author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Emanuel BUCHMAN et al., Respondents.
    No. 51313.
    Supreme Court of Florida.
    May 25, 1978.
    Rehearing Denied Sept. 11, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., Miami, for petitioner.
    Don S. Cohn, of Law Offices of Max P. Engel, Miami, for respondents.
   BOYD, Justice.

This case presents two questions. The first is whether a defendant is denied due process of law because the state, in prosecuting him for the crime of selling an unregistered security, is free from charging and proving that either the transaction in which the sale was set, or the type of security, itself, does not operate to exempt the seller from the requirement that the security be registered before it is sold. The second is whether the privilege against compulsory self-incrimination is lost because the defendant, in a prosecution for criminal sale of an unregistered security, has the burden of proving exempt the security or the transaction, if, in fact, either is exempt. In a Circuit Court interlocutory order the statutes which free the state of the charge and proof mentioned above and place on the defendant the burden described above, were declared unconstitutional because of infringement of due process rights and the privilege against self-incrimination. We have jurisdiction by certiorari since the cause would have been reviewable by direct appeal should the trial have ended in conviction.

Two informations against Emanuel Buch-man and Robert Horne were filed in the Dade County Circuit Court. Both charged Buchman and Horne with criminal sale of unregistered securities. The first information alleged sale of thirty-four unregistered convertible debenture bonds of Financial Development Investment Corp., with a face value of $1,000 each, to Ada Tannen. The second alleged sale of two similar unregistered bonds to Irene A. Holpfer. Neither information charged that there were no exemptions, to which the sellers might be entitled, from the requirement that, before the securities be sold, they be registered. Buchman and Horne moved to dismiss the information because a Florida statute puts the burden of establishing the right to a statutory exemption on the party seeking its benefit. The two defendants claimed the statute violated their privilege against self-incrimination. Following a hearing, Judge Baker agreed that the statute was repugnant to constitutional guarantees. Moreover, the judge found that the statute defining the offense violated the defendants’ due process rights. But he did not dismiss the information. Instead, he allowed the prosecution to go forward, but, in order to cure both the self-incrimination and due process problems, he ruled that the state would have the burden of proving that the sellers were not entitled to any statutory exemptions. His order, containing the ruling, was appealed to the District Court of Appeal, Third District. The court transferred the appeal to us because it is within this Court’s jurisdiction by certiorari. We granted certiorari, briefs were filed and the parties were heard in oral argument.

The sale of securities in Florida is regulated by the “Sale of Securities Law,” Chapter 517, Florida Statutes. Section 517.07, Florida Statutes, forbids the sale of unregistered securities in this State unless the securities are exempt or the transaction is exempt. Violation of the provision is a felony of the third degree. Exempt securities are listed in- Section 517.05, Florida Statutes. They are contained in ten subsections and include securities issued or guaranteed by the Federal Government, a state, or one of its political subdivisions; securities that appear in a list of securities dealt in on the New York, American, Chicago or Boston Stock Exchanges; and any security, other than common stock, providing for a fixed return, which has been outstanding and in the hands of the public for at least five years, upon which no default in payment of principle or failure to pay the return fixed, has occurred for a continuous immediately preceding five years. The exempted securities are too numerous for all to be mentioned here. But, it is fair to say that the Legislature exempted them from registration because of some measure of protection they offer the buyer. The same may be said of the exempt transactions. They are listed in Section 517.06, Florida Statutes, in eighteen subsections and include judicial sales, sales by a bankruptcy trustee, sale to a bank, and sale under a bona fide employer-sponsored pension. These, also, are too numerous for all to be mentioned.

Section 517.17, Florida Statutes, provides that any of the exemptions need not be negatived in informations or indictments and that the burden of establishing the right to an exemption is on the party claiming its benefit (the defendant). Judge Baker, albeit to save the prosecution from constitutional infirmities, stood the statute on its head. In light of the extensiveness of the lists of exempt securities and transactions it is lawful and mandatory that a prosecutor be free from the burden of proving that the securities or the transaction is not exempt. If held to such a burden, the prosecutor’s task would be close to impossible. Be that as it may, lifting the load of the prosecutor is no answer to the claim that a constitutional right is violated.

The respondents (Buchman and Horne) characterize the lack of an exemption as an element of the offense of sale of an unregistered security, as defined in Section 517.07, Florida Statutes. If their characterization is correct then the statute plainly threatens denial of liberty without due process of law. For a prosecutor must prove every element of a criminal offense. The answer to the respondents’ argument is a simple one. As a general rule, if there is an exception within the enacting clause defining a crime, the state must show that the defendant is not within the exception. But, if the exception is in a subsequent clause, or a subsequent statute, that is a matter of defense, to be shown by the defendant. Without engaging in the mental gymnastics of what effect the lack of the exemption is to have, based on its placement in the statute, we choose to look to the Legislature’s intent. We cannot divine from the statute the legislative intent that lack of an exemption is an element of the offense. In examining the statute we construe it with Section 517.17, Florida Statutes. Our determination is that the lack of an exemption is not an element of the offense, rather the existence of an exemption is a defense available to the defendant. And, certainly, there is no due process problem with requiring that the defendant pleád and prove a defense. We have discounted any such claim before.

This construction clears up, too, any problem stemming from the privilege against self-incrimination. The respondents argue that their privilege includes the right to silence, as it certainly does. But that right has never been held to be violated by the availability of a defense, the assertion of which requires that the silence be broken. As was stated in Williams v. Florida, 399 U.S. 78, at 83, 84, 90 S.Ct. 1893, at 1897, 26 L.Ed.2d 446 (1970), where this State’s “notice-of-alibi” rule, Rule 1.200, Fla.R.Crim.P., was upheld, in the face of a challenge under the privilege against compulsory self-incrimination,

The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.

And this situation does not require the defense, as may be required under the “notice-of-alibi” rule, to furnish the prosecution before trial information that the defense may never use, itself, but which may prove valuable to the prosecution and even lead it to evidence on which, ultimately, a conviction may rest. Surely, such an infringement is much greater than any that could be envisioned here.

The order of the Dade County Circuit Court is reversed and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND and SUNDBERG, JJ., concur. '

HATCHETT, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.

      . They charged also that the sales took place when Buchman and Horne were not registered salesmen. This opinion does not concern the second charge.

      . Fifth Amendment to the U.S.Const., Art. I., § 9, Fla.Const.

      . § 517.302, Fla.Stat.

      . Burden of proof. — It shall not be necessary to negative any of the exemptions provided in this part in any complaint, information, indictment, or any other writ or proceedings brought under this part, and the burden of establishing the right to any exemption shall be upon the party claiming the benefit of such exemption. Any person claiming the right to register any securities by coordination under § 517.08 shall also have the burden of establishing the right so to register such securities.

        . Baeumal v. State, 26 Fla. 71, 7 So. 371 (1890).

      . State v. Kahler, 232 So.2d 166 (Fla.1970), and Butler v. Perry, 67 Fla. 405, 66 So. 150 (1914).

      . See Williams v. Florida, 399 U.S. 78, at 106 (1970), Black, J. (concurring in part, dissenting in part).


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    GULF PINES MEMORIAL PARK, INC., Appellant, v. OAKLAWN MEMORIAL PARK, INC., and Gerald A. Lewis, as Comptroller of the State of Florida, Appellees.
    No. 52378.
    Supreme Court of Florida.
    May 25, 1978.
    Rehearing Denied Sept. 11, 1978.

      Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    John Radey of Holland & Knight, and S. Craig Kiser, Asst. Gen. Counsel, Tallahassee, for appellees.
   ENGLAND, Justice.

This case is before the Court on direct appeal from an order of the Leon County Circuit Court holding a portion of Florida’s cemetery licensing statute, Section 559.39(2), Florida Statutes (1977), to be “an invalid delegation of legislative authority and unconstitutional.” The effect of that ruling was to deelare that the state comptroller, acting in his capacity as the head of the Department of Banking and Finance, proceeded improperly in denying the license application of Oaklawn Memorial Park, Inc. on the basis of failure to demonstrate a need for additional cemetery facilities in the community presently served by Gulf Pines Memorial Park, Inc., and others. We agree that the comptroller’s denial of Oak-lawn’s license • request was improperly grounded on the statutory “need” criteria, but our disposition of this controversy renders unnecessary any consideration of the statute’s constitutionality.

In September 1975, Oaklawn filed an application with the comptroller, pursuant to Chapter 559, Florida Statutes (1975), seeking authority to establish a new cemetery in Charlotte County. Section 559.39, as it then existed, provided:

“Upon receipt of application for authority under ss. 559.33 and 559.34, the department shall investigate the following:
(1) Character, reputation, financial standing, business qualifications, and motives of the proponents.
(2) The need for a cemetery in the community to be located, giving consideration to the adequacy of existing facilities and the need for further facilities in the area to be served.
(3) The proposed financial structure.
(4) Zoning approval, where applicable, and if zoning is not in effect, the approval and acceptance of a majority of adjacent property owners.
(5) Suitability of property for cemetery use.”

We had previously declared the “need” criterion in subsection (2) to be an unconstitutional delegation of legislative authority, Dickinson v. State, 227 So.2d 36 (Fla.1969), and the comptroller quite properly did not consider that element in his initial review of Oaklawn’s application. He found that the proposal met the statutory, requirements in all other respects, and in May 1976 issued a notice of intent to grant the requested cemetery license. This notice provided, however, that persons substantially affected by the proposed action could submit objections, and Gulf Pines did file a timely objection with a request for a comptroller’s conference.

