author: OVERTON, Chief Justice.

text:
    Marcelle McGOVERN et al., Appellants, v. LEE COUNTY, Florida, Appellee.
    No. 49344.
    Supreme Court of Florida.
    May 2, 1977.

      James H. Seals of Moorey, Seals & Gar-vin, Fort Myers, for appellants.
    James T. Humphrey, Jr., and Daniel U. Livermore, Jr., of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellee.
    Roger E. Berres of Roberts, Watson, Bright & Adams, Fort Myers, and William B. Lawless of Hawkins, Delafield & Wood, New York City, for City of Sanibel, amicus curiae.
   OVERTON, Chief Justice.

This is an appeal from a final judgment of the Circuit Court for Lee County validating the Lee County, Sanibel Bridge Improvement Revenue Bonds. We have jurisdiction.

This is a unique revenue bond proposal which would require the users of a bridge that has paid for itself to now pay for substantial improvements to several roads, one of which is over twelve miles removed from the bridge, and for the construction of recreational facilities. We reverse the validation of the bond issue because the record fails to establish that the majority of improvements will actually make a significant contribution to the traffic over the bridge, and the toll to pay these new proposed revenue bonds would place an undue burden on the residents and visitors to Sanibel Island. Tolls as well as taxes must be fairly imposed.

The sparseness of the record in this cause has created some substantial problems for this Court in trying to understand the projects and their relation to the bridge. There is generally insufficient detail as to the amount of costs of these “improvements,” and as for the City of Sanibel’s portion of the project, there are no plans other than the generalities contained in this opinion as to how the City intends to use the money.

The following are the facts beginning with the original financing and construction of the Sanibel Bridge. In 1961 this Court affirmed the validation of revenue bonds issued by Lee County to finance a self-liquidating project, the construction of a toll bridge and causeway across San Carlos Bay connecting Sanibel Island to Punta Rassa. See SanibeL-Captiva Taxpayers’ Association v. Lee County, 132 So.2d 334 (Fla.1961). The Sanibel Island Bridge and Causeway has paid for itself, and the tolls now being collected are unencumbered except for operation and maintenance costs. The present toll is $1.50, and the bridge is the only vehicular ingress and egress for residents of the island.

Appellee Lee County and amicus curiae City of Sanibel wish to issue new revenue bonds and to use the tolls from the bridge to (1) finance the improvement of six roads by which mainland traffic may gain asserted improved access to the bridge, and to (2) finance the construction of recreational, sanitary facilities, and street improvements on Sanibel and Captiva Islands. The proceeds from the sale of the bridge improvement bonds would be $18,000,000, and the tolls from the bridge would be pledged to liquidate the bonds. By interlocal agreement, Lee County and the City of Sanibel have decided that seventy-four percent of the proceeds would go to the “Mainland Road Improvements” while the remaining twenty-six percent would go to the “Sanibel Projects.”

The bond resolution passed by the Board of County Commissioners of Lee County described the two projects as follows:

“The economic progress and well being of the people of the Issuer depend in large measure upon the many visitors and residents of other areas who come to the Issuer, including particularly Sanibel and Captiva Islands, to enjoy its beneficial climate, scenic beauty, natural resources and the many man-made attractions, sports and recreation opportunities.
“(1) It is necessary and desirable to adequately provide for the safe, orderly flow and circulation of traffic through and over the Bridge by acquiring and constructing extensions, additions and improvements to the bridge and causeway facilities consisting of the following approaches and approach roads on the easterly side of the Bridge (the ‘Bridge Improvements’):
“Colonial, SR 867 (McGregor) to SR 82 Synchronization of US 41 traffic signals
SR 869, SR 867 (McGregor) to Colonial Gladiolus Loop Road, SR 867 (McGregor) to Colonial
Cypress Lake Drive — Daniels Road, SR 867 (McGregor) to 1-75
SR 867 (McGregor), toll plaza to College Parkway
“(2) It is further necessary and desirable to construct and acquire certain approaches and approach roads to the Bridge, and extensions, additions and improvements to existing approaches and approach roads to the Bridge and to construct and acquire certain public recreation facilities on Sanibel and Captiva Islands, which are more particularly described in the Interlocal Agreement and referred to therein as the ‘Sanibel Projects.’
“(3) All of the above capital improvements are necessary and desirable in order to preserve and protect the public health, safety and welfare of the inhabitants of the Issuer.”

The darkened routes on the enclosed map of Lee County show the location of the mainland roads to be improved. The proposed path of 1-75, not part of the planned bridge improvements, is also shown to illustrate that Colonial (No. 1) and Cypress Lake Drive (No. 5) are asserted to be connectors to feed to the bridge traffic from the interstate when it is constructed. U.S. 41 is identified by a double line. It is presently the main north-south ingress and egress route through the city, carrying 60,-000 vehicles daily. It is part of the proposed improvements to the extent of synchronization of U.S. 41 traffic signals.

[See following illustration on p. 62]

COLONIAL [S.R. 867 (McGregor) to S.R. 82], SYNCHRONIZATION [U.S. 41 traffic signals], S.R. 869 [S.R. 867 (McGregor) to Colonial]. GLADIOLUS LOOP ROAD [S.R. 867 (McGregor) to Colonial]. CYPRESS LAKE DRIVE [S.R. 867 (McGregor) via Daniels Road to 1-75]. S.R. 867 (McGregor) [Toll Plaza to College Parkway]. H 0 o t X X-HE COUNTY FLORIDA

The plans for the Sanibel Projects, for which twenty-six percent of the funds are to be used, are in the words of the bond resolution “more particularly described in the Interlocal Agreement . .

“SECTION 3. SANIBEL PROJECTS. The County and City hereby agree that it is necessary and in the public interest of the citizens of both the County and the City that the following described public improvements be constructed and acquired, all to be located on Sanibel Island
“1. Acquisition and improvement of property for public usage
Beachfront Parks
Near Lighthouse End of Island Mid Island
Near Bowman’s Beach Access Road Interior Parks
“2. Construction and improvement of roadways and appurtenant facilities for public safety
Acquisition of Right-of-way
Extension of Gulf Drive
Parallel Roadway
Construction of New Roadways Improvement of Existing Roadway System
Establishing Turn Lanes Improving Critical Intersections Building up Dangerous Shoulders Straightening Dangerous Curves Replacing Inadequate Culverts “3. Establishment of Facilities for
Public Usage
Building Public Sanitary Facilities Comfort Stations
Dumping Station for Travel Vehicles Building Public Recreation Facilities
Boat Ramp Parking Facilities”
* * * * 5k *

This is the only explanation of the Sanibel Projects to be found in the record.

Appellee Lee County sought and obtained from the circuit court validation of the bridge improvement bonds. No parties appeared in the trial court proceedings to offer evidence in opposition to this validation. Appellants Marcelle McGovern, James T. Nix, and Hannah Davis, who are all citizens, property owners, and taxpayers of Lee County, intervened after the final judgment of the circuit court and prosecuted this appeal. We have allowed the City of Sanibel to file a brief as a friend of the Court.

Appellants contend that Lee County and the City of Sanibel are without authority to issue bonds to construct either the road improvements or the Sanibel projects, and urge that we reverse the judgment of the circuit court. We agree that on this record the validation of the revenue bonds must be reversed.

Mainland Road Improvements

The authority of counties and municipalities to issue revenue bonds is given in the Revenue Bond Act of 1953, Chapter 159, Part I, Florida Statutes. Section 159.-08(1) of the Act authorizes counties and municipalities to issue bonds for paying all or part of the costs of a self-liquidating project, or of improvements to such a project. The word “project” is defined to include bridges and causeways, Section 159.02(4), Florida Statutes, and the words “bridge” and “causeway” are both defined to include “. ." . the approaches thereto and approach roads.” Sections 159.02(7), (8), Florida Statutes. Thus under Chapter 159, the Lee County, Sanibel Bridge Improvement Bonds may be issued to pay the cost of improving the roads only if they are “approaches” or “approach roads” to the bridge and causeway.

Chapter 159 does not, however, provide a definition of “approaches” or “approach roads,” and no Florida case construes those terms as used in the Act. In the absence of such legislative guidance, appellants urge this Court to join certain other states in adopting a narrow definition of approaches and approach roads. See, e. g., In re Harlem Bridge, 174 N.Y. 26, 66 N.E. 584 (1903), and Shope v. City of Des Moines, 188 Iowa 1141, 177 N.W. 79 (1920). The definition appellants would have us adopt is basically the one given by an Ohio appellate court in State ex rel. Schaefer v. Zangerle, 43 Ohio App. 30, 182 N.E. 644 (1932):

“. . . ‘[A] way, passage, or avenue by which a place or building can be approached; an access.’
* ¡J« s}: ¡fc %
“. . . ‘The approaches to a bridge comprise the traffic arteries leading to the ends of the bridge proper and such adjustment of the alignments and grades of said arteries in the immediate vicinity of such ends as is necessary to afford the maximum convenience of access and render available to the public the entire capacity of the bridge proper.’ ”

182 N.E. at 646.

Were we to adopt this definition, all but one of the roads in the instant case would be excluded as approaches or approach roads as a matter of law. Only SR 867 (McGregor), identified as priority 6, leads to the end of the bridge proper. The others cannot reasonably be said to be within the immediate vicinity of the bridge. Indeed, according to testimony, one road, Colonial, comes no closer than twelve miles to the bridge.

