author: Per Curiam

text:
    In the Matter of THE FLORIDA BAR, Petitioner.
    No. 46801.
    Supreme Court of Florida.
    Oct. 3, 1975.
    Rehearing Denied Oct. 7, 1975.
    James A. Urban, President, Orlando, J. Rex Farrior, Jr., President-elect, Tampa, .Marshall R. Cassedy, Executive Director; Norman A. Faulkner, Staff Counsel; Wilson J. Foster, Jr., Asst. Staff Counsel, Earl B. Hadlow, Jacksonville, and William H. Shields, Fort Myers, for The Florida Bar, petitioner.
    E. N. Stephens, Jr., Pensacola, Julian R. Benjamin of Cassel & Benjamin, Miami, Bill Wagner, and William T. Moore, South Miami, for amicus curiae.
   Per Curiam

We have for consideration the Petition of The Florida Bar for the amendment of the Integration Rule by adding thereto Article XXI — Florida Designation Plan — authorizing members of The Florida Bar to inform the public concerning the areas of law practice in which such members have substantial experience or education. Their Petition also requests certain revisions of the Code of Professional Responsibility to be amended so as not to conflict with the plan, after which The Florida Bar would amend its bylaws to set forth the plan.

After due notice, the Court has heard argument on the Petition in which the Bar presented its proposed plan as indicated in their recommended changes of the bylaws and several members of The Florida Bar appearing pursuant to notice have presented argument in opposition to the plan. Having heard such argument and having reviewed the record, it is the opinion of the Court that the Petition should be granted after certain revisions as will hereinafter appear.

Accordingly, the Integration Rule of The Florida Bar is amended by adding thereto the following:

INTEGRATION RULE OF THE FLORIDA BAR

ARTICLE XXI

FLORIDA DESIGNATION PLAN

1. The Board of Governors of The Florida Bar may establish a plan allowing members of The Florida Bar to inform the public concerning areas of law practice in which such members have substantial experience or education, such plan and any future amendments thereto to become effective when approved by the Court.

2. The Board of Governors may enact such bylaws as it deems necessary and proper to establish and regulate such a plan, to become effective when approved by the Court.

3. The Board of Governors may require those who wish to participate in such a plan to pay a reasonable fee to The Florida Bar to be approved by the Court at periodic intervals. The funds derived from such fees shall be deposited in a segregated account of The Florida Bar to be used exclusively for purposes related to the plan.

The Code of Professional Responsibility is revised to provide:

EC 2-14 In some instances a lawyer confines his practice to a particular field of law. íft the absence of state controls to instt-se the existence of speeial eesape-teaee Except as permitted in DR 2-105, a lawyer should not be permitted to hold himself out as a specialist or as having special training or ability; ©then than m the historically exeepted fields ef admiralty; trademark; and patent law.

DR 2-101 Publicity in General.

(a) A lawyer should not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as. As used herein;: (1) “public communication” includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book. (2) “self-laudatory statements” shall not include statements made pursuant to DR 2-105.

(b) A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103t and DR 2-105. This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.

(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

(4) In and on legal documents prepared by him.

(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.

(C) A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.

DR 2-102 Professional Notices, Letterheads, Offices and Law Lists.

(A) A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form:

(1) A professional card of a 'lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, and any information permitted under DR 2-105. A professional card of a law firm may also give the names of members and associates. Such cards may be used for identification but may not be published in periodicals, magazines, newspapers, or other media.

(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers and other persons with whom he has already established such personal relations as would reasonably justify the belief that he enjoys the friendship and confidence of such person to such extent that the person receiving the announcement will consider it news of genuine interest and value. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2-105.

(3) A sign on or near the door of the office and in the building directory identifying the law office. The sign shall not state the nature of the practice, except as permitted under DR 2-105.

(4) A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2-105. A letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as “General Counsel” or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of his or its professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.

(5) A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides and in the city directory of the city in which his or the firm’s office is located; but the listing may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers, and other information permitted by DR 2-105. The listing shall not be in distinctive form or type. A law firm may have a listing in the firm name separate from that of its members and associates. The listing in the classified section shall not be under a heading or classification other than “Attorneys” or “Lawyers,” except that additional headings or classifications descriptive of the types of practice referred to in DR 2-105 are permitted.

(6)A listing in a reputable law list or legal directory giving brief biographical and other informative data. A law list or directory is not reputable if its management or contents are likely to be misleading or injurious to the public or to the profession. A law list is conclusively established to be reputable if it is certified by the American Bar Association as being in compliance with its rules and standards. The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates; a statement that practice is limited to one or more fields of law; a statement that • the lawyer or law firm specializes in a particular field of law or law practice but only ii as authorized under DR 2-105-(A) (1-)-; date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional associations and societies; foreign language ability; names and addresses of references; and, with their consent, names of clients regularly represented.

(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.

(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.

(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

(E) A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.

(F) Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law.

(G) Lawyers and law firms participating in an approved credit plan may discreetly display in one location within their offices a statement in an approved format for designation of the use of the plan. If the practice of law is conducted from two or more distinctly separate addresses, one such designation may be maintained within the offices at each address. No other advertising or acknowledgment of an approved credit plan by any lawyer or law firm is permitted, except that specific inquiries from clients or prospective clients may be appropriately answered. Under no circumstances shall one plan be recommended in preference to another plan.

DR 2-105 Limitation of Practice.

{A} A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102(A)(6) or as follows:

fh). A lawyer admitted te practice before the United States Patent Qffiee may ese the designation Patent Attorney; Patent ■Lawyer; Trademark Attorney; er Pnade-mash Lawyer; or any combination ©4 those terms; on his letterhead and office sign; and a lawyer actively engaged in the admiralty practice may use the designation Admiralty or Admiralty Lawyer on Ins letterhead and office sigm (1) A lawyer who complies with the Florida Designation Plan as set forth in Article XXI of the Integration Rule and Article XVII of the Bylaws of The Florida Bar, may, to the extent permitted therein, inform the public and other lawyers of designated areas of his legal practice.

(2) A lawyer may permit his name to be listed in lawyer referral service offices according to the fields of law in which he will accept referrals.

(3) A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in local legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experiencer, except as permitted under DR 2-105 (A)(1) above. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in local legal journals.

(4) A lawyer who is certified as a specialist in a particular field of law or law practice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold himself out as such specialist but only in accordance with the rules prescribed by that authority.

The proposed bylaws as revised by this Court are approved and are as follows :

Article XVII

FLORIDA DESIGNATION PLAN

Section 1. DESIGNATION OF AREAS OF PRACTICE. In accordance with the terms of this Article, a member may publicly designate the areas in which he practices law. The certificate issued by this Court authorizing one to become a member of The Florida Bar carries with it the authorization to engage in the general practice of law and the right to so specify continues as long as such licensee is a member in good standing of The Florida Bar and such authorization is in addition to any designation. Provided, however, that any member of The Florida Bar, three years or more after being admitted, may become a registered general practitioner upon otherwise complying with the bylaws herein relating to designation, after which such registered general practice will be treated and counted as a designation.

Section 2. SCOPE AND FUTURE DEVELOPMENT. The provisions of this Article contain minimal standards designed to permit immediate designation of areas of practice. The Board of Governors of The Florida Bar intends to study and monitor the Plan and the operations thereunder to determine if modification and expansion is required in the interests of the public and the Bar. Standards of education and experience will be periodically reviewed and upgraded where necessary.

Section 3. AREAS OF PERMITTED DESIGNATION.

(a) A member in good standing of The Florida Bar may not designate an area of practice unless the area has been approved by the Board, provided, however, as stated in Section 1, admission to The Florida Bar authorizes the licensee to designate that he is a general practitioner in addition to any designated area of practice which may thereafter be selected and approved. The Board may approve a particular area of practice on its own motion or upon the request of any member if it finds that the area:

(1) Has not already been approved under a different description;

(2) Is a generally accepted area'of practice;

(3) Is described in dignified and ethically appropriate terms.

(b) The areas of practice which have already been approved are listed on Schedule A. Schedule A may be amended as frequently as necessary to add or delete areas approved by the Board.

(c) If a member wishes to designate an area which has not been approved by the Board, he shall include in his application for permission a request that the area of practice be approved. The Board shall consider the request before it takes action on the member’s application for permission.

Section 4. ELIGIBILITY FOR PERMISSION TO DESIGNATE AREAS OF PRACTICE.

(a) Except as provided in subsections (b) and (c) and Section 3(a), a member shall be eligible for permission to designate areas of practice only if he has been engaged in the practice of law for at least 3 years and if during the 3 years preceding his application for permission he has had substantial experience in each area of practice listed in the application.

(b) If the Board finds that a member who has not engaged in the practice of law for 3 years has had specialized postgraduate education or concentrated specialized experience in a particular area of practice and that the experience is equal to or greater than the experience he would have gained in that area from 3 years of practice, the Board may waive the requirement of subsection (a) and permit him to designate that area.

