author: ENGLAND, Justice.

text:
    In re INTEREST ON TRUST ACCOUNTS, A PETITION OF THE FLORIDA BAR to Amend the Code of Professional Responsibility and the Rules Governing the Practice of Law.
    No. 51182.
    Supreme Court of Florida.
    March 16, 1978.
    Russell Troutman, President of The Florida Bar, Winter Park, William E. Sherman, Chairman of The Florida Bar Committee, DeLand, Leonard H. Gilbert, Chairman of The Florida Bar Integration Rule and Bylaw Committee, Tampa, and Norman A. Faulkner, Staff Counsel, Tallahassee, for The Florida Bar, for petitioner.
    Henry P. Trawick, Jr., Sarasota, Russell E. Carlisle, Fort Lauderdale, and Robert L. Travis, Jr., Tallahassee, for Florida Legal Services, Inc., amicus curiae.
    Earle W. Peterson, Jr. of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Bankers Association, amicus curiae.
    James H. Gilbert, Jr. of English, McCau-ghan & O’Bryan, Fort Lauderdale, and Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale.
   ENGLAND, Justice.

The Board of Governors of The Florida Bar, with the concurrence of the Board of Directors of the Florida Bar Foundation, Inc., has petitioned this Court requesting that we amend the rules governing the practice of law in Florida to authorize attorneys to invest trust funds held for clients in order to generate investment income for the benefit of public interest programs related to the legal profession. So far as we can determine, this request is the first of its kind in the United States, although the use of clients’ trust funds in the manner proposed has found acceptance in a number of other English-speaking jurisdictions.

We approve the Board’s concept of authorizing interest-bearing trust accounts, under procedures and for uses more fully developed below, and we commend the Bar for proposing this significant and innovative program to improve the administration of justice and to expand the capabilities for its delivery.

I

Beginning in 1971, the organized bar of Florida began a study of the possible use of interest on clients’ trust funds for public programs designed to improve the administration of justice. Extensive data was gathered from jurisdictions which have authorized like procedures, and periodic reports were developed both as to the feasibility and desirability of a proposal of this type in Florida. Activity on this project accelerated in 1976, and under the guidance of Bar president Ed Atkins, special committee chairman William Sherman, Bar Foundation president Burton Young, and Foundation special committee chairman Julian Clarkson, specific recommendations took shape. In late 1976, the governing boards of the Bar and the Foundation formally approved the concept of allowing interest-bearing trust accounts, after which specific implementing amendments to the Integration Rule, to the by-laws to the Rule, and to the Code of Professional Responsibility were presented to the Court.

II

The history of restrictions on the use of clients’ trust funds is highly relevant to our decision today, as is the experience of other countries in authorizing their use. As regards the former, regulation of attorney trust accounts in Florida dates back to an 1828 act of the Legislative Council of the Territory of Florida. In 1936 this Court adopted the Canons of Professional Ethics of the American Bar Association, incorporating the regulation of attorney trust accounts into the Court’s rules. After the regulatory structure of lawyers became formalized by integration of the bar, the control of clients’ funds remained subject to scrutiny under Rule XI, Section 2 of the Integration Rule. In 1970 the Canons gave way to the present Code of Professional Responsibility, which amplified the treatment of clients’ trust funds through Disciplinary Rule 9-102.

The thrust of these several regulatory measures, as well as advisory opinions on the subject offered by ethics committees of the American Bar Association and The Florida Bar, was to assure that lawyers, as “trustees”, would neither misuse clients’ funds nor impede their prompt delivery to the client on demand. Since general ethical proscriptions against misuse have not always been successful, we augmented those protections in 1966 by the creation of a Clients’ Security Fund designed to compensate -clients who might lose money held in trust for them by Florida attorneys.

As the rules stand today, clients’ funds held by an attorney must be segregated into a clearly labeled “trust account” unless they are received for the payment of fees or for the reimbursement of costs for services already rendered. There is no inhibition, however, against an investment of clients’ funds in a special trust account pursuant to the provisions of a specific trust document. Clients’ funds are not subject to counterclaim or set-off for attorney’s fees, and they must be available for prompt delivery to the client upon request.

To guarantee compliance with these mandates, we recently amended trust accounting procedures to require attorneys in Florida to maintain strict records of all trust account transactions and to preserve these records for at least six years, to reconcile trust account balances on a quarterly basis, and to furnish to the Bar an annual certificate of compliance with trust accounting procedures. A failure to comply with any of these requirements provides cause for the Bar to conduct an audit at the attorney’s expense, and any evidence of impropriety in the management of trust funds may, of course, lead to the initiation of disciplinary proceedings.

Ill

Absent any personal financial incentive to make clients’ funds productive, and faced with the complex and expensive accounting problems inherent both in the investment of these funds and in the apportionment of their earnings among individual clients, attorneys have typically deposited clients’ funds in non-interest-bearing commercial bank checking accounts. Most attempts) to devise a method whereby funds could bej deposited in an interest-bearing account1, and, at the same time, be continuously \ available for prompt delivery to a client / upon request, have run afoul of federal and \ state banking regulations which historically j have barred the payment of any interest on/ funds held in commercial bank checking accounts or the immediate withdrawal of funds held in savings accounts. As a result of these forces, banks have been the beneficiaries of a system which requires substantial sums of interest-free money to be deposited with them for significant periods of time.

IV

In several significant ways, recent changes and proposed modifications in U.S. banking practices, tracking earlier developments in other English-speaking jurisdictions, have eroded the various practical and legal problems which to date have barred the generation of earnings on attorney trust accounts. Negotiable Order of Withdrawal (NOW) accounts, which resemble checking accounts but permit the payment of interest at a rate slightly lower than that of ordinary savings accounts, have been approved for operation in the New England states, and the Federal Reserve Board of Governors has recommended to Congress that such accounts be made available nationally. Commercial banks now generally honor telephonic instructions for the transfer of funds from a savings account to a checking account of the same depositor, and some commercial banks accept written or oral “standing instructions” from depositors to the effect that savings account funds shall automatically be transferred into a cheeking account to meet overdrafts or other shortages. Some savings institutions will now accept automatic transfer instructions to a non-affiliated commercial bank.

On the practical side, any technological difficulties attending the computation of account balances, charges, and earnings have long been resolved. Computers used in virtually all financial institutions have the capacity, and in fact are presently employed, to compute average periodic account balances (daily, monthly, etc.) for a variety of purposes, such as determining service charges and calculating savings interest. The institutional capability to meet the needs of the Bar’s proposed program — to compute and pay interest on trust account balances — was documented by a close evaluation of the trust accounting system in Vancouver, British Columbia.

V

Interest is paid on attorney trust accounts in 17 jurisdictions around the world, and proposals to authorize such payments are under consideration in at least two others. In response to inquiries from The Florida Bar, persons associated with programs presently operating in some of these jurisdictions have reported overwhelmingly favorable experiences with the results achieved, while encountering virtually no difficulty or expense in plan administration.

As might be expected, specific plan features tend to vary somewhat among individual systems. Nonetheless, the majority of programs have the following common elements:

(1) interest to be earned on clients’ trust funds is computed by reference to a minimum or average balance in attorney trust accounts;

(2) interest from these accounts is channeled directly to a foundation established by the legal community to receive and disburse the earnings;

(3) earned income is allocated in part to pay claims arising from the loss or theft of clients’ funds, and in part for distribution among various legal programs designed to improve the administration of justice, such as legal aid, scholarships and research.

The Canadian province of British Columbia, with a legal structure similar to our own, has established an exemplary program for collecting and using interest on clients’ funds. It began in 1970 when the newly-formed Law Foundation of British Columbia began receiving interest on lawyers’ trust accounts. At a negotiated interest rate of 3%, the income produced in that first year of voluntary plan participation was approximately $50,000. By 1972 the plan was generating in excess of $250,-000 annually for the Law Foundation, and the initial concerns of lawyers and bankers regarding the feasibility of the program were dispelled. In November of that year participation in the plan was made mandatory as to trust accounts with balances exceeding $5,000. Three years later the program was made mandatory for the full balance in all trust accounts maintained by province lawyers for the deposit of their clients’ funds. Interest income now totals over $2 million annually.

No specific form of notification is required to be given to clients of British Columbia attorneys concerning the generation of income on their funds. As was traditionally the case there, large client deposits and amounts held for significant periods of time are invested specially to earn interest on the clients’ behalf.

The income of the Law Foundation to date has been devoted predominantly to legal aid, to law libraries within British Columbia, and to law reform projects. A small portion has been used for administrative purposes and as a reserve. Professional management of the Law Foundation’s funds is provided by investment advisers at Vancouver Trust Company. No intra-office bookkeeping burdens are imposed on province attorneys, and their only identifiable cost for fund participation appears to be the modest fee charged by their own accountants for a required annual certification of trust accounts.

Many features of the British Columbia program, which minimizes complexity, administrative burdens, and bar monitoring, are readily adaptable to a similar program in Florida.

