretary of State, and the people will consider them. However, if the commission brings forth no proposals, there will be no vote.

Section 2 of Article XI may be construed to mean that the people intended the appointments to be made in the tenth year and that the proposal, if any, be filed not later than one hundred eighty days before the general election next ensuing after the completion of the mandatory functions.

This interpretation is preferable because it follows the established rules for construction of the Constitution, it does not abandon as fruitless the notion that we can interpret or construe the constitutional language, it requires instead only minimal judicial construction, it preserves all parts of the Constitution, and it comports with the basic premise that the people intended to review their constitution after ten years’ experience with it.

The majority raises the spector of the revision commission deliberately holding public hearings indefinitely to co-opt the public spotlight. That, of course, is a possibility just as it is possible that a majority of commission members will conspire to defeat the revision effort by failing to file any proposals. But we should not assume bad faith or improper motivation on the part of the members. We should make the assumption that those who are appointed and agree to serve will do so with the desire to develop needed and meaningful proposals for revision. The majority of the commission will have the power to delay or defeat constitution revision regardless of the time schedule approved. That contingency was made possible by the people in 1968, when they adopted language that requires neither a report of commission action nor proposals for revision.

Under the majority time schedule, the revision commission must file proposals by May 11, 1978, or there will be no revision for another twenty years. As between such an absolute cut-off date and an interpretation that could be used to secure more time for commission labors, the latter is the better approach.

There are many advantages that would follow this interpretation, and they would be important to the revision effort.

Each person having authority to appoint commission members as of June, 1977 (the date proposed by the parties and amici), will also have the appointing authority in 1978, barring death, removal or resignation, with the possible exception of the Chief Justice, who, in any event, must have consent of the justices for his appointments. But the advantages to be gained by the 1978 appointments vis-a-vis the 1977 appointments are that the office of the governor changes hands in January, 1979, the legislative leadership changes in November, 1978, and, unless the incumbent attorney general is reelected, there will be a different person occupying that position in January, 1979. Consequently, any vacancies occurring after those changes take place will be filled by the successors of the present incumbents, and in the case of the attorney general, if a new person takes the office, there will be an automatic change in membership. This is a decided advantage because it broadens' the sources of input and diminishes the possibility of excessive influence of any appointing authority.

Since the constitution revision project is an undertaking of the people as opposed to a legislative project, the greatest amount of citizen input should be sought. The proposal for appointment of commission members in 1978 and the vote on their proposals in 1980 provides excellent opportunities for public expression and input. The election campaigns in the fall of 1978 will give candidates a forum for discussing revision proposals and will give the people the opportunity to react. Any legislatively proposed amendments to the Constitution or any proposed amendments resulting from the initiative process up to that time will be passed upon by the people in 1978, giving the commission further guidance. If there is a product ready in May of 1980, there will be one hundred eighty days of debate and discussion laced with legislative campaign activity.

Finally, the legislator-commission member problem is minimized. If the appointments are made in 1977, the legislative members will be able to serve until the beginning of the 1978 regular session which begins April 4, 1978. They may constitute eighteen (almost one half of the membership) or more, and they may be foreclosed from participation in at least the last thirty-seven days of the commission activity. Given the short time for their labors, this could prove to be the most critical period in the entire effort. While the legislative members would also be deprived of the final month of participation under the 1980 proposal, the longer period between appointment and report date would make it more likely that the proposals will be finalized prior to the cutoff date for legislator participation. In that broader time frame, the commission could schedule its own date for completion of the proposals, and there woitld be ample time to work toward that deadline.

The time schedule prescribed by the advocates of 1977 commission appointments allows a maximum working time of approximately ten months. For all practical purposes, however, the legislative members will have no more than nine months of participation. That may fall far short of being adequate time considering that the revision effort is a citizen project and that most of the members will have personal and business time commitments; that the major holiday seasons fall within that brief time period; that the 1965 revision commission worked from its formation in January of 1966 until the legislative session of 1968; and that, notwithstanding the length of time involved in the previous commission’s work, there have already been eighteen amendments adopted and there exists this uncertainty as to when commission appointments should be made. As between an early consideration by the revision commission and a later consideration with more adequate time, the better plan is the one that provides ample time for consideration.

Moreover, if the commission completes its labors and brings forth proposals at an early date, the Legislature always has the option of placing the revision on the ballot in a special election at a time it may select.

The request for this advisory opinion causes the Court to do much more than determine the date for the appointment of members of the constitution revision commission. It calls up for consideration the philosophical approach the Court should take with respect to interpretation of the Constitution. We are here invited to abandon the construction or interpretation efforts and hand down an advisory opinion stating when the commission members shall be appointed, when they shall file their proposals and when the people shall be required to vote on them. We are urged to follow that course by some of the ablest constitutional scholars in the state, representing the leaders of the other two branches of government and organizations known for their good work in this field and their dedication to the public interest.

But the precedent of this court and the teachings of history say to us that we should not be so bold as to undertake a judicial revision of the Constitution. We are taught to preserve all that the people write into their basic document and to proceed cautiously and with restraint in construing or interpreting any part of the Constitution.

The majority opinion says to the'people that, if a conflict arises between different parts of the Constitution, we will nullify the part we select and rewrite the provisions to our own preference, even though there may be a less drastic way open to us.

We cannot subscribe to such a position and, therefore, dissent. We would save all of Section 2, Article XI, as the people wrote it and construe Section 2(c) as indicated to reconcile the single conflict and provide for the vote in 1980, unless an earlier date is fixed by legislative action.

Respectfully,
FREDERICK B. KARL
JAMES C. ADKINS
Justices

      . “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Sec. Co. v. United States, 193 U.S. 197, 400-401, 24 S.Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).

      . E. g., In re Advisory Opinion to Governor, 243 So.2d 573 (Fla.1971); In re Advisory Opinion to Governor, 223 So.2d 35 (Fla.1969).

      . See commentary by Talbot “Sandy” D’Alemberte on Article XI, Section 2, Florida Constitution, 26A F.S.A. 548.

      . The Constitution of the United States has never been completely revised or rewritten and has been amended only twenty-six times.

      . Article XI, Section 5, Florida Constitution.

      . The people did not, however, express a desire to bypass the legislative branch. The President of the Senate and the Speaker of the House appoint eighteen of the thirty-seven members of the commission, and they could all be legislators. There is no prohibition against legislators being placed on the commission by other appointing authorities.

      . Article XI, Section 5, Florida Constitution.