(c) If the Board finds that a member has had at least three years specialized experience or postgraduate education in an area of practice and that the experience or education is not unreasonably remote but that due to extenuating circumstances the member has not had substantial experience in the area during the three years preceding his application, the Board may waive the requirements of subsection (a) and permit him to designate that area.

(d) A member shall not be eligible to designate more than three areas of practice at any one time in addition to the designation as a general practitioner.

Section 5. APPLICATION FOR DESIGNATION OF AREAS OF PRACTICE.

(a) A member who wishes to designate one or more areas of practice shall file with the Board an application for permission on a form to be specified by the Board. The application shall:

(1) List the area or areas the member wishes to designate;

(2) State facts sufficient to establish that the member is eligible to designate the areas listed;

(3) Contain a statement that to enhance his proficiency the member will continue his legal education in the areas he wishes to designate through private study or continuing legal education programs approved by the Board or by this Court and other appropriate means approved by the Court.

(b) When the application is filed, the member shall pay an application fee in an amount to be established by the Board not exceeding $30. The amount of the application fee shall not be affected by the number of areas designated.

Section 6. ACTION ON APPLICATIONS TO DESIGNATE AREAS OF PRACTICE. The Board shall promptly consider and act upon all applications for permission to designate areas of practice. If it finds that an applicant is eligible under Section 4 to designate one or more areas of practice, it shall issue a letter of permission authorizing the applicant to designate those areas. If it finds that an applicant is not eligible it shall notify the applicant of its finding and the reasons for it.

Section 7. MANNER OF DESIGNATION.

(a) A member having permission to designate areas of practice may do so by listing the areas on his letterhead, business cards, office door, in the yellow pages of the telephone directory, in approved law lists and by other means approved by the Board. Designations shall be made only by naming the permitted areas of practice. (For example, a permitted designation might be “John J. Jones, Admiralty and Trial Practice.”) Descriptive words or phrases such as “areas of practice,” “practice limited to,” “specializing in” shall not be used except as authorized by the Board for publication in approved law lists.

(b) Members having permission to designate areas of practice may list their names and designated areas of practice in the yellow pages of telephone directories in one or both of two permissible listings: an alphabetical listing of all lawyers and listings of lawyers under area of practice headings. In the alphabetical listing there shall be included' the lawyer’s name, address and telephone number, and the designated areas of practice. In the categorical listing the designated area of practice shall be listed alphabetically and a listing of attorneys thereunder shall state only the lawyer’s name, address and telephone number.

(c) No law firm may designate an area of practice for the firm, but membership in a firm does not impair an individual member’s eligibility to designate areas of practice in accordance with this Article. Except for the firm listing in the telephone directory, a law firm may show next to the name of any firm members their permitted areas of practice.

Section 8. EFFECT OF DESIGNATION RULE. Nothing in this Article precludes any member from practicing in any area of practice regardless of whether he has designated it or any other area under this Article.

Section 9. DURATION AND RENEWAL

(a) A member’s right to designate one or more areas of practice shall continue for a term of three years from the date of the letter of permission issued under section 6 or subsection (d) of this section.

(b) A member shall be eligible to renew his right to designate areas of practice only if during the preceding three-year period he has. devoted at least 30 hours to approved continuing legal education in each of the areas for which renewal is sought, provided, however, for good cause shown, The Florida Bar may waive all or any part of such requirement.

(c) A member who wishes to renew his right to designate areas of practice shall file an application for renewal with the Board at least 30 days before the permission expires. The application shall be on a form specified by the Board and shall state sufficient facts to establish that the member is eligible to renew. When the application is filed, the member shall pay a renewal fee in an amount to be established by the Board not exceeding $30. The amount of the renewal fee shall not be affected by the number of areas designated, The 30 day notice period may be waived by the Board for good cause shown.

(d) The Board shall promptly consider and act upon all applications for renewal in the same manner as provided in Section 6.

Section 10. CONTINUING LEGAL EDUCATION.

(a) Continuing legal education courses offered by The Florida Bar shall qualify as approved courses hereunder. The Board shall determine the number of hours credit to be given for each such course and the designated area entitled to credit for each course.

(b) On the application of any interested person, the Board shall make a determination of the qualification of, and credit to be allowed for, alternative courses or methods of legal education.

(c) From time to time the Board shall publish current lists of approved educational alternatives.

Section 11. PUBLIC NOTICE.

(a) The Florida Bar may cause a public notice to be promulgated where and when it deems necessary, including, for example, telephone directory yellow pages, in substantially the following form:

NOTICE
For the General Information of the Public
■Attorneys who have practiced for three years or more and who, during the immediately preceding three years, have had substantial experience in a designated area of legal practice are permitted, if they so desire, to inform the public of not more than three areas of the law in which they practice, in addition to the right of any attorney to engage in the general practice of law.
Such listing DOES NOT MEAN that guch attorney has been certified by any person or group as an “expert” in any area of law, nor does it mean that such attorney is any more expert or competent than any other attorney.
ALL PERSONS ARE URGED TO MAKE THEIR OWN INDEPENDENT INVESTIGATION AND EVALUATION OF ANY ATTORNEY BEING CONSIDERED.
This notice published by The Florida Bar, Telephone A.C. 904/222-S286, Tallahassee, Florida 32304.

(b)The Florida Bar shall assume no liability to any persons whomsoever by reason of the adoption and implementation of the Plan.

Section 12. ADMINISTRATION.

(a) The Board may delegate to a committee or to the staff personnel of The Florida Bar any or all of its administrative responsibilities arising under this Article, but any member affected by an adverse decision from persons to whom such duties are delegated may appeal to the Board.

(b) Responsibilities which have been delegated to the staff of The Florida Bar are listed on Schedule B.

(c) The President of The Florida Bar, with the approval of the Board, shall appoint a standing committee to be known as the Designation Coordinating Committee, which shall be composed of 8 members, four of whom shall be appointed from the CLE Committee of The Florida Bar with the approval of its chairman, and the remaining four of whom shall be from the Specialization Committee of The Florida Bar with the approval of its chairman. The President shall name one such member as the chairman. The Designation Coordinating Committee shall cooperate with and answer inquiries from the staff personnel pertaining to the Plan and shall investigate and make recommendations to the Board concerning all questions relating to the Plan, including the following:

(1) Approved education courses,

(2) Alternative educational methods,

(3) Number of hours credit to be allowed for educational efforts,

(4) Educational standards for satisfactory completion of approved courses,

(5) Possible need for cooperation with colleges and universities,

(6) Additional areas of practice to be approved for designation,

(7) Possible modification or expansion of the Plan,

(8) Adoption of additional standards pertaining to the Plan,

(9) Amount of the application and renewal fees,

(10) General administration of the Plan.

(d) Application and renewal fees paid by members will be deposited in a segregated account of The Florida Bar and used exclusively for purposes related to operations under this Article.

(e) The Florida Bar shall maintain a list of all members who have filed applications for permission or applications for renewal, showing the date and disposition of each application acted upon.

(f) At least six months before the date on which a member’s permission to designate areas of practice expires, The Florida Bar shall give the member notice by regular mail advising the member of the date on which permission expires, the required qualifications for renewal of eligibility, and the procedure for renewal.

Section 13. RIGHT OF REVIEW. Any member adversely affected by an administrative ruling concerning this plan may petition the Board of Governors for relief. Any denial of relief by the Board can be reviewed by the Court on the member’s petition within 30 days of notice of the Board’s action.

SCHEDULE A

Admiralty

Appellate Practice

Antitrust

Bankruptcy

Corporation and Business Law

Criminal Law

Estate Planning and Administration

Family Law

International Law

Environmental Law

Consumer Law

Labor Law

Patent, Trademark, and Copyright

Real Property Law

Taxation

Trial Practice.

Workmen’s Compensation

Administrative and Governmental Law

Registered General Practice

Personal Injury and Wrongful Death

SCHEDULE B

1. Action under Section 6 on application for permission filed by individual members provided the applications do not involve requests for waivers under Subsections (b) and (c) of Section 4.

2. Action under Section 9(c) on applications for renewal filed by individual members.

3. Issuance of letters of permission under Section 6 and Subsection 9(c).

4. Timely issuance and publication of all notices required under this Article.

5. Maintenance of list of members required by Subsection (e) of Section 12.

6. Maintenance and publication of lists of educational courses approved by the Board.

It is so ordered.

ADKINS, C. J„ ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and MELVIN, Circuit Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Donald G. MacKENZIE, Respondent.
    No. 46856.
    Supreme Court of Florida.
    July 9, 1975.

      W. Sam Holland, Bar Counsel, Miami, Norman A. Faulkner, Staff Counsel, and John A. Weiss, Assistant Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This cause is before us on petition by The Florida Bar, seeking review and modification of the recommendation of discipline for Respondent made by the Referee after a hearing on a two-count complaint against Respondent, which complaint was based on the outcome of two probable-cause findings by a grievance committee.