Appellee Lee County contends that the question as to whether the roads are either approaches or approach roads is basically one of fact and has already been answered affirmatively by the trial court. According to appellee, we are bound by the trial court’s findings.

Both Lee County and the City of Sanibel maintain that appellants’ restrictive definition of the terms “approaches” and “approach roads” is not supported by case law, and offer different interpretations of the cases cited by appellants. Basically, however, appellee and the City fault appellants’ insistence that approaches and approach roads must by definition be within the immediate vicinity of the bridge. Instead, appellee contends that we must look to the road’s function in relation to the bridge to determine whether it is an approach or approach road,, and quotes with approval the testimony of consulting engineers in the Zangerle case:

“. . . ‘The approaches to a bridge comprise the necessary traffic arteries and adjustment thereof, to develop its maximum traffic capacity.’ ”
182 N.E. at 646.

In the Revenue Bond Act of 1953, the Legislature authorized municipalities and cities to pay for the cost of constructing and improving self-liquidating projects, in this case a toll bridge and causeway. Moreover, the Legislature chose to extend the concept of a bridge or causeway project to include approaches and approach roads.

The Legislature was not required to make that extension. It could have limited the issue of revenue bonds to fund the construction or improvement of only the bridge proper. On the other hand, the Legislature could have allowed the bonds to be issued for projects totally unrelated to the bridge or causeway, including the improvement of all roads within the municipality or county.

The Legislature did neither of these. In attempting to determine what roads may serve as grounds for the issuance of the revenue bonds, we find that the Legislature did not intend to make an unlimited extension of the concept of a bridge or causeway project when it included as part of that concept the approaches and approach roads to the bridge or causeway. In short, we conclude that some roads — as a matter of law — are not “approaches or approach roads” within the meaning of the Revenue Bond Act of 1953.

Inherent in the legislative scheme for funding self-liquidating projects is the principle that those who directly benefit from the project should bear a substantial portion of the cost and that those who bear the substantial cost should benefit from the expenditure of money on the project. To allow bridge tolls to finance improvements of approaches and approach roads to the bridge does not violate this principle, for those paying the tolls will benefit by having access to the bridge made more convenient. We conclude that in determining if a road is an approach to a bridge it is necessary to ask about the road’s function, not its location.

Essential to this finding is the factor that the amount of traffic the road feeds to the bridge determines whether a road functions as an approach to the bridge. A road or a segment of a road is an approach or approach road if a significant portion of its traffic moves onto the bridge or causeway, or if a significant portion of the traffic moving across the bridge or causeway came from the road or road segment.

Although this is a functional view of approaches and approach roads, it is not incompatible with the proximity test suggested by appellants. The closer an access road is to a bridge or causeway, the more likely a significant portion of its traffic will use the bridge. Indeed, in most cases the functional test need not be relied on where the roads to be improved are within the immediate vicinity of the project. But where a governmental body contends that revenues from a toll bridge or causeway should fund improvements to roads distant from the facility, the functional test should be used. This functional approach will ensure that the benefits and burdens of the proposed project will be fairly imposed.

The record reflects that all but one of the roads, McGregor from the toll bridge to SR 869, are distant from the bridge and causeway proper. As noted earlier, Colonial comes no closer to the bridge than twelve miles. Also, according to the map submitted by appellants, SR 869 comes no closer than three miles to the bridge, Gladiolus Loop Road no closer than five miles, and Cypress Lake Drive no closer than eight. And finally, the synchronization of lights on U.S. 41 to facilitate the flow of the 60,000 vehicles that travel the road each day is to be along a segment that comes no closer than ten miles to the bridge.

The record on appeal does not reflect, however, any attempt in the court below to establish the amount of traffic the roads in this ease carry or will carry to the Sanibel bridge and causeway. Although it appears that one of the roads in the project is an approach road, we reverse the trial court’s finding as to all of the roads for failure to apply an appropriate standard.

Sanibel Projects

Chapter 418, Florida Statutes, authorizes municipalities and counties to create playgrounds and recreational centers. Under Section 418.07, Florida Statutes, a municipality or county may issue bonds to pay for the establishment of such facilities:

“The governing body of such n nci-pality or county may, pursuant to law and in conformity with the constitution of this state, provide that the bonds of such municipality or county may be issued in the manner provided by law for the issuance of bonds for other purposes, for the purpose of acquiring lands or buildings for playgrounds, recreation centers and other recreational purposes and for the equipment thereof.” [Emphasis added]

Appellee contends that Section 418.07, Florida Statutes, combines with the Revenue Bond Act of 1953, Chapter 159, to authorize the issuance of the bonds for the Sanibel recreational projects, and that the bonds need only comply with the technical, procedural requirements of Chapter 159 in order to be valid.

Appellants argue, however, that in order for Section 418.07, Florida Statutes, to authorize the issuance of bonds “in the manner provided by” Chapter 159, the project must satisfy both the substantive and procedural requirements of that chapter. In short, according to appellants the recreational projects must be self-liquidating. We note that a number of the “Sanibel Projects” are not recreational in nature but road improvements.

As we noted earlier in- this opinion, inherent in the scheme of Chapter 159 for funding self-liquidating projects is the principle that those who substantially benefit from the project should bear the cost.

In the instant case, using a Chapter 159 bridge as a self-liquidating project to pay for improvements requires a finding of benefit to those who use the bridge, and it is therefore necessary for the appellee to demonstrate a sufficient and direct relation between the use of the toll bridge and the use of the “Sanibel Projects.” If the “Sani-bel Projects” are to be financed through the sale of the bridge improvement bonds, the “Sanibel Projects” should to a major extent contribute to the generation of tolls by drawing traffic across the bridge and causeway and onto the island or directly and substantially benefit the users of the bridge.

No island resident or visitor should be required to pay for mainland road improvements or island recreational facilities unless the projects confer a substantial benefit to the users of the bridge or unless a significant portion of the bridge traffic will come from such improvements.

To affirm the validation of the bonds under the record in this case would be to abdicate our responsibility to ensure that the legislative will is followed and would invite abuses in the financing of public projects.

The validation of the Lee County, Sanibel Bridge Improvement Bonds is reversed, and this cause is remanded to the trial court for proceedings consistent with this opinion.

It is so ordered.

ADKINS, BOYD, ENGLAND, SUND-BERG, HATCHETT and DREW (Retired), JJ., concur.

      . Art. V, § 3(b)(2), Fla.Const., and § 75.08, Fla.Stat. (1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ira JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 47133.
    Supreme Court of Florida.
    May 12, 1977.
    David J. Busch, Asst. Public Defender, and Jerry Caughey, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The decision of the District Court of Appeal, First District, is affirmed. See Huntley v. State, 339 So.2d 194 (Fla.1976).

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

BOYD, J., dissents.


text:
    Theo George FOTIANOS, William Edwin Northrup, Jorge Enrique Soto, and Charles Lane Martin, Petitioners, v. STATE of Florida, Respondent.
    No. 49844.
    Supreme Court of Florida.
    May 12, 1977.
    Larry G. Turner, and Selig I. Goldin, Gol-din & Cates, Gainesville, for petitioners.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson and Patti Englander, Asst. Attys. Gen., for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5c(6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certio-rari is discharged.

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

ADKINS, J., dissents.


text:
    STATE of Florida, Petitioner, v. Luckie STRADTMAN, Respondent.
    No. 49915.
    Supreme Court of Florida.
    May 12, 1977.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff and Linda Collins Hertz, Asst. Attys. Gen. for petitioner.
    Arnold R. Ginsberg, Horton, Perse & Ginsberg, and Weinsoff, Weinsoff & Carney, Miami, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is granted, we dispense with the filing of briefs on the merits and oral argument and hereby approve the decision of the District Court of Appeal, Third District, 334 So.2d 100, on the authority of our recent decision in Cumbie v. State of Florida, 345 So.2d 1061, opinion filed March 17, 1977.

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


text:
    Otis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 50489.
    Supreme Court of Florida.
    May 12, 1977.
    Theorphilus J. Rose, Gainesville, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We adopt the decision of the First District Court of Appeal reported at 337 So.2d 1038 (Fla. 1st DCA 1976), and affirm the conviction on the authority of Estevez v. State, 313 So.2d 692 (Fla.1975), and Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975).

We reaffirm our holding in Estevez and Jenkins and overrule Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975).

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


author: KARL, Justice.

text:
    R. R. C., a Juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 50596.
    Supreme Court of Florida.
    May 12, 1977.
    Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles F. McClamma, Asst. Atty. Gen., for appel-lee.
   KARL, Justice.