VI

The Bar’s proposal to allow the collection of earnings on trust accounts contains these general features:

1. The plan would be voluntary, at least until such time as federal law permits the payment of interest on checking accounts or the writing of checks on savings accounts;

2. The proposal would be implemented under by-laws approved by the Board of Governors, rather than through our Integration Rule;

3. Clients’ funds would be invested in savings accounts or in United States securities, subject to immediate availability through transfer to attorney trust checking accounts;

4. Attorneys would be permitted to establish three classes of trust accounts — interest-bearing “special accounts” for individual clients, interest-bearing “registered accounts” for multiple clients, and the traditional non-interest-bearing “general accounts” for multiple clients;

5. Earnings on interest-bearing registered accounts would fund programs of the Bar, the Foundation, and Florida Legal Services, Inc., designed to provide legal aid to the poor, to enhance the delivery of legal services, to provide supplemental protection to clients through the security fund, to improve and expedite grievance procedures, to make student loans, and to implement other programs aimed at improving the administration of justice;

6. Interest payments on these accounts would be transmitted from the respective financial institutions used by individual attorneys and firms directly to the Bar, no less frequently than annually; and

7. Although full disclosure would be required, it would be presumed in the absence of contrary instructions that clients prefer to have their funds placed in an interest-bearing registered account to obtain supplemental protection under the clients’ security fund.

Florida Legal Services, Inc., a proponent of the Bar’s general proposal, suggests that the proposed plan be modified in certain major respects. It recommends that the program be governed by the Integration Rule rather than the Bar’s by-laws, and that a specific formula be established for public interest disbursements, subject to change by the Court, but ostensible and available to provide predictability in the establishment of legal benefit programs.

VII

Opponents of the Bar’s proposal, aside from their criticisms of select features of the proposal, offer these reasons why we should not approve the proposal in any form:

1. Inasmuch as the Court controls the admission and discipline of attorneys, it should not ask the lay public (clients) to ensure against the Court’s errors in exercising supervisory powers;

2. The Court should not ask the lay public to pay for Bar programs;

3. The proposal is an attempt to divert funds rightly belonging to clients to the purposes of the Bar, casting a shadow of impropriety on the profession;

4. The proposal would conflict with ethical standards which prohibit attorneys from benefiting from the investment of their clients’ funds;

5. The proposal creates potential conflicts of interest, such as providing incentives for an agreement by an attorney not to participate in the voluntary plan in exchange for a bank’s reduction of interest charges on a personal loan;

6. The Bar has failed to present factual support for its recommendation, there being only conclusory statements as to the present banking procedures of attorneys regarding clients’ trust funds and as to the benefits which banks allegedly derive from present practices;

7. The Bar’s proposal conflicts with federal law, which prohibits banks from paying interest on checking accounts, and thus seeks to do indirectly what the law prohibits doing directly;

8. Under present law, banks have the privilege of imposing a 30-day waiting period on savings account withdrawals, so that clients' funds may not always be available immediately upon request;

9. Commercial banks will be competitively disadvantaged since they, unlike savings and loan institutions, are prohibited from holding savings deposits of more than $150,000; and

10. Commercial banks will “be required to pay interest on some funds which they may now use without compensation to the depositor,” but will not be reimbursed for the additional accounting and bookkeeping functions.

In light of the novelty of the Bar’s proposal in this country, some discussion of the more plausible objections is appropriate.

The general characterization of the Bar’s proposal as a mechanism by which money properly belonging to clients will be improperly diverted to the legal profession ignores several factors. First, the funds in question are not now available to individual clients, and for practical reasons cannot be made available to them. To the extent that funds do and can benefit individual clients, the proposed changes do not alter current practices. Second, it is misleading to suggest that interest generated under the Bar’s proposal will accrue to the benefit of individual attorneys or to the organized bar, since the beneficiaries of the Bar’s programs are members of the lay public. Society in general, not just the legal profession, benefits from the reimbursement of defalcations, from legal services provided to the poor, from student loans, and from more efficient machinery to purge and punish errant attorneys. Contrary to the assertion of legal impropriety, each of the purposes served by the Bar’s proposal is now specifically recognized and encouraged in the code of conduct and in programs approved by this Court, and by the organized bars nationwide.

Other objections are equally unconvincing. To meet the suggestion that the proposal conflicts with banking procedures and regulations, we observe that the Federal Reserve has expressly condoned the telephone transfer system and NOW accounts, both of which have features ho different from the Bar’s proposal. To meet the suggestion that there is no evidence to show that banks presently benefit from current trust account restrictions, we note that the Florida Bankers Association has expressed its dissatisfaction with the prospect of paying interest on funds which are presently used at no cost. To meet the assertions of potential disadvantage to commercial banks, we simply note that banks now compete with savings associations for all other forms of commercial business, and, more importantly, that they alone have the advantage of being able to offer both savings and checking account services in the same institution — a convenience that might well compensate for any loss of business due to limitations on the amount which they can hold in savings deposits.

Finally, as regards potential conflicts of interest, we are not convinced that the Bar’s proposal will pose problems which differ significantly from those inherent in the present freedom allowed attorneys in the selection of financial institutions for their business, or that existing disciplinary procedures will be inadequate to cope with any problems that may arise.

In sum, we find that the reasons offered in opposition to the Bar’s proposal do not warrant its rejection. Our accumulated acquaintance with the actualities of the practice of law, supplemented by our experience in discharging our continuing responsibility to enforce the trust accounting provisions of our Integration Rule and the Code of Professional Responsibility, provide an adequate foundation on which to evaluate the risks of adopting the Bar’s proposal. We find that these risks are minimal, and that they are far outweighed by the many potential public benefits which will flow from our approval of the Bar’s proposal.

VIII

We conclude, therefore, that the Bar’s proposal should be adopted, subject to the following major modifications:

1. Implementation will be effected through the Integration Rule rather than through by-laws alone;

2. Interest earned on trust accounts will be remitted to the Foundation rather than the Bar, at least quarterly, for distribution among the agencies which will provide approved services;

3. Clients’ trust funds may be invested in savings accounts of qualified financial institutions, but not in U.S. government or other securities;

4. No filing of any sort with the Bar will be required other than a certificate of annual compliance with minimum trust account procedures, and no accounting and record-keeping requirements shall be imposed on plan participants other than those minimum requirements expressed in the new rules;

5. In lieu of special name designations for attorney trust accounts, all accounts in which clients’ funds are deposited will, as they are now, simply be identified as “trust accounts”;

6. Attorneys and law firms participating in the program shall obtain their clients’ consent to the investment of trust funds by sending to each client a notice, in the form set out below, providing information concerning the new procedures and the uses of trust earnings. Attorneys will remain free, however, to exercise their discretion to arrange special investments (not limited to savings accounts) for the funds of their clients when appropriate;

7. Authority is provided for the availability of funds to meet a client’s emergency needs in the event a financial institution refuses to allow the immediate withdrawal of funds held for the client in a trust savings account; and

8. In light of the number of trust accounts and financial institutions likely to be used by Florida attorneys under the plan, an annual certificate of trust account rectitude and of compliance with minimum trust accounting procedures, prepared by a certified public accountant, will be required of attorneys or firms electing to use a trust savings account.

IX

To authorize Florida attorneys to invest clients’ trust funds, we adopt the following amendments to the Integration Rule, to the by-laws implementing the Integration Rule, and to the Code of Professional Responsibility:

1. References to savings and loan associations are added to the first sentences of Integration Rule 11.02(4)(a) and (b) so that they read, respectively:

“Any bank or savings and loan association account maintained by a member of The Florida Bar to comply with Disciplinary Rule 9-102 of the Code of Professional Responsibility is and shall be clearly labeled and designated as a trust account.”
“A member of The Florida Bar shall preserve or cause to be preserved the records of all bank and savings and loan association accounts or other records pertaining to the funds or property of a client maintained by him in compliance with Disciplinary Rule 9-102 for a period of not less than six years subsequent to the last transaction pertaining to the same or subsequent to the final conclusion of the representation of a client relative to such funds or property, whichever shall last occur.”

2. Integration Rule 11.02(4)(c) is amended to read:

“(c) Trust Accounting Procedures. The Florida Bar shall promulgate by-laws under this rule, such by-laws and amendments thereto to be approved by this Court, prescribing minimum trust accounting records which shall be maintained and minimum trust accounting procedures which must be followed by all attorneys practicing in Florida who receive or disburse trust money or property. The minimum procedure shall require reconciliation of trust account balances at periodic intervals and the annual filing of a certificate reflecting compliance with minimum record keeping and procedural requirements, which certificate shall be prepared by a certified public accountant if one or more trust savings accounts are utilized. Failure to file the required certificate, the filing of a trust savings account certificate showing non-compliance with the by-laws, or the return of a trust account check for insufficient funds shall be good cause for The Florida Bar to order an audit of the trust account at the cost of the attorney audited. Other audits for cause conducted by The Florida Bar shall be at the cost of the attorney audited unless the audit reveals that the attorney was without fault and that his trust account records and procedures are in substantial compliance with the minimum requirements.”

3. Section (B)(1) of the by-laws implementing Integration Rule 11.02(4)(c) is amended to read:

“1. A separate bank account or accounts, and if utilized a separate savings and loan association account or accounts, clearly labeled and designated a trust account as provided in Rule 11.-02(4)(a).”

4. Section (B) of the by-laws implementing Integration Rule 11.02(4)(c) is amended to add a new paragraph (6) to read:

“6. A journal or other appropriate record documenting all transactions relating to any bank or savings and loan association trust savings account, and copies of all bank or savings and loan association reports or correspondence reflecting periodic account balances and the earnings thereon.”