The facts appear as follows.

In Case No. 11D71-17, Respondent represented Mr. Sam Eauied in the sale of Mr. Eauied’s supermarket. The closing was held on February 1, 1971. Respondent withheld $624.69 of the proceeds from the sale in order to satisfy a chattel mortgage against fixtures included in the sale. Subsequent to the closing Mr. Eauied was informed by the bank holding the mortgage that it was in arrears and that they were about to foreclose. After several unsuccessful attempts to contact Respondent, Mr. Eauied was forced to pay off the mortgage with his own funds. Respondent did not reimburse the $624.69 to Mr. Eauied until after grievance proceedings were commenced.

In Case No. 11D71-19, Respondent represented Mary Ann Portell and her brother and sister in the sale of their jointly owned property located in Dade County. The Closing was held on March 18, 1971. Respondent received the proceeds of the sale and deposited it in his trust account. Ms. Portell’s share of the proceeds, $14,338.51, was issued to her in the form of two checks drawn on Respondent’s trust account. One of the checks was for $13,000 and the other one was for $1,338.-51. Upon receipt of these checks, Ms. Portell immediately deposited them in her bank account, and on April 27, 1971, she learned that the check for $13,000 had been returned marked “insufficient funds”. Ms. Portell obtained an attorney who wrote to Respondent demanding he make good the $13,000 check and also that he render an accounting of the disbursement of the sale proceeds. On April 26, 1971, before he was contacted by Ms. Portell’s lawyer, Respondent forwarded a $13,000 cashier’s check to Ms. Portell. At no time did the Respondent ever comply with Ms. Portell’s request for an accounting. The request for an accounting was prompted by the discrepancy between the selling price of $60,000 and the disbursement figure of $41,838.34. Although requested, Respondent failed to pay interest on the $13,000 amount involved in the bad check.

Upon examination by the Referee Respondent testified that he had a trust account established at Key Biscayne Bank, but that he had used this as an office account; that he had no separate office account and trustee account; that all funds coming into his office, whether trust, escrow or otherwise, were commingled in the Key Biscayne Bank trustee account. Further, Respondent testified that his personal use of these funds had created the shortage on the check to Mary Ann Portell. Although approximately five years ago Respondent had separate trust and office accounts, he established a new trust account with First State Bank only six weeks before the hearing. This was done at the recommendation of his CPA; however, as of the date of the hearing, Respondent had not put into effect the new accounting system recommended by the CPA.

The Referee found that Respondent had failed to maintain separate bank accounts for his personal use and that of his -clients; that he had one account in which all funds were received and commingled; and that he did not have any method of bookkeeping which would reflect a balance in the account that were clients’ funds as against that portion which was his own. Further, the Referee found that Respondent commingled the funds entrusted to him as alleged in both count one and count two and that he did not pay the indebtedness owed his clients until after grievance proceedings were instituted or upon complaint made by the client. The Referee recommends that Respondent be found guilty as charged, and in particular, that he be found guilty of violation of Article XI, Rule 11.02(4) of the Integration Rule. As discipline, the Referee recommends that, upon entry of the verdict of guilty, it be suspended and that Respondent be placed on probation for a period of three years. Additionally, he recommends that the terms of probation shall call for an auditing and monitoring of Respondent’s accounting system and his method of operation; that Respondent be required to report; that investigation be made regarding the conduct of his personal account and the trust account; that he submit quarterly a statement of a CPA that he has conducted his books properly; that his personal monies and funds not be integrated with the trust and escrow funds; and that the quarterly report further reflect full compliance in all respects in his books and records of operation showing the full protection of any and all clients’ funds entrusted to him. Should Respondent fail to comply, the Referee recommends that he be disbarred.

Upon reviewing this report, the Executive Committee of the Board of Governors directed The Florida Bar to petition this Court to sustain the findings of guilt by the Referee in both counts, to assess the costs of these proceedings against Respondent and to suspend him for one year with proof of rehabilitation before reinstatement.

This Court has never tolerated misuse of trust funds, stating in State ex rel. The Florida Bar v. Ruskin :

“Few breaches of ethics are as serious as the commingling of a client’s funds and the use thereof for a lawyer’s private purposes. . . . ”

The Ruskin case' is similar to the situation sub judice with the exception that in Ruskin the. attorney had made good faith attempts to rehabilitate himself even before the matter got to the Referee; even so this Court imposed a six months’ suspension. Although the Referee strongly recommended the Respondent institute new accounting procedures during the Referee proceedings, as of the date of the Referee’s report Respondent had not done so.

As stated in Ruskin, supra, the consideration that should go into an order of discipline is that the discipline should be fair to both the public and to the attorney, with an object of correcting “the wayward tendency in the accused lawyer while offering to him a fair and reasonable opportunity for rehabilitation . . .”.

Accordingly, it is the decision of this Court to sustain the findings of guilt by the Referee and to suspend the Respondent for six months with automatic reinstatement thereafter when Respondent proves that he has satisfied the following conditions: (1) that Respondent render an accounting to Ms. Portell of the disbursement of the sale proceeds; (2) that Respondent pay interest to Ms. Portell for the use of the $13,000 for the length of time during which she was deprived of the sum, such interest to be at the rate prevailing in April, 1971; and (3) that, as recommended by the Referee, Respondent establish a system of accounting to be approved by The Florida Bar. Furthermore, once Respondent has been reinstated, we place him on probation for a period of three years, as recommended by the Referee; during his probation, Respondent shall submit to The Florida Bar quarterly statements of a CPA that he has conducted his books properly, that his personal monies are not integrated with trust and escrow funds, and that in all respects his books and records of operation show full and complete protection of any and all clients’ funds entrusted to him. Disbarment of Respondent should be considered only in the event of his failure to comply with the terms of his probation.

Respondent is allowed forty-five days to get his office affairs in order.' Execution is hereby directed to issue for the costs of this proceeding against Respondent in the amount of $758.05.

It is so ordered.

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

      . 126 So.2d 142 (Fla.1961).


author: TENCH, Circuit Judge.

text:
    Frances BRUNSON, Petitioner, v. John M. McCOY et al., Respondents.
    No. 45694.
    Supreme Court of Florida.
    June 25, 1975.
    Rehearing Denied Oct. 16, 1975.
    Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, and Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Tallahassee, for petitioner.
    Richard A. Valeri of MacFarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
   TENCH, Circuit Judge.

We have for consideration a petition for writ of certiorari directed to the Industrial Relations Commission, our jurisdiction arising under Art. V, § 3(b)(3), Fla.Const., which provides that this Court “may issue writs of certiorari to commissions established by general law having statewide jurisdiction.”

The issue presented is whether the Industrial Relations Commission may review and reverse the Judge of Industrial Claims where the only evidence presented to the Judge of Industrial Claims is depositions of witnesses. We hold it may.

This issue was resolved in Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970), in which the Supreme Court stated:

“. . . all evidence was submitted by deposition. The industrial judge did not personally see any of the witnesses. The Full Commission was, therefore, in as good a position to evaluate the credibility of witnesses and weigh the evidence as was the industrial judge.” [Emphasis not supplied]

The petition for writ of certiorari is denied.

ADKINS, C. J., ROBERTS, OVER-TON and ENGLAND, JJ., and ALDERMAN and MORPHONIOS, Circuit Judges, concur.


author: ENGLAND, Justice.

text:
    LEHIGH PORTLAND CEMENT CO. and Travelers Insurance Company, Petitioners, v. Wesley BRANCH and Industrial Relations Commission, Respondents.
    No. 46433.
    Supreme Court of Florida.
    July 16, 1975.
    Rehearing Denied Oct. 16, 1975.
    Bernard S. Shapiro, of the Law Offices of Joel R. Teague, Miami, for petitioners.
    Gerald B. Shaw, Miami, for respondents.
   ENGLAND, Justice.

By petition for writ of certiorari we are asked to review a decision of the Industrial Relations Commission awarding attorneys’ fees. We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution (1972).

The sole issue to be determined is whether petitioner is liable for attorneys’ fees under Section 440.34(1), Florida Statutes (1973), which requires the award of fees where an employer fails to pay benefits on or before the twenty-first day after notice of a claim.

Respondent was injured in the course of his employment on September 28, 1972 and he was promptly provided medical treatment. Petitioner timely paid, without contest, all of respondent’s temporary benefits required under the workman’s compensation law. On November 6, 1972, respondent returned to full employment with petitioner. From April 4 to mid-May, 1973, petitioner again voluntarily paid temporary benefits to respondent while he was undergoing medical treatment. Respondent again returned to full employment with petitioner on May 17 and has remained on the job since that time.

Respondent’s treating physician routinely examined him on June 13, 1973, but in contrast to previous visits he concluded that further treatment was unwarranted. The physician delayed until July 27 his decision and report on the appropriate disability rating, at which time he notified petitioner of his conclusion. On August 6, petitioner voluntarily commenced payment of permanent partial disability benefits based on the physician’s report.