We have for review on direct appeal an order of the Circuit Court, in and for Escambia County, inherently passing on the constitutionality of Section 847.05, Florida Statutes, and adjudicating appellant to be delinquent, thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

The trial court denied appellant’s motion to dismiss the petition for delinquency filed against him and, thereby, inherently upheld the constitutional validity of Section 847.05, Florida Statutes. The judgment of the trial court is reversed on the authority of this court’s recent discussion in Spears v. State, 337 So.2d 977 (Fla.1976), and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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


text:
    Freddie MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 50842.
    Supreme Court of Florida.
    May 12, 1977.
    Jack 0. Johnson, Public Defender, and John Robert Howes, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is granted, we dispense with the filing of briefs on the merits and oral argument and hereby approve the decision of the District Court of Appeal, Second District, 339 So.2d 1133, on the authority of our recent decision in Aaron v. State of Florida, 345 So.2d 641, opinion filed February 25, 1977.

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


text:
    THE FLORIDA BAR, Complainant, v. Gino NEGRETTI, Respondent.
    No. 51426.
    Supreme Court of Florida.
    May 12, 1977.

      G. Lynn Kilpatrick, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The Florida Bar presented the petition stating:

1. During October 1970, Respondent, Gino Negretti, agreed to defend Francisco Valerio against possible litigation arising from an automobile accident.
2. Litigation involving the aforementioned accident did arise and a complaint naming Mr. Valerio as defendant was filed on July 20, 1972; such complaint and an accompanying summons being served on a date when Mr. Valerio was out of the country.
3. A default judgment was entered against Mr. Valerio, and he subsequently contacted .Respondent, who for a fee of $75, filed a motion to set aside the default alleging that Respondent was the attorney of record in the case.
4. The case was eventually set for trial, but Respondent failed to inform Mr. Valerio of the trial date and failed himself to appear at trial in Mr. Val-erio’s behalf, resulting in a final judgment being entered against Mr. Val-erio.
5. During February 1973, Respondent received a Motion to Tax Costs, filed by the plaintiffs in the above-mentioned action, and a notice of hearing on the Motion.
6. Respondent failed to advise Mr. Val-erio of the hearing on the Motion to Tax Costs, and failed to appear at the hearing on Mr. Valerio’s behalf.
7. Pursuant to a complaint against Respondent filed by Mr. Valerio, investigative proceedings were held on October 15, 1976, by the Eleventh Judicial Circuit Grievance Committee, Committee “J.”
8. On October 15, 1976, the Eleventh Judicial Circuit Grievance Committee “J” found probable cause justifying further disciplinary proceedings against Respondent.
9. On February 7, 1977, staff counsel offered Respondent the opportunity to enter a conditional guilty plea for consent judgment and, pursuant to subsequent negotiations, Respondent agreed to do so, contingent on approval by the Supreme Court and the Board of Governors of The Florida Bar.
10. Thereafter, staff counsel submitted a conditional guilty plea for consent judgment to Respondent.
11. At its March 1977 meeting, the Board of Governors of The Florida Bar accepted Respondent’s conditional guilty plea subject to approval by the Supreme Court.

The Petition for Approval of Conditional Guilty Plea is granted, and it is ordered:

1. That the suspension from the practice of law for a period of thirty (30) days shall begin June 1, 1977, with automatic reinstatement at the end of said period;
2. That respondent shall notify his clients pursuant to Article XI, Rule 11.10(6) of the Integration Rule of The Florida Bar; and
3. That costs in the amount of Two Hundred Twenty-Seven Dollars ($227.00) are hereby taxed against Respondent, to be paid within thirty (30) days from this date.

It is so ordered.

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


text:
    In re RULES OF the FLORIDA JUDICIAL QUALIFICATIONS COMMISSION.
    No. 51622.
    Supreme Court of Florida.
    May 12, 1977.
    Woodrow M. Melvin, Chairman, Milton, for State of Florida Judicial Qualifications Commission, petitioner.
   PER CURIAM.

The Florida Judicial Qualifications Commission has filed with the Court a copy of its rules of procedure as amended on January 20, 1977. Pursuant to Article V, Section 12(d) of the Florida Constitution, this Court may repeal these rules, or any part thereof, so long as five justices concur in that action. We have reviewed the rules in their entirety and now repeal the following provisions of the Commission’s rules.

1. Rule 6(b) is repealed in its entirety. While it is appropriate to have some rule governing appearances before the Commission during the investigatory stages of a proceeding, and although a right of early appearance or comment (as opposed to an opportunity if the Commission so chooses) would seem more suited to the Commission’s fact-gathering responsibilities, we repeal this part of Rule 6 because it allows the judicial official’s appearance or comment to be presented not to the Commission but to “at least three members thereof.” A determination that there exists probable cause to warrant formal proceedings against a member of the judiciary is one of the most serious and solemn responsibilities of the Commission. At least a quorum of the Commission’s members should be present when a justice or judge seeks to avoid a finding of probable cause, and its attendant conversion of the proceeding from a private to a public one, by attempting to explain, refute or admit the alleged misconduct or disability.

2. Rule 11(b) is repealed in its entirety for the reason expressed in paragraph 1.

3. Rule 17 is repealed in its entirety. We appreciate the need for a rule as to pleading amendments during the course of a Commission proceeding, but the second sentence of the rule confers more authority than is required. That sentence reads:

“The Notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing.”

Given the investigative resources of the Commission, there is little necessity and great potential harm in a rule which allows the Commission to set forth additional facts by amendment to the formal charges after the Commission has conducted its hearing and the charges have been filed with this Court, made public, and relied upon by the justice or judge to prepare his or her defense.

4. Rules 23(b) and (c) are repealed in their entirety. These provisions directly conflict with this Court’s decision in Inquiry-Concerning a Judge, No. 75-10, Case No. 49,062, opinion filed, June 30, 1976 (Fla.). Article V, Section 12(f) of the Constitution assigns to this Court both the responsibility and discretion to order appropriate discipline, removal or retirement, and neither can be abrogated by a Commission rule which creates a conclusive presumption simply from a procedural default by the judge or justice being charged.

5. Rule 23(d) is repealed in its entirety. Although this part of the rule merely reiterates the language of Article V, Section 12(h) of the Florida Constitution as recently amended, which is controlling, it is inappropriate in the Commission’s rules. Article V, Section 12(d) authorizes the Commission to adopt rules “regulating its proceedings, the filling of vacancies by the appointing authorities, the disqualification of members, and the temporary replacement of disqualified or incapacitated members.” This authority does not extend the Commission’s rulemaking power to the composition of the Supreme Court on review of a Commission recommendation concerning a justice of that court.

6. Rule 25(a) is repealed in its entirety. A rule governing the confidentiality of Commission documents and proceedings is appropriate, but this part of the rule contains the following phrases:

“a record recommending discipline, retirement, or removal is filed by the Commission in the Supreme Court, at which time the record shall be made public,, excepting a record filed by the Commission in the Supreme Court, recommending private reprimand, shall remain confidential; provided, however, upon”
“such charges and all further proceedings before the Commission shall be public”.

These provisions are inconsistent with Article V, Section 12(d) of the Florida Constitution, which has the effect of eliminating a Commission recommendation or a Court imposition of a “private” reprimand for judicial misconduct.

7. Rule 28 is repealed in its entirety. While the Commission may have inherent power to find a person in contempt of the Commission, it has no constitutional authority to enforce such a finding or to order an arrest. Contrast, for example, the express authorization for punishment of legislative contempt “by judicial proceedings as prescribed by law”, which appears in Article III, Section 5 of the Constitution. Cf. Article I, Section 18 of the Constitution. Nothing in our repeal of this rule shall be construed to mean that the Commission may not promulgate contempt rules reasonably necessary for the conduct of its proceedings, so long as the enforcement of contempt is reserved to the judiciary.

It is so ordered.

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

RULES OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Pursuant to the provisions of Article V, Section 12, of the Florida Constitution, as amended 1976, the following Rules are hereby adopted by the Judicial Qualifications Commission.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES

RULE 1. SCOPE AND TITLE.

These rules apply to all proceedings before the Judicial Qualifications Commission involving the discipline, retirement or removal of justices of the Supreme Court, and judges of the District Courts of Appeal, Circuit Courts and County Courts pursuant to Article V, Section 12, of the Constitution of the State of Florida, as amended. These rules shall be known as Florida Judicial Qualifications Commission Rules and may be abbreviated as “FJQCR”.

RULE 2. DEFINITIONS.

In these rules, unless the context or subject matter otherwise requires:

(a) “Commission” means the Judicial Qualifications Commission.
(b) “Judge” means a justice of the Supreme Court and a judge of a District Court of Appeal, Circuit Court and County Court.
(c) “Chairman” includes the acting chairman.
(d) “Counsel” means the lawyer designated by the Commission to gather and present evidence before the Commission with respect to the charges against a judge and to represent the Commission in all proceedings.
(e) “Shall” is mandatory and “may” is permissive.
(f) “Mail” and “mailed” include ordinary mail and personal delivery.
(g) The masculine gender includes the feminine gender.

RULE 3. MEMBERSHIP AND JURISDICTION.

(a) The membership of the Commission shall be as prescribed in Article V, Section 12, of the Constitution of the State of Florida and for such term as prescribed by general law. When a judge ceases to be a judge of the court from which he was appointed or whenever any member becomes otherwise ineligible to hold office, his membership on the Commission shall terminate. The Chairman shall promptly notify the appointing authority of the vacancy. In the event of a vacancy the Commission shall appoint a temporary replacement from the same category until such time as the appointing authority shall duly certify to the Commission a replacement for the remainder of the term.

