author: PER CURIAM. ENGLAND, Justice ROBERTS, Justice

text:
    GOLDEN LOAF BAKERY, INC., Petitioner, v. CHARLES W. REX CONSTRUCTION CO., Respondent.
    No. 47318.
    Supreme Court of Florida.
    June 23, 1976.

      Eli H. Subin, of Subin, Shams, Rosen-bluth & Moran, Orlando, for petitioner.
    D. Arthur Yergey, of Yergey, Yergey & McKnight, Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, and Robert G. Murrell, of Sam E. Murrell & Sons, Orlando, for respondent.
   PER CURIAM.

Having heard oral argument, the Court is of the opinion that the writ of certiorari heretofore issued in this cause should now be discharged.

It is so ordered.

OVERTON, C. J., SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., concurs.

ROBERTS, J., dissents with an opinion.

ADKINS and BOYD, JJ., dissent and concur with ROBERTS, J.

ENGLAND, Justice

(concurring).

I agree that this Court has no jurisdiction to review the decision of the Fourth District Court of Appeal as reported at 311 So.2d 390. The majority opinion of that court reads, in its entirety, “affirmed”. Judge Walden dissented and filed an opinion expressing his reasons for disagreement. Since in this case there is no reviewable “record proper” underlying the majority’s affirmance, the sole basis for our jurisdiction is a “direct conflict” in de-cisional law arising from the dissenting opinion. I do not believe that conflict jurisdiction should ever be grounded on a dissenting opinion of a district court.

I am aware of previous statements by this Court that a dissenting opinion can form the basis for conflict sufficient to invoke our jurisdiction under Article V, § 3(b)(3) of the Florida Constitution. In my view, however, the dangers of that practice, one of which is described in our opinion in Commerce Nat’l Bank v. Safeco Ins. Co., far overshadow any value that might be derived in any particular case from our exercise of conflict jurisdiction based on dissenting views.

This Court’s conflict jurisdiction was created in 1957, at the same time the legislature established the district courts of appeal. The obvious and limited purpose of that form of appellate review was to allow us to clarify the law when it becomes necessary under the new court structure created by the Constitution. Where our views on a matter of law are not absolutely necessary, we should not express them. Moreover, the constitutional role of our district courts as courts of last resort is unnecessarily diminished to the extent we use this discretionary jurisdictional tool to express ourselves in situations which do not require our clarification.

The district court’s majority undoubtedly has established the law of this case insofar as the parties, their counsel and the trial judge are concerned. It is certainly conceivable, as petitioner suggests, that both the trial court and the appellate majority are legally “wrong” in a decision which now has precedential significance in that appellate district. But whether they are or not cannot be determined in a case where the alleged “direct conflict” in decisions is premised on the dissenter’s view of what the majority did, without first ascertaining whether the dissent has correctly characterized the legal effect of the majority’s action. My principle objection to “dissent conflict” stems from my unwillingness to ascribe to the dissenter the power to speak for the unspoken majority. In this case, for example, respondents vigorously contest the dissenter’s characterization of the majority’s affirmance.

For these reasons, I would expressly overrule all cases which hold that conflict jurisdiction may be premised on a dissenting opinion.

OVERTON, C. J., concurs.

ROBERTS, Justice

(dissenting).

I must dissent from the majority decision to discharge the writ as improvidently granted. Conflict with the instant decision of the District Court of Appeal, Fourth District, and R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87 (Fla.App. 3, 1969), is readily apparent. Cf. Edgar v. Hosea, 210 So.2d 233 (Fla.App. 3, 1968).

The pertinent facts are succinctly stated in Judge Walden’s dissenting opinion. Charles W. Rex Construction Co. built a bakery building for Golden Loaf Bakery. The contract specified the floor was to be of poured concrete having the strength of 3,000 pounds per square inch. The floor proved to be faulty, and Golden Loaf had the floor repaired by means of a vinyl latex resurfacing. Golden Loaf sued for damages, claiming as its only measure of damages the total repair cost of $42,000. At the close of plaintiff’s case, a verdict was directed for Rex on the grounds plaintiff had offered an incorrect measure of damages. The trial court reached the conclusion that the proper measure of damages was the difference in value between the building as it was built, and as it should have been built. The court found the repair amount of $42,000 was out of proportion to the contract price of $88,000. The court based its ruling on a citation to Edgar v. Hosea, 210 So.2d 233 (3d D.C.A.Fla.1968):

“ ‘As a general rule, the measure of damages is the cost of correcting the defects or completing the omissions, rather than the difference in value between what ought to have been done in the performance of the contract and what has been done, where the correction or completion would not involve unreasonable destruction of the work done by the contractor and the cost thereof would not be grossly disproportionate to the results to be obtained. On the other hand, the courts generally adhere to the view that if a builder or contractor has not fully performed the terms of the construction agreement, but to repair the defects or omissions would require a substantial tearing down and rebuilding of the structure, the measure of damages is the difference in value between the work if it had been performed in accordance with the contract and that which was actually done, or (as it is sometimes said) the difference between the value of the defective structure and that of the structure if properly completed.’ ” Id. at 234.

The District Court affirmed the directed verdict for Rex.

I agree with Judge Walden’s conclusion that under the circumstances, the trial court’s directed verdict was premature and with his reasoning to the effect:

“The defendant has offered no evidence to show that the repair undertaken was not the most reasonable way to make plaintiff whole. The difference in building value measure of damages might have resulted in greater dollar damages. Plaintiff has claimed that the value of the building, as was, was (to the plaintiff) nothing, because the faulty floor rendered the building unsuitable as a bakery under state requirements for structures in the food processing industry.
“Plaintiff gave evidence that to repair the concrete by means of concrete refinishing would have necessitated closing down the bakery operations, and any loss incurred thereby would have been a measure of damages. Prier v. Refrigeration Engineering Co., 74 Wash.2d 25, 442 [P.]2d 621 (1968). In essence, plaintiff claims he has used the most reasonable means of repair.
“It is my opinion that to direct a verdict on the grounds plaintiff had proven an incorrect measure of damages was error, and that it was defendant’s duty to present any contradictory evidence in mitigation of those damages. If there was such evidence, plaintiff could not wholly recover, for no plaintiff can profit from a defendant’s breach. Ciminelli v. Umland Bros., Inc., 236 App.Div. 154, 258 N.Y.S. 143 (1932). In Ciminelli an owner could not recover the entire cost of repair when he replaced a faulty roof with one that had a longer guarantee than the one he had contracted for.
“The existence of mitigating circumstances and all related factors should be had before the jury, so that it might properly assess the plaintiff’s damage claim. R. K. Cooper Builders, Inc. v. Pree-Lock Ceilings, Inc., 219 So.2d 87 (3d D.C.A.Fla.1969), see Webster v. Culver Roadways, Inc., [79 Misc.2d 256,] 359 N.Y.S.2d 863 (1974). It may well be that the plaintiff’s action in repairing saved thousands of dollars, or it may be that plaintiff overreached in its choice of repair. It may be that a less expensive, but equally satisfactory, method of repair could have been had, or that the proper measure of damages was the difference between the value of the building as was and as it should have been. These considerations cannot be evaluated before all the facts are brought before the jury and the court. If the floor was faulty and if plaintiff did not prove the proper measure of damages, plaintiff should still recover in an amount equal to the proper measure of damages as found by the jury.”

In R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., supra, which involved a dispute between a contractor who completed a job and a subcontractor who defaulted in performance of a construction contract, the court explained:

“Instead, controlling weight should be given to the actual expenditures, made in good faith, that are necessary to complete the job covered by the original contract. But we hasten to add that a mere showing of the actual expenses for completion is not determinative of the issue of damages, for the general rule permits the defaulting subcontractor to go forth with evidence in order to set off the cost of completion. Such evidence should go toward proving waste, extravagance, or lack of good faith, but the courts will not hear a defaulting subcontractor's claim that the party who was forced to complete the job spent too much absent evidence as to the above factors. See 17A C.J.S. Contracts § 512.” (emphasis supplied)

Accordingly, I would quash the decision of the District Court and remand with directions to reverse the judgment of the trial court directing a verdict for respondents.

ADKINS and BOYD, JJ., concur.

      . Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

      . Art. V, § 3(b)(3), Fla.Const.

      . Commerce Nat’l Bank v. Safeco Ins. Co., 284 So.2d 205 (Fla.1973); Smothers v. Smothers, 281 So.2d 359 (Fla.1973); Autrey v. Carroll, 240 So.2d 474 (Fla.1970) ; Huguley v. Hall, 157 So.2d 417 (Fla.1963). Apparently the notion of dissent conflict arose innocently enough in Huguley, where the dissenting opinion set forth the only facts by which the majority’s citations of authority could be compared with prior precedents.

      . 284 So.2d 205, 207-08 (Fla.1973).

      . Comm.Sub. for H.J.R. 810, Laws of Fla. (1955) Yol. 1, Part 1 at 1229, effective July 1, 1957. The Constitution says “direct” conflict must exist. By that language, our discretion is “substantially restricted and drastically circumscribed.” Nielson v. City of Sarasota, 117 So.2d 731, 734 (Fla.1960). The concept of judicial restraint should also operate to limit our discretionary review. “It is significant that, under the constitution the issuance of conflict certiorari is discretionary . . . .” Sroczyk v. Fritz, 220 So.2d 908/911 (Fla.1969).