Petitioner filed a claim and contested the physician’s disability rating. The Judge of Industrial Claims approved the physician’s rating and denied respondent any attorneys’ fees. The Industrial Relations Commission reversed as to attorneys’ fees, holding that the employer failed to provide benefits within 21 days of the physician’s examination. The Commission erred.

Section 440.34(1) unambiguously states that the 21-day period begins to run from the date on which the employer and carrier “have notice of (a claim)”. Notice in this case was not given until July 27, when the physician dictated his report and arrived at his rating. There was no possible way that the employer could know, prior to being notified, that the physician’s examination on June 13 would result in a permanent partial disability rating. This case is similar to and governed by Paul Smith Constr. Co. v. Florida Ind. Comm’n, 93 So.2d 735 (Fla.1957). The decision of the Industrial Relations Commission as to attorneys’ fees is quashed and that portion of the order of the Judge of Industrial Claims is reinstated.

ROBERTS, BOYD and OVERTON, JJ., concur.

ADKINS, C. J., dissents.

      . There is no evidence in the record to support the Commission’s conclusions either (i) that the physician determined the permanent rating on June 13 rather than July 27, or (ii) that petitioner insulated itself from information available on that earlier date.


author: BOYD, Justice.

text:
    Ruvel SMITH, Petitioner, v. The STATE of Florida, Respondent.
    No. 45479.
    Supreme Court of Florida.
    July 24, 1975.
    Rehearing Denied Oct. 17, 1975.

      See 321 So.2d 452, conforming to mandate.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

This cause is before us on a petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 292 So.2d 400. Our jurisdiction is based upon conflict between the per curiam decision sought to be reviewed and Richardson v. State and Watson v. State.

The facts of the case are as follows.

On August 18, 1971, Petitioner was informed against by information on the following four counts: entering without breaking, robbery, breaking and entering, and assault with intent to commit a felony. He was arraigned and entered a plea of not guilty on September 15, 1971. A demand for notice of intent to rely upon alibi was filed by Respondent; thereupon, in accord with Rule 3.200, Rules of Criminal Procedure, Petitioner filed notice of alibi with the court, which notice specified his alternative location at the exact date and time of the alleged robbery and denominated witnesses who could attest to it. In accordance with Rule 3.200 and pursuant to Petitioner’s continuing duty to disclose, Petitioner filed a supplementary notice which included the names and addresses of additional witnesses. Thereafter, Petitioner moved for discovery pursuant to' Rule 3.-220, Rules of Criminal Procedure, which motion included a prayer for all tangible evidence to be used against him.

At trial, Petitioner’s witness testified that he was in Verrick Park between 5:00 p. m. and 8:30 p. m. on the evening of the crime (which occurred at 8:00); further, he testified that Petitioner made an hour-long phone call from the office of Robert Hall in Verrick Park commencing between 7:00 p. m. and 7:30 p. m., which would have made it impossible for Petitioner to have committed the crimes charged. At the close of Petitioner’s case, the court asked Respondent for rebuttal testimony; at that time, Respondent first indicated the existence of such a rebuttal witness. Not only did counsel for the defense inquire as to who was being called, the Court itself indicated it was uninformed, and Respondent’s counsel remarked “you’ll find that out when I call her, Judge.” Thereupon, one Norma Campbell was called and testified as a rebuttal witness (Respondent introducing a document to be marked as Exhibit 1-A). Ms. Campbell testified that Robert Hall's office closed at 7:00 p. m. on the date in question; a time sheet was introduced into evidence substantiating her testimony. This testimony and evidence directly refuted Petitioner’s claim that he was in Robert Hall’s office making a phone call at the time of the charged crimes and devastated his alibi defense totally.

The jury returned a verdict of guilty, and Petitioner was sentenced to serve five years on count I, thirty years on count II, twenty years on count III, and fifteen years on count IV, all sentences to run consecutively. On appeal, the District Court of Appeal affirmed per curiam, on authority of Richardson, supra; Williams v. Florida; Neil v. Biggers; United States v. Ash; and Rule 3.200, Rules of Criminal Procedure. Petitioner brings certiorari on the basis of conflict with Richardson and Watson, supra.

In his brief, Petitioner relies on Williams, supra, which upheld the constitutionality of Florida’s requirement of notice of alibi. In that case the court noted that failure to provide reciprocal discovery to the defense might impair the constitutionality of such a rule. Accordingly, the U. S. Supreme Court in Wardius v. Oregon, discussed the holding in Williams, supra, and held that discovery must be. a two-way street and that it would be unfair to require a defendant to divulge the details of his own case while at the same time submitting him to the hazards of surprise concerning refutation of the very pieces of evidence which he disclosed to the state. Therefore, Petitioner contends that failure of the prosecution to comply with the reciprocal provisions of Rule 3.200 was a denial of due process. Petitioner argues that admission over objection of surprise rebuttal testimony impaired his ability to adequately prepare his defense and was highly prejudicial to his right to a fair trial. Petitioner relies upon Rule 3.200, Rules of Criminal Procedure, noting that it provides for notice of rebuttal alibi, plus the names and addresses of those witnesses which the state proposes to offer in rebuttal to defendant’s alibi. Petitioner notes the broad discretion that rests with the trial judge as to the requirements of the Rule, which requirements may be waived where good cause is shown. Petitioner asserts that the state’s failure to comply with its statutory duties to disclose abrogated its right to use the rebuttal alibi testimony, particularly since it failed to display a good cause for its noncompliance with the duties as required under Rule 3.200, Rules of Criminal Procedure. Furthermore, Petitioner notes that he sought discovery pursuant to Rule 3.220, Rules of Criminal Procedure, and that the rebuttal witness’ name was not included in the state’s witness list sent him. Petitioner maintains that the record is devoid of any good faith attempts by the state to comply with their continuing duty to disclose. He also protests that the court never inquired into circumstances surrounding nondisclosure, and merely overruled his defense counsel’s objection; he considers this to be an abuse of discretion. Petitioner points out that the testimony under consideration was used to refute his own alibi defense and w.as critical to the identity question, resulting in a tremendous prejudice to his case.

Respondent answers that, although once activated, Rules 3.200 and 3.220, Rules of Criminal Procedure, are mandatory in their requirement that the prosecuting attorney disclose to the defendant the existence of witnesses and other evidence which are relevant to the offense charged or any defense with respect thereto, including an alibi defense, these rules are discretionary in requiring the trial court to exclude a witness or evidence not so disclosed. Respondent observes there are various sanctions other than exclusion which the trial court may impose if it chooses to do so. Respondent asserts that the decision of whether or not to exclude the unlisted prosecution alibi rebuttal witness and tangible evidence sub judice rested entirely within the discretion of the trial court.

While the notice-of-alibi rule was never intended to provide a defendant with a procedural device to escape justice, this Court stated, inter alia, in Richardson:

“ . . . [I] f it is evident from the record that the non-compliance with the Rule by the State resulted in harm or prejudice to a defendant through failure to furnish the names of witnesses, and such witnesses were permitted to testify in behalf of the State, or if it should affirmatively appear that the State failed to furnish to the defendant the name of a witness known to the State to have information relevant to the offense charged against the defendant, or to any defense of the defendant with respect thereto, and the latter situation re-suited in harm or prejudice to the defendant, an appellate court reviewing his conviction must reverse. The trial court has discretion to determine whether the non-compliance would result in harm or prejudice to the defendant, but the courfs discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. . . .” (Emphasis supplied)

It is our view that, where the trial court fails to make full inquiry into circumstances relating to the state’s calling a witness whose name was not supplied to the defendant and where that witness testified as to a material issue, refusal by the trial court to exclude the testimony by the surprise witness is reversible error. As was stated in Watson, supra:

“Rule 3.200, RCrP is a part of the general discovery rules incorporated into the criminal procedure of this state. Like all discovery, it is reciprocal, affording the state and defendant alike an opportunity to eliminate surprise and lessens the opportunity for manufactured false alibis. Like all discovery procedures, fairness is the watchword. . . . The rule mandates that each party is under a continuing duty to disclose the names and addresses of additional witnesses. On this record we are convinced that the prosecutor had sufficient knowledge concerning the rebuttal evidence before appellant’s alibi witnesses took the stand to require him to apprize appellant thereof. The letter and spirit of the rule demand no less. . . . ”

Under the rationale of Richardson, supra, it is not the function of this Court to determine whether prejudice had resulted to Petitioner by the State’s failure to advise him that Norma Campbell would be a witness against him; however, it was incumbent upon the trial judge to do so. The trial judge having failed to make proper inquiry, this cause must be reversed. In light of our holding on this issue, the remaining points presented by Petitioner need not be discussed.

Accordingly, the decision of the District Court of Appeal, Third District, is quashed and the cause remanded with directions that a new trial be held.