(b) The Commission shall have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or hearing, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, to order the production of books, records or other documentary evidence, and the power of contempt. Any member of the Commission shall have the power to administer oaths and affirmations to witnesses in any matter within the jurisdiction of the Commission.

RULE 4. OFFICERS OF COMMISSION.

The Commission shall elect a Chairman and a Vice-Chairman each of whom shall serve for a term of two years. The Vice-Chairman shall act as the chairman of the Commission in the absence of the Chairman. The Commission may select an executive secretary and a General Counsel.

RULE 5. QUORUM OF COMMISSION.

A quorum for the transaction of business by the Commission shall be seven members of the Commission except as otherwise provided in these rules.

RULE 6. COMPLAINT AND INVESTIGATION.

(a) The Commission, upon receiving a statement under oath, not obviously unfounded or frivolous, alleging facts indicating that a judge is guilty of willful or persistent failure to perform his duties, or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or that he has a disability seriously interfering with the performance of his duties, which is, or is likely to become, permanent in nature, shall make such an investigation by one or more members to determine whether formal proceedings should be instituted and a hearing held. The Commission may make such investigation on its own motion.

(b) The judge has no right to be present or to be heard during an investigation, but before the Commission determines that there is sufficient cause to warrant formal proceedings, the judge may be notified of the investigation, the general nature of the subject matter of the investigation, and may be afforded reasonable opportunity to make a statement before the full Commission, or at least three members thereof, personally or by his attorney(s), verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct or disability. The judge shall not have the right to present other testimony or evidence, and he shall not have the right of confrontation or cross-examination of the person making the verified statement or any person interviewed, called or interrogated by the Commission. Such notification shall be given by registered or certified mail addressed to the judge at his chambers and at his last known residence.

(c) The Commission shall have the right to require a judge to meet with it on an informal basis in reference to matters that relate to the discharge of his judicial duties.

(d) When a judge has received a notice of investigation, notice to appear before the Commission, or requested such notification, if the investigation does not disclose sufficient cause to warrant further proceedings, the judge shall be so notified.

(e) The Commission shall have access to all information from all executive, legislative and judicial agencies, including grand juries, subject to the rules of the Commission. At any time, on request of the Speaker of the House of Representatives or the Governor, the Commission shall make available all information in the possession of the Commission for use in consideration of impeachment or suspension, respectively.

RULE 7. FORMAL PROCEEDINGS.

(a) After the investigation has been completed, if the Commission concludes that formal proceedings shall be instituted it shall designate one or more counsel who shall be members of the Florida Bar and who shall prepare appropriate papers and pleadings, gather and present evidence before the Commission with respect to the charges against the judge, and otherwise act as counsel in connection with the prosecution of the charges against the judge, including the representation of the Commission in connection with any Commission or judicial proceedings. It shall direct counsel designated by the Commission to cause to be served on the judge a copy of notice of formal proceedings. Such proceedings shall be entitled:

“BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION”
“Inquiry Concerning a Judge, No. -”

(b) The notice shall be issued in the name of the Commission and specify in ordinary and concise language the charges against the judge and allege facts upon which such charges are based, and shall advise the judge of his right to file a written answer to the charges against him within 20 days after service of the notice upon him.

(c) If it appears to the Chairman of the Commission upon affidavit that, after reasonable effort for a period of 10 days, personal delivery could not be made, service may be made upon the judge by registered or certified mail addressed to the judge at his chambers and at his last known residence.

(d) After formal proceedings have been instituted, if the judge is represented by an attorney(s), any notice or the furnishing of any matter may be perfected on such attorney(s). If no attorney(s), then any notice or other matter shall be mailed to the judge at his residence.

RULE 8. SUSPENSION OF JUDGE.

Upon or after the filing of formal proceedings finding the existence of probable cause, the Commission may in its discretion request the Supreme Court to suspend the judge from performing the duties of his office pending the final determination of the inquiry. Such request shall be concurred in by not less than seven (7) members of the Commission and shall designate whether the suspension shall be with or without compensation. Upon the filing by the Commission with the Clerk of the Supreme Court of such formal charges against a justice or judge such charges and all further proceedings before the Commission shall be public.

RULE 9. ANSWER AND MOTIONS.

(a) Within 20 days after service of the Notice of Formal Proceedings, the judge may file with the Commission a signed original and one copy of an Answer, and shall serve a copy on the counsel by mail. If the judge desires that all hearings be held in the county of his residence and/or if he desires that all pleadings in such proceedings and all hearings before the Commission be open to the public he shall so demand in writing at the time of filing his initial Answer.

(b) There shall be a motion Committee with the power to dispose of all pre-trial motions. Such Committee shall be composed of the Chairman and two judges appointed by the Chairman. The Committee’s disposition shall be subject to review at the Commission’s next ensuing meeting.

RULE 10. FILING.

Unless otherwise provided herein, all pleadings shall be filed in duplicate with the Judicial Qualifications Commission office in Tallahassee, Florida, and a copy served on the counsel.

RULE 11. SETTING FOR HEARING.

(a) After the filing of an answer or the expiration of the time for its filing, the Commission shall order a hearing to be held before it concerning the discipline, retirement or removal of the judge. If the judge in his initial answer requests that the hearing be held in the county of his residence, the hearings shall be in such county unless the Commission by vote of nine members determines otherwise. The Commission shall set a time and a place for a hearing and shall give notice of such hearing by mail to the judge and to the attorney(s) at least 20 days prior to the date set.

(b) Not less than three members shall be present when the evidence is produced.

RULE 12. PROCEDURE.

(a) In all formal proceedings, the Florida Rules of Civil Procedure shall be applicable except as otherwise provided.

(b) Counsel shall, upon written demand of a party or counsel of record, promptly furnish the following:

The names and addresses of all witnesses whose testimony the counsel expects to offer at the hearing, together with copies of all written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Commission which are relevant to the subject matter of the hearing and which have not previously been furnished. When good cause is shown this rule may be waived.

RULE 13. HEARING.

At the time and place set for hearing, the Commission may proceed with the hearing whether or not the judge has filed an answer or appears at the hearing.

RULE 14. DISABILITY.

The Commission upon receiving a statement or upon its own investigation shall advise the judge of those facts constituting a possible physical or mental disability which might impair the performance of his judicial duties and thereby may order the judge to submit to a physical and/or mental exam. Upon the failure of the judge to submit to such examination within the time ordered, the Commission may recommend to the Supreme Court that the judge be suspended without pay until such time as the judge complies with the Commission’s order.

RULE 15. EVIDENCE.

At a hearing before the Commission, legal evidence only shall be received and oral evidence shall be taken only on oath or affirmation.

RULE 16. PROCEDURAL RIGHTS OF JUDGE.

(a) In formal proceedings involving his discipline, retirement, or removal, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by attorney(s), and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter.

(b) When a transcript of the trial testimony has been prepared at the expense of the Commission, a copy thereof shall be furnished without cost to the judge. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at his expense.

(e) If the judge is adjudged insane or incompetent, the Commission shall appoint an attorney ad litem unless the judge has a guardian who will represent him. The guardian or attorney ad litem may claim and exercise any right and privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent, and whenever these rules provide for serving or giving notice or sending any matter to the judge, a copy of such notice or matter also shall be served, given, or sent to the guardian or attorney ad litem.

RULE 17. AMENDMENTS TO NOTICE OR ANSWER.

The Commission, at any time prior to its determination, may in the interest of justice allow or require amendments to the Notice of Formal Proceedings and may allow amendments to the answer. The Notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing. In case such an amendment is made, the judge shall be given reasonable time both to answer the amendment and to prepare and present his defense against the matters charged thereby.

RULE 18. EXTENSION OF TIME.

The Chairman of the Commission may extend the time for filing an answer; for the commencement of a hearing before the Commission.

RULE 19. HEARING ADDITIONAL EVIDENCE.

The Commission may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order shall set the time and the place of the hearing and shall indicate matters on which the evidence is to be taken. A copy of such order shall be sent by mail at least 10 days prior to the date of hearing.

RULE 20. COMMISSION VOTE.

The vote of the Commission shall proceed as follows: The first function of the Commission shall be to vote to determine the judge’s guilt or innocence. The Commission shall, if it determines that a judge is guilty, then vote as to his discipline commencing with removal, then public reprimand, and last private reprimand. The failure of any discipline proposition to gain 9 votes shall constitute a dismissal of that question. Ma-lafides, scienter or moral turpitude on the part of a justice or a judge shall not be required for removal from office of a justice or judge whose conduct demonstrates a present unfitness to hold office.

RULE 21. RECORD OF COMMISSION PROCEEDINGS.

The Commission shall keep a record of all formal proceedings concerning a judge. The Commission’s determination shall be entered in the record and notice thereof shall be mailed to the judge and to the attorney(s). In all formal proceedings resulting in a recommendation to the Supreme Court for discipline, retirement, or removal, the Commission shall prepare a transcript of the evidence and of all proceedings therein and shall make written findings of fact and conclusions of law with respect to the issues of fact and law in the proceedings.