      . “Our concern is with the decision under review as a legal precedent to the end that conflicts in the body of the law of this State will be reduced to an absolute minimum and that the law announced in the decision of the appellate courts of this State shall be uniform throughout.” N & L Auto Parts Co. v. Doman, 117 So.2d 410, 412 (Fla.1960).

      . See, for example, Johns v. Wainwright, 253 So.2d 873 (Fla.1971).

      . It seems to me that we are obliged to recognize that district court judges are as fallible in their judgments as we are. As indicated by the number of rehearing petitions we receive, we do not always convince the losing side that we are correct in our decisions. If dissenting opinions from other justices are any indication, we do not always convince our colleagues. The point I would make is that judicial error in the district courts is not alone an appropriate touchstone for our jurisdiction. Only the constitutional purpose for our being warrants a review of those courts’ decisions.


source: Caselaw Access Project

author: SUNDBERG, Justice. ENGLAND, Justice

license: Public Domain

text:
    Bruce E. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 47681.
    Supreme Court of Florida.
    June 23, 1976.

      James A. Gardner, Public Defender; and Dennis J. Plews, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen.; and Robert J. Landry, Asst. Atty. Gen., for appel-lee.
   SUNDBERG, Justice.

This is a direct appeal from the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County. Jurisdiction lies under Article V, Section 3(b)(1), Florida Constitution, in that the trial court initially and directly passed on the validity of Subsection 828.04(1), Florida Statutes, by determining that it was not unconstitutionally vague.

Appellant was tried and convicted of violating Section 828.04(1), Florida Statutes. He was sentenced to a 15-year prison term.

At the time of the alleged offense, September 12, 1974, appellant was living with Ms. Vicki Schieler and her 2-year old son, Brent, in Pinellas Park, Florida. (Ms. Schieler testified that the boy’s father is one Rome Madison.) Appellant worked from 7:00 a. m. to 3:30 p. m., while the boy’s mother was employed on a shift beginning at 3:30 p. m. and ending at midnight. During Ms. Schieler’s absence from home, it was appellant’s responsibility to look after Brent. The State’s witnesses gave testimony tending to prove that the boy was fine early in the evening on that date, but that when Ms. Schieler arrived home shortly after midnight, he was bruised in the face, back and buttocks. Both eyes were blackened, the left eye was almost closed, and both arms were battered.

Ms. Schieler called the police shortly after midnight, and when they arrived, she went with' an officer to the police station while Brent received medical attention. She repeated several times that she had left the child with babysitters whose names, residences, and present whereabouts were unknown to her, but she later admitted that she had left Brent in the care of the appellant.

The appellant was arrested and taken to police headquarters. He was given a Mir-nada warning and nodded assent when asked whether he understood the rights contained therein and whether he wished to waive them by talking at that time. Shortly after 3:00 a. m., the appellant admitted to two police officers that during a three-hour period in the early evening, he had struck the boy in the face approximately four times with his hand and also spanked him with a belt approximately ten times. What had occasioned this “discipline” was Brent’s refusal to cooperate when appellant tried to feed him supper. Appellant also said that the cuts and bruises in the region of the boy’s left eye were caused by a fall in the bathtub while bathing. These statements were admitted into evidence at trial over the objection of defense counsel that Jordan had never validly waived his Miranda rights.

At trial, the defense presented a witness who testified that he had brought two girls over to appellant’s apartment on the evening in question and that the four of them had been there from 8:00 p. m. to about 11:15 p. m. During this time he saw no evidence that the boy had been mistreated. A neighbor testified that she had never seen appellant mistreat Brent, although she had often seen him “punish” the boy. Jordan testified that, on the evening in question, he had struck the boy with a belt one time, that some other injuries had been occasioned in the bathtub accident, and that when Ms. Schieler returned home after midnight and learned that Jordan had entertained female visitors, she became upset and vented her frustration by beating Brent when he awakened and did not return to sleep.

The points raised for our consideration on this appeal are (i) whether the trial court erred in denying a motion to dismiss the information on the ground that Section 828.04(1), Florida Statutes, is unconstitutionally vague; (ii) whether the trial court erred in overruling objections to the introduction at trial of appellant’s alleged admissions; and (iii) whether it was error for the trial court not to grant a mistrial based on comments by the prosecutor during closing argument to the jury. We shall treat the points seriatim.

The statute here under consideration sets forth three distinct crimes, each of which is punishable as a second degree felony. The first is the act of unlawfully or willfully torturing, caging, or mutilating a child under the age of sixteen years. The second is the cruel, wanton, or malicious tormenting or punishing of such a child. The third is the intentional or knowing infliction of great bodily harm, permanent disability, or permanent disfigurement to a child under the age of 16 years while committing a battery upon the child. The description of these independent crimes is sufficiently clear that a person of ordinary intelligence can ascertain what conduct is proscribed “when measured by common understanding and practice.” Zachary v. State, 269 So.2d 669 (Fla.1972); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). This Court held when the predecessor to Section 828.04, Florida Statutes, was challenged that the phrase “unnecessarily and excessively chastises”, which remains in subsection (2) of the instant statute, was sufficiently definite when viewed from this standpoint. Campbell v. State, 240 So.2d 298 (Fla.1970). The Court’s reasoning there applies with equal force to the language at issue here.

Additionally, appellant was accused of and tried for the second of the three aforementioned violations; viz., the cruel, wanton, or malicious tormenting or punishing of a child under the age of 16. The information charged that Jordan “did cruelly, wantonly, or with malice torment Brent Schieler ... by beating [him] about the face, thereby causing extensive bruises, abrasions, and contusions.” The horribles of alleged statutory ambiguity paraded in appellant’s brief involve the two other categories of activity denounced by the statute. Appellant lacks standing to assert the constitutional invalidity of descriptions of criminal conduct with which he has not been charged. See Lainhart v. Catts, 73 Fla. 735, 75 So. 47 (1917); McSween v. State Livestock Sanitary Bd., 97 Fla. 750,122 So. 239 (1929).

Accordingly, we concur with the trial judge’s conclusion that Section 828.04(1), Florida Statutes, is not unconstitutionally vague in that it does put persons of ordinary intelligence sufficiently on notice of what specific conduct it prohibits.

Appellant next asserts that he is entitled to a new trial because his confession statement which was admitted into evidence at trial was not properly admissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69.4 (1966). He maintains that acknowledgment of rights by a mere nod of the head does not constitute a waiver of those rights where there was no showing that they were waived either orally or in writing. He contends that such a position is buttressed by the provisions of Subsection 3.111(d)(4), Fla. R.Cr.P.

Decisions rendered in this jurisdiction lead us to the conclusion that waiver of Miranda rights need not be by affirmative response or express waiver once the warning has been given. See Davis v. State, 275 So.2d 575 (1st D.C.A. Fla.1973), cert. denied, 280 So.2d 684 (Fla.1973); Hill v. State, 223 So.2d 548 (3d D.C.A. Fla.1969). In United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), the United States Court of Appeals for the Fourth Circuit made it clear that there is no constitutional requirement that a waiver is valid only if written and signed in the presence of two witnesses:

“Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government’s burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.”

Under the teaching of the cited cases Jordan’s confession would clearly be admissible, particularly when it is observed that the trial judge specifically found that Jordan was explained his rights and that he understood and appreciated them, indicating such understanding and appreciation by nodding his head. There was an implicit waiver in the act of the appellant in proceeding to give the statement after he had been given an explanation of his rights and had indicated comprehension of that explanation.

Appellant urges that Florida has imposed by rule a stricter requirement, but his reliance on Subsection 3.111(d)(4), Fla.R.Cr. P., as providing an independent ground for making the confession inadmissible is misplaced. Read out of context, the provisions of the Rule relied upon by appellant might lead to the result urged. But we find two flaws in appellant’s attempted application of Rule 3.111 to the facts here. First, the title of the Rule is “Providing Counsel to Indigents.” Reading the Rule in its entirety makes it clear that its provisions relate to the subject indicated in its title. The remedy for its violation would be to require a new trial with counsel available to represent the indigent. We do not understand that appellant complains about the lack or quality of his representation in the instant proceedings. Second, there is nothing in Rule 3.111 which calls for suppression of evidence, the result appellant seeks to achieve. Our rules must be sensibly construed. They are not to be given a strained inte'rpretation or stretched to the limit of every conceivable construction conjured up by the fertile imagination of counsel. For the reasons stated, it was not error to admit the confession in evidence.

The prosecutorial comment during closing argument of which appellant complains is as follows:

“ . . . The only reasonable explanation, reasonable hypothesis, is that the Defendant committed that beating and yet now he doesn’t have the courage to stand before the Bench and take that first step toward rehabilitation and say, okay, I am sorry, I am sorry. . . . ”

It is the position of appellant that this statement constituted comment upon defendant’s insistence on trial by jury. It is argued that this is tantamount to prosecu-torial reference to an accused’s failure to take the stand to testify and, therefore, a mistrial was mandated. In fact, the defendant took the stand in his own defense and repudiated the confession which had been introduced in evidence. The rule with respect to the prosecutor’s statement here is exemplified in Dabney v. State, 119 Fla. 341, 161 So. 380 (1935), where this Court stated:

“ . . . [T]he failure of the defendant to testify cannot be taken or considered as any admission against his interest; but, if a defendant voluntarily takes the stand and testifies as a witness in his own behalf, then he becomes subject to cross-examination as any other witness, and the prosecuting officer has the right to comment on his testimony, his manner and demeanor on the stand, the reasonableness or unreasonableness of his statements, and on the discrepancies which may appear in his testimony to the same extent as would be proper with reference to testimony of any other witness.”