It is so ordered.

ADKINS, C. J., and McCAIN, OVER-TON and DREW (Retired), JJ., concur.

ROBERTS, J., and MELTON, Circuit Judge, dissent.

      . Article Y, Section 3(b)(3), Florida Constitution.

      . 246 So.2d 771 (Fla.1971).

      . 291 So.2d 661 (Fla.App.1974).

      . 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

      . 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

      . 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

      . 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

      . Ramirez v. State, 241 So.2d 744 (Fla.App.1970).

      . Cf. Watson v. State, supra, see Note 3.

      . Ramirez v. State, supra, see Note 8.

      . Id. at 746.

      . Richardson v. State, supra, see Note 2 at pp. 774-775.

      . Salamone v. State, 247 So.2d 780 (Fla.App.1971); Carnivale v. State, 271 So.2d 793 (Fla.App.1973), cert. den., Fla., 277 So.2d 534; cf. Garcia v. State, 268 So.2d 575 (Fla.App.1972) cert. den., Fla., 273 So.2d 81.

      . Watson v. State, supra, see Note 3 at p. 662.


text:
    THE FLORIDA BAR, Petitioner, v. James J. TAYLOR, Jr., Respondent.
    No. 47638.
    Supreme Court of Florida.
    Sept. 11, 1975.
   The Florida Bar having filed on July 1, 1975, Petition for Suspension showing that James J. Taylor, Jr., a/k/a James Johnson Taylor has been convicted of a felony in a federal court and having accompanied said notice by proper proof of service and the above-named attorney having failed to file a petition with the Court requesting modification or termination of the suspension, James J. Taylor, Jr., a/k/a James Johnson Taylor, is hereby suspended from The Florida Bar pursuant to Article XI, Rule 11.07, of the Integration Rule of The Florida Bar as of September 11, 1975.

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


author: LEE, J. CAIL, Circuit Judge. ADKINS, Chief Justice

text:
    Barry L. HUGHES, Petitioner, v. PUBLIC FINANCE SERVICE, INC., et al., Respondents.
    No. 45537.
    Supreme Court of Florida.
    May 7, 1975.
    Rehearing Denied Oct. 20, 1975.

      Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for petitioner.
    Charles L. Rowe and Majorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for respondents.
   LEE, J. CAIL, Circuit Judge.

By Petition for a Writ of Certiorari, we have for review an Order of the Industrial Relations Commission dated April 15, 1974, reversing the Order of the Judge of Industrial Claims on the basis that there was not “competent substantial evidence to sustain the findings of the Judge of Industrial Claims ‘that the claimant did not realize that his injuries were compensable under workmen’s compensation’ [and that] the Judge was in error in finding that the failure of [Petitioner] to put [Respondents] on notice prior to the settlement of this claim against the third party tort-feasor was not prejudicial” .

We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was manager of a branch office of the Respondent finance company and left his office on August 7, 1972, at which time the automobile accident of which this matter is a result occurred. Petitioner testified that he was on his way to call on delinquent accounts, which was not uncommon. The Judge of Industrial Claims found this to be true, as well as the fact that the employer was notified of the accident the following day. Since Petitioner was then hospitalized for 59 days following the accident, it would be passing strange if the employer should be without actual knowledge of the injury, although neither employee nor employer seemed to realize that it was compensable.

Approximately 5 months after the accident, and 2 days after reaching a settlement with the third party tort-feasor, the instant claim for compensation was filed. The Judge found that Petitioner did not realize his injuries were compensable until' such time and that the employer-Respondent was not prejudiced by the late notice. The Industrial Relations Commission held that this was not supported by the evidence and therefore reversed.

We must determine if there was substantial competent evidence to support the findings of the Judge of Industrial Claims, and, if so, did the Commission depart from the essential requirements of law in overturning the factual determinations of the designated trier of fact,

The Respondent-carrier urges that its right of subrogation against the third party tort-feasor was lost because of the late notice. It has been made clear both to the Judge of Industrial Claims and this Court that no funds have been disbursed to the Petitioner from the settlement and Respondent-carrier’s claim of prejudice in this aspect of the matter must fall. We have found no other claim of prejudice or any evidence of any such damage to warrant setting aside the findings of the Judge.

A careful examination of the evidence reveals ample support for the Order of the Judge, and that the Commission was not justified in setting it aside.

We therefore find, upon our review of the record, that the ■ Industrial Relations Commission has departed from the essential requirements of law in invading the province of the trier of fact.

Therefore, the Writ of Certiorari is granted, the Order of the Industrial Relations Commission is quashed, the Order of the Judge of Industrial Claims is reinstated.

It is so ordered.

ROBERTS, McCAIN and OVERTON, JJ., and CREWS and McCRARY, Circuit Judges, concur.

ADKINS, C. J., concurs with opinion.

ADKINS, Chief Justice

(concurring) :

I concur in the majority opinion.

The Supreme Court of Florida has never definitively addressed the question whether under the traditional concept of common law certiorari an appellate court departs from the essential requirements of law when it reverses a lower court’s judgment, there being competent substantial evidence to support that judgment. This question necessarily involves a consideration of the propriety vel non of this Court looking beyond the face of the record to the evidence in support of the trial court’s judgment.

By writ of certiorari the Court is not authorized to review the judgment of the inferior appellate court as on appeal, but only to determine whether its order “is illegal or is essentially irregular or prejudicial and materially harmful to the party duly complaining” by a departure from essential requirements of law. Mutual Ben. Health & Accident Ass’n v. Bunting, 133 Fla. 646, 183 So. 321 (1938). Accord, Mutual Life Insurance Co. of New York v. Johnson, 122 Fla. 567, 166 So. 442 (1936); Police and Firemen’s Insurance Assoc. v. Hines, 134 Fla. 298, 183 So. 831 (1938).

On review of orders of the Judge of Industrial Claims, the Industrial Relations Commission serves as an appellate court, and the method of review is in the manner of an appeal. Scholastic Systems v. LeLoup, 307 So.2d 166 (Fla.1974). In Police and Firemen’s Insurance Assoc, v. Hines, supra, we said that on certiorari this Court will quash an appellate reversal of a lower court where it appears that the judgment of the appellate court is violative of established principles of law. It is well established that upon review by appeal, the reviewing court does not re-weigh the evidence, and the lower court will not be reversed on the facts if there is competent substantial evidence to support the findings. See 2 Fla.Jur., Appeals, § 346 to 348, pp. 721-731, and cases cited therein. See also, United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951), where we held that in compensation proceedings, the Industrial Relations Commission should not reverse findings of fact made by a deputy commissioner unless it appears that those findings are clearly erroneous and that they are not sustained by competent substantial evidence. Most recently, in Colvin v. State of Florida Department of Transportation, 311 So.2d 366 (Filed March 12, 1975), we applied the traditional rule of “presumption of correctness” of JIC findings and awards or denials thereof.

It follows that the reviewing authority departs from the essential requirements of law when it reverses an inferior court’s judgment which is supported by competent substantial evidence. A case precisely on point is State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla.App.3d, 1959), where the Third District Court held that the circuit court, sitting as an appellate court in review of an order of the State Beverage Department, departed from the essential requirements of law in reweighing the evidence presented to the director of the Department. In quashing the circuit court’s order of reversal, the Third District Court said:

“On the review of the director’s order by the circuit court, a material consideration was whether there was before him competent substantial evidence to support his findings and order. The circuit court on such review was not free to weigh or evaluate the evidence which had been presented to the director, but that court was charged with the duty to examine the record and determine whether the director’s order was in accord with the essential requirements of law and whether the director had before him competent substantial evidence to support his findings and conclusions.
“The rule that this court, on such a cer-tiorari proceeding, will not consider the sufficiency of the evidence, or the weight and probative force of conflicting testimony, is subject to the exception that the evidence which was before the agency will be reviewed to determine whether the findings and conclusions of that body are supported by competent substantial evidence, when it is made to appear ‘that the circuit court adopted and enforced a wrong view of the law in reviewing the case on the evidence and that it applied such wrong rule of law to its own appellate consideration and weighing of the evidence.’ Mutual Life Ins. Co. of New York v. Johnson, supra, 166 So. at page 444.
“The exception just mentioned is applicable in this instance, because the judgment on review shows that the circuit court did not determine the matter on the basis of the presence or absence of competent, substantial evidence to support the director’s order, but proceeded to re-weigh and re-evaluate the evidence and conflicting testimony.
“We conclude, therefore, that the learned circuit judge departed from essential requirements of law in this instance in his consideration of the evidence and the scope of his review.” (Emphasis supplied.) 115 So.2d at 568-570.