RULE 22. CERTIFICATION OF COMMISSION RECOMMENDATION TO SUPREME COURT.

Upon making a determination recommending the discipline, retirement, or removal of a judge, the Commission shall promptly file a copy of the recommendation certified by the Chairman or Secretary of the Commission, together with the transcript and the findings and conclusions, with the Clerk of the Supreme Court and shall promptly mail to the judge and to the attorney(s) notice of such filing, together with a copy of such recommendation, findings, and conclusions.

RULE 23. REVIEW OF COMMISSION PROCEEDINGS.

(a) A petition to the Supreme Court to modify or reject the recommendation of the Commission for discipline, retirement, or removal of a judge may be filed by the judge within 30 days after the filing with the Clerk of the Supreme Court of the certified copy of the Commission’s recommendation. The petition shall be based on the record, shall specify the grounds relied on, and shall be accompanied by petitioner’s brief together with proof of service on the Commission of two copies, and on the counsel of one copy, of the petition and the brief. Within 20 days after service of petitioner’s brief, the Commission shall file a respondent’s brief and serve a copy thereof on the judge. Within 20 days after service of respondent’s brief the petitioner may file a reply brief, two copies of which shall be served on the Commission and one copy shall be served on the counsel.

(b) Failure to file a petition within the time provided shall be deemed a consent to the determination on the merits based upon the record filed by the Commission, and a consent to and acceptance of the recommendation of the Commission for discipline, retirement or removal.

(c) If no petition is filed pursuant to this Section the discipline, retirement, or removal recommended by the Commission shall automatically become effective at the expiration of 30 days from the filing of the report and recommendation with the. Clerk of Supreme Court.

(d) If the person who is the subject of the proceedings by the Commission is a justice of the Supreme Court of Florida all justices of such Court automatically shall be disqualified to sit as justices of such Court with respect to all proceedings therein concerning such person and the Supreme Court for such purposes shall be composed of a panel consisting of the seven chief judges of the judicial circuits of Florida most senior in tenure of judicial office as circuit judge. For purposes of determining seniority of such circuit judges in the event there be judges of equal tenure in judicial office as circuit judge, the judge or judges from the lowered numbered circuit or circuits shall be deemed senior. In the event any such chief circuit judge is under investigation by the Judicial Qualifications Commission or is otherwise disqualified or unable to serve on the panel, the next most senior chief circuit judge or judges shall serve in place of such disqualified or disabled chief circuit judge.

(e)The extent necessary to implement this Rule and if not inconsistent herewith, the Florida Appellate Rules shall be applicable to reviews by the Supreme Court of Commission proceedings.

RULE 24. SUBPOENAS.

Subpoenas for the attendance of witnesses and the production of documentary evidence in any proceedings shall be issued as follows:

(a) Judicial Qualifications Commission. Subpoenas for the attendance of witnesses and the production of documentary evidence before the Commission, or for discovery in a proceeding, shall be issued by the Chairman, Vice-Chairman or the Commission’s General Counsel, and be served in the manner provided by law for the service of witness subpoenas in a civil action.

(b) Confidential Proceedings. A subpoena shall not name the judge against whom charges are pending, but shall style the proceedings as set out in Rule 7(a).

(c) Contempt. Any person who, without adequate excuse, fails to obey such a subpoena served upon him may be cited for contempt of the Commission in the manner provided in these rules.

RULE 25. CONFIDENTIALITY OF PROCEEDINGS.

(a) Subject to the provisions of Rules 7, 8, and 9, all papers and pleadings filed with and the proceedings before the Commission shall be confidential until a record recommending discipline, retirement, or removal is filed by the Commission in the Supreme Court, at which time the record shall be made public, excepting a record filed by the Commission in the Supreme Court, recommending private reprimand, shall remain confidential; provided, however, upon a finding of probable cause and the filing by the Commission with the Clerk of the Supreme Court of such formal charges against a justice or judge, such charges and all further proceedings before the Commission shall be public.

(b) All notices, papers, and pleadings mailed to a judge pursuant to these rules shall be enclosed in a cover marked “confidential”.

(e) Every witness in every proceeding under these rules shall be sworn to tell the truth and not to disclose the existence of the proceeding, subject matter or the identity of the judge until the proceeding is no longer confidential under these rules. Violation of this oath shall be an act of contempt of the Commission.

(d) Violation of these rules by a member of the Commission shall subject him after written notice and hearing to removal from office by a majority vote of the Commission, and shall constitute contempt of the Commission which may be enforced by appropriate proceedings in the Supreme Court of Florida.

RULE 26. INTERESTED PARTY.

A judge who is a member of the Commission or of the Supreme Court shall be disqualified from participation in such capacity in any proceedings involving his own discipline, retirement, or removal.

RULE 27. DISQUALIFICATION OF MEMBERS OF COMMISSION.

(a) Whenever any judge against whom formal proceedings have been instituted, as provided in these Rules, shall make and file with the Commission an affidavit that he fears that he will not receive a fair hearing before the Judicial Qualifications Commission on the charges because of the prejudice of one or more members of the Commission against him, and the facts stated as the basis for making the said affidavit shall be supported in substance by affidavit of at least two reputable citizens of the State of Florida not of kin to the judge or his attorney, or if any member of the Commission shall voluntarily recuse himself, such member or members of the Commission shall proceed no further therein and shall be disqualified from hearing said charges. Every such affidavit of a judge shall state the facts and the reasons for the belief that any such prejudice exists, shall specify the members of the Commission allegedly prejudiced, and shall be filed not more than 15 days after service of the notice of formal proceedings upon the judge charged. The Commission shall make ad hoc appointments of a person or persons to take the place of the member or members of the Commission so disqualified, but each member so disqualified may participate in the action of the Commission in making such ad hoc appointments. Each ad hoc appointee shall be from the same category as the disqualified members as set forth in Section 12(a) of Article V of the Constitution of the State of Florida. The judge may, within 15 days after receiving notice of any ad hoc appointment, file a like affidavit as to said appointee which shall be supported in substance by affidavit of two citizens as set forth above, in which event said ad hoc appointee shall not be disqualified on account of alleged prejudice against said judge unless said appointee admits that it is then a fact that he is prejudiced against said judge, or unless a majority of the Commission, which may include any ad hoc appointee, holds that said appointee is prejudiced against the judge; in which event the same ad hoc appointment procedure set forth above shall be followed until a qualified person has been appointed.

(b) A judge moved against by the Commission may, by affidavit, suggest the disqualification of a member or members of the Commission unsupported by two citizens, but in such event the determination of the matter of disqualification shall be by majority vote of the Commission unless the person sought to be disqualified voluntarily disqualified himself.

RULE 28. CONTEMPT.

If the Commission shall find that a person is in contempt under these rules, such persons shall be cited for contempt in the following manner:

(a) A contempt may be punished summarily by the Commission if the conduct constituting the contempt was committed in the actual presence of the Commission or a panel of the Commission as provided in Rule 11. In all other cases, the Chairman of the Commission upon an affirmative vote of a majority of those present shall issue a rule to show cause why the person so accused shall not be held in contempt of the Commission. The order shall specify the time and place of the hearing before the Commission, with reasonable time allowed for filing answer and preparation of the defense. The Chairman of the Commission may upon affirmative vote of a majority of those present issue an order of arrest.

(b) Confidentiality. Confidentiality shall be preserved in the contempt proceeding only as to the name of the judge and the subject matter under investigation. All pleadings shall be styled as set out in Rule 7(a).

(c) Appellate Review. A judgment in such contempt proceedings may be appealed by such party. The petition for review shall be filed with the Supreme Court within 30 days after entry of judgment to be reviewed. The record shall consist of all pleadings, papers, sentences and orders in the contempt proceedings and all of same shall be forwarded to the Supreme Court by the Commission within 15 days after the filing with the Commission of two copies of the petition for review. The petition for review shall be accompanied by petitioner’s brief, together with proof of service of two copies of such brief on the Commission. Within 20 days after service of petitioner’s brief, the Commission may file a respondent’s brief and serve a copy thereof on the petitioner. To the extent necessary to implement this Rule and if not inconsistent herewith, the Florida Appellate Rules shall be applicable to review by the Supreme Court of contempt proceedings.

RULE 29. EXCLUSION.

Nothing in these rules nor in the procedure herein established shall be construed to authorize any encroachment upon or impairment of any rights of a judge or widow of a judge, now or hereafter existing under any constitutional or statutory retirement program.

The foregoing rules were adopted by the Florida Judicial Qualifications Commission at a duly authorized meeting held on the 20th day of January, 1977, in Tampa, Florida.

(si Woodrow M. Melvin Woodrow M. Melvin Chairman

CERTIFICATE OF SERVICE

I, Woodrow M. Melvin as Chairman of the Florida Judicial Qualifications Commission, hereby certify that a true and correct copy of the foregoing Rules has this day been served by mail on Chief Justice Ben F. Overton, Supreme Court of Florida, Supreme Court Building, Tallahassee, Florida; Honorable Lew Brantley, President of the Florida Senate, Executive Suite, The Capitol, Tallahassee, Florida; and, Honorable Donald L. Tucker, Speaker of the House of Representatives, Executive Suit, The Capitol, Tallahassee, Florida, as required by Article V, Section 12(d), Florida Constitution.