5. Section (D) of the by-laws implementing Integration Rule 11.02(4)(c) is amended to add a new paragraph (3) to read:

“3. If one or more trust savings accounts are maintained during the preceding calendar year, then in lieu of the filing required in paragraph (2) the lawyer or law firm shall file with The Florida Bar between June 1 and August 15 of each year a certificate prepared by a certified public accountant stating:
“I certify that I have examined all trust accounts of [lawyer or law firm name] and have determined that there have been no overdrafts or shortages in those accounts, that all account balances reconcile as of the close of the fiscal year ending -, and that related records and accounts are in substantial compliance with the minimum requirements as to trust accounting records and procedures set forth in the by-laws under Florida Bar Integration Rule 11.02(4).
Certified Public Accountant”
In the event that any account reflects an overdraft or shortage during the year, or any trust account balance does not reconcile, or the records and accounts are not in substantial compliance with the bylaws, the accountant shall so state in lieu of providing this certificate of compliance and the lawyer or law firm may file with the Bar, along with the accountant’s statement, a written explanation for the failure to meet certification requirements.

6. The preliminary clause of Disciplinary Rule 9-102(A) of the Code of Professional Responsibility is amended to read:

“All funds of clients paid to a lawyer or law firm, other than including advances for costs and expenses, shall be deposited in one or more identifiable bank or saving's and loan association accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:”

7. A new Integration Rule 11.02(4)(d), publishable without the footnote comment, is adopted to read:

“(d) Trust Savings Accounts. A member of The Florida Bar who elects to create or maintain a trust savings account shall comply with the following provisions:
(i) A trust savings account may be established with any bank or savings and loan association authorized by federal or state law to do business in Florida and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.
(ii) Except as otherwise required by law, funds in each trust savings account shall be subject to withdrawal, or to transfer to a trust checking account, upon request and without delay. Any depository institution permitted by law to require advance notification (30 or 60 days) before allowing withdrawal of savings deposits is nonetheless eligible to act as a depository for trust savings accounts under this rule if it meets the requirements of paragraph (i) above, provided the institution has not acted to delay the withdrawal of deposited funds (other than for the clearance of deposited funds or for good cause attributable to the circumstances of the particular depositor rather than the institution’s financial needs or general policy) at any time during the past five years. An otherwise qualified institution which has not been in existence for five full years may serve as a trust savings account depository if it has met the requirements of this subsection throughout its existence.
(iii) An institution shall cease to be eligible for the receipt of trust savings funds at such time as it fails to qualify under paragraphs (i) or (ii). Any lawyer or law firm maintaining a trust savings account against which immediate withdrawal rights are refused shall immediately notify the Florida Bar Foundation, Inc. of the name and address of the depository institution and the date of such refusal.
(iv) If, pursuant to governing law or banking regulations, a depository institution requires notice in writing for an intended withdrawal not less than 30 days before such withdrawal is made, the lawyer or law firm may certify to the Florida Bar Foundation, Inc. that the client’s funds detained as a result of the depository institution’s notification requirement are needed immediately for the client’s affairs.
(A) Upon receiving such certification, the Foundation shall be authorized to advance to the certifying lawyer or law firm, from the interest earned on trust savings accounts, an amount of money necessary to meet the client’s emergency needs subject, however, to limitations expressed in subparagraph (C).
(B) Simultaneously with certification, the lawyer or law firm shall direct the depository institution in writing, with a copy to the Foundation, that upon the expiration of the notification period detained funds equal to the amount advanced by the Foundation shall be remitted directly to the Foundation.
(C) The Board of Directors of the Foundation may adopt rules of procedure reasonably necessary to implement the authority provided in subpar-agraph (A) and to assure full reimbursement of sums advanced. Periodically the Board may set dollar limitations on the amount of money which may be advanced to meet the emergency needs of any client in the event a notification requirement is imposed by a depository institution.
(v) The rate of interest payable on any trust savings account shall not be less than the rate paid by the depository institution to regular, non-attorney savings depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm so long as there is no impairment of the right to withdraw or transfer principal immediately (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby.
(vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution:
(A) to remit interest or dividends, as the case may be, on the average monthly balance in the account, at least quarterly, to the Florida Bar Foundation, Inc.;
(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and
(C)to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, the average account balance for each month of the period for which the report is made, and any remittances to the Foundation made during that period pursuant to subparagraph (iv)(B).
(vii)Lawyers and law firms electing to deposit client funds in a trust savings account shall transmit to each client for whom trust funds are now held, and to each new client for whom funds are to be held, a copy of the notice reproduced below. The Florida Bar shall print and maintain a supply of this notice, and distribute copies without charge to those who may request them. The Bar’s costs for printing and distribution shall be treated as a cost of administering the program, and shall be reimbursed to the Bar by the Foundation from interest earned on trust accounts.
“Important Notice to Clients
For your protection, the Florida Supreme Court requires that all funds of a client which are held by an attorney must be deposited in a trust account separate from the attorney’s, and must be kept available for immediate withdrawal. Because most clients’ funds which come into the hands of attorneys are relatively small in amount or are to be held for relatively short periods of time, it is impractical for attorneys to establish a separate account for each client or to invest each client’s funds to earn interest. For this reason client funds are held in a common trust checking account on which the depository bank pays no interest.
Under a new program approved by the Florida Supreme Court, attorneys are now permitted to deposit clients’ common trust funds in savings accounts. Due to the expense and complexity which would attend any attempt to compute or distribute the interest attributable to each client’s funds, it is not feasible to pay to individual clients the earnings on their proportionate share of common trust savings accounts. Of course, no attorney is permitted to receive the earnings on a client’s funds, either. Rather, under the Supreme Court’s new directive, the interest income from clients’ deposits will be used to fund programs designed to benefit the general public.
The goals of the Court’s program are to improve the administration of justice in this state, to expand the delivery of legal services to the general public, and to enhance the bar’s ability to reimburse clients who may lose money as a result of an attorney’s misconduct or errors.
We have sent you this explanation, at the direction of the Florida Supreme Court, to advise you that we are participating in the Court’s new program and that the funds you have entrusted to us for your affairs (other than attorneys’ fees) will be deposited in an interest-bearing trust savings account unless you specifically give us written instructions to the contrary. A directive not to allow such use of your funds will not produce income for you. Your funds will simply be placed in a non-interest-bearing trust checking account until needed.”

X

The Florida Bar Foundation, Inc. has offered its support to the Bar’s proposal and has agreed to do whatever is necessary for its implementation. Its governing documents are presently unsuited to the responsibilities it will have under the new program. Consequently, it will be necessary to amend the charter and by-laws of the Foundation in addition to the Integration Rule, the by-laws, and the Code of Professional Responsibility. Accordingly, the officers and directors of the Foundation are directed to initiate prompt amendatory steps under Article 10 of the charter to meet the following requirements, and to make any other changes not inconsistent therewith which may be necessary to carry out the Foundation’s additional responsibilities and expanded activities under this directive:

1. The Board of Directors shall be expanded to include as permanent board members the Chief Justice of the Florida Supreme Court, two other judicial officers to be appointed by the Chief Justice and to serve at his pleasure, the president of The Florida Bar, and the chairman of the board of Florida Legal Services, Inc.

2. The charter of the Foundation should expressly authorize distributions of Foundation funds to The Florida Bar and to Florida Legal Services, Inc., and it should expressly authorize the use of Foundation funds for any of the following purposes:

(a) to provide legal aid to the poor;
(b) to provide for the adequate delivery of legal services to all members of the public;
(c) to augment the clients’ security fund with a view toward full reimbursement;
(d) to fund a more expeditious and efficient grievance mechanism;
(e) to provide student loans;
(f) to improve the administration of justice; and
(g) for such other programs for the benefit of the public as are specifically approved by the Court from time to time.

3. The Board of Directors shall be required to meet at regular specified intervals, at least semi-annually.

4. The charter shall authorize capital expenditures, accumulations, or reserves only as may be necessary to meet the reasonable working needs of the Foundation in administering this program and to assure the payment of advances authorized under Integration Rule 11.02(4)(d)(iv).

5. The charter shall expressly authorize the retention of professional investment advisory services.

XI

These amendments to the Integration Rule, to the by-laws, and to the Code of Professional Responsibility shall become effective at 12:01 A.M. on July 1, 1978, or on such earlier date as the Court may specify after being notified that the Foundation’s charter amendments have been filed with the Secretary of State.

It is so ordered.

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

ADKINS, J., dissents.

      . Original jurisdiction vests in this Court pursuant to Art. V, § 15, Fla.Const.

      . Entitled “An Act to prescribe the mode by which attorneys and counsellors at law may be admitted to practice in the Courts of the Territory,” § 7 of that Act provided:
      “Be it further enacted that if any attorney collects money for his employers and refuses to pay it over on demand, he shall be stricken from the rolls and not allowed to practice within the territory until he shall pay over the money to his client or legal representative and he shall be liable for suit for the same and subject to a penalty of ten percent for every month he detains the same after a demand regularly made.”

      . In re Canons of Professional Ethics, 125 Fla. 501, 506 (1936). “11. Dealing With Trust Property. Money of the client or other trust property coming into the possession of the lawyer should be reported promptly, and except with the client’s knowledge and consent should not be commingled with his private property or be used by him.”

      . Petition of Florida State Bar Ass’n, 40 So.2d 902 (Fla.1949).