Our decision in this case should in no manner be construed as an erosion of the rule announced in Scholastics. To the contrary, this decision is consonant with the Scholastics’ rule that appellate review of Industrial Relations Commission cases will henceforth be based upon traditional certiorari grounds. Our review of the evidence will be for no other purpose than to determine whether the findings of the Judge of Industrial Claims were supported by competent substantial evidence.


author: WILLIAMS, Circuit Judge.

text:
    Kathy Denise BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 45821.
    Supreme Court of Florida.
    June 11, 1975.
    Rehearing Denied Oct. 17, 1975.

      Philip G. Butler, Jr., of Foley & Colton, West Palm Beach, for petitioner.'
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for respondent.
   WILLIAMS, Circuit Judge.

By Petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District, reported at Bailey v. State, Fla.App., 295 So.2d 133. Jurisdiction vests pursuant to Fla.Const. Art. V § 3(b). The decision conflicts with Talavera v. State, (Fla.App.1966) 186 So.2d 811, Sagonias v. State, (Fla.1956) 87 So.2d 252, Urquhart v. State, (Fla.App.1968) 211 So.2d 79, and Earman v. State, (Fla.1972) 265 So.2d 695.

Petitioner, defendant below, seeks review of the decision of the District Court of Appeal, Fourth District, affirming the trial court’s refusal to grant petitioner’s motion to suppress all of the physical evidence, and to reverse the conviction.

Defendant was convicted by a jury for possession of marijuana and cocaine, and she appealed.

Up to a point near the end of the incident leading to the arrest of defendant, there is practically no conflict in the testimony of all the witnesses. A Florida Highway Trooper observed a 1946 Cadillac convertible, with the top down, enter the Florida Turnpike at the Stuart entrance. The car contained three persons, all in the front seat; the defendant, a 17 yr. old female, between two males, all with long hair. The trooper began to follow as the car proceeded in a northerly direction. He followed the car for almost three miles. Traffic was fairly light. The car was proceeding at about 45 miles per hour and the trooper testified that the car was weaving to some extent, but, “was not weaving all that bad.” In the almost three miles that he followed the car, it neither crossed the lane divider on the inside of the lane nor did it go off the roadway on the outside of the lane. He finally pulled the car over to determine why the car was proceeding in such a manner. After questioning the driver, the trooper was satisfied with the explanation that this particular automobile was new to the driver. The trooper also determined that the driver did not appear under the influence of an alcoholic beverage. He then checked the driver’s license of the driver which appeared to be valid. He checked the license plate of the car with his headquarters by radio and determined that it was not reported stolen. The trooper testified that he then walked around to the other side of the car and asked the other two passengers for identification and that the male passenger exited the car to be better able to remove his identification to show to the trooper. The trooper then observed a plastic sandwich bag protruding from under the leg of the defendant who was still seated in the car. He picked up the bag and examined its contents. There were ashes in the bag which he determined by smell were marijuana ashes. He arrested all three persons for possession of marijuana and read them their Fifth Amendment rights. He testified that he received permission to search the car, and that during the search of the car he asked if a certain cosmetic bag belonged to the defendant; that she responded in the affirmative, and gave consent to a search of it. A search of the cosmetic bag revealed some marijuana and cocaine for which the defendant was arrested, prosecuted and convicted.

On the question of consent to search the car and cosmetic bag, there is considerable conflict in the testimony.

At some time prior to trial, defendant filed a motion to suppress the evidence as the result of an illegal search and seizure. There is a dispute as to whether the motion was ever set down by the defense for hearing prior to trial. There was a notice of hearing by defendant of all pending motions but the record does not clearly reflect whether there was any mention of the motion at the time noticed for such hearing. On the day of trial the defense announced ready to proceed on its motions. The Court stated that the motion to suppress would be heard during trial. A jury was selected and the trial commenced. The trial court denied the motion to suppress on the ground that consent had been given for the search. Defendant appealed from the ruling and the subsequent conviction.

The Fourth District Court of Appeal, in Bailey v. State, Fla.App., 295 So.2d 133, held that the seizure by the patrolman of the plastic sandwich bag and its contents was illegal and that those items should have been suppressed, and that the resulting arrest was illegal. However, the court held that the defendant subsequently consented to the search of her cosmetic bag freely and voluntarily so that the illegal contents of her cosmetic bag were admissible in evidence. The Appellate Court also held that the submission tp the jury of the contents of the sandwich bag, and testimony concerning the initial arrest, although found to be improper, was not reversible error. Neither the State nor the defendant wholly agree with all the rulings of the Appellate Court. The State, although of course agreeing with the final overall ruling by the Appellate Court affirming the conviction of defendant, nevertheless maintains that the Appellate Court was incorrect in holding that the initial arrest of defendant and the search and seizure of the sandwich bag were illegal and that the contents of that bag should have been suppressed. The defendant’s position is that the Appellate Court was correct in ruling that the initial search and seizure was illegal, but disagrees with the ruling of the Appellate Court that nonetheless the subsequent search and seizure was legal because of consent of the defendant, and disagrees with the Appellate Court that the trial court did not commit reversible error by hearing the motion to suppress during the jury trial. Defendant maintains that after the driver of the automobile had been checked out favorably by the trooper, everything following thereafter was improper: (1) that any further detention was illegal ; (2) that demanding identification from defendant and other passenger was illegal; (3) that the search of the plastic bag was illegal; (4) that the resulting arrest of the parties was illegal; (5) that the resulting search of the automobile and defendant’s cosmetic bag was illegal; (6) that the seizure of the contents of the cosmetic bag and its subsequent use as evidence against the defendant was illegal; (7) that as a result of the aforesaid illegal acts the search and seizure could not be validated by a consent; and (8) that at any rate, a valid consent was not given.

Defendant further cites as error the hearing of the motion to suppress during the trial, rather than before trial.

The State’s position is that the checking of the passengers for identification was valid under the Florida, “Stop and Frisk,” law, Florida Statute 901.151; that the search and seizure of the plastic sandwich bag was legal by virtue of the, “open view doctrine;” that even if such search and seizure were to be illegal and followed therefore by an illegal arrest, the defendant gave a valid consent to the search of her cosmetic bag, thus validating the search and seizure.

We agree with the Appellate Court on most of its conclusions, but disagree on at least one which is a controlling factor in the final disposition of this case. We agree that the initial search and seizure of the sandwich bag was illegal and that the resulting arrest of all of the car’s occupants was illegal. We disagree that the subsequent searches and seizures were legal by consent.

We agree with the Appellate Court that the motion to suppress should have been heard before trial. We ordinarily would have to consider fully whether reversible error resulted, but the point is moot in view of our holding that the search and seizure was illegal and that the motion to suppress should have been granted.

Commencing with the last paragraph on page 135 of the Appellate Court’s opinion and proceeding through the first paragraph on page 137 thereof, the opinion sets forth an excellent account of the law of search and seizure relative to automobiles that we cannot improve upon, and hence is accepted by us in its entirety.

Suffice it to say that, as stated by the Appellate Court, except for the disputed question of consent, there could have been no legal search, seizure, arrest and admission into evidence of the physical contents of defendant’s cosmetic bag. The question of consent developed only after a series of illegal actions by the arresting officer.

Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other. Perhaps some of the possibilities occurring to the officer were defective steering mechanism or that the operator was driving under the influence of alcohol or some other drug. At any rate, the officer did stop the car and diligently investigated all suspicious possibilities. He found no evidence that the driver was under the influence of alcohol, and was satisfied with the reason given by the operator for the moderate speed and slight weaving. He also checked the operator’s driver’s license and evidence of ownership, both of which appeared valid. He next checked by radio and found that the vehicle was not listed as stolen.

At this point the officer decided to check out the passengers. Also at this point there is no doubt that he had no right to check them. As candidly stated by the officer, there were at that time no circumstances which reasonably indicated that either of the passengers had committed, was committing, or was about to commit a violation of the criminal laws of the State, County or any municipality. Therefore, there is no validity to the State’s reliance upon the, “Stop and Frisk,” law, Florida Statute 901.151. However, even if, ar-guendo, the officer could legally require satisfactory identification from the passengers, what followed was illegal. Accepting the officer’s statement that defendant’s male co-passenger exited the car willingly (defendant testified otherwise), the next occurrence in sequence is that the officer saw a plastic sandwich bag protruding from beneath the leg of defendant. The officer picked up the bag, opened it, inspected the contents by sight and smell, and thereby found the contents to be marijuana ashes. He thereupon arrested all three occupants of the car. The Appellate Court correctly held that the seizure and search of the bag was illegal and that therefore the subsequent arrests were illegal.

The circumstances of the initial detention in this case are remarkably similar to those in Brown v. State, 62 So.2d 348 (Fla.1952), in which this court found that such a search and seizure was an unreasonable violation of constitutional rights. However, no question of consent arose in that case. This case rests squarely upon the question of consent, which is an exception to the search and seizure requirements. As an exception and as a waiver it must be shown by the State that strong circumstances are present in a case for it to quality as an acceptable alternative to preservation of constitutional rights of citizens.