Dated this 24 day of February, 1977.

(s) Woodrow M. Melvin Woodrow M. Melvin Chairman


text:
    Lillian C. HENDRICKSON, Appellant, v. Jarrette D. SMITH and Vermont Mutual Fire Insurance Company, Appellees.
    No. BB-63.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1976.
    Rehearing Denied Oct. 4, 1976.
    Hal Castillo of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Robert Wilheim of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED. See Clyde’s Bar, Inc. v. McClamma, 152 Fla. 118, 10 So.2d 916 (1942), and Waters v. Rockana Carriers, Inc., 171 So.2d 57 (1 Fla.App.1965).

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    John R. PORTER, Appellant, v. Rose Mary PORTER, Appellee.
    No. AA-379.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1976.
    Rehearing Denied Dec. 21, 1976.
    G. Thomas Ball of Mesmer & Robbinson, Orlando, for appellant.
    Charles Vocelle, William J. Haley of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellee.
   PER CURIAM.

We have carefully considered the record, briefs and oral arguments by able counsel. Although the procedure employed in the trial court was most unusual the record reveals no objection thereto and no prejudice has been demonstrated. Accordingly, the final judgment here appealed is

AFFIRMED.

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


text:
    Mary Frances MINER, etc., Appellant, v. James Wilford MINER, Division of Administration, State of Florida Department of Transportation, and Nassau County, Appellees.
    No. DD-376.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1977.
    Rehearing Denied Feb. 15, 1977.
    Thomas E. Crowder, Jacksonville, for appellant.
    David W. Foerster of Foerster & Hodge, Jacksonville, for appellee James Wilford Miner.
    No appearance for other appellees.
   PER CURIAM.

AFFIRMED.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: BY THE COURT.

text:
    The PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Carl B. A. Lange, III, Respondents.
    No. DD-222.
    District Court of Appeal of Florida, First District.
    Jan. 13, 1977.
    Jack L. McLean, Tallahassee, for petitioner.
    Stephen Marc Slepin and Robert A. Pierce of Slepin & Schwartz, and Carl B. A. Lange, III, Tallahassee, for respondents.
   BY THE COURT.

Upon considering the briefs and the record, the petition for review is denied.

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


text:
    FLORIDA STATE BOARD OF EXAMINERS OF PSYCHOLOGY, Petitioner, v. Halcyon CARROL, Respondent.
    No. CC-117.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 15, 1977.
    Robert L. Shevin, Atty. Gen., Carol L. Reilly, Asst. Atty. Gen., for petitioner.
    Thomas W. Lager and Fred W. Baggett of LaFace & Baggett, Tallahassee, for respondent.
   PER CURIAM.

This cause coming on before us upon petitioner’s petition for writ of certiorari and this Court having considered the record, briefs, and arguments of the parties, we now determine that we have no jurisdiction to consider the petition.

CERTIORARI DENIED.

McCORD, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    STEWART SECURITIES CORPORATION, a Florida Corporation, Eugene V. Stewart, registered securities dealer and Eugene V. Stewart, applicant for registration as a security salesman, Petitioners, v. Gerald A. LEWIS, as State Comptroller and head of the State of Florida Department of Banking and Finance, and Donald A. Rhett, Director of the Division of Securities of State of Florida Department of Banking and Finance, Respondents.
    No. BB-189.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.

      Carl E. Rude, Jr., of Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioners.
    Ryland Terry Rigsby, Tallahassee, for respondents.
   PER CURIAM.

Petition for writ of certiorari denied.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Jewel GUTH, Appellant, v. Henry A. GUTH, Appellee.
    No. 76-660.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    James A. Week of Week & Stone, Pompano Beach, for appellant.
    Thomas W. Johnston of Fischer, Moran & Johnston, Pompano Beach, for appellee.
   PER CURIAM.

We withdraw and vacate our previous opinion filed in this case on December 17, 1976. The court’s former opinion was based upon Section 47.163, Florida Statutes (1975), which was in effect at the time of rendition of the order appealed. However, while the appeal was pending Section 47.163 was repealed effective September 1, 1976.

An appellate court, in reviewing a judgment on direct appeal, will dispose of the casé according to the law prevailing at the time of the appellate disposition, and not according to the law prevailing at the time of rendition of the judgment appealed. Florida East Coast Ry. v. Rouse, 194 So.2d 260 (Fla.1966).

Section 47.163 not being applicable we find that the trial court did not abuse its discretion in granting appellee’s petition for change of venue based upon Section 47.122, Florida Statutes (1975).

AFFIRMED.

DOWNEY and ALDERMAN, JJ., and DURANT, JOSEPH N., Jr., Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    David F. STEVENSON and Carolyn E. Stevenson, Appellants, v. Mary Nell HAYS, Appellee.
    No. DD-453.
    District Court of Appeal of Florida, First District.
    March 25, 1977.
    Rehearing Denied April 29, 1977.
    O. E. Adams, Sr., Pensacola, for appellants.
    Eric C. Eggen, Pensacola, for appellee.
   PER CURIAM.

This interlocutory appeal having been found to be without substantial merit, the appeal is dismissed.

BOYER, C. J., and. MILLS and ERVIN, JJ., concur.

ORDER ON PETITION FOR REHEARING

PER CURIAM.

Appellants’ petition for rehearing states that this court’s per curiam affirmance decision was in error because the order under which appellant David F. Stevenson was incarcerated on five occasions was “totally without merit” since the order as referred to in the petition does not provide in any manner for a hearing prior to the incarceration and it was unconstitutionally void inasmuch as it provides for incarceration without appellant David Stevenson being first brought before a committing magistrate. The order referred to in appellants’ petition was entered June 13, 1972. This order was not the subject of appellants’ interlocutory appeal. Appellants’ notice of appeal was filed from the court’s order of September 3, 1976, wherein their counterclaim was dismissed with prejudice from the final order denying motion for rehearing dated September 23,1976. The petition for rehearing is denied.

BOYER, C. J., and MILLS and ERVIN, JJ., concur.


author: PER CURIAM. MILLS, Judge,

text:
    Frank NOWLING, Appellant, v. M. B. ELLIS, Appellee.
    No. EE-351.
    District Court of Appeal of Florida, First District.
    March 25, 1977.
    Rehearing Denied April 26, 1977.
    Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellant.
    T. Sol Johnson of Johnson, Green & Westmoreland, Milton, for appellee.
   PER CURIAM.

Affirmed.

BOYER, C. J., and ERVIN, J., concur.

MILLS, J., dissenting.

MILLS, Judge,

dissenting:

I dissent.

Nowling was charged with a criminal offense which was based upon a complaint by Ellis who is the plaintiff in this civil action which is based on the incident giving rise to the criminal charge. He served Nowling with a notice of taking his deposition. Nowling moved for a protective order, primarily to postpone the taking of the deposition until the criminal case had been disposed of. The trial court granted the motion in part and denied it in part. Nowling appeals from the denial.

The trial court’s order reads as follows:

“ORDERED AND ADJUDGED:
“1. TJjat the defendant and Third Party Plaintiff’s request that the deposition be postponed, is hereby DENIED.
“2. That the deposition of the defendant and third party plaintiff shall proceed as scheduled pursuant to notice of deposition and said defendant may not claim the exercise of his privilege against incrimination except as the same is protected by this Order.
“3. That the testimony given by the defendant and third party plaintiff may not be used by the State of Florida in the pending criminal action against him, the same being case # 76MM792 for purpose of' introduction to evidence or for impeachment or for any other purpose.”

The criminal trial is set for 14 April 1977. Absent any compelling reasons, and none are shown by the record presented to us, a defendant in a civil suit should not be deposed when there is a criminal case pending against him arising out of the same incident. United States v. A. B. Dick Company, 7 F.R.D. 442 (N.D.Ohio 1947). In addition, in the absence of prejudice to the plaintiff, and none is shown by the record presented to us, the defendant’s deposition should be taken after the criminal case in concluded. United States v. Maine Lobstermen’s Association, 22 F.R.D. 199 (S.D.Me.1958).

I would reverse with instructions to the trial court to postpone the taking of Nowl-ing’s deposition until the criminal case is concluded.


text:
    CASTRO CONVERTIBLE CORPORATION, Appellant, v. PHOENIX MUTUAL LIFE INSURANCE COMPANY, a corporation, Julie Ann Castro, Kimberly Ann Castro, a minor, and Deena Theresa Castro, a minor, Appellees.
    No. 76-623.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Rehearing Denied June 6, 1977.
    Steadman S. Stahl, Jr., Varón, Stahl, Kay & Roderman, P. A., Hollywood, and Robert L. Weinberg, Williams & Connolly, Washington, D. C., for appellant.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee, Phoenix Mutual.
    Bruno L. DiGiulian, DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauder-dale, for appellee, Julie Ann Castro.
    Robert E. Ziegler, Rogers, Morris & Ziegler, Fort Lauderdale, for appellee, Kenneth P. Wackes, as Guardian ad litem for the minor children.
   PER CURIAM.

Affirmed.