After the events described above but before the comptroller’s conference, the legislature amended Section 559.39, effective June 23, 1976, in order to cure the defect noted in Dickinson, by providing more specific criteria upon which a determination of “need” could be based. Section 559.39(2) was amended to read:

“(2) The need for a cemetery in the community to be located, giving consideration to the adequacy of existing facilities and the need for further facilities in the area to be served, which need may be presumed upon the following criteria being met:
(a) The population; rate of population growth; death rate; ratio of burials to deaths; adequacy of existing facilities; and the solvency of the care and maintenance trust fund of the existing facilities.
(b) In order to promote competition, the department may waive the criteria promulgated in paragraph (a) in order that each county should have at least two cemeteries operated by different licensees.”

A comptroller’s conference was held on June 29, at which evidence was presented on the issue of “need” for a new cemetery based on criteria in the newly enacted statute. Subsequently, the comptroller denied Oaklawn’s license application on the ground that it did not meet the new “need” requirements of Section 559.39(2).

In January 1977, Oaklawn filed an action for declaratory judgment and petition for mandamus in the Leon County Circuit Court, claiming that the comptroller wrongfully applied the provisions of the amended statute retroactively to its license application, and that in any event the statute constitutes an invalid delegation of legislative power in violation of Article III, Section 1 of the Florida Constitution. After Gulf Pines was permitted to intervene, Oaklawn successfully moved for summary judgment. The trial court’s final judgment recited

“that Chapter 76-251, Florida Statutes, was improperly applied ... to [Oaklawn’s] application . . ., [and] that, even if the statute applied, the statute would be an invalid delegation of legislative authority and unconstitutional.”

Gulf Pines now challenges the trial court’s ruling on three grounds. First, it is alleged that the circuit court lacked jurisdiction to consider Oaklawn’s suit because administrative remedies under Chapter 120, the Administrative Procedure Act, had not been fully exhausted. Appellant basically contends that where administrative remedies are still available to a party adversely affected by agency action, the circuit court’s jurisdiction is “correspondingly limited,” State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and that resort may be had to the declaratory judgment remedy only in extraordinary cases where the administrative remedies would clearly be inadequate. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).

We need not review here in detail the extensive analyses of the relation between the administrative procedure act and the jurisdiction of the circuit courts embodied in the Willis and Mitchell decisions. Section 120.73 states that nothing in the administrative procedure act “shall be construed ... to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.” On the other hand, we have previously observed that if administrative agencies are to function and endure as viable institutions, courts must refrain from “promiscuous intervention” in agency affairs “except for most urgent reasons.” Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla. 1961). The determination of whether the circumstances of a particular controversy warrant judicial intervention, then, is ultimately one of policy rather than power, and it is to that policy question that the First District Court of Appeal has addressed itself in Willis and Mitchell.

Gulf Pines is correct in interpreting those decisions to mean that, as a general proposition, the circuit court should refrain from entertaining declaratory suits except in the most extraordinary cases, where the party seeking to bypass usual administrative channels can demonstrate that no adequate remedy remains available under Chapter 120. One class of exceptional cases was expressly recognized in Willis, however. The First District there acknowledged

“that the Administrative Procedure Act does not and cannot displace circuit court jurisdiction to enjoin enforcement of facially unconstitutional agency rules.”

Oaklawn relies on this exception, and although Gulf Pines does not assert that Oak-lawn’s facial attack on Chapter 76-251 is spurious or frivolous, it nonetheless contends that the circuit court action should have been dismissed because Oaklawn simultaneously sought coercive relief in the form of mandamus, which in effect constitutes a petition for review of agency action properly belonging in the district courts of appeal under Chapter 120. Gulf Pines further suggests that, as a matter of policy, a simple allegation of unconstitutionality should not enable a party adversely affected by agency action to circumvent the administrative process. This contention is easily resolved. Section 86.011(2), Florida Statutes (1975), provides in part that •

“Any person seeking a declaratory judgment may also demand . . . coercive . . . relief in the same action.”

Obviously, Oaklawn was entitled to seek mandamus as a remedy ancillary to its request for declaratory relief, and to hold otherwise would contravene not only the plain language of the statute but declarations of the Florida courts and of the legislature to the effect that the declaratory judgment statute should be liberally construed.

In Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978), we recently considered and rejected the suggestion that the presence of a constitutional question should not excuse a failure to exhaust administrative remedies. Although Amrep involved the legality of a tax assessment, over which the circuit courts have by tradition and statute retained exclusive original jurisdiction, the reasons justifying an exercise of circuit court jurisdiction are equally compelling here. For one thing, the question of “need” for a cemetery would never be reached if, as Oaklawn claims, Chapter 76-251 is either unconstitutional or inapplicable. Since the administrative hearing officer lacks jurisdiction to consider constitutional issues, Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), it is pointless to require applicants to endure the time and expense of full administrative proceedings to demonstrate “need” before obtaining a judicial determination as to the validity of that statutory prerequisite. For another, the record here shows that Oaklawn did not attempt to avoid administrative remedies, but merely sought to have them delayed in a reasonable effort to seek a judicial declaration of rights that could not be obtained administratively. Thus, while we agree with Gulf Pines that the mere assertion of constitutional questions should not automatically entitle a party to bypass administrative channels, we must conclude that under the circumstances presented here the claim was suitable for circuit court consideration.

Gulf Pines’ second challenge to the trial court’s ruling is that the court mistakenly found the comptroller’s consideration of the new need criteria to be an improper retrospective application of the statute. This issue resolves this litigation and obviates our consideration of the third, and constitutional, point. The plain language of section 559.39, which requires the comptroller to investigate certain matters relating to cemetery license requests “[ujpon receipt of [the] application,” means that his consideration is confined to matters enumerated in the statute as it exists when the application is received. No other reading of the statute is consistent with the words used, with a practical operation of the statute, or with common sense. Since Oaklawn filed its request long before the legislature enacted Chapter 76-251, the comptroller could not properly consider any need criterion at all because the legislature had not yet cured the defect declared in Dickinson,

The comptroller improperly applied Chapter 76-251 to Oaklawn’s application. The trial court correctly ruled that no “need” criterion could be considered by the comptroller in evaluating Oaklawn’s cemetery license request. The judgment entered below is, to that extent, affirmed.

It is so ordered.

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

BOYD, J., dissents.

      . § 20.12(1), Fla.Stat. (1975).

      . See § 559.33(2), Fla.Stat. (1975).

      . Ch. 76-251, § 5, Laws of Fla.

      . The transcript of the hearing reflects that Oaklawn’s counsel expressed in his opening remarks a belief that the objections raised by opponents of the license application on the basis of the newly enacted “need” provisions “are somewhat outside the scope of the criteria that we’re operating under.” Oaklawn nonetheless presented evidence going to that issue.

      . Oaklawn and the comptroller have stipulated that the application’s denial “was based solely on the need criterion set out in Chapter 76-251, Florida Statutes.” The factual basis for the conclusion that need had not been demonstrated was evidence adduced at the hearing by opponents of the application showing the existence of two cemeteries within a 12-mile radius, each having over 50,000 spaces available, and an additional six cemeteries within a 30-mile radius.

      . Oaklawn first filed a request for an administrative hearing pursuant to Section 120.57, Florida Statutes (1975), which the comptroller forwarded to the Division of Administrative Hearings in September 1976. That hearing request is now pending, awaiting the outcome of this litigation.

      . Appellant correctly points out that Oaklawn’s alternatives were not limited to the Section 120.57 hearing it had requested. Immediate review of the comptroller’s preliminary ruling that Chapter 76-251 was applicable to Oak-lawn’s license request, as well as review of the final action rejecting the application, could have been sought under Section 120.68(1).

      . Gulf Pines also cites Jefferson National Bank of Miami Beach v. Lewis, 348 So.2d 348 (Fla. 1st DCA 1977), as representing an “identical situation” in which the First District Court of Appeal ordered a declaratory action in the circuit court dismissed on the authority of Willis and Mitchell “because adequate remedies were and are available under Chapter 120, Florida Statutes (Supp.1976).” 348 So.2d at 348. Although Lewis did involve a suit seeking declaratory and injunctive relief from an order of the comptroller granting a branch bank application, the per curiam opinion of the First District does not otherwise indicate, and Gulf Pines has not demonstrated, that the basis for the circuit court action in that case was the same as that presented here — a facial attack on the constitutionality of a statute. Absent a showing that the cases are similar in that crucial respect, we are unable to accept Lewis as controlling authority here.

      . 344 So.2d at 590. This statement was echoed in Mitchell, 346 So.2d at 568.

      . See, e. g., Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930); Trafalgar Developers, Ltd. v. Morley, 305 So.2d 274 (Fla. 3d DCA 1974); Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n, 210 So.2d 750 (Fla. 4th DCA 1968).

      . § 86.101, Fla.Stat. (1975).

      . See n. 6 above.

      . The rule is well established that “in the absence of clear legislative expression to the contrary, a law is presumed to operate prospectively.” Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977). Nothing in Chapter 76-251 evinces an intent by the legislature to give retroactive effect to Section 559.-39(2).


author: HATCHETT, Justice. ENGLAND, Justice, SUNDBERG, Justice,

text:
    THE FLORIDA BAR, Complainant, v. David Lucius McCAIN, Respondent.
    No. 52068.
    Supreme Court of Florida.
    June 15, 1978.
    Rehearing Denied Sept. 11, 1978.
    See also, Fla., 330 So.2d 712.

      Bernard H. Dempsey, Jr., Bar Counsel, Orlando, and Wilson J. Foster, Jr., Asst. Bar Counsel, Tallahassee, for complainant.
    R. J. Beckham of Beckham, McAliley & Proenza, Jacksonville, for respondent.
   HATCHETT, Justice.