      . “Where money or other property has been entrusted to an attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or setoff' for fees against any money or other property of his clients coming into his hands, and a refusal to account for and deliver over such money or property upon demand shall be deemed a conversion.”

      . In re Integration Rule of the Florida Bar, 235 So.2d 723 (Fla.1970).

      . See, e. g., ABA Informal Opins. 545 (May 31, 1962) and 991 (July 3, 1967); Fla.Bar Advisory Opins. 72-13 (May 9, 1972) and 76-30 (Sept. 13, 1976).

      . “The very nature of the lawyer’s business is that of trustee.” Petition of Florida State Bar Ass’n, 40 So.2d 902, 909 (Fla.1949).

      . Fla.Bar Integr.Rule, art. XVII, adopted in In re Integration Rule of The Florida Bar, 186 So.2d 781 (Fla. 1966) (subsequently amended in In Matter of The Florida Bar, 237 So.2d 150 (Fla.1970)), and Fla.Bar Integr.Rule By-laws, art. XVI. For a concise but thorough discussion of the origins and operation of the Clients’ Security Fund, see Atkins and Kane, Clients’ Security Fund Maintains Bar's Integrity, 44 Fla. B.J. 130 (March 1970).

      . Fla.Bar Code Prof.Resp., DR 9-102(A), and Fla.Bar Integr.Rule, art. XI, Rule 11.02(4)(a). But see note 46 below, and accompanying text.

      . See by-laws implementing Integration Rule 11.02(4)(c), subsection (A), as approved by this Court in In re Amendment to Integration Rule Article XI, 338 So.2d 1072 (Fla. 1976).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.02(4).

      . Fla.Bar Code Prof.Resp., DR 9-102(B)(4).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.02(4)(b).

      . See by-laws implementing Integration Rule 11.02(4)(c), subsection (D)(1).

      . See Fla.Bar Integr.Rule, art. XI, Rule 11.-02(4)(c), and by-laws implementing Integration Rule 11.02(4)(c), subsection (D)(2). Implementation of the annual compliance certificate was deferred by the Court for one year, however. In re The Florida Bar, 346 So.2d 1033 (Fla.1977).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.02(4)(c). We are told that trust account abuse and neglect are the predominant causes of lawyer disciplinary proceedings. Our case law bears this out. Trust account difficulties were evident in approximately 56% of all reported disciplinary actions against Florida attorneys from Jan. 1, 1970, to Jan. 1, 1977.

      . Clients’ deposits vary so widely in both amount and duration that it would be exceedingly difficult, if not impossible, to apportion the interest earned on a general account among the respective clients whose funds from time to time compose it. The establishment of separate accounts for each individual client would also be highly impractical.

      . 12 U.S.C. § 371a (1945) provides in pertinent part:
      “No member [of the Federal Reserve System] shall, directly or indirectly, by any device whatsoever, pay any interest on any deposit which is payable on demand . . .
      See also 12 C.F.R. §§ 217.1(e)(2), 217.2-.5 (1977).
      § 654.02, Fla.Stat. (1975) provides:
      “No savings bank or institution shall be required to pay any deposit with such company until the depositor shall have first given it 60 days’ notice that he intends to require payment of such deposits.”
      See also § 656.18(1), Fla.Stat. (1975) (prohibiting industrial savings banks from carrying “commercial or demand banking accounts”) and § 665.708, Fla.Stat. (1975) (the “Savings Association Act”, permitting such associations to accept only such deposits and other accounts as “may be used for fixed, minimum, or indefinite periods of time of not less than 30 days . . . .”).

      . Even small amounts received from a variety of clients for varying periods can result in large average monthly balances in attorney trust accounts. Large short-term client deposits, or modest deposits to be held for significant periods, are usually invested by attorneys in an interest-bearing medium for the client’s benefit. See Fla.Bar Advisory Opin. 76-30 (Sept. 13, 1976), approving this form of investment based on full disclosure.

      . See “Burns Eyes Interest on Bank Checking”, Tampa Tribune, March 11, 1977, at 20-A, col. 1. The Financial Institutions Act of 1975, which passed the U.S. Senate as Senate Bill 1257 in December of 1975 but failed to win approval in the House, would have permitted NOW accounts to be offered by commercial banks, savings and loan associations, and mutual savings banks on a nationwide basis. See Fed.Banking L.Rep. (CCH), No. 547, paragraph 96,493, March 27, 1975.

      . Withdrawal of savings deposits by telephone has been specifically permitted since the Federal Reserve Board of Governors withdrew its objections to such transactions in 1975. The Board noted that its policy against telephone withdrawal services, which had been in effect since 1936, was no longer necessary because “security and record-keeping devices made possible by new technology will keep errors and unauthorized use to a minimum.” The change in policy was further explained as follows:
      “(c) The Board recognizes that the telephone has become an accepted medium for transmitting financial data and that the telephone merely provides the customer with an additional method of communicating instructions regarding his account to his bank. In fact, numerous other depository institutions including nonmember commercial banks and savings and loan associations have for some time been permitted to offer telephone withdrawal services.”
      12 C.F.R. § 217.152 (1977).

      . This information was determined in early 1976 by telephone inquiries to appropriate officers of the Barnett Banks of Jacksonville and Tallahassee, the Exchange National Bank of Tampa, and the Southeast First National Bank of Miami. The Board of Governors of the Federal Reserve has now proposed a rule which would permit member banks to arrange with their depositors for the automatic transfer of funds from depositors’ savings accounts to their demand deposit (checking) accounts. Prop.Reg. § 217.5, 43 Fed.Reg. 5008 (1978).

      . In a recent interview appearing in the official publication of the Florida Bankers Association concerning the trend toward the establishment of savings and loan association checking accounts, the president of one of the ten largest publicly held savings and loan organizations rejected the need for this innovation, stating:
      “Well, our customers can transfer money from their savings accounts to their checking accounts at their commercial banks through electronic funds transfer, or they will be able to do it very shortly, and this can be done quickly. We don’t need checking accounts for S & L’s on top of that. It just creates more paperwork.”
      The full interview is reported in 4 FLORIDA BANKER 19-21 (Sept. 1977).

      . Interest-bearing trust account programs are currently operating in the Republic of South Africa, South West Africa, Rhodesia, the Australian states of Victoria, New South Wales, South Australia, Queensland, the Australian Capital Territory, and the Canadian provinces of Ontario, Alberta, Manitoba, New Brunswick, Prince Edward Island, Nova Scotia, Saskatchewan, Quebec, and British Columbia. Similar plans are under consideration in England and Newfoundland.

      . The only unfavorable experience that has come to our attention is not attributable to the earnings concept, but rather reflects a defect in the client protection methodology. The Australian state of Victoria reports that a monumental “defalcation” by one solicitor in 1975 resulted in claims against the Solicitors’ Guarantee Fund that totaled $8.5 million. Under the program all clients were required to be reimbursed, and as a consequence the fund was exhausted. It is noteworthy that, although significant amendments to the relevant statutory provisions are being contemplated to ensure against a recurrence of such drains on the fund, the earnings program there remains intact.

      . For example, the African countries, have adopted plans under which participation is optional, while Australian and Canadian programs, some of which began as optional plans, are now uniformly mandatory.

      . The legal profession in Canada has a voluntary national bar association similar to the American Bar Association. Lawyers in British Columbia are part of an integrated bar (The Law Society of British Columbia), governed by a Board of Governors (The Benchers). A nonprofit organization (the Law Foundation) was created independently of the Benchers to receive interest earned on lawyers’ accounts. The intra-province structures parallel closely The Florida Bar, its Board of Governors, and the Florida Bar Foundation, Inc.

      . Interest-bearing accounts were approved in British Columbia pursuant to statutory authority under § 37(l)(k) of the “Legal Professions Act”, R.S.B.C. 1960, c. 214, enacted in 1969, c. 15, s. 15. Unlike our Florida Bar, which operates entirely within the domain of this Court under Art. V, § 15 of the Florida Constitution, the Law Society of British Columbia derives its existence and powers from the Legislature.

      . “Part H” of the Law Society Rules, promulgated pursuant to § 37(l)(k) of the “Legal Professions Act”, R.S.B.C.1960, c. 214, as amended by 1972, c. 32, s. 2 (since rep. and sub. 1974, c. 49, s. 2). The authority of the Law Society to make rules requiring members to utilize interest-bearing trust accounts was upheld by the British Columbia Supreme Court in McAfee v. Law Society of British Columbia, 57 D.L.R.3d 730 (B.C.Sup.Ct.1975).

      . Law Foundation Annual Report for the fiscal year ending April 30, 1976.

      . The Bar’s first proposal, directing the proceeds of trust account earnings predominantly to client security fund purposes, was amended early in 1977 to allow the use of income for a variety of public interest purposes.

      . Investments of this type were approved by the Florida Bar Ethics Committee in Advisory Opin. 76-30 (Sept. 13, 1976).

      .Florida Legal Services, Inc. is a non-profit legal services corporation devoted to organizing and funding a state-wide network of civil legal services for the poor. The board of directors is appointed by the Governor and the Bar.

      . The Florida Bankers Association and three law firms.

      . See note 19 above.

      . 12 C.F.R. § 217.1(e)(1) & n.4 (1977). This limitation was effectuated through Regulation Q, as promulgated pursuant to § 19 of the Federal Reserve Act, 12 U.S.C. § 371b (1945).