Taken in context, we do not believe that the comment by the prosecutor was unfair or improper. We do not construe the remark to be a comment “upon defendant’s insistence on trial by jury,” nor do we believe that the jury could have so construed it. In any event, cases cited by counsel concern comment upon failure to testify rather than upon insistence on jury trial and thus clearly are not on point.

The judgment and sentence are affirmed.

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

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice

(dissenting).

I respectfully, but strenously, dissent from my colleagues’ initial determination that we have jurisdiction to review appellant’s conviction. By finding that the parties have established jurisdiction in this case, the Court has effectively invited litigants to bypass the district courts in almost all cases.

On November 19, 1974, the day of Mr. Jordan’s trial, his attorney filed a motion to dismiss the information against Jordan on five grounds relating to its sufficiency. As the trial was about to begin, defense counsel asked to approach the bench and this dialogue took place:
“DEFENSE COUNSEL: Your Hon- or, there is a Motion to Dismiss that I filed. I would like to amend it in two places instanter with the Court’s permission. I will submit it without argument but I would like it amended to present to the Court.
Judge, on Line — Paragraph 4 as it reads here, where it says the Information is vague, I would like to scratch is and add the Information is, the Information and Florida Statute 828.04, and— where it says is, add and Florida Statute 828.04 are vague and ambiguous and doesn’t apprise the Defendant of the charge.
THE COURT: What is the number?
DEFENSE COUNSEL: 828.04, and the way Paragraph 5 begins, the allegations of the Information and the — add in there — and Florida Statute 828.04 and a comma thereafter are so vague. Essentially, Judge, those are the additions I would make. The Motion to Dismiss attacks the Statute and the Information as being vague and ambiguous and one which the Defendant is being placed on trial for, and I would submit the Motion based upon — as it is written without any additional argument.
STATE’S ATTORNEY: Your Hon- or, the Information was filed September 19, 1974, and the Defendant arraigned October 4, 1974. The Information has not been amended since that time. The Court granted ten days within which to attack the sufficiency of the Information. It has now just been handed to me on trial date and I object to having to research that Motion, and I object to it being heard.
DEFENSE COUNSEL: Judge, ten day motions are motions that attack the legal sufficiency but, shall we say, doesn’t contemplate constitutional objections, objections which can be raised at any time.
THE COURT: I am aware of that. The State’s objection to the Motion is overruled. The Court has ■ not had the opportunity to read the Motion being entered by Defense Counsel, but it does question the constitutionality of the law in issue and the Defendant has the right to raise constitutionality issues. However, the Court disagrees with the Motion and the Court will deny the Motion.”

The oral changes to the motion to dismiss were later penned onto the written motion. The effect of defense counsel’s action was to assert a constitutional challenge to a statute in two of the five grounds asserted for dismissal. As a result of the court’s denial of the motion to dismiss, defense counsel was then able to move the Second District to transfer the appeal to this Court, on the ground the trial judge initially and directly passed upon the validity of a state statute. Although it is not relevant to my view on this issue, the state did not contest the transfer.

I do not believe that Article V, Section 3(b)(1) of the Florida Constitution was designed for cases where the reliance of a party on a constitutional point is so minimal that trial counsel did not even deem it worthy of argument before the trial judge. This appears to have been an obvious attempt to inject an issue into the proceeding at the very last minute for the sole purpose of acquiring direct appellate review here. The frivolity of this issue is also apparent from the arguments before us. Appellant has primarily attacked the constitutionality of statutory provisions which are not involved in the case. As the majority recognizes, appellant even lacks standing to raise these issues.

In Evans v. Carroll, 104 So.2d 375 (Fla.1958), we refused to entertain an appeal because “the constitutional questions posed are merely colorable, unrelated to the particular facts involved, and therefore present no substantial basis upon which an appeal will lie ... .” The Court there compared its role under the predecessor of Article V, § 3(b)(1) to the role of federal courts on review of state decisions. A comparison of policy reasons dictated close scrutiny of jurisdictional allegations. The test there applied quite obviously pertains here:

“ ‘We pierce the shell of the record presented for review sufficiently far to determine that our proper jurisdiction is not infringed upon or improper jurisdiction is not foisted upon us.’ ” 104 So.2d at 377.

The district courts were intended to be courts of last resort, and the finality of their jurisdiction should not be eroded by a litigant’s decision to raise, as one among many points, an insubstantial constitutional question. By applying these same tests to requests for transfer, the district courts first, and this Court later, can preserve the proper constitutional role of each. On the facts here, Evans dictates that we return this case to the Second District Court of Appeal.

      . “Whoever unlawfully or willfully tortures, cages, or mutilates, or whoever cruelly, wantonly, or with malice, torments or punishes, any child under the age of sixteen years or whoever, in committing a battery upon any child under the age of sixteen years, intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement to such child is guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”
      By Chapter 75-298, Laws of Florida, this statute was amended and renumbered 827.03. The changes effected by the new language are not material to our decision in this case.

      . “A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.”


author: HATCHETT, Justice.

text:
    ASI, INC., Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 48210.
    Supreme Court of Florida.
    June 23, 1976.

      Sol H. Proctor of Proctor & Cain, Jacksonville, for petitioner.
    Prentice P. Pruitt and Cynthia S. Joach-im, Tallahassee, and Norman J. Bolinger of Schwartz, Bolinger & Peterson, Jacksonville, for respondent.
   HATCHETT, Justice.

By petition for writ of certiorari, ASI, Inc., (ASI) seeks to overturn the award to Aireo Air Freight Delivery, Inc. (Airco) by the Public Service Commission of for-hire Permit No. 2261. The Constitution confers jurisdiction on this Court to “issue writs of certiorari to commissions established by general law having statewide jurisdiction.” Art. V § 3(b)(3). The Public Service Commission was established by Section 350.011, Florida Statutes (1975), and exercises statewide jurisdiction, but we deny the petition for writ of certiorari, because we believe the petition lacks merit.

Aireo filed an application with the Public Service Commission on March 28, 1975, pursuant to Section 323.05, Florida Statutes (1975), seeking authority to transport “delayed, misplaced and/or misrouted baggage . . . from the Jacksonville International Airport” to specified points in northeast Florida, the points of destination being restated in an amended application. Aireo sought authority limited to “single, casual and nonrecurring trips performed only occasionally and without solicitation.” ASI filed a protest requesting that Airco’s application be denied or, in the alternative, that a public hearing be held to determine whether the proposed transportation was for hire or, alternatively, whether the permit was required by public convenience and necessity.

Aireo moved to strike ASI’s protest on the ground that ASI had no standing to oppose the application and on the ground that “the service proposed by Aireo is not common carriage.” In Order No. 12069, the Commission entered an order striking ASI’s protest and issued for-hire Permit No. 2261, thereby granting Airco’s application, one commissioner dissenting. To supply an inadvertent omission, an amended order was unanimously entered. Order No. 12069-A. ASI filed a petition for reconsideration, which the Commission denied after hearing argument by the parties, one commissioner dissenting. Order No. 12322. ASI sought review in this Court of the Commission’s orders by filing a petition for writ of certiorari here.

The parties agree to the general proposition that the administrative procedure act, Section 120.50 et seq., Florida Statutes (1975) applies to proceedings before the Public Service Commission, except where specifically provided otherwise. See Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla.1976); Gator Freight- ways, Inc. v. Mayo, 328 So.2d 444 (Fla.1976). The particular statute under which the Commission acted in this instance, however, provides, as follows:

No motor carrier shall operate any for-hire motor vehicle on any public highway in this state in the transportation of persons or property for compensation without first having obtained from the commission a permit, which permit shall issue as a matter of right and of course when the provisions of this part and the laws of the state touching such motor vehicle operation have been complied with by the applicant.
Section 323.05(1), Florida Statutes (1975) (emphasis supplied)

The Commission heard ASI’s arguments on petition for reconsideration, but no fact finding hearing took place at any stage of the proceedings.

ASI asserted a hearing was necessary “to determine ... if public convenience and necessity require the grant of” a permit to Aireo. Section 323.05(1) Florida Statutes (1975) does not require any determination as to public convenience and necessity before granting for-hire permits. Such permits are to issue “as a matter of right.” Id. We are unable to conclude that the Commission’s grant of a permit to Aireo constitutes “substantial interests of [ASI being] . . . determined by an agency,” within the intendment of Section 120.57, Florida Statutes (1975), even assuming that ASI will experience competition from Aireo, operating under its new for-hire permit. The fact is that ASI has no legally recognized interest in being free from competition. On the contrary, the statutory scheme is one of free and unfettered competition among for-hire motor vehicles on public highways. Section 323.05, Florida Statutes (1975). The procedural requirements established by the administrative procedure act evince no purpose either to alter this substantive policy or to require hearings to find facts which can have no bearing on agency action.