Under the Integration Rule of The Florida Bar, the Board of Governors, serving as an adjunct or administrative agency of this Court, may initiate disciplinary proceedings against an attorney for any improper act bearing on his current fitness to practice law, even when that act occurred while such attorney held judicial office. The Florida Bar v. McCain, 330 So.2d 712 (Fla.1976). In accordance with this rule, the Bar proceeded against David Lucius McCain, a former Justice of the Supreme Court of Florida, charging him with various acts of misconduct, the more significant of which will be discussed hereafter. The Referee, appointed by the Bar, found McCain guilty of those acts charged in Counts 3A and 3C of the Bar’s Second Amended Complaint, and as to each of these counts, recommended that he be “publicly reprimanded and suspended from the practice of law for one year and thereafter until he proves rehabilitation in accordance with Integration Rule 11.10(2).” By Petition for Review filed in this Court, The Florida Bar recommended disbarment. We approve the Findings of Fact and Conclusions of Law entered by the Referee but agree with the Bar that McCain should be disbarred.

David Lucius McCain began the practice of law in Florida in August, 1957, and continued that practice until August, 1967, when he was appointed to the Fourth District Court of Appeal. During that ten year period he served for several years as City Attorney for the City of Fort Pierce. At no time was McCain charged with misconduct as a practicing attorney. On December 10, 1970, he was appointed to the Supreme Court of Florida by Governor Claude Kirk, after being an unsuccessful candidate for the Court in 1968. He won election to the Court in 1972. In May, 1974, McCain was notified that the Judicial Qualifications Commission was conducting an investigation into certain alleged acts of misconduct committed by' McCain while a judicial officer of this state. The Referee found that McCain did not receive notice of the filing of formal charges. In April, 1975, the Select Committee on Impeachment of the Florida House of Representatives also began an investigation of McCain. The findings of that committee served as the basis for the probable cause findings made by The Florida Bar’s Board of Governors. Effective August 31, 1975, McCain resigned his position as a Justice of the Supreme Court of Florida.

COUNT 3A

On September 25, 1970, Richard Nell, a union official, was convicted of bribery. He appealed his conviction to the Second District Court of Appeal where the case was heard on June 10, 1971 by Chief Judge Pierce and Judges Mann and McNulty. In July, 1972, McCain, while a Justice of the Supreme Court of Florida, and while the Nell case was pending in the district court, called Judge McNulty about the case. Pri- or to making the call, McCain had been notified that he was going to be supported in his race for re-election to the Supreme Court by the International Union of Operating Engineers, the labor organization which Nell headed. McCain admits making the call to Judge McNulty, admits that the call concerned the Nell case, and admits that the call was made on behalf of Nell and their common friends and supporters. A factual issue is joined because McCain testified that he could not recall whether or not he asked Judge McNulty to reverse the conviction. Judge McNulty testified, however, that it was his clear impression that during the conversation McCain asked for a reversal of the case. William Haddad, Clerk of the Second District Court of Appeal, who at the time of the McCain call was a research aide to Judge McNulty, was present during the disputed telephone conversation and testified that Judge McNulty was upset about the call and told him that “Judge McCain was trying to influence the decision of the court.”

The opinion of the Second District Court of Appeal was filed in the Nell case on September 6, 1972, affirming the conviction, with then Chief Judge Pierce dissenting. Nell v. State, 266 So.2d 404 (Fla. 2nd DCA 1972). Prior to the filing of that opinion, Judge McNulty reported the McCain call to his associate, Judge Mann.

On September 20, 1972, a Petition for Writ of Certiorari was filed with the Supreme Court of Florida on behalf of Nell and the others convicted with him. Oral argument was heard on February 16, 1973. The records of the Supreme Court indicate that the file reached McCain on April 5, 1973, the other Justices having voted to reverse the District Court by a vote of four to two. McCain also voted for reversal. Nell v. State, 277 So.2d 1 (Fla.1973). Judges Mann and McNulty were upset when they learned that McCain had participated in the decision, and one of them reported the matter to a member of the Judicial Qualifications Commission.

As to this count, the Referee found: When Justice McCain contacted Judge McNulty by telephone, he willfully and intentionally attempted to tamper with the administration of justice by making an effort to influence the decision of the Second District Court of Appeal in the Nell case. In doing so, McCain committed this act with the corrupt motive of attempting to retain and improve upon the political support he expected from the union, of which Nell was the chief executive. This violation of the ethics of his profession was so gross in nature, that I find that it bears upon his current fitness to practice law.

COUNT 3C

From 1965 to 1970, Burton Loebl, a North Miami Beach attorney was counsel for the Estate of Robert T. David. Sometime prior to July, 1972, Loebl turned the file over to another attorney, ending his participation in the case. In July, 1972, a petition for determination of Loebl’s attorney’s fees was filed and the matter was set for hearing before County Court Judge Leroy H. Moe. The petition involved $10,000 of final fees for Loebl’s work on behalf of the estate. At about this time, McCain was campaigning for the Supreme Court and was supported in that effort by Loebl. The hearing on attorney’s fees was continued several times because of the court’s workload but was finally set for hearing on November 2, 1972. An attorney retained by Loebl filed a motion for continuance, and hearing on that motion was set for October 30, 1972. Both Loebl and McCain agreed that in late October, following the 1972 election, they had a conversation about the David Estate in which was pending Loebl’s petition for attorney’s fees. On October 28,1972, McCain, knowing that Judge Moe would be hearing all matters on the Estate of David, and aware that a hearing was scheduled on Loebl’s claim for fees, contacted Judge Moe by telephone. During that conversation McCain made clear to Judge Moe that Loebl was a personal friend and political supporter. Judge Moe specifically recalled that McCain told him that any help he could give Loebl would be appreciated. McCain claims that he made the telephone call to Judge Moe because Loebl feared unfair treatment in Broward County “since he was Jewish and practiced in Miami Beach.” Loebl testified that he had no such fear and did not ask McCain to make the call.

As to the David Estate matter, the Referee found:

I find that McCain, while serving as a Justice of the Supreme Court of Florida, intentionally and corruptly attempted to tamper with and influence the results of a motion pending before Judge Moe in this case. This act was committed with the corrupt motive of doing a favor for Loebl as reward for his political support of McCain. I find that this violation of the ethics of our profession was so gross that it bears upon McCain’s current fitness to practice law.

COUNT 3D

On June 8, 1968, Louis Zacchary Cohen was found guilty of possession of marijuana in such quantity as to constitute a felony. Judge Trowbridge, Circuit Judge for the 19th Judicial Circuit, presided during the trial. Upon conviction of Cohen, Judge Trowbridge withheld adjudication of guilt and sentenced Cohen to a term of four years probation. According to one of the lawyers in the case, immediately following imposition of sentence, Wolfie Cohen, the father of Louis, and a well known politician in Miami, urged that an appeal be taken since Judge McCain was a friend and would “take good care of us if we filed an appeal.” The lawyer persuaded Mr. Cohen not to take an appeal since a new trial could result in a more severe sentence.

In the summer of 1969, McCain, while a Judge of the Fourth District Court of Appeal, was contacted by Wolfie Cohen, described by McCain as an acquaintance, who told him that his son, Louis, was greatly handicapped in his efforts to complete his education by his four year period of probation. Cohen asked McCain to intercede in this matter and to help get his son’s period of probation terminated. McCain admits calling Judge D. C. Smith by telephone and inquiring of Judge Smith as to the procedure involved in procuring a termination of probation. Judge Smith was unable to recall any details of that conversation. Judge Smith’s testimony, however, was that he never abdicated his judicial responsibility in any matter. Soon after the McCain telephone call, Judge Smith entered an order terminating Cohen’s probation. Although Judge Smith does not remember the details of the conversation with McCain, the then probation supervisor for the Florida Parole Commission, J. Vernon Wright, testified that he had a conversation with Judge Smith in which Judge Smith stated that McCain wanted Louis Cohen’s probation terminated.

As to this allegation the Referee found: I find no clear and convincing evidence that McCain asked Judge Smith to secure a termination of Cohen’s probation. I find no clear and convincing evidence that McCain acted improperly in this matter. Nor do I find that McCain acted with any corrupt motive in making telephone calls to Judge Smith.

The Bar urges us to overturn this finding by the Referee. It asserts that the evidence detailed above is clear and convincing proof of McCain’s corrupt motive in making the telephone call to Judge Smith in an effort to terminate Cohen’s probation. We agree with the Referee that the evidence does not meet the requisite standard of proof.

In addition to his findings on each specific allegation of misconduct, the Referee concluded that the charges against McCain were not barred by the operation of a statute of limitations or by the equitable principles of laches or estoppel. McCain challenges both conclusions.

STATUTE OF LIMITATIONS

The strongest authority for the proposition that a statute of limitations applies in a disciplinary case involving a judge or former judge, is found in State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1974):

The Judicial Qualifications Commission may investigate the alleged misconduct of the Relator . . within the reasonable time backwards but not exceeding two years behind the date upon which he assumed new duties having been elected Circuit Judge in the 1972 election, . .' . (at 619) '

The holding in Turner is not binding here. In that case we specifically stated:

All dictum in this opinion must be read in the context of the circumscribed facts and not considered a precedent in cases involving different facts. The purpose of the dictum is merely to show the expanse of the total research and the logic supporting the judgment dispositive of the facts in the Turner case and of no other. (at 619)

There is no express statute of limitation governing attorney discipline proceedings. The statutory bar against actions at law has no application in a disbarment proceeding.

The statute of limitations has no application to delinquencies such as have been shown to exist. The court, in such cases, will consider any unexplained, unreasonable delay in presenting the charges, and also whether, by reason of such delay, the accused has been deprived of a fair opportunity of securing proof to meet the accusation; but the proceeding for the disbarment of an attorney is not barred by the express terms of the statute of limitations, nor will the courts establish a limitation, as to the time in which such proceedings may be instituted, by analogy to the statute of limitations, unless, from the nature of the circumstances of the particular case, it appears that it would be unjust or unfair to require the attorney to answer as to such occurrences. People ex rel. Healy v. Hooper, 218 Ill. 313, 75 N.E. 896 (1905) at 899.