      . Brief of Florida Bankers Association, as ami-cus curiae, at page 6.

      . See note 18 above.

      . See notes 11 and 20 above, and accompanying text.

      . Fla.Bar Code Prof.Resp., EC 8-1 states that lawyers “should participate in proposing and supporting legislation and programs to improve the system,” and EC 8-9 provides in part that “lawyers should encourage, and should aid in making, needed changes and improvements” in our legal system. See also Fla.Bar Code Prof. Resp., EC’s 1-1, 2-1, 2-25, and 8-2.

      . See notes 21 and 22 above, and accompanying text. To the same effect is the Federal Reserve’s new proposal to allow automatic transfers from savings to checking accounts. See note 23 above.

      . See Fla.Bar Code Prof.Resp., DR’s 5-101(A) and 5-107(A)(2).

      . Only 20 financial institutions are located in British Columbia, in contrast to the hundreds available in Florida. An accountant’s certificate is nonetheless required in British Columbia.

      . Where existing provisions are amended, italics indicate language or punctuation which has been added and strike-throughs indicate language or punctuation which has been deleted.

      . This change conforms DR 9-102(A) to Integration Rule 11.02(4).

      . This provision does not alter Fla.Bar Advisory Opin. 72-37 (Nov. 27, 1972), in which the Bar’s Professional Ethics Committee concluded that lawyers are not required to deposit trust funds in a manner that would provide complete FDIC coverage. Deposits of client funds in a trust savings account may with impunity exceed the insurance limit set by law for such accounts.

      . These purposes are derived from the Bar’s proposal, as modified by its amendatory motion of March 24, 1977. See note 32 above.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Robert M. TROMBLEY, Petitioner, v. FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, and W. Wesley Wallace, Respondents.
    No. 77-1740.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    David T. Price of Price & Byrne, Fort Lauderdale, for petitioner.
    Louis B. Guttman, III, Staff Counsel, Fla. Real Estate Com’n, Winter Park, for respondent.
   DOWNEY, Judge.

ON MOTION FOR STAY

Pursuant to the authority contained in Section 120.68(3), Florida Statutes (1975), the petitioner has requested this court, pending appeal, to stay the final order of the respondent which suspended the petitioner’s Registration for a period of one year. The statute authorizes either the respondent or this court to enter such a stay. Fla.App. Rule 5.5 provides that a party seeking to supersede a final decision, judgment, order or decree shall apply to the lower court for an order fixing the amount, terms and conditions of a supersedeas bond.

Generally the district courts of appeal have required one seeking to stay a final agency order to first apply to the agency for a supersedeas before applying to the reviewing court. See Ziers v. Purdy, 324 So.2d 132 (Fla.3d DCA 1975); Panama City v. The Florida Public Employees Relations Commission, 333 So.2d 470 (Fla.1st DCA 1976). We believe this to be the better procedure because the agency is in a better position to determine, at least initially, whether its final order should be superseded and, if so, the terms and conditions of the bond.

Accordingly, the motion for an order setting supersedeas and staying the final order under review is denied without prejudice to petitioner’s applying to the respondent for a stay order.

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


author: PER CURIAM. DAUKSCH, Judge,

text:
    Dwinda THOMPSON, Appellant, v. TRAVELERS INSURANCE COMPANY, Neill Ross Manning and Bill Nelson, Appellees.
    No. 76-2538.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Rehearing Denied March 28, 1978.

      F. Sheilds McManus of McManus & Kennedy, P.A., and Paul A. Gamba of Tooker & Gamba, P.A., Stuart, for appellant.
    Robert J. Gorman of Brennan, McAliley, Albury & Hayskar, Fort Pierce, for appel-lees.
   PER CURIAM.

Affirmed.

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

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

I respectfully dissent. The award of the jury was wholly inadequate to cover the loss suffered by appellant as a result of the negligence of the individual appellees. In the record there is evidence that the jury misunderstood at least some of the court’s instructions and it is reasonable to believe they may not have understood all of the instructions. I would reverse judgment and award a new trial for appellant.


author: PER CURIAM.

text:
    Arthaniel IRVIN, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. 76-15.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied April 10, 1978.
    Terence William Ackert, Altamonte Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition for writ of habeas corpus having been granted with full appellate review, the appealed order is

AFFIRMED.

ANSTEAD, LETTS and MOORE, JJ., concur.


author: LETTS, Judge.

text:
    CITY NATIONAL BANK OF MIAMI, as Trustee, Appellant, v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD, a corporation existing under the laws of the United States, and Tallwood North Condominium Association, Inc., a Non Profit Corporation under the laws of the State of Florida, Appellees.
    No. 76-2444.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied April 11, 1978.

      Donald R. Thompson of Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A., Miami, for appellant.
    Myron H. Burnstein of Salter, Yeslow & Burnstein, Hollywood, for appellee, Home Federal.
   LETTS, Judge.

This appeal stems from a mortgage foreclosure, the final judgment holding, inter alia, that the foreclosure permanently extinguished and cancelled all rights and obligations under the attendant recreational lease, pertaining to the particular unit foreclosed.

We reverse in part.

The setting up of this condominium followed the now familiar pattern of a long term recorded recreational lease, followed by a recorded declaration of condominium and some seven months later, a recorded mortgage from Home Federal of Hollywood to the purchaser of the particular unit foreclosed.

The sequence of events reveals that the unit owner defaulted on his assessments owed to the condominium association, so the latter foreclosed its lien, pursuant to its right under the declaration, culminating in a certificate of title to the association for the unit. Apparently the mortgage to Home Federal of Hollywood was also in default and some time later the instant mortgage foreclosure proceedings were filed against the new title holder (the condominium association) and' also against the assignee of the named lessor in the long term recreational lease (City National Bank of Miami).

As already noted, the final judgment of foreclosure of this mortgage not only vested title to the property in Home Federal, but also declared the unit free and clear forever of any and all obligations under the recreation lease, including any future purchasers from Home Federal.

Home Federal, arguing in support of the trial judge’s holdings, points to the persuasive language of the long term lease (executed prior to the declaration of condominium) which sets forth:

“The Lessor acknowledges that the purchasers of individual Condominium Parcels in the Condominium Property may desire to purchase units with proceeds of a first mortgage loan to finance such purchase. In addition, Condominium Unit Owners may, from time to time, desire to refinance such mortgages, or place first mortgage loans upon their Units in order to aid in the resale of their Units or for the purpose of obtaining financing for their equity in the Units. Lessor covenants that its lien described in this paragraph shall be subordinate to the lien of such first mortgages providing that such first mortgage has been made by a Unit Owner in respect to the purchase and acquisition of, or refinance of a Condominium Unit, provided, further, that such first mortgage is made with an institutional lender (herein defined as a national or state bank, insurance company authorized to do business , in the State of Florida, or a State or Federal savings and loan Association.) If requested, Lessor shall confirm such subordination in writing. The subordinated lien of the Lessor as herein provided shall cause the Lessor’s lien to be subordinate and secondary in position to any and all rights, claims or liens acquired by said institutional lender.”

The trial court was of the opinion that the above quoted language was conclusive as the following colloquy demonstrates:

“THE COURT: You know, with what has been introduced so far, the recreation lease is inferior to the first mortgage placed by the plaintiff here.
MR. RUMIN (Attorney for Association): I respectfully say it is not, Your Honor. The lien for unpaid recreational assessments up until the time of foreclosure would be subordinate, not the recreational lease per se. That is the issue.
MR. THOMPSON (Attorney for City National Bank): I agree with Mr. Rumin. THE COURT: I do not mind you reciting it, Counsel, if you have an inferior mortgage to a first mortgage, but the foreclosure of the first terminates the whole thing.
* * * * * *
THE COURT: In my 20 years of practice of law I’ve found anything subordinated is wiped out upon the subordination of the first mortgage.
MR. RUMIN: We do not dispute the lien is wiped out.
THE COURT: I say it is null and void hereafter.
MR. RUMIN: What, Your Honor?
THE COURT: The recreational lease, I think it is wiped out.”

However, we feel that there are other considerations more persuasive in this cause which dictate a contrary result which requires that Home Federal fare no better than all the other unit owners who are saddled with the burden of this recreational lease.

First of all, it is clear that the declaration, following the statutory power given under the then applicable Section 711.06(2), Florida Statutes (1973), made the recreation lease agreement a part of the common elements [See Sauls v. Crosby, 258 So.2d 326 (Fla. 1st DCA 1972)] by use of frequent statements to that effect, of which the following is but one example:

“14. Ownership of Common Elements,

(d) Recreational Facilities It is specifically declared that the common elements as described herein is the 99 year recreational lease agreement itself . . . and accordingly the land demised under said recreational lease and the improvements located thereon and the recreational facilities located therein are not a common element of this condominium.”