The basis on which ASI sought an evidentiary hearing was twofold. ASI’s second contention before the Commission was that a hearing should have been held to determine whether the proposed transportation was for-hire. We reject this argument as frivolous. The term “for-hire” is defined in Section 323.01(9), Florida Statutes (1975), as follows:

“For hire” means any motor carrier engaged in the transportation of persons or property over the public highways of this state for compensation, which is not a common carrier or contract carrier but transports such persons or property in single, casual' and nonrecurring trips. “For-hire carriage” shall not be deemed to include “charter carriage” as herein defined and no for-hire carriage of passengers shall be authorized by any permit as herein defined and issued by the commission under the provisions of this part in motor vehicles of a greater passenger-carrying capacity than nine including the driver or chauffeur.

It was a simple matter for the Commission to compare Airco’s application with the statute, and decide that the proposed transportation fell within the purview of the statute. The possibility of summary treatment is contemplated by Section 323.05, Florida Statutes (1975), and is expressly provided for in Rule 25-5.06, Fla.Admin. Code. ASI does not challenge the validity of Rule 25-5.06 and makes no claim that the permit actually granted to Aireo authorizes anything other than “for hire” transportation.

The petition for writ of certiorari is denied.

OVERTON, C. J., ROBERTS and 9UNDBERG, JJ., and SMITH, District Court Judge, concur.


author: SUNDBERG, Justice. ROBERTS, Justice SMITH, District Court of Appeal Judge

text:
    Claude BROWN, III, Appellant, v. STATE of Florida, Appellee.
    No. 46228.
    Supreme Court of Florida.
    May 5, 1976.
    John L. Parker, Jr., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   SUNDBERG, Justice.

This is an appeal from an adjudication of guilt under Section 837.021, Florida Statutes (perjury by inconsistent statement), in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida.

Appellant made a sworn statement to the effect that he was “driving a blue Mazda automobile in Martin County, Florida, and was accompanied by a Leonard Joseph, also known to Claude Brown III as ‘Little Junior’ on September 18, 1973”. Later at trial appellant denied under oath that he was with Leonard Joseph on that date. This variance in Brown’s story led to his subsequent indictment and conviction under Section 837.021, Florida Statutes. The sole issue on this appeal is the constitutionality of the statute, which was upheld by the circuit court in denying appellant’s motion to dismiss. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.

Appellant argues that the instant statute is repugnant to the Fifth Amendment to the Constitution of the United States because one charged with this offense must come forward and explain the apparent inconsistency of his two statements. The State is never required to prove the falsity of a specific remark as it must under both the common law and the other perjury statutes of this jurisdiction, but is able to gain a conviction by piling inference upon inference. Although under Section 837.-021(4), Florida Statutes, the good faith belief that both of the defendant’s remarks were accurate at the time made is provided as a defense, appellant argues that a defendant must, in order to avail himself of the protection of this provision, take the stand to assert his bona fides.

While the constitutionality of Section 837.021, Florida Statutes, has not been the subject of a reported opinion in this State, there is impressive authority for the proposition that such statutes are constitutional as establishing a reasonable, rebuttable presumption that a crime has been committed. In construing a similar statute, the Supreme Court of Illinois observed:

“By definition contradictory statements cannot both be true. (See People v. Walker, 28 Ill.2d 585, 192 N.C. 819.) Thus, proof that a person has made contradictory statements proves of itself, without aid of any presumption, that the person has made a false statement. The only presumption involved in paragraph (b) of section 32-2 is that he did not believe both statements to be true. It is, of course, arguable that the statements were made because of excusable mistake or some other valid reason. Since this statute is limited to proceedings where an oath or affirmation is required and to a statement that is material to an issue or point in question, it is a reasonable presumption. In most cases perjury will have been committed; the exception will be rare and ordinarily will be shown by evidence more readily available to the defendant than to the State. Under such circumstances, a rebuttable presumption which puts the burden of going forward with the evidence on the defendant is constitutionally permissible.”

People v. Ricker, 45 Ill.2d 562, 565, 262 N. E.2d 456, 458 (1970). See also State v. Kowalcsyk, 3 N.J. 51, 68 A.2d 835 (1949); People v. Lillis, 3 A.D.2d 44, 158 N.Y.S.2d 191 (1956).

These decisions follow the position enunciated in 70 C.J.S., Perjury § 67:

“. . . [Ujnder a statute so providing, proof of contradictory statements made by accused under oath is prima fa-cie evidence that one or the other is false, and it has been held that where the subject matter is such that in the nature of things the falsity of accused’s sworn statement cannot be proved except through circumstantial evidence, as where he is charged with falsely stating he did not remember certain facts, evidence of contradictory statements made may be sufficient to establish his guilt.”

It is asserted that the term “inconsistent statements” appearing in subsection (1) of 837.021, Florida Statutes, is susceptible of ambiguity, that there are gradations of consistency. The terms “contradict” and “contradictory” are utilized, however, in subsections (1), (3) and (4) of the statute in delineating the type of statements which create criminal liability. We construe such terms to mean statements which are mutually exclusive. As so construed and read in its entirety, the statute, we believe, makes it clear to a person of ordinary intelligence and understanding the conduct which is proscribed.

As noted above, subsection (4) of the instant statute establishes the defense of a good-faith belief that both of the subject statements are true. Individuals charged with perjury by inconsistent statements can establish this defense either through independent evidence or through their own testimony at trial. In any event, the State must prove that the statements were (1) material, (2) mutually exclusive, and (3) made under oath, beyond all reasonable doubt. Thus it can be seen that the challenged statute does not alter the traditional presumption of innocence to which the criminal defendant is entitled at trial.

To the argument that the statute admits of a construction which would permit a conviction where one of the statements was made through error, mistake or inadvertence, we respond that the statute requires the statement to have been made “willfully,” which we construe to signify that the statement was knowingly false when made. We do not construe a statement made through error, mistake or inadvertence to be one made willfully within the purview of the statute.

Perjury is a crime uniquely inimical to our system of justice. This system features an absence of the kind of compulsion, both physical and psychic, associated with other regimes. A structure so founded cannot withstand the erosion caused by willful falseswearing. Realizing this cardinal fact of American jurisprudence, our Legislature has changed the common law requirement of proof of specific falsehood by enacting Section 837.021, Florida Statutes. The result is a realistic response to the uniquely significant problem which perjury poses to our judicial establishment. The presumption established by this statute is reasonable, rebuttable and constitutional.

Accordingly, the judgment is affirmed.

OVERTON, C. J., ENGLAND, J., and SHOLTS, Circuit Judge, concur.

ROBERTS, J., dissents with opinion.

SMITH, District Court Judge, dissents with opinion with which ROBERTS, J., concurs.

ADKINS, J., dissents and concurs with SMITH, District Court Judge.

ROBERTS, Justice

(dissenting).

I respectfully dissent. In my opinion, the statute is unconstitutional. It would prevent a witness from ever correcting a prior false statement without the hazard of being indicted for perjury. I think the witness should be encouraged not discouraged to make a corrective statement. Section 837.021, Florida Statutes, constitutes an unconstitutional violation of the Fifth Amendment to the Constitution of the United States.

SMITH, District Court of Appeal Judge

(dissenting):

The critical due process question is whether the 1973 statute, since amended, presumed willfulness from the accused’s making of inconsistent statements under oath and, if so, whether there is in common experience a rational connection between the fact proved and the state of mind presumed. United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, IS L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Morrison v. California, 291 U.S. 82, 54 S. Ct. 281, 78 L.Ed. 664 (1934); Western & A.R.R. v. Henderson, 279 U.S. 639, 49 S. Ct. 445,73 L.Ed. 884 (1929).

The statute did not equivocate. It relieved the State of the burden of proving willfulness, an explicit element of the offense, by making its absence a matter of “defense”, i. e., “that the accused believed each statement to be true at the time he made it.” Sec. 837.021(4), F.S.1973. In this unique provision for a “defense” of nonwillfulness, the Florida statute shifted to the accused a burden of persuasion which remained with the prosecution under the statutes upheld in State v. Kowalczyk, 3 N.J. 51, 68 A.2d 835 (1949), and People v. Lillis, 3 A.D.2d 44, 158 N.Y.S.2d 191 (1956).

Our statute was broadly concerned with material statements made under oath in “trials, hearings, investigations, depositions, or affidavits, in which the making of statements under oath or affirmation is required or authorized by law.” Sec. 837.-021(1), F.S.1973. It was not restricted in application to formal proceedings requiring an oath, as were the Illinois and New York statutes which, because they were so restricted, were upheld in People v. Ricker, 45 Ill.2d 562, 262 N.E.2d 456 (1970), and People v. Lillis, supra. The presumption of willfulness, in its classic sense of volition and intent informed by knowledge, was attached by § 837.021 to all inconsistent statements made in any setting in which an oath was thought by an investigator or interrogator to be desirable or convenient.

Perhaps it is the legislature’s business, and not the Court’s, to determine the wisdom of punishing for a second crime the witness who on oath corrects prior perjury and of encouraging selective prosecution of witnesses whose trial testimony under cross-examination is disappointingly inconsistent with that previously given in closeted interrogation. It is nevertheless disquieting to think that a lawyer or judge abets a felony when he or she exhorts a witness who previously lied under oath now to testify truthfully.