The Court in Turner felt that the statute of limitations on criminal charges was the “nearest thing to a declaration of public policy on the question of a reasonable time for investigation” into attorney discipline matters. Turner v. Earle, supra, at 618. We reject the notion that a statute of limitations on criminal charges expresses by public policy or otherwise a period of limitation for investigation of attorney misconduct. Our responsibility to the public requires a more flexible rule. Surely a judicial officer who leaves the bench and returns to the active practice of law must be free to do so without the fear that some alleged impropriety occurring many years before the date of leaving the bench may be brought up to haunt him in the practice of law. But, there is no reason, either in law, common sense or otherwise, to fashion a hard and fast statute of limitations governing the discipline of lawyers, who for a period, serve as judges. Lawyers’ rights may be protected without a mechanical and automatic rule setting forth limitations for actions involving misconduct. We therefore hold that The Florida Bar shall have a reasonable time after it obtains jurisdiction to proceed against a lawyer who was a judge at the time of the alleged acts of misconduct. In the present case, the Bar began proceedings immediately following Justice McCain’s resignation. All pending investigations were terminated upon that resignation. Although the acts upon which these disciplinary proceedings are based occurred three years prior to the date of resignation, we find that the Bar acted promptly.

In the final analysis, no former judge can be injured by the rule which we fashion today. The Florida Bar is an agency of this Court and under its direction. Whenever a lawyer feels that an unreasonable time has passed since the alleged misconduct for which the bar brings charges, this Court will be open to address that problem. After all, The Florida Bar acts for and is an agency of this Court. When the child falters the parent shall correct.

LACHES

McCain next asserts that if a statute of limitations does not apply to bar these proceedings, the equitable principle of lach-es does.

A suit is held to be barred on the ground of laches where, and only where, the following appear: (1) Conduct on the part of the defendant, or one under whom he claims, giving rise to the situation of which complaint is raised; (2) delay in asserting the claimant’s rights, the complainant having had knowledge or notice of the defendant’s conduct and having been afforded an opportunity to institute the suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. All these elements are necessary to establish laches as a bar to relief. 21 Pla.Jur. Limitation of Actions, Section 94.

The Courts of Florida have, in a long line of cases, held these elements necessary to constitute laches. Niagara Fire Insurance Co. v. Allied Electrical Co., 319 So.2d 594 (Fla. 3rd DCA 1975); Winston v. Dura-Tred Corp., 268 So.2d 426 (Fla. 3rd DCA 1972); Blumin v. Ellis, 186 So.2d 286 (Fla. 2nd DCA 1966); and Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). The Florida Bar has been diligent in its efforts and does not fall within any of the requirements for laches set forth above. It was not until August 31, 1975, when McCain resigned, that the Bar could possibly have proceeded against him. Realistically, it was not until the filing of our opinion in The Florida Bar v. McCain, supra, on May 18, 1976 that the Bar knew to what extent and in what manner it could pursue disciplinary action against the former Justice. We therefore hold that The Florida Bar is not guilty of laches but has acted promptly in this matter and in the best interest of the people of this state.

ESTOPPEL

Finally, McCain asserts that the Bar is estopped from prosecuting this matter since the Judicial Qualifications Commission, after a full investigation, failed to bring formal charges against him. We disagree. As the Referee recorded:

This is the first opportunity this Court has had to inquire into McCain’s fitness to practice law. It seems to me that there can be no estoppel arising from its failure to exercise its right to remove him from the judiciary through the medium of the Judicial Qualifications Commission nor do I believe that the State has waived any right connected with the prosecution of this matter by allowing McCain to resign in the face of impending or threatened impeachment. Referee’s Report, page 14.

In 12 FlaJur. Estoppel and Waiver, Section 24, we find:

The essentials of an equitable estoppel may be briefly laid down as follows: (1) words and admissions, or conduct, acts, and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things; (2) in which the person so speaking, admitting, acting, and acquiescing did so wil-fully, culpably, or negligently; and (3) by which such other person is or may be induced to act so as to change his own previous position injuriously.

Our case law is in accord. Coogler v. Rogers, 25 Fla. 853, 7 So. 391 (1889); Barsumian v. Barsumian, 235 So.2d 515 (Fla. 4th DCA 1970). Estoppel does not apply to the facts of this case.

In The Florida Bar v. McCain, supra, we held:

We adopt for Florida the general rule that “misconduct in ... a judgeship, reflects upon an attorney’s fitness to practice law and is consequently a proper ground for discipline.” at page 715.

Having determined that the present prosecution is not barred by any period of limitations or by the doctrines of laches or estop-pel, we must now decide whether McCain is presently fit to practice law in the State of Florida. The evidence presented by the Bar must be clear and convincing before we may find that the code of conduct governing lawyers has been breached. In The Florida Bar v. Rayman, 238 So.2d 594 (1970) at 598, we stated:

As judges and lawyers, it is one of our highest duties to eliminate from our ranks those guilty of so serious an offense. Concomitant therewith, however, we have a continuing duty to require charges such as these to be supported by clear and convincing evidence where the charges have been denied by reputable members of the Bar.

Initial fact-finding responsibility in disciplinary matters is imposed on the Referee and his findings should be upheld unless clearly erroneous or lacking in evidentiary support. The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). We have carefully reviewed the evidence and find that the Referee’s report is supported by competent and substantial evidence. That evidence is clear and convincing. We therefore approve the Findings of Fact and Conclusions of Law entered by the Referee and note that the time donated by the Referee and the professionalism he exhibited by the manner in which he conducted all aspects of this case are in accord with the highest ideals of our profession.

Finally, we must determine whether the punishment recommended by the Referee is sufficient in this case. We think not. The conduct engaged in by McCain while a Justice of the highest court of this state cuts to the very heart of the judicial system, a system carefully established to insure that equal justice under law prevails in this country for the rich and the poor, the powerful and the powerless. McCain’s conduct has done much to erode the public’s'confidence in the integrity and impartiality of the judiciary and the bar, thus undermining the entire judicial process.

[Tjhere can be no temporizing with an offense the commission of which serves to destruct the judicial process. The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970) at 598.

The following comment by Judge Moe underscores the damages of which we speak:

My reaction was the call was totally unnecessary, totally uncalled for, but, by the same token, I was a Judge of the County Judges Court, for maybe a little bit more than a year at that time, and here is -a man on the Supreme Court of Florida, calling me about a case; as a matter of fact, just a motion for continuance in a case. Now, I had always been taught, through education, through legal training, through custom, tradition, history, what have you, that the Supreme Court of Florida is, let’s say, the last repository of all knowledge concerning law, equity, procedure, and certainly ethics, and I didn’t know if any other Judges were receiving phone calls. I did not know if this stuff went on. By “this stuff”, I mean a higher Court Judge calling another Judge about a case pending in front of him. I certainly didn’t think it went on. By the same token, it is almost like saying he is on the Supreme Court, he must be right. He must have some kind of reason. There must be some kind of procedural aspect of it that I don’t understand. So, my reaction was really mixed. I couldn’t see any reason for him interfering with the case before me, but yet, he was a Supreme Court Justice and so, it is like I said, I was taught to think, to believe what they do is right.

McCain’s blatant disregard for the integrity of the truth finding process, essential to our notion of equal justice under the law, directly bears on his present fitness to practice law.

While we find that McCain has been shown by clear and convincing evidence to have committed the acts charged in Counts 3A and 3C, we must agree with the Referee that The Florida Bar took an excessively broad approach to this case and failed to early abandon counts that could not be proved. For this reason we find it inequitable to impose all costs of these proceedings upon McCain. Thus, each party shall bear its own costs.

Accordingly, the Referee’s Report is approved in all respects except punishment, and David Lucius McCain is disbarred from further practice of law in the State of Florida, effective immediately.

It is so ordered.

OVERTON, C. J., and TEDDER, WILLIS and McCRARY, Chief Circuit Judges, concur.

ENGLAND, J., concurs with an opinion.

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

ENGLAND, Justice,

concurring.

I find from the record in this case, as do the other members of the Court, clear and convincing evidence to support the referee’s findings as to Counts 3A and 3C. I differ with my colleagues, however, as to the degree of proof sustaining Count 3D, which I believe is also adequate to support disciplinary action. It goes without saying that I support the Court’s decision on the discipline appropriate for McCain, for all of the reasons expressed by Justice Hatchett.

I think there is value in identifying more precisely the reasons I have voted to uphold the referee’s recommendation that we deny the Bar its costs of prosecution, some $25,-908.76. The Bar originally found “probable cause” against McCain as to six generic acts of ethical misconduct. Faced with the prospect of having all of its charges dismissed by the referee for their lack of specificity, the Bar filed an amended complaint and later a second amended complaint. The Bar later amended its complaint orally at a pre-trial conference, and further amended it by stipulation after five days of testimony at the final hearing.

Of the 20 specific acts of alleged misconduct which went to the referee after all evidence and testimony was presented, only two have been found to be supported by clear and convincing evidence to the satisfaction of either the referee or the Court. In its cross-assignment of error to this Court, the Bar expressed dissatisfaction with the referee’s findings as to 6 of the 18 charges which were dismissed or stricken. It is apparently satisfied that the referee fairly evaluated the record as to the 12 other charges.