The lease agreement being thus designated a part of the common elements, we must look at other pertinent language in the declaration, as follows:

“As to priority between the lien of a recorded mortgage and the lien for an assessment, the lien for assessment shall be subordinate and inferior to any recorded institutional first mortgage regardless of when said assessment was due, but not to any other mortgage. The Association shall maintain a register of institutional first mortgages and shall give such mortgagees notice in writing, of all notices given by the Association to the owner of such condominium parcel encumbered by such institutional first mortgage.
If the mortgagee of a first mortgage of record, or the Lessor of the 99-Year Recreational Lease, or any other purchaser or purchasers of a condominium parcel obtains title to the condominium parcel as a result of the foreclosure of the first mortgage, or if any pledge held by the Lessor of the 99-Year Recreational Lease, or by voluntary conveyance in lieu of such foreclosure, such acquiror of title, his successors and assigns, shall not be liable for the share of common expenses or assessments by the Association pertaining to such condominium parcel which became due prior to the acquisition of title as a result of the foreclosure or voluntary conveyance in lieu of said foreclosure. Such unpaid shares of common expenses or assessments shall be deemed to be common expenses collectible from all of the owners of condominium parcels in the condominium, including such acquiror, his successors and assigns.”

This quotation [the latter paragraph of which tracks the language of the then applicable § 711.15(6)] makes it crystal clear that successors in title, by foreclosure or otherwise, remain liable for common expenses covering the common elements — prospectively, at least.

Home Federal contends that the quoted provision may bind all the other unit owners, but that its position is unique and it is not liable, because of the competing subordination language in the lease, which was executed and recorded prior to the declaration. We disagree.

Home Federal was not a party to the lease agreement. True, it was not a party to the declaration either, but it examined and approved this latter document prior to making the mortgage and the very description used in said mortgage actually refers to the recorded declaration. In view of this, it would be palpably unfair, in a court of equity, to allow Home Federal to now ignore the declaration, which it previously approved without complaint, proceed contrary to it and withdraw altogether from an integral part of the common elements of the condominium. To permit such would operate to divest from the association in a material or substantial degree the power and privilege granted to it by the Statute to operate the condominium. See Point East Management Corporation v. Point East One Condominium Corporation, Inc., 258 So.2d 322, 325 (Fla. 3d DCA 1972). It would also permit of Home Federal, in effect, to partition the common elements, an action expressly forbidden by Section 711.05 of the then applicable statute. [This same restraint is now found in Section 718.107 Florida Statutes (1976)].

Accordingly, all portions of the judgment appealed from, which extinguished the recreation lease in favor of Home Federal, are reversed and the parties directed to proceed in accordance with the language of the declaration which tracks Section 711.15(6). In all other respects that judgment appealed from is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

CROSS and MOORE, JJ., concur.

      . We are not called upon to rule on the legality of this paragraph which is not the point on appeal.

      . We would also draw attention to the then applicable § 711.15(1) which would also appear to bind Home Federal to “be liable for all assessments coming due while (it) is the owner of a unit.”


author: SMITH, Judge.

text:
    STATE ex rel. William M. C. WILHOIT, Relator, v. Clyde B. WELLS, as Judge of the Circuit Court of the First Judicial Circuit, State of Florida, Respondent.
    No. 11-91.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1978.
    As Corrected March 6, 1978.

      Joe J. Harrell and W. H. F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, and Hugh M. Taylor, Tallahassee, for relator.
    No appearance for respondent.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for State of Florida, real party respondent in interest.
   SMITH, Judge.

Wilhoit’s suggestion for writ of prohibition urges that the trial court in this criminal case committed jurisdictional error (1) by rejecting Wilhoit’s nolo contendere pleas, which the court previously accepted, and by reinstating Wilhoit’s not guilty pleas without his consent and putting him to trial and so twice in jeopardy; (2) by failing to perform the court’s agreement which induced Wilhoit’s nolo contendere pleas, to the effect that adjudication of guilt would be withheld on three counts and probation would be granted on all four; and (3) by failing to grant Wilhoit a speedy trial as prescribed by Fla.R.Crim.P. 3.191. Our rule nisi prevented a December 1977 trial on these four charges, Fla.R.App.P. 4.5 d. We declined to issue a rule in respect to a fifth charge.

Two informations charge that Wilhoit, a Pensacola physician, sexually assaulted four women who were his patients and who were anesthetized or otherwise physically helpless; and that he later swore falsely to a grand jury that he had not had sexual intercourse with one of them. Three counts in the circuit court’s case 77-1427 charged involuntary sexual battery, as did count one in case 77-1428; count two in number 77-1428 charged perjury. Wilhoit was taken into custody March 14, 1977 on an indictment which became number 77-1428 and so was entitled to trial on or before September 12, absent preventing circumstances; and he was taken into custody March 24, 1977 on an indictment which became 77-1427, and was entitled to trial on or before September 22, unless Rule 3.191 intervened.

The sexual battery charges were severed from the perjury charge and consolidated with each other for trial beginning September 6, 1977, within the 180-day period for speedy trial prescribed by Rule 3.191. No definite trial date was set for the perjury charge. On September 2, 1977, Friday before the Labor Day weekend preceding the trial scheduled on Tuesday, the 6th, the prosecutor, defense counsel, and the trial judge met and discussed disposing of all the charges on pleas of nolo contendere. The colloquy leading to an apparent agreement was reported and is set forth in an appendix to this opinion. In substance, the agreement was derived as follows: The prosecutor reported having consulted the complaining witnesses, Wilhoit’s patients, who were said to have no objection to probationary sentences on the sexual battery counts. The prosecutor urged imprisonment on the perjury count; but in consideration of Wilhoit’s loss of standing in the community, and his almost certain loss of his medical license, and the acquiescence of the complaining witnesses, the prosecutor did not oppose withheld adjudication and probationary sentences on the sexual battery counts. The court stated that it would grant-probation on all counts, withhold adjudication on the sexual battery counts, and consider the transcripts of Wilhoit’s grand jury testimony and other presentence submissions in determining whether to adjudicate Wilhoit guilty of perjury. On that note the court agreed to excuse the venire and witnesses scheduled to appear on September 6 and at that time to receive the nolo contendere pleas so conditioned.

On the morning of September 6, before the scheduled proceedings in open court, the alleged victim mentioned in count one of case 77-1428 objected to the prosecutor that she “wanted the defendant to make an open court admission that he committed this sexual battery.” As a result, the anticipated nolo contendere plea was not entered, and the court stated that charge “will be set for trial necessarily at a later date because we excused the jury for this day.” Concerning the other counts of sexual battery and perjury, the prosecutor announced his understanding that pleas of nolo contendere would be entered and that, none of the victims having objected to a probationary sentence, the court would withhold adjudication on those counts and place Wilhoit on probation. The prosecutor recommended that Wilhoit be imprisoned for perjury but stated he understood that “the court is inclined to place the defendant on probation on that count also but will at a later date determine . . . whether he will be adjudicated guilty on that count.”

Rule 3.172, Fla.R.Crim.P., requires that the trial court, before accepting a nolo con-tendere plea, must determine “that the plea is voluntarily entered and that there is a factual basis for it” and must address the defendant personally to determine that he understands the consequences of his plea and “[t]he complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result.” Rule 3.172(a), (c)(vii). The rule further provides:

(f) No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this Rule. Until that time, it may be withdrawn by either party without any necessary justification.

Inquiry satisfying Rule 3.172 was made of Wilhoit, who confirmed his understanding that adjudication of guilt would be withheld on the three sexual battery counts, that he “could be adjudicated on the perjury count,” and that on all those counts he would be placed on probation. The prosecutor recited the evidentiary details of the state’s case, to the effect that each of the alleged victims were administered “some type of shot” or “a gaseous substance in the treatment room,” and woke up “in the defendant’s office when he was having sexual intercourse with her.” The court inquired whether Wilhoit wished to “contest any of the facts” recited, and his counsel interjected that he would “present this information and any counter-position we have” in a written submission. The court then stated:

[T]he court is going to at this time determine that the plea has been freely and voluntarily entered, subject only to the agreement as has been stated by [the prosecutor] and that the defendant is intelligent and alert sufficient to understand the consequences of that plea and I’m going to accept the pleas of nolo contendere at this time on the three sexual battery counts and the perjury count. At this time I’m going to withhold adjudication of guilt on all of the counts to which the defendant has tendered a plea and I’m going to order a presentence investigation and . . . the transcript of all the testimony . . . and also . . . the state and the defense will submit a narrative report of their expert witnesses’ testimony and the court will also consider that in determining the acceptance of his plea also the sentence to be imposed.

Then, this colloquy:

DEFENSE: Your Honor, may I summarize that so that I make sure I have got it. There will be a withheld adjudication of guilt [on the sexual battery charges in case 77-1427], and acceptance of the plea of nolo contendere on all charges [except the sexual battery charge in case 77-1428, continued for trial].
COURT: At this time.
DEFENSE: At this time, yes, sir.
COURT: Right.
DEFENSE: And this will be probation, as well.
COURT: That’s the understanding. The court would not be bound by that but then would give you an opportunity to withdraw your plea.

Immediately thereafter, in a reported hearing in chambers, the prosecutor expressed concern over the running of the speedy trial period on the remaining sexual battery count in case 77-1428. The prosecutor asked the court to extend the period for trial under Fla.R.Crim.P. 3.191(f) because the anticipated plea and disposition on that plea were prevented by the unanticipated and “exceptional circumstance” of a late objection by the complaining witness, the alleged victim. The court announced that exceptional circumstances did justify an extension of the time for trial. No written order was entered, nor was the time for trial extended for a certain period; but the court set the case for trial October 24, 1977.