The legislature may no doubt obliterate policies affecting the administration of justice which were long valued by the common law, such as that encouraging the recantation of perjury. Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). It is another matter, however, for the legislature to attribute an intent to lie where common understanding supposes, in the absence of evidence, that there was mistake or confusion. E. g., Silver v. State, 117 So.2d 509 (Fla.App.3d, 1960). The presumption of willfulness may be validated, in my view, only if the Court is prepared to find from “common experience” and “the circumstances of life as we know them” that persons who have made contradictory statements under oath in “trials, hearings, investigations, depositions, or affidavits” are more likely to have willfully lied than to have been mistaken or confused. United States v. Romano, supra, 382 U.S. at 139, 86 S.Ct. at 281, 15 L.Ed.2d at 213. Finding in our common experience no justification for such a melancholy view, I would hold that the presumption of § 837.021, F. S.1973, offended due process standards and that Brown’s conviction should be vacated.

ROBERTS and ADKINS, JJ., concur.

      . The statute under which Brown was charged and whose constitutionality is at issue herein reads:
      “Perjury by contradictory statements.— “(1) Whoever, in one or more trials, hearings, investigations, depositions, or affidavits, in which the making of statements under oath or affirmation is required or authorized by law, willfully makes two or more material statements under oath or affirmation, when in fact two or more of the statements contradict, each other, is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. The prosecution may proceed in a single count by setting forth the willful making of inconsistent statements under oath or affirmation pursuant to requirement or authorization of law and alleging in the al- • ternative that one or more of them are false.
      “(2) The question of whether a statement was material is a question of law to be determined by the court.
      “(3) In any prosecution for perjury by contradictory statements under this act, it is not necessary to prove which, if any, of the statements is not true.
      “(4) In any prosecution under this act for perjury by contradictory statements, it shall be a defense that the accused believed each statement to be true at the time he made it.”
      Effective July 1, 1975, Section 837.021(1), Florida Statutes, was changed to read as follows:
      “Whoever, in one or more official proceedings, willfully makes two or more material statements under oath when in fact two or more of the statements contradict each other is guilty of a felony of the third degree, punishable as provided in chapter 775. The prosecution may proceed in a single count by setting forth the willful making of inconsistent statements under oath and alleging in the alternative that one or more of them are false.”

      . Ela.Stat. § 837.01, -.02.

      . Ill.Rev.Stat.1967, ch. 38, par. 32-2 (b).


author: ENGLAND, Justice.

text:
    Bill HAND, Appellant, v. STATE of Florida, Appellee.
    No. 46966.
    Supreme Court of Florida.
    June 4, 1976.
    James A. Gardner, Public Defender, and Harold H. Moore, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for ap-pellee.
   ENGLAND, Justice.

This case is before us on direct appeal from a decision of the Second District Court of Appeal reported at 306 So.2d 591 which initially upheld the constitutional validity of Section 404.02, Fla.Stat. (1971).

Bill Hand was charged by criminal information with the delivery of “a barbiturate, to-wit: phencyclidine, in violation of Section 404.02”. At the time of the admitted delivery, phencyclidine was not specifically listed as an illegal drug, but was arguably within the statutory definition of “barbiturate.” Hand moved to dismiss the information for failure to state a crime, which motion was denied. He then entered a plea of no contest without reserving the right to appeal. An appeal was nonetheless taken to the district court asserting that the information did not charge a crime, it being argued that this Court had held phencyclidine was not a proscribed substance in both State v. Camil, 279 So.2d 832 (Fla.1973), and State v. Hoagland, 272 So.2d 478 (Fla.1973). The district court held that these decisions did not determine whether phencyclidine was a “barbiturate” at the time of the admitted delivery, and “that the definition of barbiturate . . . into which phencyclidine may fall” is not unconstitutionally vague. Hand then filed an appeal here, asserting that the district court initially and directly construed a constitutional provision, namely the due process clause.

Except where a criminal defendant reserves the right to appeal a question of law in accordance with our decision in State v. Ashby, 245 So.2d 225 (Fla.1971), a plea of no contest (or nolo contendere) bars the appeal of any issue other than the facial sufficiency of the charging instrument. Peel v. State, 150 So.2d 281 (Fla.App.2d 1963), appeal dismissed, 168 So. 2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Whether phencyclidine is or is not a barbiturate is a question of fact, and by entering the plea of no contest Hand relieved the state of its burden to prove that it was. Hand’s argument here that phencyclidine is not a barbiturate, which was not passed on in either Camil or Hoagland, cannot now be considered.

Since it was improper for the district court to address any issue raised by Hand other than the facial validity of the information, that portion of the district court’s opinion discussing the constitutional validity of Section 404.02, Fla.Stat. (1971), “is hereby held for naught” and this appeal is dismissed.

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

      . The drug phencyclidine is now specifically listed in the Florida Comprehensive Drug Abuse Prevention and Control Act, Section 893.03(3) (a), Fla.Stat. (1975).

      . De Jong v. Pallotto, 239 So.2d 252 (Fla.1970); P.C. Lissenden Co. v. Board of County Commissioners, 116 So.2d 632 (Fla.1959).


author: PER CURIAM. BOYER, Chief Judge PER CURIAM.

text:
    William (Dale) ANDERSON, Petitioner, v. Talbot D’ALEMBERTE, Chairman, et al., Respondents.
    No. X-370.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Rehearing Denied June 30, 1976.
    W. Dexter Douglass, of Douglass & Powell, Tallahassee and Walter M. Megin-niss, of Crary, Buchanan & Meginniss, Stuart, for petitioner.
    Robert L. Shevin, Atty. Gen., William C. Sherrill, Jr., Asst. Atty. Gen., and Lawrence A. Gonzalez, Tallahassee, for respondents.
   PER CURIAM.

The Florida Commission on Ethics has found petitioner, a member of the City Commission of Stuart, Florida, to be in violation of F.S. 112.313(1), F.S.1973, as amended by Chapter 74-177, Laws of Florida which provides as follows:

“No officer or employee of a state agency, or of a county, city or other political subdivision of the state, or any legislator, or legislative employee shall accept any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties.”

In his Petition for Writ of Certiorari, petitioner asserts that the statute is unconstitutionally vague on its face and was unconstitutional as applied to him. We agree.

A factual background is necessary. In May of 1974, M & W Land, Inc., a foreign, corporation, filed a petition to annex certain lands lying in Martin County into the City of Stuart. M & W was at the time involved with Rossmoor Corporation in a joint venture for the development of the property to be annexed. A PUD (Planned Unit Development) zoning regulation had only recently been enacted by Martin County, but Stuart had no such ordinance. The PUD concept was virtually unknown in the area. To demonstrate the concept and the quality of planning used by Ross-moor in its planned communities, an invitation was extended to the City Commission and certain employees of Stuart to visit and inspect its development known as La-guna Hills in California (located near Los Angeles) which development was deemed to be analogous to the one proposed for Martin County. The trip was for the purpose of fact finding. Prior to the trip, the City Commission sought advice from the city attorney as to any possible “Sunshine Law” violation. When the city attorney informed the Commission that the proposed trip, in his opinion, did not constitute a violation of the “Sunshine Law”, petitioner, after personally determining that his vote on the annexation issue would not be influenced made plans to make the trip. Spouses were also invited.

Two groups made the trip. Petitioner and his wife participated in the group which went on the weekend of August 23-25, 1974. Rossmoor Corporation paid for some of the meals and for the air fare of petitioner and his wife. The cost was approximately $1,223.00 to Rossmoor.

Subsequent to the trip, a complaint was filed with the Commission on Ethics whereupon Honorable John D. Rawls, a member of the Commission was appointed Hearing Examiner. His findings of fact were adopted by the full Commission with amendments. The Commission found that the petitioner was in violation of F.S. 112.-313(1), F.S.1973, as amended by Chapter 74-177, Laws of Florida, but recommended to the Governor that no further action be taken.

In contending that the statute is unconstitutionally vague, petitioner relies on Zachary v. State, Sup.Ct.Fla.1972, 269 So. 2d 669 and State v. Llopis, Sup.Ct.Fla.1971, 257 So.2d 17. In the Zachary decision, the Supreme Court promulgated the standard by which a statute is to be evaluated, saying: “The test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” (269 So.2d at page 670) In the Llopis decision, the court held subsection 6 of F.S. 112.313 unconstitutionally vague, quoting with approval from the order appealed wherein the trial judge rhetorically asked: “Under the language of F.S. 112.-313(6), who is to say what employment will, in fact, impair the independence of judgment of a person described in the statute ? What is the barometer, or ascertainable standard of conduct over which reasonable men of common intelligence are not required to guess at its meaning? The imposition of such liability violates the very fundamental precepts of due process.” (257 So.2d at page 19, emphasis added)

Judged by the principles of law announced in the Llopis case the standard contained within F.S. 112.313(1) is obviously constitutionally unacceptable. In essence, the statute prohibits a city, county, or state officer or employee from accepting any gift that “would cause” a "reasonably prudent person” to be influenced in the discharge of official duties. Do the words of the statute convey a “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice”? We think not. Indeed, the Llopis opinion appears to have been written in contemplation of this very case. In the trial judge’s order, which appears to have been adopted by our Supreme Court, the Judge asked what employment “will, in fact” impair independence of judgment. The statute here considered employs instead of “will, in fact” the words “would cause”. The meaning is identical. Further, the trial judge (and the Supreme Court) used the descriptive phrase “reasonable men of common intelligence.” The statute (F.S. 112.313(1)) uses the words “reasonably prudent person.”