In considering the assessment of costs, the referee reported that

“[t]he Bar willfully undertook this most complex, expensive and time-consuming prosecution. It continued to prosecute this matter when it knew or should have known from the advice of Bar Counsel that it could not prove a large number of the charges set forth in its amended complaint or its second amended complaint
This entire matter was poorly and illogically planned by the Bar. It was laboriously presented before me at the final hearing. It has been largely a trial by insinuations, inferences, and innuendos accompanied by a minimum of evidence of a clear and convincing degree.”

When this case was first here to prevent the Bar from exercising disciplinary control over McCain for his conduct while on the bench, I joined Justice Sundberg in his admonition to .the Bar in connection with any disciplinary proceedings it might commence against former judicial officers:

“The Florida Bar as an arm of this Court is charged to act responsibly. If it acts irresponsibly this Court has the power and the duty to impose appropriate sanctions against the offending members.”

The Bar’s absorption of its costs for this proceeding is clearly warranted.

SUNDBERG, Justice,

concurring.

Because the discipline invoked by the Court in this case is materially more severe than that recommended by the Referee, I deem it necessary to elucidate the reason why departure from that recommendation is called for. In the first instance, it should be observed that the discipline appropriate to ethical misconduct is the sole province and responsibility of this Court. While the findings of fact by the Referee in a disciplinary proceeding “shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding,” no similar presumption accompanies his recommendation of disciplinary measures to be applied. The burden upon The Florida Bar is to demonstrate that the report of the Referee is “erroneous, unlawful or unjustified.” In my judgment the report itself demonstrates that the recommended discipline is unjustified.

As to Count 3A of the Bar’s Second Amended Complaint, the Referee found:

When Justice McCain contacted Judge McNulty by telephone, he willfully and intentionally attempted to tamper with the administration of justice by making an effort to influence the decision of the Second District Court of Appeal in the Nell case. In doing so, McCain committed this act with the corrupt motive of attempting to retain and improve upon the political support he expected from the union, of which Nell was the chief executive. This violation of the ethics of his profession was so gross in nature, that I find that it bears upon his current fitness to practice law.

As to Count 3C of the Bar’s Second Amended Complaint, the Referee found:

[M]cCain, while serving as a Justice of the Supreme Court of Florida, intentionally and corruptly attempted to tamper with and influence the results of a motion pending before Judge Moe in this case. This act was committed with the corrupt motive of doing a favor for Loebl as reward for his political support of McCain. I find that this violation of the ethics of our profession was so gross that it bears upon McCain’s current fitness to practice law.

In short, the Referee found that a member of The Florida Bar, while serving in judicial office, willfully, intentionally, and with corrupt motive attempted to tamper with the administration of justice. Such misconduct by any member of the Bar, whether he be acting as judge or lawyer, is so inimical to the judicial system that nothing less than disbarment can vindicate the injury done. Such an act by a lawyer transcends the usual ethical breach where one or even several clients’ funds are misappropriated or their case is mishandled. When a member of the Bar corruptly attempts to tamper with the administration of justice every citizen of our state is injured. This is so because, as has been often said, the courts have no army to enforce their judgments and decrees. The enforcement of judicial rulings is solely dependent upon their acceptance by the people. This acceptance will .persist only so long as people have confidence in the institution which renders the decisions under which they must live. Some of the most unpopular judicial decisions in our history have been complied with because they are “the law of the land.” The citizenry will only abide by the “law of the land” if they believe that it has been arrived at through a process which is free from corruption. The responsibility of a lawyer in this regard is set forth in Ethical Considerations 9-1 and 9-4, Florida Bar Code of Professional Responsibility.

Consequently, the enormity of the act of a member of the Bar, whether judge or lawyer, who tampers with the system of justice is such that it demonstrates a total lack of fitness to be a minister of the system. How can one be a part of a system when he has demonstrated a willful intent to pervert that system? I submit that he cannot. To be a member of the Bar and an officer of the court is a high calling which bestows unique opportunities on one so endowed. However, there is an obligation which corresponds to the privilege of being a member of the Bar and it is best expressed in a passage from the book of our most fundamental laws:

. For unto whomsoever is much given, of him shall be much required: and to whom men have committed much, of him they will ask the more.

Consequently, I concur in the judgment of guilt and disbarment as the appropriate discipline in this case notwithstanding the recommendation of the Referee.

ENGLAND, J., concurs.

      . A. Nell v. State, 266 So.2d 404 (2nd DCA Fla. 1972). Richard Nell, a Ft. Lauderdale labor union leader, was convicted of the bribery of a Collier County official. Nell took an appeal to the Second District Court of Appeal where the matter was assigned to a panel and set for argument on June 10, 1971, before Chief Judge William C. Pierce and Associate Judges Joseph P. McNulty and Robert T. Mann. In July, 1972, while the case was still under consideration by that panel, the Respondent telephoned Judge McNulty and told him of the interest of “some people” in Nell’s case and communicated to Judge McNulty that a reversal of Nell’s conviction would be appreciated.
      C. In Re Estate of Robert T. David, 17065 (County Judge’s Court, 19th Judicial Circuit, Broward County). On or about November 1, 1972, the Respondent telephoned Leroy H. Moe, then a judge of the County Judge’s Court of Broward County. The Respondent identified himself as Mr. Justice McCain. He asked Judge Moe to look favorably upon a motion for continuance which was then pending before Judge Moe in the case. The Respondent caused Judge Moe to believe that it would be appreciated it [sic] Judge Moe would grant the motion for continuance. The Respondent told Judge Moe that the attorney who filed the motion for continuance, Burton Loebl, was the Respondent’s campaign manager in North Dade County. As a result of the Respondent’s telephone call, Judge Moe recused himself from the case.
      The Referee acquitted McCain on all other charges and recommended that they be stricken or dismissed.

      . Re Lowenthal, 78 Cal. 427, 21 P. 7 (1889); People ex rel. Stead v. Phipps, 261 Ill. 576, 104 N.E. 144 (1913); Re Elliott, 73 Kan. 151, 84 P. 750 (1906); Re Leonard, 127 App.Div. 493, 111 N.Y.S. 905 (1908), affirmed 193 N.Y. 655, 87 N.E. 1121 (1908); State ex rel. Grievance Committee v. Woerndle, 109 Or. 461, 209 P. 604 (1923); Wilhelm’s Case, 269 Pa. 416, 112 A. 560 (1921); Re Simpkins, 169 App.Div. 632, 155 N.Y.S. 521 (1915); Ex Parte Tyler, 107 Cal. 78, 40 P. 33 (1895); People ex rel. Healy v. Hooper, 218 Ill. 313, 75 N.E. 896 (1905); Re Smith, 73 Kan. 743, 85 P. 584 (1906); Re Bridwell, 25 Utah 2d 1, 474 P.2d 116 (1970); Anne Arundel County Bar Assoc. v. Collins, 272 Md. 578, 325 A.2d 724 (1974).
      See also, 3 Fla.Jur., Attorneys at Law, Section 104.

      . See The Florida Bar v. McCain, 330 So.2d 712, 713 n. 1 (Fla.1976). A seventh original charge (Count VII) alleged general unethical conduct based on the other generic acts of misconduct.

      . The Florida Bar v. McCain, 330 So.2d 712, 718 (Fla.1976) (Sundberg, J., concurring).

      . Fla. Bar Integr. Rule, art. XI, Rule 11.06(9)(a).

      . Fla. Bar Integr. Rule, art. XI, Rule 11.09(3)(e).

      . Fla. Bar Code Prof.Resp., E.C. 9-1 provides: “Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.”

      . Fla. Bar Code Prof.Resp., E.C. 9-4 provides: “Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that he can or would attempt to circumvent those procedures is detrimental to the legal system and tends to undermine public confidence in it.”

      . Luke 12:48 (King James).


author: HATCHETT, Justice.

text:
    UNITED PRESIDENTIAL LIFE INSURANCE CO., Appellant, v. Macon M. KING et al., Appellees.
    No. 51565.
    Supreme Court of Florida.
    Feb. 23, 1978.
    As Corrected On Denial of Rehearing April 27, 1978.

      James E. Clayton, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.
    J. Michael Davis, of the Law Offices of Lansing J. Roy, Gainesville, for appellees.
   HATCHETT, Justice.

Appellant attacks the constitutionality of Sections 77.01 and 77.03, Florida Statutes (1975), asserting that these sections are unconstitutional because they fail to provide a garnishee with prior notice and an opportunity to be heard on the issues of whether or not the garnishee in fact holds wages or other monies owing to the garnishment debtor. In denying the garnishee’s motion to dissolve the writ of garnishment, the trial court inherently upheld the constitutionality of these statutes, providing this Court jurisdiction to review the case under Article V, Section 3(b)(1). We hold that these garnishment statutes are constitutional, but remand the cause to the trial court for further proceedings to determine whether appellant is indebted to or holds any monies of the garnishment debt- or.

King obtained a judgment against Julius, the judgment debtor, in the sum of $13,247. At the time King obtained this judgment, Julius was a commission agent for United Presidential Life Insurance Company. King filed a motion with the trial court, pursuant to Section 77.03, Florida Statutes (1975), for the issuance of a writ of garnishment against United. The writ of garnishment was issued commanding United to respond as to whether it was indebted to Julius, and, if so, in what amount. The writ was served upon the State Insurance Commissioner, pursuant to Section 624.422, Florida Statutes (1975). This statute requires that every insurance company authorized to transact insurance business in this state designate an agent to whom the Insurance Commissioner can forward notice of process. The designated agent for United in Florida was Julius, the judgment debtor. Notice of the writ of garnishment was forwarded to Julius by the Insurance Commissioner. However, Julius failed to notify United of the writ of garnishment, and the garnishee did not receive actual notice until after a default and final judgment for the full amount of the debt, owed by Julius to King, was entered against it.