Wilhoit later filed a motion for “specific performance” of the unfulfilled September 2 agreement for disposition of the sexual battery charge in case 77-1428, and for discharge on that count because no trial was had within 180 days. The court on October 6, 1977 denied those motions and reconfirmed the trial date of October 24, 1977, solely for the sexual battery count in case 77-1428. Wilhoit then moved to continue the October 24 trial, in part because Wilhoit wished to seek a writ of prohibition in this court. That motion was granted.

In the meantime, the agreement for disposition of the other counts on nolo conten-dere pleas also began to unravel. In the aftermath of the September 6 change of pleas in open court, of which photographs and stories were featured in the press, the other three complaining witnesses reflected on the events and told the prosecutor that they too objected to the agreed disposition of the cases. One signed an affidavit stating she had no objection to a probationary sentence of fifteen years, “but only if he pleads guilty and is adjudged guilty.” Another’s affidavit stated that Wilhoit should spend at least one year in jail for each victim and that she previously did not object to probation because “I thought he was going to admit his guilt.” The third expressed the same view, adding that Wilhoit should go to prison for five years and never again practice medicine. The prosecutor filed those affidavits with a motion “to allow the defendant the opportunity to withdraw pleas of nolo contendere.” That motion recounted all the antecedent circumstances, as understood by the prosecutor, and represented that the state “can no longer go along” with the court’s previously intended disposition of the sexual battery cases.

On October 17,1977, the court entered an order rejecting all previously tendered nolo contendere pleas, reinstating Wilhoit’s not guilty pleas, and setting all cases for trial December 19, 1977. The order recited that “because of the nature of these charges and the positions taken by opposing counsel the ends of justice could best be served by submitting this case to a jury trial.”

Before the scheduled December trial date, Wilhoit filed this suggestion for writ of prohibition. As stated at the outset, the issues are whether the trial court exceeded its jurisdiction by rejecting Wilhoit’s nolo contendere pleas on October 17, 1977; or by refusing to perform the agreement for disposition of these cases; or by failing to provide a speedy trial.

The trial court lacked power to reject the nolo contendere pleas accepted September 6, 1977.

We are concerned first with whether the trial court had power to reject Wilhoit’s nolo contendere pleas over his objection, as the court did on October 17, 1977. That issue controls the court’s power to proceed now to trial, for if the pleas were improperly rejected, a trial will place Wilhoit twice in jeopardy in violation of Article I, § 9, Florida Constitution.

On September 6, 1977, the trial court formally accepted Wilhoit’s tendered nolo contendere pleas to three counts of sexual battery and one count of perjury. The court first satisfied the Rule 3.172(c) requirement for oral examination of the accused concerning the voluntariness of his plea and his understanding of the consequences. The court also determined that there was a factual basis for the plea, after hearing the evidentiary details of the state’s case. Though there was no formal recital of it in open court, it is obvious from antecedent events that the court was satisfied, as the rule requires, that Wilhoit acknowledged the nolo contendere plea was in his best interest. Fla.R.Crim.P. 3.172(d). Then the court declared: “I’m going to accept the pleas of nolo contendere at this time on the three sexual battery counts and the perjury count.”

Following those words of formal acceptance, there were other words of ambiguity, condition, or equivocation. The court stated it would consider the pre-sentence submissions in “determining the acceptance of his plea, also the sentence to be imposed,” and the subsequent exchange with defense counsel, quoted above, may be interpreted as implying that the pleas would be considered acceptable and accepted “at this time” but perhaps not later. However, the ambiguous language may also be interpreted as reserving only the power to impose a different sentence than that agreed on — a matter also drawn into question here, but on different grounds — and we regard the court’s words as intending only that effect. We will not presume that the trial court undertook to “accept” Wilhoit’s nolo con-tendere plea for purposes of binding Wil-hoit to it, yet sought to qualify the court’s own responsibilities concerning that accepted plea.

Under former practice, conditional acceptance of a nolo contendere plea was improper if not impossible. See Annot., 152 A.L.R. 253, 269-70 (1944): “If the court accepts the plea, it must do it unqualifiedly. It cannot do so subject to the right to consider and determine the facts and any questions of law.” Florida’s present rules are more explicitly to the same effect. Acceptance of a nolo contendere plea is a matter wholly within the court’s sole discretion, but when that discretion is exercised by formal pronouncement that the plea is accepted, as prescribed by Rule 3.172(f), it is binding on the state and on the defendant, who thereby is placed in jeopardy as surely as if he had pleaded guilty. See Peel v. State, 150 So.2d 281 (Fla. 2d DCA 1963), appeal dism., 168 So.2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).

In Reyes v. Kelly, 224 So.2d 303 (Fla.1969), cert. denied, 397 U.S. 958, 90 S.Ct. 961, 25 L.Ed.2d 142 (1970), the Supreme Court held that acceptance of a tendered guilty plea places the accused in jeopardy and bars a subsequent trial after rejection of his plea, without legal cause. Reyes and this case are in some notable respects different; Reyes held the right to plead guilty is “no less sacred” than the right to plead not guilty, 224 So.2d at 306, which cannot be said of a nolo contendere plea; and, under prior practice, Reyes held the guilty plea was impliedly accepted by the court’s examination into the facts of the case, whereas Rule 3.172(a) now requires that examination as a condition precedent to accepting a plea. The result here and in Reyes is the same: the trial court may reject a tendered guilty plea for cause and may reject a tendered nolo contendere plea without articulated cause, but the court cannot accept such a plea, thus binding the accused, and then reject the plea over the defendant’s objection, either as a matter of discretion or on some ground insufficient for the rejection of a guilty plea that has been accepted. See also Ray v. State, 231 So.2d 813 (Fla.1970); Troupe v. Rowe, 283 So.2d 857 (Fla.1973); State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973).

We note in passing the scant authority that a court has power to set aside a nolo contendere plea, once accepted, on no evident ground but that the court has changed its mind. Stewart v. United States, 300 F. 769, 776 (8th Cir. 1924); Annots., 152 A.L.R. 253, 273 (1944), 89 A.L.R.2d 540, 578 (1963). By that view a court’s verbal acceptance of a plea is legally insignificant, as is its sentence, until something is done to execute the court’s pronouncement to the detriment of the accused. That view is inconsistent with Florida’s rule and court decisions recognizing that the court’s pronouncements upon a plea have legal significance in themselves. Reyes, 224 So.2d at 305, Fla.R. Crim.P. 3.172(f). See also ABA Standards, The Function of the Trial Judge § 4.2 (1972) (Acceptance of pleas of guilty or nolo contendere); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977).

Here it is evident that on October 17, 1977, the trial court rejected Wilhoit’s previously accepted nolo contendere pleas because the complaining witnesses changed their minds or found they misunderstood the consequences of the September 2 agreement concerning the acceptability of nolo contendere pleas. Whatever the effect those developments may have had on the court’s sentencing plans, we hold’ without laboring the point, that a change of mind by the court, or by the prosecutor, or by the complaining witnesses, or by all of them, is not legal cause to set aside a nolo conten-dere plea which previously was accepted. Wilhoit’s pleas are therefore pending still and Wilhoit cannot again be placed in jeopardy, by trial or otherwise, while they are pending. The pleas are binding on Wilhoit, the prosecutor and the court unless they are withdrawn by Wilhoit, with consent of the court, or are set aside by the court for legal cause not here shown. See Reyes, 224 So.2d at 306.

The trial court is not bound by the September 2 agreement for withheld adjudication and probationary sentences

Wilhoit’s pleas of nolo contendere on September 6 were unquestionably induced by his expectation that the court would withhold adjudication of guilt on the sexual battery counts and would grant probation on those counts and the perjury count. Wilhoit’s expectation was based on the trial court’s clear commitment, evidenced by the appended excerpts of the September 2 conference between the trial judge, the prosecutor, and defense counsel.

Citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and Gutierrez, supra, Wilhoit urges his entitlement to performance of the September 2 agreement for disposition of the charges to which he pleaded nolo contendere on September 6. Plainly, he is not entitled to that relief concerning the sexual battery count in case 77-1428, concerning which Wilhoit withheld his nolo contendere plea when the complaining witness objected to the proposed disposition of that case. Rule 3.172(f), above quoted, makes clear that the state may withdraw from an agreement for the disposition of a criminal case at any time until the negotiated plea is accepted by the trial judge. For that reason and others, we previously denied a rule nisi in prohibition in respect to the scheduled December 1977 trial on the sexual battery count in case 77-1428.

Santobello held that a prosecutor could not properly recommend imprisonment when the defendant’s plea had been induced by an agreement that the prosecutor would make no recommendation. Guiterrez held that an accepted plea of nolo contendere could not be set aside, on recommendation of a prosecutor, after it had been entered with the agreement of another prosecutor. This ease is different from Santobello and Gutierrez in important respects: here the inducement for Wilhoit’s pleas was the court’s agreement, not the prosecutor’s; here a misunderstanding or change of heart by the complaining witnesses accounted for the dissolution of the plea agreement; here there does not appear to have been any fault or lack of diligence by the prosecutor.