While we too find ourselves, as did the Supreme Court in Llopis, especially sympathetic with legislation aimed at safeguarding the public and insuring honesty and integrity in government at every level, nevertheless we may not allow our sympathies to interfere with the constitutional rights of those members of the public who are affected by the statute. All citizens, whether in the public or private sector, are entitled to be informed with reasonable precision what acts are proscribed. It is basically unfair, and therefore contrary to the American scheme of justice, to require a person to act at his or her peril. The determination of a standard of guilt may not be left to the mood of the times nor may it be supplied by either courts, commissions, or juries. Any statute employing terms or words so vague that men or women of common intelligence must guess as to its meaning and differ as to its application violates the first essential of due process of law.

Having found that the statute which petitioner is alleged to have violated is unconstitutionally vague, the Petition for Certiorari is granted and the decision of the Florida Commission on Ethics is

QUASHED.

McCORD and MILLS, JJ., concur.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurs) .

The factual situation with which we are presently concerned perfectly illustrates the inadequacy of the statute. Petitioner and the other City Commissioners were faced with a highly significant annexation decision. Although M & W Land, Inc., filed the petition for annexation, it was the Rossmoor Corporation which was to be responsible for the development of the property to be annexed. Thus, a central question which petitioner and the other City Commissioners had to answer was what type of a company was the Rossmoor Corporation? Rossmoor understood the need for this information and, therefore, offered the trip to Laguna Hills. I have thoroughly examined the record in this case, and have noted that, although Rossmoor had other planned communities (even some in Florida), the Laguna Hills development was the only project which was comparable to the proposed development and which was in such a state of completion as to render an inspection beneficial to the Stuart City Commissioners.

Petitioner and the other City Commissioners were also aware that other officials and employees had been invited, including the City Manager, the City Clerk, the Chief of the Fire Department, the Finance Director, the Recreation Superintendent, the Ambulance Superintendent, the Chairman of the Planning Advisory Board, and several members of the Planning Advisory Board. All those who made the trip stated that it was informative and helpful to them in understanding the nature of the development to be constructed near Stuart.

In pondering his decision whether to make the trip or not, petitioner was forced to balance the above mentioned factors against the wording of the statute. However, the statute provides neither petitioner nor the other City Commissioners with guidelines by which they were to evaluate the proposed trip. It is interesting to note that the City Attorney, when queried as to the possibility of a violation of the Sunshine Law, not only concluded that there was no such violation but did not report to the Commission that the trip raised any ethical issues.

ON PETITION FOR REHEARING

PER CURIAM.

Respondents have filed a petition for rehearing contending that since § 112.-313(1), F.S.1973, as amended by Chapter 74-177, Laws of Florida, is a part of the statutory “code of ethics for public officers and employees” and since it is a code of ethics and is civil in nature rather than criminal, it is not subject to the constitutional tests of due process for vagueness that are applied to criminal statutes. Respondents liken it to a professional code of ethics and contend that it is no more vague than some restrictions of such professional codes. No authority has been cited and our research has revealed none which deal with vagueness in provisions of professional codes of ethics. We make no ruling here as to provisions of professional codes of ethics promulgated by organized professions. While our ruling may possibly have some bearing on a future case of such nature, we specifically confine the ruling to the case that is now before us.

This statutory code of ethics sets forth certain acts which public officers and employees are prohibited from performing. § 112.317, F.S.1974 Supplement, specifies the penalties which may be imposed for violations. §§ 112.320-.324, F.S.1974 Supplement, create an administrative agency, the Commission on Ethics (respondents here) which is empowered to investigate alleged violations by public officers and employees, hold hearings and determine whether violations of the Code have occurred. The Commission’s orders are subject to review by this court under § 120.68, Florida Statutes.

While this statutory code is not criminal, from our research we have found no authority and none has been cited to us to the effect that the constitutional point in question is limited to criminal cases. Our research has revealed the opposite. See the following cases which apply the rule against vagueness to non-criminal statutes which state agencies are called upon to administer: Sarasota County v. Barg, Fla., 302 So.2d 737 (1974); Schneider v. Sweetland, Fla., 214 So.2d 338 (1968); Bayou Barber College, Inc. v. Mincey, Fla., 193 So.2d 610 (1967). Also, the Supreme Court in Conner v. Joe Hatton, Inc., Fla., 216 So.2d 209 (1968), a civil case, succinctly set forth the proposition of law with which we are concerned.

“When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be. See State ex rel. Davis v. Fowler, 1927, 94 Fla. 752, 114 So. 435, 437; and Lewis v. Florida State Board of Health, Fla.App.1962, 143 So.2d 867, 875. As stated in 1 Fla. Jur., Administrative Law, at page 243,
‘A law must be complete in itself, in all its terms and provisions when it leaves the legislative branch of government, so that by appropriate judicial review and control any action taken pursuant to such delegated authority may be kept within the defined limits of the authority conferred and within the express and implied limitations of all controlling provisions and principles of dominant law, and it is not left to an administrative authority to decide what should and what should not be deemed infringement of the law.’ (Emphasis added.)”

The prohibition contained in the statute in the case sub judice falls within the prohibited range of vagueness and uncertainty proscribed by the above pronouncement of the law.

The petition for rehearing is denied.

BOYER, C. J., and McCORD & MILLS, JJ., concur.

      . Rossmoor paid for all of the evening meals but not all of the lunches, while petitioner paid for his wife’s and his own breakfasts.

      . F.S. 112.313(6) provided: “No officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator or legislative employee shall accept other employment which might impair his independence of judgment in the performance of his public duties.”

      . State v. Llopis, supra, and authorities therein cited.


author: GRIMES, Judge.

text:
    FLORIDA CITIES WATER COMPANY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Florida, Appellee.
    No. 75-1547.
    District Court of Appeal of Florida, Second District.
    June 30, 1976.
    Rehearing Denied July 26, 1976.
    B. Kenneth Gatlin and John W. Costigan of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellant.
    Robert L. Hesse of Nelson, Hesse, Cyril & Weber, Sarasota, for appellee.
   GRIMES, Judge.

This case involves the proper setting of a utility company rate base.

Florida Cities Water Company (Florida Cities) operates a water and sewer utility within Sarasota County pursuant to a franchise issued by the Board of County Commissioners. The rates for the utility are set by the Board in accordance with a utility franchise ordinance. In 1973, Florida Cities filed an application with the Board for authorization to increase its rates for water and sewer services. Following public hearings, the rates were increased but not to the extent requested. Florida Cities then petitioned the circuit court for a writ of certiorari to the Board of County Commissioners. The court denied the petition. Florida Cities now seeks a review of the court order upholding the rate order entered by the Board.

Under the ordinance, the Board is supposed to “fix and determine a rate which allows for reimbursement of operating costs and a fair and reasonable net return on the original cost of the system to the person first dedicating it to public service, which shall not include contributions in aid of construction or customer contributions.” Florida Cities contends that the Board improperly limited its rate base in three particulars, each of which shall be discussed in turn.

Deletion of Engineering Overhead

Florida Cities originally acquired its water and sewer plant and system by the purchase of stock of existing water and sewer companies. At that time, a firm of consulting engineers made an independent survey for the purpose of appraising the value of the system and of providing a basis for properly classifying the plant according to the National Association of Regulatory Utility Commissioners Uniform System of Accounts. The consulting engineers concluded that the cost of plant in service as shown on the records of the purchased utilities failed to include the capitalization of certain engineering overheads incurred in the construction of the system. While the prior owners failed to carry these overheads as costs of plant in service, there is no doubt that the expenditures were made and that they should have been capitalized as part of the cost. Even the county’s own expert witness testified that he felt the engineering charges were reasonable and proper and should be included in the rate base.

On this appeal, the only argument made by the county in support of its position is that the utility, by failing to include the engineering overheads in its rate base in previous years, has acquiesced in this exclusion and cannot now complain. We cannot see how acquiescence can preclude Florida Cities from adding these items to its rate base, since the only parties injured by the failure to include them in previous years are Florida Cities and its predecessor companies. A public utility is entitled to a fair return upon its investment. Keystone Water Company, Inc. v. Bevis, Fla.1973, 278 So.2d 606. Since all of the evidence demonstrates that the engineering overheads were properly includable in the rate base, it was incumbent upon the Board to add these items. See Florida Crown Util. S., Inc. v. Utility Regulatory Bd., Fla.App. 1st, 1973,274 So.2d 597.

Contributions in Aid of Construction

The Board declined to include the cost of certain water and sewer facilities in Florida Cities’ rate base because they were deemed to he contributions in aid of construction. These particular water and sewer facilities had originally been built by a company in the land developing business and conveyed to the utility companies ultimately purchased by Florida Cities in exchange for stock in those companies. The owners of the land development company were also the owners of the predecessor utility companies, and these were the persons who ultimately sold their stock in the utility companies to Florida Cities. In the contracts for the purchase by Florida Cities of the stock of these utility companies, the sellers were required to specify all advances or contributions in aid of construction made by customers or prospective customers. The cost of the water and sewer facilities in question was not so specified. Nevertheless, the Board construed the cost of these facilities to he contributions in aid of construction and left it out of the rate base. However, the Board did grant some relief by permitting Florida Cities to include within its rate base some additional expenses incurred as a result of the purchase of the stock of the predecessor utilities.