After learning of the default and final judgment, United filed a complaint to dissolve the writ of garnishment and to set aside the final judgment on the grounds that: (1) notice of process was improperly served; (2) notice to the judgment debtor, Julius, did not constitute notice to United because of a clear conflict of their interests; (3) United was not indebted to Julius in any amount; (4) the postjudgment garnishment procedure outlined in the statutes is an unconstitutional deprivation of due process because it permits issuance of a writ of garnishment without prior notice to the debtor and without opportunity for the debtor to contest the validity of the garnishment or assert exemptions to which he may be entitled. United attached to its motion an assignment of all of Julius’s interest in his future commissions to a Gainesville bank. This assignment of commissions took place before the final judgment was entered against Julius in favor of King. The trial court, without expressing any reasons therefor, denied United’s motion to dissolve the writ of garnishment and to set aside the final judgment.

In Unique Caterer’s Inc. v. Rudy’s Farm Co., 338 So.2d 1067, 1071 (Fla.1976), we held unconstitutional the prejudgment attachment statute, stating:

The commercial law of this State must keep up with the concepts of procedural due process as they are refined by the United States Supreme Court. The interests of those whose property may be mistakenly attached are entitled to as much protection as possible without defeating the interests of creditors.

United argues that the garnishment statute is unconstitutional for the same reasons that we found the attachment statute unconstitutional in Unique Caterers, because the present statute: (1) does not require a sworn affidavit that there exists a debt owed by the garnishee to the judgment debtor, or that the garnishee has property owing to the judgment debtor; (2) does not require action by a judicial officer, but instead permits the clerk of a court to issue a writ based upon an unverified motion; (3) denies a debtor the opportunity to assert his statutory and constitutional exemptions.

We find the principles set forth in Unique Caterers to be inapplicable in the present case. The garnishment statutes involved here set forth a procedure to satisfy a debt only after liability has been judicially determined. A judgment debtor has received notice and an opportunity to be heard prior to the entry of the judgment itself. Further, the garnishee under these statutes is provided with notice and an opportunity to be heard. The fact that a motion for writ of garnishment is not required to allege a debt is owed between the garnishee and the judgment debtor, or that the garnishee holds property of the judgment debtor, in no way affects the rights of the garnishee. The garnishee may respond to the allegations and assert any defenses available. The present statutory procedure was apparently designed so as to allow judgment creditors to file unverified motions as an expeditious method of discovering information from employers and financial institutions as to any possible assets belonging to a judgment debtor which may be obtained to satisfy the judgment.

The constitutional validity of prejudgment and post judgment garnishment procedures had been examined by the federal courts. In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the United States Supreme Court held that due process requires notice and a hearing as to the validity of the underlying debt prior to garnishment of wages. In the present case, the validity of the underlying claim was already established by the court.

The federal circuit court in Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355 (5th Cir. 1976), recently upheld the constitutionality of Sections 77.01 and 77.03, Florida Statutes. There, the circuit court quashed the district court’s opinion which had held these statutes unconstitutional for their failure to provide for notice to the judgment debtor and a hearing as to any possible statutory exemptions, stating:

The district court’s analysis, however, does not weigh all of the pertinent interests. For instance, it does not consider the state’s interest in facilitating the enforcement of judgments obtained in its courts or the creditor’s interest in satisfying a judgment from a debtor’s assets. Given proper weight, those interests appear to outweigh the debtor’s interest. We hold therefore that due process of law does not require notice and an opportunity for a hearing on entitlement to the exemption before wages are garnished in accordance with Florida law. Brown supra, 539 F.2d at 1363.

We agree that there is a vast distinction between prejudgment and post-judgment garnishment. Postjudgment garnishment does not involve the freezing of debtor assets pending adjudication as to the validity of the underlying debt. Instead, it merely provides a procedure for the enforcement of the judgment against those assets. Therefore, we hold that neither due process under the Fourteenth Amendment of the United States Constitution nor any provision of the Florida Constitution requires prior notice to a judgment debtor and a hearing before a writ of garnishment may issue.

The disturbing result in the present case arises from the fact that United had a final judgment entered against it for over $13,000 without any notice or hearing because Julius, the judgment debtor, was also resident agent for United and did not forward the notice of process to his principal. United argues that the final judgment should be held invalid and set aside on the grounds that there was insufficient service of process to the garnishee. Although it may indeed be true that the facts appearing on the face of the record show an apparent conflict between the garnishee and its resident agent, we reject the argument that this is a sufficient ground to render the final judgment void. Service of process was properly made in accordance with law. King, the judgment creditor, had no alternative under the state statutory scheme other than to serve the State Insurance Commissioner with process, who then properly forwarded such notice to the designated resident agent. United chose its resident agent, and had the responsibility and ability to monitor his activities so as to insure that it would receive all notices and services of process.

We do find, however, that the trial judge abused his discretion in refusing to set aside the final judgment and dissolve the default under the particular facts of this case. When faced with a situation where a garnishee has defaulted because of failure to receive notice, trial judges should keep in mind that the garnishee is not an original debtor. Judgment creditors derive their right to proceed against a garnishee only by virtue of the fact that the garnishee holds money or property owed to the judgment debtor. Trial judges should exercise their discretion in such a way as to insure that the judgment creditor receives no greater rights against a garnishee than would have been available to the judgment debtor in a proceeding against the garnishee. Reeves v. Don L. Tullis and Assoc., Inc., 305 So.2d 813 (Fla. 1st DCA 1975). In' the present case, the garnishee clearly did not have actual notice of the proceedings against it. When the trial judge was presented with facts which made it appear inequitable to enforce the final judgment against the garnishee, he should have exercised his discretion and set aside the final judgment pursuant to Fla.R.Civ.P. 1.540.

Accordingly, we hold Sections 77.01 and 77.03, Florida Statutes, to be constitutional and remand with directions to the trial court to dissolve the default, set aside the final judgment, allow United to answer, and proceed in accordance with this opinion.

It is so ordered.

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

      . Section 77.01, Fla.Stat. (1975) provides:
      Every person who has sued to recover a debt or has recovered judgment in any court against any person, natural or corporate, has a right to a writ of garnishment, in the manner hereinafter provided, to subject any debt due to defendant by a third person, and any tangible or intangible personal property of defendant in the possession or control of a third person. The officers, agents and employees of any companies or corporations are third persons in regard to the companies or corporations, and as such are subject to garnishment after judgment against the companies or corporations.
      Section 77.03, Fla.Stat. (1975) provides:
      After judgment has been obtained against defendant but before the writ of garnishment is issued, the plaintiff, his agent or attorney, shall file a motion (which shall not be verified or negative defendant’s exemptions) stating the amount of the judgment and that movant does not believe that defendant has in his possession visible property on which a levy can be made sufficient to satisfy the judgment. The motion may be filed and the writ issued either before or after the return of execution.

      . Section 624.422, Fla.Stat. (1975) provides in pertinent part:
      (2) At the time of such appointment of the insurance commissioner and treasurer as its process agent the insurer shall file with the department designation of the name and address of the person to whom process against it served upon the insurance commissioner and treasurer is to be forwarded. The insurer may change the designation at any time by a new filing.
      (3) Service of process upon the insurance commissioner and treasurer as the insurer’s attorney pursuant to such an appointment shall be the sole method of service of process upon an authorized domestic, foreign or alien insurer in this state.

      . Section 77.04, Fla.Stat. (1975) provides:
      The writ shall require the garnishee to serve an answer to it on plaintiff within 20 days after service stating whether he is indebted to defendant at the time of the answer, or was indebted at the time of service of the writ, or at any time between such times; and in what sum and what tangible or intangible personal property of defendant he has in his possession or control at the time of his answer, or had at the time of the service of the writ, or at any time between such times; and whether he knows of any other person indebted to defendant, or who may have any of the property of defendant in his possession or control. The writ shall state the amount named in plaintiff’s motion.


author: DAUKSCH, Judge.

text:
    Donald Alan MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-1414, 77-360.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Angus M. Stephens, Jr., Coral Gables, and Lawrence A. Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   OPINION ON MOTION

DAUKSCH, Judge.

Appellant appeals an Order of the trial court denying his Motion for bail pending appeal.' There were two Orders entered below denying “supersedeas bond”, both of which were dated and rendered on the 2nd day of March, 1977 and both of which are insufficient. One of the Orders says:

“The Defendant fails to meet the criteria laid down in Younghans v. State, 90 So.2d 308 (Fla.1956) in that the Defendant might not remain in the jurisdiction of the Court and the Defendant has had a divorce and his family ties in the community are less at this time. Defendant’s Motion to Set Supersedeas Bond is hereby denied at this time.”

The other says:

“Defendant’s Renewed Motion to Set Su-persedeas Bond is hereby denied. The Defendant fails to meet the criteria laid down in Younghans v. State, 90 So.2d 308 (Fla.1956) as per companion Order entered this date.”

The purpose of bail is generally recognized as to insure the return of the Defendant if recalled by the court. When the trial court stated in its Order “the Defendant might not remain in the jurisdiction of the Court” it is begging the question. Therefore it appears the only reason for the denial of bail pending appeal is that the Defendant has had a divorce and has lost a family tie to the community. Perhaps this is the only reason the trial court entered its Order but since the Order denies bail “at this time” we are not sure of the exact ruling of the court and the reasons therefor. McCormack v. State, 338 So.2d 208 (Fla. 4th DCA 1975). We have reviewed the transcript provided and find that there is very little, if any, testimony on which to base the Order so we must remand this matter. This cause is remanded with directions to vacate the Orders denying bail entered on March 2, 1977 and with further directions to hold a hearing to determine whether or not bail should be granted and enter an order in compliance with the directives of Fla.App. Rule 6.15 and McCormack v. State, supra.