ALDERMAN and LETTS, JJ., and HAROLD R. CLARK, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    CITY OF HALLANDALE and Richard C. Fox, acting Police Chief of the City of Hallandale, Appellants, v. Robert S. INGLIMA and Theodore Grandis, Appellees. (two cases)
    Nos. 76-1323, 76-1672.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    As Modified May 20, 1977.
    J. T. Frankenberger, Hallandale, and Hugh S. Glickstein, Sp. Counsel, Hollywood, for appellants.
    L. Van Stillman of Roderman, Bass, Still-man & Goldenberg, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

We have for review by consolidated interlocutory appeals two orders of the circuit court granting injunctive relief to police officers pursuant to an action for injunctive relief and money damages for appellants’ alleged violation of Chapter 112, Part VI, Florida Statutes (1975).

Appellees are two police officers of the City who received written notice on May 20, 1976, that they were dismissed from the department effective that date for activity which was specified in the notice. On June 16, 1976, appellees filed suit against the appellants City of Hallandale and its Chief of Police, alleging, among other things, that the appellants had violated Chapter 112, Part VI, Florida Statutes (1975), known as the Police Officers Bill of Rights, by failing (a) to give appellees notice of impending disciplinary action, and (b) to afford appel-lees a hearing before a Complaint Review Board, pursuant to Section 112.532(2), Florida Statutes (1975). Appellees sought in-junctive relief to prohibit appellants from violating Section 112.532(4) and to require appellants to provide appellees notice and a hearing, pursuant to that section. In addition, appellees sought damages pursuant to Section 112.532(3).

Appellees immediately filed a “Motion for Temporary Relief as requested in the Complaint.” After reviewing the complaint and hearing argument of counsel, the trial court entered a Temporary Restraining Order on June 21, 1976, which a) enjoined appellants from violating the rights of the appellees as defined in Chapter 112, Part VI, and b) ordered appellants to immediately reinstate the appellees and to pay appellees all wages which they “lost as a result of the improper suspension.” The court did not require ap-pellees to post any bond.

On June 23rd, appellants filed notice of interlocutory appeal from the order of June 21, 1976, which we review in Case No. 76-1323.

On or about July 27th appellees filed a motion for Injunctive Relief and Reinstatement in which they alleged the following material things: although the trial court had previously entered a temporary injunction requiring appellants to reinstate appel-lees with all back wages restored, they had not been reinstated; that instead appellants had filed an interlocutory appeal. That, pursuant to a request by appellees, a Complaint Review Board had been formed. After holding a hearing on July 12, 1976, the Board had found appellees not guilty on all charges and recommended their reinstatement. However, the City informed appel-lees that they “would not be reinstated notwithstanding the Board’s determination and recommendation.” Appellees’ motion prayed for an injunction requiring reinstatement without loss of wages. On July 30th the court held a hearing based on the July 27th motion. At the end of the hearing the court on the same day, July 30th, entered the following order, which is the subject of Case No. 76-1672:

“ORDER FOR INJUNCTIVE RELIEF AND REINSTATEMENT

THIS CAUSE having come on to be heard upon the Motion for Injunctive Relief and Reinstatement filed by the Plaintiffs in this cause, and the Court having heard argument of counsel and being duly advised in the premises, it is thereupon

ORDERED AND ADJUDGED as follows:

1. That the Plaintiffs, ROBERT S. ING-LIMA and THEODORE GRANDIS, having been provided with a hearing before a Complaint Review Board pursuant to Florida Statute 112.532(2), and the Complaint Review Board having unanimously found the Plaintiffs not guilty of the alleged charges and recommending immediate reinstatement, the court finds that the Complaint Review Board had before it competent, substantial evidence to support its findings and the Plaintiffs are therefore reinstated.

2. That the reinstatement shall be effective May 20, 1976, and from that date the Plaintiffs are entitled to receive all of their back pay and benefits which they would have received had they not been discharged.

3. Said reinstatement shall take place immediately.”

Initially, we would again point out that this action was commenced to enforce appellees’ rights as municipal police officers under Chapter 112, Part VI, Florida Statutes (1975). Appellees contended that they were entitled to notice of the intended disciplinary action prior to being dismissed. Section 112.532(4), clearly mandates such notice, and appellants violated appellees’ rights by failing to comply with that mandate. However, the temporary injunction of June 21st was not justified because the complaint failed to show that irreparable harm would result unless the injunction were entered. See cases cited at 17 Fla. Jur., Injunction, § 77. If the trial court upon final hearing finds that appellees were wrongfully dismissed and that they are entitled to reinstatement and payment of back wages, that relief can be fully afforded them af that time. However, the injunc-tive order entered June 21st, for all intents and purposes concluded all the issues raised in Count I of appellees’ complaint. In addition, it was error to enter a temporary injunction in this case without requiring a bond. Fla.R.Civ.P. Rule 1.610(b), and see cases cited at 17 Fla.Jur., Injunctions, § 70. We therefore reverse the order of June 21, 1976.

We also hold that the order of July 30,1976, which again ordered reinstatement and payment of back wages, was erroneous. The court entered that order while the first injunctive order providing substantially identical relief was the subject of the appeal in Case No. 76-1323. The trial court was therefore without jurisdiction to enter the second injunctive order. DeLaPortilla, v. DeLaPortilla, 304 So.2d 116 (Fla.1974); Waltham A. Condominium Ass’n v. Village Manor, Inc., 330 So.2d 227 (Fla. 4th DCA 1976). Were it a valid order, the order of July 30th would have made the appeal from the June 21st order moot and would have had the effect of divesting this court of its appellate jurisdiction.

There is another reason for reversing the order of July 30th. That order was improper because it purported to be based upon a decision of a Complaint Review Board finding the appellees not guilty of the charges contained in their notices of dismissal. The court’s order found the Board’s decision was based upon substantial competent evidence. But as far as we can tell no evidence submitted before the Board was before the trial court. Even more importantly, nothing contained in Section 112.532(2) justified the trial court’s entering the July 30th order solely on the basis of a proceeding before a Complaint Review Board. As pointed out by the Attorney General in 076-38 AGO, a decision of a Complaint Review Board established pursuant to Section 112.532(2), is not adjudicatory but advisory only. Also, once again, it was improper to enter the temporary injunction of July 30, 1976, without requiring appellees to post a bond.

Appellants have questioned the constitutionality of Chapter 112, Part VI, for the first time in this court. Since we reverse on other grounds, and a determination of the constitutionality of the chapter is unnecessary to our decision in the appeals, we need not answer the constitutional question. See, e. g. Singletary v. State, 322 So.2d 551 (Fla.1975).

In view of the foregoing, we reverse both of the injunctive orders on appeal and remand the cause to the trial court with instructions to proceed to final hearing and a determination as to whether appellees are entitled to a) reinstatement, b) back pay and c) other damages alleged in Count II, after disposing of all pending motions.

REVERSED AND REMANDED.

CROSS and ALDERMAN, JJ., concur.

APPENDIX

Chapter 112, Part VI, Florida Statutes (1975):

PART VI

LAW ENFORCEMENT OFFICERS

112.531 Definitions.

112.532 Law enforcement officers’ rights.

112.533 Receipt and processing of complaints.

112.534 Failure to comply.

112.531 Definitions. — As used in this act:

(1) “Law enforcement officer” means any person, other than a chief of police, employed full time by any municipality or this state or any political subdivision thereof, whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state.

(2) “Employing agency” means any municipality or the state or any political subdivision thereof which employs law enforcement officers as defined above.

(3) “Board” means the Police Standards Board, or its successor, as created by chapter 23, part IV.

History. — s. 1, ch. 74-274; s. 1, ch. 75-41.

112.532 Law enforcement officers’ rights. — All law enforcement officers employed by any employing agency shall have the following rights and privileges:

(1) RIGHTS OF LAW ENFORCEMENT OFFICERS WHILE UNDER INVESTIGATION. — Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions:

(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.

(b) The interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct or police unit in which the incident allegedly occurred, as designated by the investigating officer or agency.

(c) The law enforcement officer under investigation shall be informed of the rank, name, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by and through one interrogator at any one time.

(d) The law enforcement officer under investigation shall be informed of the nature of the investigation prior to any interrogation, and he shall be informed of the name of all complainants.

(e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.

(f) The law enforcement officer under interrogation shall not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action. No promise or reward shall be made as an inducement to answer any questions.

(g) The formal interrogation of a law enforcement officer, including all recess periods, shall be recorded, and there shall be no unrecorded questions or statements.

(h) If the law enforcement officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he shall be completely informed of all his rights prior to the commencement of the interrogation.

(i) At the request of any law enforcement officer under investigation, he shall have the right to be represented by counsel or any other representative of his choice, who shall be present at all times during such interrogation whenever the interrogation relates to the officer’s continued fitness for law enforcement service.

(2) COMPLAINT REVIEW BOARDS. —A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members being selected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

(3) CIVIL SUITS BROUGHT BY LAW ENFORCEMENT OFFICERS. — Every law enforcement officer shall have the right to bring civil suit against any person, group of persons, or organization or corporation, or the head of such organization or corporation, for damages, either pecuniary or otherwise, suffered during the performance of the officer’s official duties or for abridgment of the officer’s civil rights arising out of the officer’s performance of official duties.