In this case, the Appellate Court, while conceding that the case presented was an extremely close one, ruled that if there is evidence in the record to support the determination made by the trial court, then an appellate court should not substitute its judgment for that of the trial court. We cannot agree that the question at issue is that simple.

The arresting officer’s testimony to establish consent consisted entirely of conclusions, such as; “I asked her about searching it and she said yes.” On cross-examination, he was unable to recall whether any of the occupants asked him whether he needed a search warrant to search the car. Defendant testified that when the officer asked about searching the car she had stated that she didn’t think it was legal to search the car without a search warrant and that the officer stated something to the effect that his badge gave him the authority to search the car. She also testified that she had objected to the search of her cosmetic bag, and that she asked again about a search warrant, and the officer replied that the finding of marijuana im plain sight gave him the right to search. The driver also testified that he questioned the search of the car; that he never gave consent to search; and that after the initial illegal search and illegal arrest, the officer stated that now he had the right to search the car. One of the backup officers was called as a witness for the State. His testimony corroborating the arresting officer on consent by defendant to search was also general and a bare conclusion:

“PROSECUTOR: ‘Did he ask her for consent to search it?’
“TROOPER GORDON: ‘Yes.’ ”

However, significantly, this officer testified that there was inquiry from one or more of the occupants concerning a search without a warrant and that the arresting officer had answered that he could get a search warrant and then search, and that then consent was forthcoming, again a conclusion on the part of the witness. He also testified that the arresting officer told the occupants that because of evidence he saw in plain view that that gave the right to search and that thereby he could get a search warrant issued, “so then they gave him permission." This testimony in itself is extremely damaging to the State’s position on consent and in fact, corroborates to a great degree the testimony of defendant and her witness.

Mere conclusions of an officer are insufficient to establish a valid consent. Officers are not qualified to make such a conclusion. To support a finding of consent, evidence of such consent to search of vehicle without warrant must be clear and convincing. Sagonias v. State (Fla.1956), 89 So.2d 252.

“A distinction is recognized * * * between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, * * * »
Talavera v. State (Fla.App.1966), 186 So.2d 811.

It is our ruling that the circumstances in the case at issue fall far short of the standards set in the foregoing cases.

Notwithstanding anything stated in those cases which might seem to require the State to prove knowledge of the right before a defendant could give a valid consent, we do not find such to be a requirement in itself. On the other hand, knowledge or lack of knowledge is a factor which may not be ignored but should be considered along with all other factors. Othen v. State, (Fla.App.1974) 300 So.2d 732; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Defendant was not under arrest in either of those cases.

Likewise, we do not unequivocally state that there are no instances in which a valid consent can be given after an illegal arrest.

We agree with the Appellate Court that voluntariness of consent is to be determined from a consideration of the totality of the circumstances. Ghelfi v. State, (Fla.App.1969) 229 So.2d 593. There may be a few rare instances in which a valid consent could be made after an illegal arrest, provided that circumstances were so strong, clear and convincing as to remove any doubt of a truly voluntary waiver. However, ordinarily consent given after an illegal arrest will not lose its unconstitutional taint. Urquhart v. State (Fla.App.1968), 211 So.2d 79; Earman v. State, (Fla.1972) 265 So.2d 695. In the Urquhart case it was ruled that a person would not be considered to have given voluntary consent to police officers’ search of home where at time of statement occupant did not know that officers were violating law in invading her home or that defendant’s arrest in her home was illegal. In Earman v. State, supra, this Court approved the holding of the Urquhart case.

The Appellate Court held that a consent may be free and voluntary even if a person has been illegally arrested, provided that such consent was not obtained by the exploitation of any unlawful action of the officers, citing State v. Spanierman, (Fla.App.1972) 267 So.2d 102. However, in the Spanierman case, the defendant was not actually under arrest. In none of the cases cited by the Appellate Court or by State on this point was the defendant actually under formal arrest illegally at the time consent was given, although under some form of investigative detention. Actually, when it has been established that there have been serious illegal actions by police officers prior to an alleged consent having been given by a person, how can any court determine whether or not the consent was obtained by exploitation of such illegal actions? In many instances, the exploitation is accomplished with the performing of the actions. This would be particularly true of an actual, formal arrest, after which the arrested persons could assume that they are subject to commands or suggestions of the officers. A finding of valid consent must be in accordance with human experience. Talavera v. State, supra.

The Appellate Court discussed the conflicting testimony of the arresting officer and the defendant on the question of consent and concluded that the trier of fact can exclude the testimony of the defendant and base its findings solely on the arresting officer’s testimony. This is not necessarily true were the fact to be proved, that is: a waiver of constitutional right, must be by clear and convincing proof. In this case, even if the only testimony was that of the arresting officer and defendant, it is doubtful whether a valid consent could have been established, under the circumstances. But there was additional evidence. The driver of the car and another officer testified. The Appellate Court did not even mention in this regard the fact that the other officer had corroborated to some extent the defendant’s testimony and that of her witness, concerning the conversation before the searches.

Under all of the circumstances of this case we hold that the defendant’s motion to suppress should have been granted and on that ground we must reverse the order of affirmance of the Fourth District Court of Appeal.

In view of the foregoing holding, it is not necessary to consider fully the second point on appeal, namely: whether the conviction should have been reversed because of the failure of the trial court to have heard the motion to suppress prior to trial. We agree with the Appellate Court that the trial court should have heard and ruled upon the motion to suppress prior to the trial. It is unnecessary for us to decide whether reversible error was thereby caused such as was held in Foster v. State, (Fla.App.1971) 255 So.2d 533. We only add to the opinion of the Appellate Court that it is advantageous to the State as well as defense for the motion to suppress to be heard before jeopardy attaches by swearing of the jury after voir dire. Whether the motion is heard at some date prior to the trial date, or whether it is heard on the trial date but before commencement of trial, is a matter of local practice and of convenience to the court, parties and witnesses. If the motion is heard upon the day of trial, the witnesses are only subpoenaed once. If the motion is heard some time prior to trial and ruled upon, the State and defense have more time to decide upon their trial tactics, such as a decision by the defense as to whether to plead guilty, waive jury, or go to jury trial, and a decision by the State, if the ruling on the motion is adverse to the State, whether to appeal the ruling of the court.

On the basis of our holding that the evidence was gained by an illegal search and seizure, and that the motion to suppress should have been granted, the decision of the Fourth District Court of Appeal is quashed and the cause remanded for disposition not inconsistent herewith.

ADKINS, C. J., ROBERTS, McCAIN, OVERTON and ENGLAND, JJ. and CHAPPELL, Circuit Judge, concur.


text:
    Samuel Theodore BOYETTE, Petitioner, v. STATE of Florida, Respondent.
    No. 47466.
    Supreme Court of Florida.
    Aug. 21, 1975.
   Certiorari denied. 311 So.2d 786.

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

BOYD, J, dissents.


text:
    James DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 47909.
    Supreme Court of Florida.
    Aug. 26, 1975.
   Certiorari dismissed sua sponte. 314 So.2d 659.


text:
    FLORIDA STEEL CORPORATION, Appellant, Petitioner, v. Fred O. DICKINSON, Jr., et al., Appellees, Respondents.
    Nos. 47218, 47209.
    Supreme Court of Florida.
    Aug. 26, 1975.
   Case dismissed. 308 So.2d 623.

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


text:
    James PAULINO et al., Petitioners, v. GRADY HARDISTER, INC., et al., Respondents.
    No. 46872.
    Supreme Court of Florida.
    Aug. 26, 1975.
   Certiorari denied. 306 So.2d 125.

ROBERTS, BOYD, OVERTON and SUNDBERG, JJ, concur.

ADKINS, C. J, dissents.


text:
    Charlie R. JOHNSON, Petitioner, v. Josefina CUBENAS, Respondent.
    No. 47931.
    Supreme Court of Florida.
    Aug. 27, 1975.
   Certiorari dismissed sua sponte.


text:
    William L. MACKLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 47956.
    Supreme Court of Florida.
    Aug. 29, 1975.
   Certiorari dismissed sua sponte. 315 So.2d 566.


text:
    Glen Stark CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 47888.
    Supreme Court of Florida.
    Sept. 8, 1975.
   Cause sua sponte vacated.


text:
    Jim FAIR, Petitioner, v. J. H. GUERRY, etc., et al., Respondents.
    No. 47939.
    Supreme Court of Florida.
    Sept. 8, 1975.
   Case dismissed, sua sponte.


text:
    Bertha KOWALSKI, Petitioner, v. John KOWALSKI, Respondent.
    No. 47978.
    Supreme Court of Florida.
    Sept. 8, 1975.
   Certiorari dismissed sua sponte. 315 So.2d 497.


text:
    Ronald A. SANDS, Petitioner, v. STATE of Florida, Respondent.
    No. 47990.
    Supreme Court of Florida.
    Sept. 8 1975.
   Certiorari dismissed sua sponte. 316 So.2d 662.


text:
    Bill B. GRIER, Appellant, v. COUNTY OF SEMINOLE, etc., et al., Appellees.
    No. 47426.
    Supreme Court of Florida.
    Sept. 9, 1975.
   Appeal dismissed.


text:
    Daniel R. HOUSE, Jr., Petitioner, v. Lois Marie HOUSE, Respondent.
    No. 47202.
    Supreme Court of Florida.
    Sept. 9, 1975.
   Certiorari denied. 310 So.2d 73.