REMANDED WITH DIRECTIONS.

LETTS, J., and WEAVER, SIDNEY M., Associate Judge, concur.


author: PER CURIAM.

text:
    Jack E. HARRELL and Marilyn Harrell, Petitioners, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. 78-33.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.

      David B. Slaughter, Legal Aid Society of Orange County, Orlando, for petitioners.
    No appearance for respondent.
   OPINION ON MOTION

PER CURIAM.

Jack E. and Marilyn Harrell petition this court for certiorari, seeking judicial review of a final decision of the respondent agency affecting petitioners’ right to receive welfare or public assistance benefits. Along with their petition for certiorari, petitioners have filed a motion and supporting affidavits for leave to proceed in forma pauperis, which we grant. The subject of this opinion, however, concerns the petitioners’ separate motion to compel the respondent agency to furnish a copy of the certified transcript of proceedings before the agency to petitioners’ legal representative and to file the original with this court, at no cost to the indigent petitioners or their counsel. Having received similar requests in the past, we now state our reasons for denying these requests.

The Florida Administrative Procedure Act, and specifically Fla.Stat. § 120.68 (Supp.1976) governing judicial review of agency action, does not speak to this issue. Section 120.57(l)(b)(6) requires the agency to preserve all testimony at the administrative proceeding and, on the request of any party, to make a transcript available at no more than actual cost. The Act carves out no statutory exception for judicial review at the behest of an indigent.

Although Section 120.68(2) provides that judicial review proceedings shall be conducted in accordance with the Florida Appellate Rules, the Florida Appellate Rules are also silent on this particular subject. F.A.R. 4.1 provides that judicial review of rulings of administrative agencies shall be by certiorari, and F.A.R. 4.5(c) provides that a petition for writ of certiorari shall be accompanied by a certified transcript of the record of the proceedings the petitioner seeks to have reviewed (or so much thereof as is essential) unless otherwise ordered by the court. There is no Florida Appellate Rule which is comparable to the Federal Rule of Appellate Procedure 24(b) entitled “Leave to Proceed on Appeal or Review in Forma Pauperis in Administrative Agency Proceedings.” •

Additionally, we find petitioners’ reliance on Fla.Stat. § 57.081 (1975) unavailing for the reasons set forth by the Third District in Bower v. Connecticut General Life Insurance Company, 347 So.2d 439 (Fla. 3d DCA 1977).

Pursuant to Section 120.57(l)(b)(6), the cost of preparing the transcript of agency proceedings must be borne by the petitioner seeking judicial review. Prince v. Florida Department of Banking and Finance, Division of Securities, 346 So.2d 130 (Fla. 1st DCA 1977); Mick v. Florida State Board of Dentistry, 338 So.2d 1297, 1299-1300 (Fla. 1st DCA 1976). It therefore appears that this court does not have the statutory authority to require an administrative agency to furnish a transcript of agency proceedings at its own expense, even though the petitioner for judicial review qualifies under Fla.Stat. § 57.081 (1975) as an insolvent or poverty stricken person for purposes of avoiding prepayment of court costs, filing fees and service of process fees.

We turn next to the alternative argument that if there is no statutory exception, then the statute requiring prepayment of such fees, as applied to an indigent petitioner, is unconstitutional as violating due process and equal protection, and Article I Section 21 of the Florida Constitution’s Declaration of Rights guaranteeing all persons access to the courts of this state for redress of any injury.

In disposing of the due process and equal protection arguments, we rely on the decision of the United States Supreme Court in Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), reh. denied, 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315 (1973). In Ortwein, the appellant sustained a reduction in welfare assistance and after an unsuccessful administrative proceeding, appellant sought judicial review in the Oregon appellate court. Judicial review was authorized by Oregon statute, however a $25 filing fee was also required by statute and there was no exception for indigent appellants. Claiming inability to pay the filing fee, appellant moved to proceed in forma pauperis, which motion was denied as was appellant’s subsequent mandamus action in the Oregon Supreme Court. On appeal to the United States Supreme Court on due process and equal protection grounds, the Court affirmed the Oregon Supreme Court’s denial of mandamus. The appellant’s interest in seeking increased welfare payments was not of substantial constitutional significance for due process purposes; no fundamental interest is gained or lost depending on the availability of the relief sought. Moreover, there existed alternatives to a judicial remedy, to-wit, a pretermination evidentiary administrative hearing pursuant to the mandate of Goldberg v. Kelly, which hearing is not conditioned on the payment of any fee. The Court found that no suspect classification was present and that the purpose of the filing fee (the production of revenue to help offset expenses and operating costs incurred by the Oregon court system) presented a rational justification for equal protection purposes.

Although the issue in Ortwein is not precisely the same as the issue now presented to this court, it defies logic to find any distinguishing feature that would be of constitutional significance. If a statute requiring the prepayment of filing fees as a precondition of judicial review of administrative action reducing welfare payments is not unconstitutional as applied to indigents, it is inconceivable why a similar statute requiring prepayment of transcript costs to the administrative agency would be. Certainly the purpose of the transcript fee, being directly related to offsetting the expenses incurred by the agency in preparing the transcript, is just as rational as the purpose of a filing fee.

We turn finally to the argument directed toward Article I Section 21 of the Florida Constitution, entitled “Access to Courts,” which provides generally that the courts of this state shall be open to every person for redress of any injury, and that justice shall be administered without sale, denial, or delay. This provision in the Declaration of Rights has been interpreted by the Florida Supreme Court to apply only in those instances where a right of access to the courts for redress of a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights in the Florida Constitution, or where such right has become a part of the common law of the state pursuant to Fla.Stat. § 2.01. Kluger v. White, 281 So.2d 1 (Fla.1973). The constitutional provision was never intended to independently create new causes of action. Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620 (1939). The present provision in Article I Section 21 is substantially the same as that found in the 1885 Florida Constitution, Declaration of Rights, § 4. However, the petitioners who now allege a violation of this constitutional provision seek judicial review of an administrative decision concerning their eligibility for financial aid under the federally assisted program of Aid to Families with Dependent Children (A.F.D.C.), and the corresponding Food Stamps program. A.F.D.C. was established by the Social Security Act of 1935, 49 Stat. 627, as amended. See 42 U.S.C. § 601, et seq. (1974); Goldberg, supra, 397 U.S. at 256, n. 1, 90 S.Ct. 1011. The Food Stamps program was established by the Food Stamp Act of 1964, Pub.L. 88-525, § 2, Aug. 31, 1964, 78 Stat. 703. See 7 U.S.C. § 2011, et seq. (1973). Moreover, the statute authorizing judicial review of an administrative determination (Fla.Stat. § 120.68 (1975)) was first enacted as § 120.30 in 1961. See Ch. 61-280, § 3, Laws of Florida. Up until that time, former chapter 120, entitled “General Provisions Relating to Boards, Commissions, Etc.” made no provision for judicial review of administrative proceedings upon application of a party adversely affected by final agency action. The time sequence therefore demonstrates that the “Access to Courts” provision in the Florida Constitution (which dates back to 1885) does not apply to a cause of action seeking judicial review of an unfavorable administrative agency decision affecting welfare assistance under A.F.D.C. or the Food Stamps program.

We therefore hold that this court does not have the statutory authority to order the Department of Health and Rehabilitative Services to furnish a transcript of agency proceedings at its own expense (notwithstanding petitioners’ indigency) and this lack of statutory authority cannot be circumvented on state or federal constitutional grounds. If the legislature decides that indigent petitioners ought to be provided at state expense a transcript of agency proceedings it may so provide by appropriate legislation. In the absence of such legislation, we shall in the future dispose of similar motions in accordance with the views expressed herein.

Petitioners’ motion to compel respondent to furnish a certified transcript at no cost to petitioners is denied.

ALDERMAN, C. J., and LETTS and MOORE, JJ., concur.

      . We note, peripherally, that the proposed Florida Rules of Appellate Procedure, effective March 1, 1978, will not apparently affect our conclusion. Under the proposed rules, our judicial review of administrative action shall be by appeal rather than by certiorari, Fla.R.App.P. 9.030(b)(1)(c), 9.110(a)(2); and the cost of preparation of a transcript to be included in the record on appeal shall be borne initially by the designating party, subject to appropriate taxation of costs, Fla.R.App.P. 9.200(b)(1). Fla.R.App.P. 9.430 entitled “Proceedings by Indigents,” does not speak to the issue concerning payment of transcribing costs charged by administrative agencies and the comment to this rule provides that the rule is not intended to expand the rights of indigents to proceed with an appeal without payment, of fees or costs; those rights are a matter governed by substantive law.

      . 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).


author: DAUKSCH, Judge. CROSS, Judge,

text:
    ENVIRONS PALM BEACH, Appellant, v. Florence P. DONOVAN, Appellee.
    Nos. 77-148, 77-149.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Richard B. Burk of Scott, Burk, Royce, Harris & Loucks, P. A., Palm Beach, for appellant.
    John L. Parker, Jr., Newberry, for appel-lee.
   DAUKSCH, Judge.

Appealed is an order granting a motion to amend a final judgment. Because the motion was served more than ten days after the entry of the judgment, it was untimely. Fla.R.Civ.P. 1.530(g). The order amending the final judgment is reversed and the cause is remanded for the appellee to make application to the lower court for such attorneys’ fees from appellant as are permitted under the law.

Reversed and remanded.

MOORE, J., concurs.

CROSS, J., concurs in part and dissents in part, with opinion.