The fundamental distinction that separates this case from Santobello and Gutierrez is that Wilhoit claims entitlement to a particular disposition on the merits: withheld adjudication and probation. We conceive that Wilhoit’s argument must fail for two reasons: First, there was a material change in a factor pertinent to the trial court’s decision on the matter of adjudication and sentence, that of course being the revelation of objections by the complaining witnesses. See § 921.143, Florida Statutes (Supp.1976). And second, the trial court’s decisions in respect to sentencing functions are so uniquely judicial that they cannot be bargained away even by the trial judge. Until sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate. Where as here a nolo contendere or guilty plea is tendered in reliance on the court’s expression of sentencing intentions, and the plea is accepted, the sentencing judge must grant the defendant a clear opportunity to withdraw the plea if the judge cannot in conscience impose the sentence indicated; but that is the limit of the trial court’s obligation. Davis v. State, 308 So.2d 27 (Fla.1975); State v. Adams, 342 So.2d 818 (Fla.1977). See also ABA Standards, Pleas of Guilty § 3.3(b) (1968):

[The trial judge] may . . . indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo con-tendere.

Speedy trial considerations

Wilhoit urges speedy trial considerations as alternative grounds for prohibition of a trial on the pending charges. As we have stated, Wilhoit’s pleas of nolo contendere to three counts of sexual battery and one of perjury still stand, and the trial court is now bound to act on those pleas. If the trial court determines to withhold adjudication and to sentence Wilhoit in accordance with the September 2, 1977 discussion and agreement, the speedy trial issues disappear except in respect to count one of 77-1428. If the trial court determines not to act on Wilhoit’s nolo contendere pleas in the manner previously contemplated, but intends rather to impose a more severe disposition, the court will grant Wilhoit an opportunity to withdraw his nolo contendere pleas and reinstate his not guilty plea. In that event, Wilhoit will have become available for trial on those charges for the first time since September 6, 1977; and the trial court will immediately set a date for trial within a reasonable time. Further consideration of the speedy trial issues is necessary only in respect to the sexual battery charge in case 77-1428.

On September 6,1977, the trial court found that exceptional circumstances required extending the period for Wilhoit’s trial on count one of case 77-1428. The September 6 trial has been postponed as a result of the negotiated plea agreement on September 2, and the alleged victim’s objection on September 6 had intercepted the anticipated plea of nolo contendere. We have no hesitation in agreeing that those events presented exceptional circumstances justifying an extension of the time for trial.

The more difficult question is whether the trial court entered a recognizable order complying with Rule 3.191(f), which provides that “the court may order an extension of time or continuance where exceptional circumstances are shown to exist” and that “the court may set a new trial date within a reasonable time.”

An order extending the speedy trial period due to exceptional circumstances must be entered before the speedy trial period has run. State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977). Here there was no “order” in the sense of a contemporaneous written disposition bearing the style and number of the case and the signature of the trial judge. Yet the trial court verbally ordered an extension in the presence of counsel and a court reporter on September 6, 1977, and a transcript was later prepared and filed. Rule 3.191 does not in terms require that an “order” be entered in any particular form. Obviously the preparation, execution, and filing of a formal written order reciting exceptional circumstances is the preferred course — a course that will foreclose such ambiguities as we encounter here. But we conceive that the trial court’s order on September 6 satisfied the rule. There is complexity enough in the rule as it is written without our adding more formal steps. It is enough that a timely oral ruling was reported, and that it was later transcribed and filed. We decline to rest our decision on the circumstance that the typewritten transcript was filed September 9, before expiration on September 12 of the 180-day period prescribed for trial by the rule. The trial court had jurisdiction to enter the order, State ex rel. Mullins v. Swigert, 345 So.2d 386 (Fla. 1st DCA 1977), and there was no error in its finding of exceptional circumstances.

The order did not extend the speedy trial period for a stated number of days. That was not error. The rule does not require that the trial court extend the speedy trial period for a certain period and then reschedule the trial within that period. The rule states only that, when “an extension of time or continuance” is granted, the court “may set a new trial date within a reasonable time.” Here the trial court reset the trial date for October 24, 1977, which was within a reasonable time under the circumstances. We need not consider whether and on what grounds the trial court might thereafter have reset the trial date still later over objection by the accused, for in this case Wilhoit moved for and obtained a continuance of the October 24 trial date in order to seek relief in this court. The speedy trial period was thereby extended for a reasonable time which, considering the purpose for which the continuance was sought, has not yet expired. State v. Kelly, 322 So.2d 581 (Fla. 1st DCA 1975).

Wilhoit is not entitled to discharge from any count in the pending informations for violations of the speedy trial requirements of Fla.R.Crim.P. 3.191.

The prayer of the suggestion for writ of prohibition is GRANTED insofar as it seeks to prevent a trial in case 77-1427 and on count two of case 77-1428, while Wilhoit’s nolo contendere pleas, previously accepted, remain pending before the trial court. The relief requested by Wilhoit is otherwise DENIED.

MILLS, Acting C. J., and ERVIN, J., concur.

APPENDIX

EXCERPTS OF TRANSCRIPT HEARING SEPTEMBER 2, 1977

PROSECUTOR: I, personally, am opposed to the nolo contendere plea but in this case I’ll accept it . . .so that it couldn’t be used against the Doctor in any civil proceedings. I have talked with all the complaining witnesses, the victims in the sexual battery cases. None of them are opposed to probation. Some of them are not really sure what they would like done with him. All of them agree that they don’t want him practicing any more medicine, which I feel by entering his plea that that would by taken care of. On the perjury count, the State personally feels that the Defendant should receive some time of incarceration. The [defense counsel] are opposed to that and they feel because of certain mitigating circumstances that he should be placed on probation for that offense also.
DEFENSE COUNSEL: . . . [W]e would like, if we can work it out and if the Court would be so inclined, to enter pleas of nolo to all of these sexual battery charges and the perjury count and get probation and withhold adjudication of guilt .
COURT: . . . [A]s I understand the situation today, you [the prosecutor] are agreeable to the entry of the nolo contendere pleas and you are agreeable to the sexual battery count but you are recommending — are you in the position that you would recommend incarceration on the perjury?
PROSECUTOR: If the Court wants to know my feelings that would be my recommendation.
COURT: When he gives up, is forced to give up, by virtue of his plea, a medical practice that represents not only a substantial income to him but also a lot of prestige in the community for himself and his family and he’s, he’s had a pretty hard sentence in that in and of itself.
PROSECUTOR: I agree with you, Judge, and when you impose your sentence I think you should probably, if that is your decision, I think you should maybe say that for the interest of the community. Because they always think—
COURT: Right—
PROSECUTOR: The, the wealthy people get off—
COURT: Right—
PROSECUTOR: They get off easy—
COURT: Right—
PROSECUTOR: And he got off easy because he didn’t have to go to jail. But really he did suffer.
DEFENSE COUNSEL: . . . I think this relates to the overall punishment. We’ve got, we’ve got three sure malpractice suits filed against us, we’ll be taking depositions on the 19th .
COURT: . . . Is it your [defense counsel’s] position here today that you want the Court at this time to commit as to what sentence would be imposed on all counts as a condition of your entry of a plea?
DEFENSE COUNSEL: Yes sir. We could not agree, under any circumstances, to allow Doctor Wilhoit to go to jail. .
COURT: Would ya’ll be agreeable for the Court to indicate that I would accept the plea and agree to put him on probation and reserve judgment on whether or not to adjudge him guilty on the perjury charge?
DEFENSE COUNSEL: Yes sir.
COURT: ... I would go for probation based on the position of the victims that you’ve outlined here. The . punishment that Doctor Wil-hoit has already been subjected to in the loss of his position, and the embarrassment and holding out in the community, the punishment that he will continue to suffer in the form of reduced income and loss of his medical practice and those things
PROSECUTOR: But don’t you think this is a proper case, Judge, where someone should receive time for the perjury to set an example for the other people in the community who [are] going to be taking an oath?
COURT: . . . No I don’t, I don’t know that it is. Because I’m not sure that this is a typical case of perjury.
DEFENSE COUNSEL: Judge, . . . I would suggest that we have the . sealed depositions and all of the transcript hearings, if necessary, delivered to you Tuesday.
COURT: Okay.
DEFENSE COUNSEL: Now, Judge, now here’s the practical point of view and that is; now these jurors . ought to be stopped. The press is going to want to know something about the disposition of this case and I think we ought, to have your guidance with respect to just how you feel would be the way to handle it
COURT: Well . . . of course [the prosecutor] sure doesn’t like this word “plea bargaining” I’m sure of that, but —well, maybe we could say it this way. The defense has tendered a plea of nolo contendere to the charges, all charges, conditioned on the — I hate to say the defendant’s going to get probation because that would be—
DEFENSE COUNSEL: Well, I think you could just say they’ve tendered the plea and the court’s going to consider the evidence . . . including the pre-sentence investigation—
COURT: I think that would be the best way to put it. .
PROSECUTOR: Couldn’t we just say that he is going to enter a plea of nolo to all charges and there is a recommendation, or at least no objection, on behalf of all the victims?
COURT: No, I’m not going to say—
PROSECUTOR: Now, Judge, he’s pled nolo contendere as charged. There’s no objection on behalf of the victims that he receive probation. . . There’s a recommendation on behalf of the State that he be incarcerated on the perjury count. The Court commended himself to probation on all five counts, will withhold adjudication on the four sexual battery counts and will reserve ruling until time of sentence as to whether or not he’ll be adjudicated guilty on the perjury count, is that correct?
DEFENSE COUNSEL: That’s stated concisely and correctly.
PROSECUTOR: That’s what I am going to say when I announce the plea arraignment on Tuesday morning.