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


text:
    Thomas Sidney MORRISON, Appellants, v. John Patrick GILMORE et al., Appellees.
    No. 47783.
    Supreme Court of Florida.
    Sept. 9, 1975.
   Appeal dismissed.


text:
    John Wesley PERKINS, Petitioner, v. LINDSLEY LUMBER COMPANY et al., Respondents.
    No. 47663.
    Supreme Court of Florida.
    Sept. 10, 1975.
   Certiorari dismissed.


text:
    Audrey HOCKETT, Petitioner, v. RANGER INSURANCE COMPANY, a corporation, and A. D. Hockett, as Administratrix of the Estate of Wayne C. Hockett, Deceased, Respondents.
    No. 46907.
    Supreme Court of Florida.
    Sept. 10, 1975.
   Certiorari denied. 305 So.2d 102.

ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents.


text:
    Sandra Lee FARROW, Petitioner, v. Donald Craig FARROW, Respondent.
    No. 47228.
    Supreme Court of Florida.
    Sept. 10, 1975.
   Certiorari denied. 308 So.2d 559.

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


text:
    Michael HALL, Appellant, v. STATE of Florida, Appellee.
    No. 47110.
    Supreme Court of Florida.
    Sept. 11, 1975.
   Case dismissed. 309 So.2d 84.

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


text:
    James PAULINO et al., Petitioners, v. Grady HARDISTER et al., Respondents. James PAULINO et al., Petitioners, v. GRADY HARDISTER, INC., et al., Respondents.
    Nos. 46609, 46611.
    Supreme Court of Florida.
    Sept. 11, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


author: HOBSON, Judge.

text:
    Sarah Ann ZACK and John R. Zack, as husband of Sarah Ann Zack, Appellants, v. CENTRO ESPANOL HOSPITAL, INC., Appellee.
    No. 74-495.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 8, 1975.
    Wagner, Cunningham, Vaughan, Hap-ner, May & Genders, Tampa, and Pod-hurst, Orseck & Parks, Miami, for appellants.
    Herce, Martinez & Associate, Tampa, for appellee.
   HOBSON, Judge.

Appellants, plaintiffs below, received a favorable verdict against the appellee, defendant below, for negligent acts of its employees causing injury to Mrs. Zack. The final judgment appealed was entered for the defendant on its motion for judgment notwithstanding the verdict.

The specific act of negligence alleged by the plaintiffs was that the defendant’s employees removed a Foley catheter with the cup inflated, thereby proximately causing injuries to Mrs. Zack. The trial court in its order granting the motion for judgment notwithstanding the verdict gave as its reason therefor the following:

“In the opinion of the Court the verdict for the plaintiff must be set aside for the simple reason that in order to reach the ultimate conclusions that the hospital, through the actions of its nurses, was negligent and that that negligence caused the condition complained of, to-wit, the fistula in the bladder, necessarily involves the pyramiding of one inference upon another in violation of the rule steadfastly adhered to in this jurisdiction and set forth in the following cases; Voelker v. Combined Insurance Company of America [Fla.], 1954, 73 So.2d 403; Nielsen v. City of Sarasota, Fla., 1960, 117 So.2d 731; and most recently discussed in The Green House, Inc., v. Thiermann, Fla.App.2d, 288 So.2d 566.
“There was no direct evidence whatsoever that the nurse, Mrs. Ballard, removed the Foley catheter with the cup inflated. The nurse testified that she did in fact remove the catheter under the doctor’s orders, but denied removing it with the cup inflated. The plaintiff relied upon the opinion of Dr. Santos and another doctor that the nurse, in his opinion, removed the catheter with the cup inflated. He then offered the further opinion that that action caused the fistula in the bladder which was later observed and last, that this was not a proper medical practice. The jury could not find that this series of facts had been established without violating the rule that a party may not pyramid one inference upon another, in a circumstantial evidence case, unless and until the initial or preceding inference has been established to the exclusion of all other reasonable inferences. The evidence in this case shows that the initial inference, to-wit, that the nurse removed the Foley catheter with the cup inflated, was not established to the exclusion of all other reasonable inferences, as required by the rule, and having failed to do this the second inference, to-wit, that the removal of the catheter caused the fistula, may not be indulged and the plaintiffs’ case from this theory therefore must fail as a matter of law.
“Notwithstanding this, the plaintiff argues that its case was based not upon circumstantial evidence but upon ‘direct’ evidence in the form of medical expert opinion that the nurse did indeed do the thing she denied doing, that is, remove the catheter with cup inflated. The opinions of an expert are nothing more than inferences drawn by the expert witnesses from the circumstantial evidence presented. If the jury is not permitted to pyramid inference upon inference unless the initial or preceding inference is established to the exclusion of all other reasonable inferences, then certainly the plaintiff cannot avoid application of this rule by having an expert witness or witnesses indulge in violation of this rule. The evidence in this case established that the expert witnesses indulged in pyramiding an inference upon inference when the first inference was not in any sense of the word established to the exclusion of all other reasonable inferences. The evidence in this case shows beyond question that a perfectly equal reasonable inference can be drawn from both direct and circumstantial evidence that the nurse did not in fact do what the two expert witnesses testified that she did do in their opinion and thus the second inference drawn by the expert witnesses that this act of the nurse caused the injury complained of, that is, the fistula, may not be permitted and the plaintiffs’ case on this theory therefore must fail.” (Emphasis added)

In LaBarbera v. Millan Builders, Inc., Fla.App.1st 1966, 191 So.2d 619, Judge Wigginton, in discussing an expert witness’ response to a hypothetical question and whether or not his response is of the character of an inference which falls within the prohibition against constructing an inference upon an inference to arrive at an ultimate conclusion, stated the following:

“ * * * The expert opinion of this witness was based upon physical facts found to exist at the time of his inspection of the premises and examination of the heating unit on the day following the fire, which included the clogged condition of the ceiling louver. It is true that one of the facts assumed by this witness in reaching his conclusion was that the ceiling louver was clogged and obstructed before the fire occurred, which fact appeared only as an inference from other facts in evidence. The utilization of this inferred fact in reaching his unequivocal conclusion with regard to the origin and nature of the fire does not reduce the testimony of the witness to that of an inference drawn from circumstantial evidence.
“Although a conclusion expressed by an expert witness in response to a hypothetical question may, in one sense, be characterized as an inference, we do not believe it to be the character of inference which falls within the prohibition against constructing an inference upon an inference to arrive at an ultimate conclusion. To hold otherwise would render incompetent every opinion of an expert witness given in response to a hypothetical question if it were found that one of the several facts forming the basis of the question consisted of an inference drawn from circumstantial evidence. Such a result would not comport with logic, reason, or the practicalities of the judicial process. Since the fact necessary to prove that defendant’s negligence was the proximate cause of plaintiffs’ damages was established by positive and direct evidence, and not by an inference drawn from circumstantial evidence, we do not consider that the inference on inference rule propounded in Commercial Credit Corporation, supra, is applicable. We therefore conclude, and so hold, that the chancellor erred in rendering judgment in favor of defendant.”

Under the law as established in LaBarbera, supra, the two expert witnesses’ opinions that the catheter was removed with the cup inflated becomes direct evidence and not an inference drawn from circumstantial evidence. When considering the expert opinions as direct evidence, the plaintiffs made a prima facie case on the issue of causation, which issue was properly submitted to the jury.

In Wale v. Barnes, Fla.1973, 278 So.2d 601, it is stated:

“Succinctly stated, Dr. Kaplan opined that the use of forceps caused Gary’s subdural hemotomas. Even though there is contrary medical evidence in the record indicating that the subdural hemato-mas may have been caused by trauma or a troublesome trip down the birth channel (non-negligent acts) the above-quoted testimony of Dr. Kaplan makes a prima facie case on the issue of causation. No further evidence is required on causation because Dr. Kaplan’s testimony precisely and exactly attributes Gary’s subdural hematomas to 'the traumatic or injurious forceps delivery of this child in which the head was injured.’ ”

For the foregoing reasons and the law cited above, the final judgment for the defendant entered on its motion for judgment notwithstanding the verdict is reversed and the jury verdict in favor of the plaintiffs is reinstated. The trial court is directed to enter a judgment in favor of the plaintiffs based on the jury verdict.

Reversed..

McNULTY, C. J., and GRIMES, J., concur.

      . Commercial Credit Corporation v. Varn, Fla.App.1959, 108 So.2d 638, 640.