CROSS, Judge,

concurring in part, and dissenting in part:

I concur in the majority’s conclusion to reverse the order amending the final judgment, and dissent as to remanding for further proceedings on attorneys’ fees, which are inappropriate.


text:
    STATE of Florida, Petitioner, v. David BERBINI and Eugene Muha, Respondents.
    No. 77-1773.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Michael J. Satz, State’s Atty., and William W. Herring and Patti Englander, Asst. State’s Attys., Fort Lauderdale, for petitioner.
    Dewey A. F. Ries, Fort Lauderdale, for respondents.
   PER CURIAM.

Petition for Writ of Common-Law Certio-rari is denied.

ALDERMAN, C. J., and LETTS and MOORE, JJ., concur.


author: LETTS, Judge.

text:
    COASTAL CARIBBEAN CORPORATION, Appellant, v. Lola RAWLINGS and Santo Riccobono, Appellees.
    No. 77-672.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.

      Roger H. Harper, Boca Raton, for appellant.
    Dennis R. Long, of Farish & Farish, West Palm Beach, for appellee, Lola Rawlings.
   LETTS, Judge.

This case arises from the granting of a partial summary judgment to the plaintiff, based on supporting affidavits filed only six days before the hearing. We reverse.

An unsworn complaint was filed to foreclose a mortgage. The mortgagor answered, denying any default and subsequently the plaintiff filed a motion for partial summary judgment, without accompanying affidavits, 27 days before the hearing, with a certification to opposing counsel furnished by mail on said filing date. There are many other factors involving maneuvering around between opposing counsel in this cause, but confining ourselves solely to those pertinent to this opinion, it transpired that the moving party finally did file a supporting affidavit six days before the hearing. The partial summary judgment was granted and this appeal followed.

Appellant claims that the supporting affidavit should have been filed by the moving party at least 20 days prior to the hearing, despite the fact that Rule 1.510 makes no provision as to when affidavits must be filed, except that the adverse party must file them “prior to the day of hearing.” Fla.R.Civ.P. 1.510(c).

In support of his contention, appellant’s only citation is to Ferris v. Nichols, 245 So.2d 660 (Fla. 4th DCA 1971), which, while not on all fours, did suggest that an affidavit in support of a summary judgment would be timely because it was filed more than 20 days prior to the hearing date. However, this dicta was considerably weakened when the same opinion went on to add that it saw no reason why the judge, in his discretion, could not permit the same affidavit to be supplemented or changed AT THE HEARING.

Nonetheless, we are persuaded that the affidavits of the moving party should, in fact, be filed in accordance with the same 20 days, provided for in the rule, concerning notice of the hearing. The reason why we think so, is best expressed by the author’s comment in 31 F.S.A., Fla.R.Civ.P. pp. 55, 56 (1967):

“If in support of a motion for summary judgment, the affidavit should be filed with the motion so as to allow opposing parties time to controvert it.”

While it is surprising that a holding such as we make here has not been enunciated before, we find comfort for doing so from the language of our Supreme Court under the old rule, Fla.R.Civ.P. 1.36, (which only required 10 days notice) wherein it was said:

“In all but extraordinary circumstances, affidavits, in support of the motion, if any there are, should be filed with it to allow the opponent time to controvert them. The ten day minimum time limit prescribed for service is often none too long, considering the swift and dispositive character of the motion. A motion for summary judgment is calculated to save valuable trial time and thus to assist in securing speedy and inexpensive justice, but one object of the new rules of procedure is to prevent surprise, and this equally praiseworthy objective should not be overlooked.” Cook v. Navy Point, Inc., 88 So.2d 532, 534 (Fla.1956).

We do not feel that the extension of the time from 10 to 20 days under the new rule has in any way weakened the above quotation, especially where, as here, the affidavit was filed but 6 days prior to the hearing. We therefore hold, as the standard for this district, that affidavits in support of a motion for summary judgment, if any there are, shall be filed simultaneously with the motion, or at least 20 days before the hearing, in all but extraordinary circumstances. The question will be immediately asked: “What are examples of these extraordinary circumstances?” By the very definition of the word “extraordinary”, we cannot answer in toto, but the unavailability of the affiant at time of filing might be one; although in this example, the gravamen of what he will swear to, when available, should be filed with the court and opposing counsel, at the same time as the motion.

We concede that an affidavit in support of a motion for summary judgment on a mortgage foreclosure will normally contain matter that opposing counsel can hardly claim surprise at. On the other hand, he may be basing his resistance to it, on the very absence of an affidavit and might, if he had known the affidavit was forthcoming, have taken other measures. The granting of a summary judgment is a drastic and sudden conclusion to a lawsuit. It is for this very reason that 20 days notice, of this kind of hearing, is required. We cannot but conclude that any affidavits with which the moving party plans to buttress his summary claim should likewise be presented within the 20 day period, unless a cogent reason for not doing so, is presented.

This cause is reversed, without prejudice to refile the motion for partial summary judgment in accordance herewith.

Appellant’s next point concerns the fact that the affidavits did not comply with Fla.R.Civ.P. 1.510(e), which requires that “Sworn to or certified copies of all papers . referred to in an affidavit shall be attached thereto or served therewith.” Neither a copy of the note or the mortgage was so attached to the instant affidavit. Notwithstanding this technical defect, we find no error in this, because the affidavit swore that the copies of said note and mortgage ATTACHED TO THE COMPLAINT were true and correct copies. We agree that such copies were not served with the affidavit, but they had already been served several months before and we find no prejudice to the appellant.

REVERSED AND REMANDED.

CROSS and MOORE, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Herman I. SHELDON, Respondent.
    No. 77-1100.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Certiorari denied.

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


author: ALDERMAN, Chief Judge.

text:
    Gregory F. SPEER, Eugene A. Speer and Stonewall Insurance Company, Petitioners, v. Joseph DESROSIERS, Jr., a minor by his father and next friend, Joseph Desrosiers, Sr., and Joseph Desrosiers, Sr., Individually, Respondents.
    No. 77-632.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Donald F. Jacobs of Pitts, Eubanks, Ross & Rumberger, Orlando, for petitioners.
    Eric A. Lanigan of Maher & Overchuck, Orlando, for respondents.
   ALDERMAN, Chief Judge.

The respondents, plaintiffs in this personal injury action, served a Request to Produce on the defendants, to which the defendants filed certain objections. Following a hearing, the trial court denied the defendants’ objections to some of the requests. The defendants then petitioned this court for writ of certiorari, which we grant on the ground that the plaintiffs failed to make a showing in their request for production “that the party seeking discovery has need of the materials [prepared in anticipation of litigation or for trial] in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means,” as required by Fla.R. Civ.P. 1.280(b)(2).

The only words in the plaintiffs’ Request to Produce which might be considered a showing of need were these:

Further, plaintiff(s) would state that the above items are relevant to the subject matter of the pending litigation and the plaintiff(s) has need of the materials in the preparation of their case, and the plaintiff(s) are unable without undue hardship to obtain the substantial equivalent by other means.

The record does not reveal what demonstration of need the plaintiffs may have presented during the hearing before the trial court, but in any event we hold that a party requesting production of Rule 1.280(b)(2) materials must include within the request a showing of need and of inability to obtain the substantial equivalent without undue hardship. A “showing” is more than a bare assertion; it consists of specific explanations and reasons.

As for the time when the showing must be made, we believe that a reading of Rule 1.280(b)(2) itself leaves no doubt that a showing in the request for production itself is contemplated. The rule states that a party may obtain discovery “only upon a showing . . . .” It was obviously intended that the showing should be made as a routine prerequisite to production of Rule 1.280(b)(2) materials, and not that it should be brought out for the first time at a judicial hearing. The same conclusion is implied in Transamerica Insurance Co. v. Maze, 318 So.2d 200, 201 (Fla. 2d DCA 1975):

The request to produce did not assign any reasons for the statements but merely sought them; while the rule clearly places the burden on the movants . to show a need for the sought after statements in the preparation of their case. Further, the movants must demonstrate they are unable, without undue hardship, to obtain the equivalent of the statements by any other means.

We conclude that the trial court departed from the essential requirements of law, and that the petitioners, if forced to produce items for which the respondents have not made the necessary Rule 1.280(b)(2) showing, would have no remedy on appeal. The petition for writ of certio-rari is granted and the case remanded.

LETTS and MOORE, JJ., concur.


text:
    John EDGAR, Appellant, v. STATE of Florida, Appellee.
    No. 76-1859.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Richard L. Jorandby, Public Defender, and Henry Prettyman and Frank B. Kes-sler, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon authority of In the Interest of W. J. N., 350 So.2d 119 (Fla. 4th DCA 1977) and Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977).

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


text:
    Edward BERNDT and Andrea Berndt, Appellants, v. PLANNING DEVELOPMENT ASSOC., INC. and First National Bank and Trust Company of Riviera Beach, Appellees.
    No. 76-1373.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Walter N. Colbath, Jr. of Campbell, Kap-ner, Colbath & Fine, West Palm Beach, for appellants.
    Herbert P. Benn of Blank, Williams & Benn, West Palm Beach, for appellees.
   PER CURIAM.

The appellants, Edward Berndt and Andrea Berndt, sued the appellee, First National Bank and Trust Company of Riviera Beach, alleging that the bank wrongfully disbursed funds held in escrow. The trial court granted an oral motion to dismiss by the bank and dismissed the case with prejudice. A previous written motion to dismiss had been denied. At the time of the dismissal a copy of an escrow agreement setting out the responsibilities of the bank was before the court. When the escrow agreement is considered together with the allegations made by the appellant, it appears that the appellant could have stated a cause of action against the bank if granted leave to amend. We believe the trial court should not have granted the motion to dismiss with prejudice. Accordingly, the order of dismissal is hereby reversed with directions that the appellants, Edward and Andrea Berndt, be allowed a reasonable time to amend their complaint.

ALDERMAN, C. J., and ANSTEAD, J., concur.

DAUKSCH, J., concurs in conclusion only.