(4) NOTICE OF DISCIPLINARY ACTION. — No dismissal, demotion, transfer, reassignment, or other personnel action which might result in loss of pay or benefits or which might otherwise be considered a punitive measure shall be taken against any law enforcement officer unless such law enforcement officer is notified of the action and the reason or reasons therefor prior to the effective date of such action.

(5) RETALIATION FOR EXERCISING RIGHTS. — No law enforcement officer shall be discharged; disciplined; demoted; denied promotion, transfer, or reassignment; or otherwise discriminated against in regard to his employment, or be threatened with any such treatment, by reason of his exercise of the rights granted by this part.

History. — s. 2, ch. 74-274.

112.533 Receipt and processing of complaints. — Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person.

History. — s. 3, ch. 74-274.

112.534 Failure to comply. — If any agency employing law enforcement officers fails to comply with the requirements of this part, at the request of the Police Standards Board established under part IV of chapter 23 or its successor, the Department of Legal Affairs shall apply directly to the circuit court of the county wherein such employing agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to compel the performance of the duties imposed bv this part. The1 Police Standards Board and the Department of Legal Affairs shall not be required to give any bond in any proceedings hereunder.

History. — s. 4, ch. 74-274.

      . See Appendix.

      . The appeal, Case No. 76-1323, did not divest the trial court’s jurisdiction over the cause entirely. That appeal divested the trial court of jurisdiction from (a) conducting any proceeding connected with the matter involved on appeal and (b) proceeding to final judgment.

       Note. — As amended, takes effect October 1, 1975.

       Note. — Ch. 74-386 repealed part IV of ch. 23 and created the Police Standards Training Commission (See s. 943.11).

       Note. — Ch. 74-386 repealed part IV of ch. 23 and created a new Police Standards and Training Commission (See s. 943.11).


text:
    Jimmie Lee THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 76-694.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied June 8, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS, ALDERMAN and LETTS, JJ., concur.


author: HUBBART, Judge.

text:
    Fred M. RUBENSTEIN et al., Appellants, v. RICHARD FIDLIN CORPORATION and Richard Fidlin, Appellees.
    No. 76-1901.
    District Court of Appeal of Florida, Third District.
    April 18, 1977.
    Stan E. Cushman, Miami, for appellants.
    No appearance for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   ON REHEARING

HUBBART, Judge.

On the appellants’ petition or rehearing, our further review of the record and applicable law convinces us that the appeal herein was in fact timely filed. The petition for rehearing is accordingly granted, our opinion of March 8, 1977 is withdrawn, and the appeal herein is reinstated.

A party has thirty (30) days from the rendition of an interlocutory order within which to file a notice of appeal to seek review of such order. Article V, Section 2(a), Florida Constitution (1968); Section 59.081, Florida Statutes (1975); Fla.App. Rule 4.2 b. An order is rendered when it has been reduced to writing, assigned, and made a matter of record, or if recording is not required, then filed with the clerk. Fla. App. Rule 1.3. If the thirtieth day on which a notice of appeal is due falls on a Saturday, Sunday, legal holiday, or any other day that, pursuant to order of the court, the clerk’s office of the trial court is officially closed, the notice shall be filed on the next day which is not one of the aforementioned days. Fla.App. Rule 3.18. See: Carlile v. Spofford, 65 So.2d 545 (Fla.1953); Finley v. State, 168 So.2d 201 (Fla.2d DCA 1964).

The order appealed from in this case is an interlocutory order denying the appellants’ motion to set aside a default judgment. This order was not required to be recorded by the clerk except on written direction of the court. See: Section 28.29, Florida Statutes (1975); Wade v. State, 339 So.2d 648 (Fla.1976). Since there was no such written direction in this case, the order herein was rendered the day it was filed with the clerk, September 10, 1976.

Ordinarily, October 10, 1976, would have been the last day within which a notice of appeal could have been filed in order to obtain interlocutory appellate review of said order. Since October 10, 1976, falls on a Sunday, the last day for filing the notice of appeal appeared to us to have been extended to Monday, October 11, 1976, making the instant notice of appeal one day late.

It has been brought to our attention, however, that October 11, 1976 was Columbus Day, which is a legal holiday. Fla.App. Rule 1.3(g). We had overlooked this fact as this court and many other courts throughout the state do not in fact observe Columbus Day. Whether this is true of the Circuit Court for the Eleventh Judicial Circuit is irrelevant, because Columbus Day is a legal holiday under Fla.App. Rule 1.3(g) whether that court in fact observed it or not. Consequently, the last day for filing the notice of appeal in this case was extended to Tuesday, October 12, 1976, the day on which the notice of appeal was in fact filed making this appeal timely.

Turning to the merits of the appeal, this is an action sounding in breach of contract and fraud. The trial court entered a default judgment without notice against the defendant and later refused to set it aside. The defendant appeals.

The question presented for review is whether a plaintiff may obtain a default judgment without notice against a defendant who has made an appearance in the case and thereafter failed to file or serve any papers in the case when the plaintiff has misled the defendant into believing that it was unnecessary to file any responsive pleadings because of ongoing settlement negotiations between the parties.

The record reflects that the plaintiff-ap-pellees, Richard Fidlin Corp. and Richard Fidlin, filed a three-count complaint sounding in breach of contract and fraud against the defendant-appellants, Fred M. Rubinstein, Benny Jeffus, Louis E. Diaz, Jr., William Fidlin and U.S. Auto Repair, Inc. The action centered around the sale of an automobile repair shop by the plaintiffs to the defendants.

On December 6, 1975, the defendants were properly served with a summons, complaint, and notice of hearing for injunctive relief. A hearing was held shortly thereafter on the application for injunctive relief. Both parties were represented by counsel at this court hearing. Injunctive relief was denied.

Shortly, thereafter, counsel for both parties entered into settlement negotiations in an effort to resolve the dispute. The negotiations were carried on through various telephone conversations and correspondence between the respective counsel. Defense counsel agreed with plaintiffs’ counsel not to file any responsive pleadings on the supposition that settlement was imminent in the case. Responsive pleadings were accordingly never filed by the defendants pursuant to this understanding.

The negotiations dragged on without resolution for several months. The plaintiffs through another counsel filed a waiver of jury trial on damages and a notice of trial for damages only, serving a copy on defense counsel by mailing same on May 27, 1976.

On June 4, 1976, plaintiffs’ original counsel filed a motion for default judgment without serving or otherwise notifying defense counsel or the defendant. The motion alleged that the defendants had failed to serve or file any papers in the cause. On the same day, the trial court entered a default judgment against the defendants.

Upon receipt of the waiver of jury trial and notice of trial pleadings on or about June 6, 1976, defense counsel learned for the first time that the plaintiff was proceeding with the case in court and that the plaintiff had additional counsel. Defense counsel called the plaintiffs’ new counsel in an effort to learn the status of the case. He talked with a person at the counsel's law office who professed to have no knowledge of the case, but promised to look into the matter and call back. That person never did call back.

Defense counsel shortly thereafter learned of the default judgment from the clerk’s office and filed a prompt motion to vacate the default judgment alleging under oath the above facts. The record fails to show that the plaintiffs ever traversed the motion or submitted any sworn proof to contradict these facts. The trial court heard and denied the motion.

Ordinarily, a plaintiff may obtain a default judgment without notice against a party who has failed to file or serve any papers in the action. Fla.R.Civ.P. 1.500(b); Dade County v. Lambert, 334 So.2d 844 (Fla.3d DCA 1976). In the instant case, however, the defendants were misled by the plaintiff into believing that it was unnecessary to file any responsive pleadings because of ongoing settlement negotiations. Moreover, defense counsel had made an appearance in the case by attending the initial hearing on the application for injunction and thereafter was served with pleadings save for the crucial application for default judgment.

Under these circumstances, we believe it was unconscionable for the plaintiff to take advantage of the defendants’ failure to file responsive pleadings by obtaining a default judgment without notice to the defendants. See: Johnson v. Buxton, 262 So.2d 892 (Fla.2d DCA 1972). The law is well-settled that a party is estopped from asserting legal rights to the detriment of another party when to do so would be unconscionable. See: Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA 1961).

We, therefore, hold that a plaintiff may not obtain a default judgment without notice against a defendant who has made an appearance in the case and thereafter failed to file or serve any papers in the case when the plaintiff has misled the defendant into believing that it was unnecessary to file any responsive pleadings because of ongoing settlehient negotiations between the parties. Since the defendants made such an appearance and were so misled in this case, their motion to set aside the default judgment entered herein without notice should have been granted by the trial court.

Reversed and remanded for proceedings consistent with this opinion.


text:
    INDIAN RIVER FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States Corporation, Appellant, v. Sherrill WHITE, as Trustee of the assets of R I Vero Beach, Inc., a Florida Corporation, Bankrupt, et al., Appellees.
    No. 76-1415.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1977.
    Rehearing Denied June 8, 1977.
    Thomas Thatcher and Charles E. Smith, Smith, Heath & Smith, Vero Beach, for appellant.
    Kenneth E. Padgett, Jr., Vero Beach, for appellee, H. G. Hall Construction Co., Inc.
   PER CURIAM.

AFFIRMED.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.