Florida Cities contends that since the water and sewer facilities in dispute were furnished by a corporation owned by the same parties who owned the utility companies in exchange for stock in those companies, the cost of such facilities was equivalent to stockholders’ equity which should be included in the rate base. Florida Cities poses the question of whether the Board would have treated the cost of these facilities differently “if the prior owners had sold themselves stock for cash and then have the utilities pay the same money back for the cost of the plant.”

In recent years, a number of similar disputes have occurred in other jurisdictions. The position taken by the Board in the instant case has been sustained almost without exception. In Killarney Water Co. v. Illinois Commerce Com’n, 1967, 37 Ill.2d 345, 226 N.E.2d 858, the court held that where a land developer transferred a certain portion of the purchase price of each lot to his companion utility company for the purpose of building a water plant, such funds were contributions in aid of construction rather than stockholder investment since it would be unfair to require the consumers to pay rates based upon the value of a facility for which they themselves have already paid. In Du Page Utility Co. v. Illinios Commerce Com’n, 1971, 47 Ill.2d 550, 267 N.E.2d 662, the Illinois court reached the same conclusion on substantially similar facts. See also State ex rel. Util. Com’n v. Heater Util., Inc., 1975, 288 N.C. 457, 219 S.E.2d 56; State ex rel. Utilities Com’n v. Heater Utilities, 1975, 26 N.C.App. 404, 216 S.E.2d 487; City of Hagerstown v. Public Service Commission, 1958, 217 Md. 101, 141 A.2d 699.

In rejecting the contention that the cost of utilities constructed by a real estate development company and thereafter transferred to its companion utility company should be included in the rate base of the utility, the court in State ex rel. Valley Sewage Co. v. Public Serv. Com’n, Mo. App.1974, 515 S.W.2d 845, 850, noted:

“. . . Thus, the truly significant question in this case is posed. Was the ‘value of the property actually used in the public service’ properly weighed by deducting therefrom contribution by customers and users of the Company in aid of construction in the amount of $242,817.00? The answer to this query, for several reasons, is yes. To force the customers and users of a utility to pay rates predicated upon the' value of a facility which they themselves substantially paid for, as is the case here, is the antithesis of a just and reasonable rate. Conversely, where the customers and users of a utility have substantially paid for the facilities employed in the public service, the antithesis of a just and reasonable rate is one that would permit a utility’s stockholders to recover a return on money which they, in fact, never invested. . . .”

In response to the suggestion that since the same persons owned both the construction company and the utility company, the monies expended by the construction company in building the plant should be treated as stockholder equity, the court said at page 851:

“The fourth ground for relief asserted by the Company is, to say the least, innovative. The thrust of the Company’s fourth ground appears to be that no contributions in aid of construction were ever made to the Company because it and Freeman Construction, by virtue of common ownership and officers, were ‘one and the same’. The Company then conveniently assumes, without aid or force of logic, and absent factual or legal support, that what the Commission treated as contributions in aid of construction to the Company actually consisted of property acquired from capital expenditures made by Freeman Construction; thus, no contributions, in fact, were ever made to the Company. The Company’s assumption is as false as it is convenient, and can be fairly characterized as a technical argument at best. As heretofore noted, the Company’s original plant, in the final analysis, was built from funds that emanated from its customers and users, and not, in reality from funds of Freeman Construction.

See also Re Green-Fields Water Co., N.J. 1964, 53 PUR 3d 670, in which, as here, the fact that the companion development company took stock of the utility in exchange for the water mains was not such a circumstance as would take these assets out of the category of being a contribution in aid of construction.

In the final analysis, all of these cases turn upon the fact that where the property owners who are served by the utility have, in effect, paid for constructing the facilities, the cost of such construction should not be permitted to be included within the rate base for purposes of determining the rates to be charged these customers. As stated in City of Hagerstown v. Public Service Commission, supra, at page 702:

“ . . . We think that it makes no difference, so far as this case is concerned, whether these payments were made in the first instance by the developers or by the purchasers of lots. We may observe in passing that we have no doubt that any such costs originally paid by the developers were passed on to the purchasers in the form of increased prices for lots, and that the purchasers or their successors in interest are the persons who must pay the water rates.”

In the instant case, the record is not clear with respect to where the money came from to build the facilities in question. However, since the developer and the utility had a common ownership and the utility serviced the lots being developed by the developer, a reasonable inference may be drawn that the source of these monies came from the sale of the lots. In any event, Florida Cities did not show that the cost of these facilities came from new money invested by the original stockholders of the developer and the utility. The fact that for a number of years the predecessor utilities had carried these facilities on their books as. contributions in aid of construction and took no depreciation upon such facilities for tax purposes lends support to the Board’s ruling. Since there is competent substantial evidence to support the conclusion of the Board on this point, it must stand. Florida Rate Conf. v. Florida Railroad & P. U. Com’n, Fla.1959, 108 So.2d 601.

Accrued Depreciation

Florida Cities had been depreciating its plant at a composite rate of 1.35%. By its own admission, the depreciation was understated. In 1971 an engineering firm hired to review the depreciation rates recommended that they be raised to a composite rate of 1.6%. One of the men directly responsible for the preparation of this study testified concerning the reasonableness of a 1.6% rate. However, the county’s certified public accountant testified that the assets should have been depreciated at a composite rate of 3.3%. The Board accepted this recommendation and applied the 3.3% depreciation rate retroactively against the life of the assets.

First, Florida Cities contends that the question of determining a proper depreciation rate is really an engineering question rather than an accounting question and that its engineering firm’s recommendation should have been accepted. The county responds by asserting that its witness was a well qualified utility rate consultant and further that his recommendations were reviewed and confirmed by the county engineer who had inspected the facilities several years ago. We believe that Florida Cities’ argument goes to the weight of the evidence rather than to its competency. Since there is evidence to support the 3.3% rate, this holding will not be disturbed.

Finally, Florida Cities says that, in any event, the increased depreciation rate should not be retroactively applied. In support of this argument, Florida Cities cites an accounting principle to the effect that where depreciation rates are changed, it is not advisable to apply them retroactively because to do so may suddenly cause too large an impact on the financial position of the company. However, the county’s expert witness pointed to another accounting principle which indicates that there are often differences between the application of generally accepted accounting practices to nonregulated as contrasted to regulated businesses because of the effect on the rate-making process in regulated businesses. He gave his expert opinion that the increased depreciation should be applied retroactively, and we cannot say it was error to do so. It should be noted that throughout its presentation, Florida Cities has wanted to stand in the shoes of its predecessor companies for purposes of carrying forward an increased rate base. Therefore, it does not seem unfair to apply against the cost figures of the predecessor companies a depreciation rate which has now been determined to be the one which should have been used all along.

The order is affirmed except to the extent that it approves the exclusion of the engineering overheads from the rate base. The court is directed to enter an order requiring the Board to include the engineering overheads.

McNULTY, C. J., and SCHEB, J., concur.


author: HOBSON, Judge.

text:
    ENGLEWOOD WATER DISTRICT, a political subdivision of the State of Florida, Appellant, v. J. D. TATE et al., Appellees.
    No. 74-1437.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.

      Robert A. Dickinson and Glenn W. Phipps, Jr., Dickinson & Phipps, Engle-wood, for appellant.
    I. W. Whitesell, Jr. Wood, Whitesell & Karp, Sarasota, for appellees.
   HOBSON, Judge.

Appellant, hereinafter referred to as Englewood, appeals a final declaratory judgment construing the powers of Engle-wood under Chapter 59-931, Laws of Florida. The two pertinent sections of Chapter 59-931 are:

“Section 4. The district by and through the board, is hereby authorized and empowered:
iji * * # * *
(e) To regulate the use of sewers and the supply of water within the district and to prohibit the use and maintenance of out-houses, privies, septic tanks or other unsanitary structures or appliances, provided, however, that such authority and power shall have been approved at an election of the qualified electors residing in said district,. called for the specific purpose of obtaining such approval, such election to be held in accordance with the general laws of the state of Florida.”
* * * * * *
“Section 25. No sewage disposal plant or other facilities for the collection and treatment of sewage, or any water treatment plant or other facilities for the supply and distribution of water, shall be constructed within the district unless the board shall give its consent thereto and approve the plans and specifications therefor; subject, however, to the terms and provisions of any resolution authorizing any bonds and agreements with bondholders.”

It is conceded that the election under Section 4(e) was not held. It is also conceded that the election required by the act to ratify Chapter 59-931 was held and the act was ratified.

The trial court held that the construction of a sewage disposal plant falls under the power to regulate the use of sewers granted under Section 4(e) and since an election was not held under Section 4(e), Engle-wood had no powers under Section 25.

Englewood contends that Section 4(e) and Section 25 are clear and unambiguous and do not conflict with one another. Englewood reasons that under Section 4(e) there are two powers granted it: 1) to regulate the use of sewers and the supply of water within the district, and 2) to prohibit the use and maintenance of outhouses, privies, septic tanks or other unsanitary structures or appliances. It further reasons that the election called for under Section 4(e) applies only to the second power to prohibit and that the ratification of the act gave it the power to regulate the use of sewers and the supply of water without an election under Section 4(e). Englewood also contends that the ratification of the act granted it all powers under Section 25.

It is well settled that in construing a statute the court should consider its history, evil to be corrected, the intention of the law-making body, subject regulated and the object to be obtained. Smith v. Ryan, Fla.1949, 39 So.2d 281. It is also a rule of statutory construction that it is the duty of the court to examine the statute as a whole in order to determine its meaning and if the intent of the legislature is clear and unmistakable from the language used, it is the court’s duty to give effect to that intent. Rules of statutory construction should be used only in case of doubt and should never be used to create doubt, only to remove it. State v. Egan, Fla.1973, 287 So.2d 1, and Scenic Hills Utility Company v. City of Pensacola, Fla.App.1st 1963, 156 So.2d 874. It was held in State v. Sullivan, 1928, 95 Fla. 191, 116 So. 255, at page 261:

“ . . . In statutory construction legislative intent is the pole star by which we must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well-settled canons of construction. The primary purpose designated should determine the force and effect of the words used in the act, and no literal interpretation should be given that lends to an unreasonable or ridiculous conclusion or a purpose not designed by the lawmakers.”

Considering all of the elements set forth above, and particularly the intention of the legislature, we hold that upon ratification of the act Englewood was granted the powers to require its consent and approval of the plans and specifications for the construction of a sewage disposal plant under Section 25 of the act. It also was granted upon ratification of the act the power to regulate the use of sewers and the supply of water within its district under Section 4(e) of the act without approval at a separate election of the qualified electors residing in the district, called for the specific purpose of obtaining such approval. This election as set forth in Section 4(e) applies only to the second power of Englewood to prohibit the use and maintenance of out-houses, privies, septic tanks or other unsanitary structures or appliances. Therefore, for the foregoing reasons the final declaratory judgment is

REVERSED.

McNULTY, C. J., and BOARDMAN, J., concur.


author: ALDERMAN, Judge. CROSS, Judge

text:
    Earl Victor SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-950.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.

      Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant timely appeals his conviction and life sentence for first degree murder.

We have examined the record, and find that there was substantial, competent evidence to support the verdict. We have also considered appellant’s objection to a comment made by the prosecutor during closing argument, and find no error.

Appellant also complains that he was sentenced without being given credit for time served as prescribed in Fla.Stat. § 921.161(1) (1975). The state argues that inasmuch as appellant has been sentenced to life imprisonment it is irrelevant whether he receives credit for time served. We disagree. Appellant was sentenced in accordance with Fla.Stat. § 775.082(1) (1975). He therefore is required to serve no less than 25 years before becoming eligible for parole. Credit for time served prior to sentencing may be applied against this minimum 25 years that appellant must serve.

We vacate the sentence and remand with instructions to resentence defendant giving him credit for time served in the county jail.

Affirmed in part, reversed in part, and remanded with directions.

WALDEN, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge

(dissenting):

I respectfully dissent.

I construe Section 921.161(1), Florida Statutes, requiring that a court imposing sentence allow a defendant credit for all time spent in county jail before sentence as not applicable when the court has imposed a life sentence. Accordingly, I would affirm the sentence.


author: PER CURIAM.

text:
    DORR-OLIVER, INCORPORATED, a Foreign Corporation, and Liberty Mutual Insurance Company, Appellants, v. Erma PARNELL, Individually, Appellee. DORR-OLIVER, INCORPORATED, a Foreign Corporation, and Liberty Mutual Insurance Company, Appellants, v. Erma PARNELL, as Administratrix of the Estate of Wayne M. Parnell, Deceased, Appellee.
    Nos. 75-18 and 75-19.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.

      Ronnie H. Walker, Howell, Kirby, Montgomery, D’Aiuto & Dean, Orlando, for appellants.
    Woodie A. Liles and E. C. Watkins, Jr., Tampa, and William N. Avera, Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, for appellee.
   PER CURIAM.

The appellants appeal an order granting a motion for new trial in these consolidated cases to the appellees. Appellees cross-appeal, contending that the trial court erred in not directing a verdict on the question of liability on the part of the appellants and the refusal of the trial court to give one of appellees’ requested instructions on concurring negligence.

The appellants brought this appeal pursuant to the authority of § 59.04, Fla. Stat., which permits an appeal by the party aggrieved of an order granting a new trial without waiting for final judgment to be rendered in the trial court for the party obtaining the verdict. Under these circumstances we are prohibited from considering the cross assignments of error filed by the appellees. Osteen v. Seaboard Coast Line Railroad Company, Fla.App., 1st, 1973, 283 So.2d 379.

The appellants have failed to show a clear abuse of the trial court’s discretion in granting the motion for a new trial. Cloud v. Fallis, Fla. 1959, 110 So.2d 669.

Therefore, the order granting the motion for new trial is

AFFIRMED.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: McNULTY, Chief Judge.

text:
    James D. EASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1736.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.

      James D. Easley, in pro. per., and Charles D. Waller of Larkin, Larkin & Waller, Dade City, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Dept, of Legal Affairs, Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant James D. Easley, a member of The Florida Bar, appeals a judgment of guilt of contempt and a fine of $500. We reverse.

On October 28, 1975 appellant received notice by mail that he had been appointed to represent one Arthur Edward Gulvin, charged with breaking and entering and grand larceny. He interpreted this appointment to be an administrative error because, pursuant to his request, the county and circuit judges in Pasco County had not appointed him to criminal cases during the previous year. Appellant felt himself incompetent to handle felony criminal matters adequately, although previously he had accepted appointments to represent indigent accused misdemeanants. On the other hand, and at all times material, he had represented numerous indigents in legal aid cases involving civil matters for which he did feel competent.

Appellant filed a motion to withdraw stating that he did not practice criminal law and set it for hearing on October 30, 1975. He also investigated the charges against defendant Gulvin and learned that the defendant was out on bond, awaiting trial some seven weeks in the future. On October 30, the Honorable Ray E. Ulmer, Jr., circuit judge, heard appellant’s motion to withdraw and denied it.

Subsequently, appellant met with Gulvin in appellant’s office and discussed Gulvin’s case. Feeling ethically bound to state his feelings regarding his competency, appellant asked Gulvin how he felt about the matter. Gulvin indicated that if appellant felt he could not adequately represent him then he, Gulvin, didn’t either; and that he had better get himself another attorney. Appellant asked Gulvin if he would sign an affidavit and testify at a hearing to that effect, and Gulvin agreed.

Appellant thereafter filed a motion for reconsideration of the order denying his motion to withdraw, alleging that it was his belief that it was contrary to the laws of Florida and the Constitutions of Florida and the United States for the court to compel him to represent the defendant over the express desire to the contrary of both himself and the defendant. Appellant submitted Gulvin’s affidavit in support of his motion for reconsideration.

A hearing was held on November 10, 1975. Judge Ulmer granted the motion and later ordered another attorney substituted as counsel for Gulvin. But the trial court also served appellant with an order to show cause and notice of hearing as to why he should not be adjudged guilty of contempt. The order to show cause states, inter alia, that appellant had advised the defendant that he was incompetent as a criminal attorney, and secured the signature of defendant on the affidavit, notwithstanding the court’s prior order denying appellant’s first motion to withdraw. The order to show cause further stated that appellant’s conduct constituted a willful disregard for the orderly administration of justice and a scheme to secure release from appellant’s obligation as an attorney to assist the court in the representation of indigent criminal defendants. Finally, the order stated that the proceedings were brought upon the court’s own motion pursuant to RCrP 3.830.

A hearing was held on the order to show cause at which appellant testified that he felt ethically bound to pursue this case as he did. The trial judge subsequently entered a judgment of guilt of contempt against appellant and sentenced appellant to pay a fine of $500. Appellant has paid the fine but instituted this appeal.

While it is clear that a willful disobedience of a court order clearly constitutes the obstruction of justice and is therefore contemptuous, the undisputed facts of the instant case will not support a finding of a willful intent to commit a contemptuous act or interfere with the orderly administration of justice. There is no finding, nor indeed on the evidence could there be, that appellant did not in good faith feel his inadequacy to handle felonies. Moreover, in accord with the ethical obligations of an attorney, we think it was incumbent upon appellant to communicate his feelings of lack of competence to the defendant Gulvin. After all, it was Gul-vin who was constitutionally entitled to adequate representation.

We reject the argument of the state that the trial judge had determined that appellant was competent to represent a criminal defendant by the denial of appellant’s first motion to withdraw and by the trial judge’s express request that appellant “apply himself in this criminal matter with the same expertise as he does before this court in all other matters.” The court’s finding of appellant’s competence in criminal matters wouldn’t make it a fact; and nothing in the evidence impeaches appellant’s assertion to the contrary. Furthermore, appellant never actually refused to represent Gulvin in contravention of the court order. He simply informed the defendant, as he should have, that he felt incompetent to represent him and thereafter filed a motion consistent with the desires of his client. He could have done no less and is not guilty of contempt for doing so.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded to the trial court for an order remitting the return of the fine imposed and paid herein.

BOARDMAN and SCHEB, JJ., concur.

      . See Code of Professional Responsibility, Canon 6, the pertinent portions of which are as follows:
      “EC 6-1. . . . [A] lawyer . should accept employment only in matters which he is or intends to become competent to handle.
      >}f # % # sfc
      “EC 6-3. . . . [A] lawyer generally should not accept employment in any area of the law in which he is not qualified A lawyer offered employment in a matter in which he is not and does not expect to become so qualified should either decline the employment or, with the consent of his client, accept the employment and associate a lawyer who is competent in the matter.”

        See also

      “DR 6-101. Failing to Act Competently (A) A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle . . . .”