author: ALDERMAN, Justice. SUNDBERG, Justice, OVERTON, Justice,

text:
    B. W. WAIT, III, as Director of Utilities Commission, City of New Smyrna Beach, Florida, and Utilities Commission, City of New Smyrna Beach, Florida, Petitioners, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Respondent.
    No. 52796.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Rehearing Denied June 21, 1979.

      John E. Chisholm, New Smyrna Beach, the Law Offices of Spiegel & McDiarmid, Washington, D.C., and Joseph C. Jacobs and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioners.
    John E. Mathews, Jr. and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, and Marion R. Shepard, Jacksonville, and Matthew Childs of Steel, Hector & Davis, Miami, for respondent.
    Parker D. Thomson and Franklin G. Burt of Paul & Thomson, Roy Wood, Miami, Hal Uhrig, Orlando, Thomas H. Connors, Royall P. Terry, Jr., Miami, for The Miami Herald Pub. Co. and The News-Press Pub. Co., Inc., amicus curiae.
   ALDERMAN, Justice.

The City of New Smyrna Beach Utilities Commission and its director seek review of two issues decided by the First District Court of Appeal in Wait v. Florida Power & Light Co., 353 So.2d 1265 (Fla. 1st DCA 1978). The district court, in Wait, held that section 119.11(2), Florida Statutes (1975), which provides that the filing of a notice of appeal by a public agency does not operate as an automatic stay of a lower court’s order requiring the agency to open its records for inspection in accordance with the Public Records Act, chapter 119, controls over the conflicting provision of Fla.App. Rule 5.12(1), which provides that the filing of a notice of appeal by a public body automatically stays the order appealed. The district court, in Wait, also held that the common law, litigation-related privileges of attorney-client and work product are not exempted from the Public Records Act.

We accepted jurisdiction of this cause to resolve the conflict between the decision of the First District in the present case and the decision of the Fourth District in Clark v. Walton, 347 So.2d 670 (Fla. 4th DCA 1977), which held that the automatic stay provision of rule 5.12(1) takes precedence over the conflicting language of section 119.11(2). We resolve that conflict by approving the holding of the Fourth District in Clark and quashing the decision of the First District to the extent that it conflicts with Clark. We resolve the remaining issue by sustaining the First District’s holding that the Public Records Act exempts only those records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.

New Smyrna and Florida Power & Light are engaged in litigation before the United States Nuclear Regulatory Commission over the construction and operation of Florida Power & Light’s nuclear units. Pursuant to the Public Records Act, Florida Power & Light requested to inspect New Smyrna’s records concerning the planning, operation, and maintenance of New Smyrna’s electrical system. When New Smyrna denied access to these records on the ground that its attorney would have to review the records and perhaps remove some privileged or confidential documents before they would be made available, Florida Power & Light sought a writ of mandamus in the circuit court, alleging a right of access to all of New Smyrna’s documents. Holding that the Public Records Act is applicable to all records and documents in New Smyrna’s possession, the circuit court granted Florida Power & Light’s application for writ of mandamus and made its order effective forty-eight hours after entry unless otherwise ordered by an appropriate appellate court. On appeal, the First District affirmed the circuit court’s order.

We will first resolve the conflict between the decisions of the First District in Wait and the Fourth District in Clark. New Smyrna contends that Clark is a correct statement of the law and should be approved because the authority to adopt rules for the practice and procedure in all courts is vested in the Supreme Court under article V, section 2, Florida Constitution. It argues that the granting of a stay, whether upon filing of notice of appeal or upon motion, is a step in the enforcement of a final judgment and is, thus, procedural in nature. In response, Florida Power & Light says that Clark must be rejected because rule 5.12(1) is substantive in nature due to its effect since, if an automatic stay is granted simply upon filing of a notice of appeal, a party can be deprived of its substantive rights granted under chapter 119 until a time when those substantive rights become meaningless due to the lapse of time.

In Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975), we distinguished substantive law from procedural law, stating:

Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions. [Citations omitted.]

The granting of a stay, because it is a step in the enforcement of a final judgment, is concerned with “the means and method to apply and enforce” substantive rights and falls within the definition of procedural law as explained in Benyard. We reject Florida Power & Light’s contention that rule 5.12(1) is actually substantive in nature and hold that the filing of a notice of appeal by a public agency' from an order requiring the agency to open its records for inspection in accordance with the Public Records Act operates as an automatic stay of the lower court’s order.

Turning now to the second issue, we will consider the arguments made by New Smyrna in support of its claimed right to maintain the confidentiality of its records. In enacting the Public Records Act, the legislature stated in section 119.01 that the statute’s purpose was to open all state, county, and municipal records for personal inspection by any person. Certain public records were exempted from disclosure by section 119.07(2)(a) and (b), Florida Statutes (1975), which provides:

(2)(a) All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).
(b) All public records referred to in ss. 794.03, 198.09, 199.222, 658.10(1), 624.-319(3), (4), 624.311(2), and 63.181, are exempt from the provisions of subsection (1).

The current version of section 119.07(2)(b) has added new exemptions while at the same time deleting some of the exemptions found in the 1975 version. However, these changes have no effect on our decision.

New Smyrna first contends that section 119.07(2)(a) should be construed to create two separate and independent exemptions, one exemption being that presently “provided by law to be confidential” and the other being those “prohibited from being inspected by the public, whether by general or special law.” It then argues that Florida courts have long recognized the confidential privileges of attorney-client and work product, which, at the time the Public Records Act was enacted, were a part of the common law, and concludes that these common law privileges are exemptions “provided by law.” In response, Florida Power & Light points out that this same argument was repudiated by the Fourth District Court of Appeal in State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1977).

When section 119.07(2)(a) was first enacted by the legislature, it provided:

(a) All public records which presently are deemed by law to be confidential or which are prohibited from being inspected by the public, whether provided by general or special acts of the legislature, or which may hereafter be so provided, shall be exempt from the provisions of this section.

Chapter 67-125, Section 7, Laws of Florida. (Emphasis supplied). Seizing upon the phrase “deemed by law to be confidential,” the Second District Court of Appeal, in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla. 2d DCA 1975), rev’d, 345 So.2d 646 (Fla.1977), held that non-statutory public policy considerations may restrict public access to documents otherwise deemed “public records” within the meaning of chapter 119. In 1975, subsequent to the Wisher decision, the legislature amended section 119.07(2)(a) by substituting the phrase “provided by law.”

It is this amendment by the legislature that the Fourth District, in State ex rel. Vea le, relied upon to reject the argument that chapter 119 provides an exemption from disclosure for information deemed confidential by judicial decision. Addressing this issue, Judge Schwartz, speaking for the Fourth District, stated:

The statutory amendment which occurred after the Wisher events makes the propriety, indeed, the inevitability, of this result all the more clear. The Second District decision was bottomed on the court’s conclusion that an exception was properly “deemed by law,” that is, created by the law established by judicial decision-making, to exist. In fact, that phrase does connote opinions and decisions of courts and judges. ... It seems obvious therefore that the very purpose of the statutory amendment was specifically to overrule the Second District Wisher conclusion and preclude judicially-created exceptions to the Act in question.

353 So.2d at 1196.

We adopt the rationale of the Fourth District and hold that, in enacting section 119.07(2), Florida Statutes (1975), the legislature intended to exempt those public records made confidential by statutory law and not those documents which are confidential or privileged only as a result of the judicially created privileges of attorney-client and work product. If the common law privileges are to be included as exemptions, it is up to the legislature, and not this Court, to amend the statute.

New Smyrna next argues that, even if the common law privileges are not “provided by law” and therefore were not incorporated in section 119.07(2), Florida Statutes (1975), public policy considerations compel recognition of these litigation-related privileges as exemptions to the act. This argument should be addressed to the legislature. Courts deal with the construction and constitutionality of legislative determinations, not with their wisdom. In this case, we are confined to a determination of the legislature’s intent.

Turning from the construction of chapter 119 to its application, New Smyrna argues that, when Florida Power & Light chose to litigate before the United States Nuclear Regulatory Commission, it submitted to the discovery procedures of that forum and waived any rights it might otherwise have had under chapter 119. We find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119. The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119 to gain access to public documents. It is the federal agency before whom the litigation is pending and not this Court which will decide whether documents obtained pursuant to chapter 119 can be used in that litigation.

Another argument presented by New Smyrna is that section 119.07(1) should be construed to provide for reciprocal disclosure by Florida Power & Light. In essence, New Smyrna contends we should hold that, if Florida Power & Light is to have access to traditionally privileged documents possessed by New Smyrna, then it should have comparable access to Florida Power & Light’s files. New Smyrna cites the language of section 119.07(1), which provides that disclosure be permitted only “under reasonable conditions” and maintains that reciprocal disclosure by Florida Power & Light is not only equitable but is also a reasonable condition for disclosure of sensitive, litigation-related documents. We find no merit in New Smyrna’s argument because we do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure and because we simply cannot construe the language of section 119.07(1) in the fashion suggested by New Smyrna. That portion of the statute relied upon by New Smyrna provides that examination of public records shall be permitted “at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee.” It is clear to us that this statutory phrase refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of the records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.

We have considered the other arguments presented by New Smyrna and find them to be without merit. Accordingly, the decision of the First District is quashed to the extent that it holds that rule 5.12(1) does not control over section 119.11(2), Florida Statutes (1975), and it is approved insofar as it holds that chapter 119, Florida Statutes (1975), the Public Records Act, excludes any judicially created privilege of confidentiality and exempts from public disclosure only those public records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.

It is so ordered.

BOYD, OVERTON and HATCHETT, JJ., concur.

SUNDBERG, J., dissents in part and concurs in part with an opinion, with which ENGLAND, C. J., and ADKINS, J., concur.

SUNDBERG, Justice,

concurring in part and dissenting in part.

I concur in all portions of the majority opinion except that which holds that Florida Appellate Rule 5.12(1) controls over the provisions of section 119.11(2), Florida Statutes (1975). I dissent from that portion of the opinion not because I would characterize the power of the judiciary to grant stays in the enforcement of a judgment as substantive. I agree completely with the proposition that the exercise of judicial discretion as to whether a stay of a judicial act pending appeal should be invoked is a matter of practice and procedure within the purview of those terms as defined in Benyard v. Wainwright, 322 So.2d 473 (Fla.1975), and In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972). However, rule 5.12(1) deals not at all with the exercise of judicial discretion. Where a public body is concerned, it makes the stay automatic. Granted, section (2) of the rule permits the exercise of judicial discretion upon motion of a party and good cause shown. Nevertheless, I deem section (1) of the rule to be nothing more than a policy decision of general application by this Court. Consequently, where the legislature has concluded, as they have in section 119.-11(2), that special circumstances outweigh the policy considerations in favor of permitting an automatic stay for governmental entities, I perceive no conflict with the Court rule of general application. There is no unconstitutional intrusion into the realm of that which must be the exclusive prerogative of the judiciary in our system of coordinate branches of government. The statute expressly recognizes the authority of an appellate court to exercise its judicial discretion to enter a stay. It is only the automatic stay which is affected by the statute. This appears to me to be an entirely reasonable response by the legislature to promote the salutary purposes of the Public Records Act. It requires little imagination to perceive that the purposes of the act can be completely frustrated by application of the automatic stay provisions of rule 5.12(1).

Accordingly, I would hold that this matter falls within the “ ‘twilight zone’ [where] a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made” and, therefore, the general policy considerations of rule 5.12(1) should give way to the special policy considerations inherent in section 119.11(2), Florida Statutes (1975).

ENGLAND, C. J., and ADKINS, J., concur.

ON MOTIONS FOR REHEARING

Upon consideration of the motions for rehearing filed in the above cause,

IT IS ORDERED by the Court that said motions be and the same are hereby denied.

ENGLAND, C. J., and BOYD, SUN-BERG, HATCHETT AND ALDERMAN, JJ., concur.'

OVERTON, J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

OVERTON, Justice,

concurring in part and dissenting in part.

Although I agree with the result reached by the majority opinion on the specific facts of this case, I would grant rehearing for the purpose of revising the opinion to make it clearly applicable only to the unique circumstances of this cause.

The issue of the extent of public access allowable to criminal files and records was not one of the issues presented to the court. The majority opinion uses broad language that, in my view, is unnecessary to a determination of this cause. Although this was not a criminal case, our decision has resulted in confusion regarding public access to criminal justice files and records in this state.

Because the affected parties have had no opportunity to be heard, our opinion should be clarified to avoid confusion in this area of the law.

For the reasons expressed, I would grant rehearing.

ADKINS, J., concurs.

      . Whether or not there is a constitutional right of privacy which limits the Public Records Act is not presented, and we do not consider that issue in the present case.

      . The present decision is limited to the relationship between section 119.11(2) and the “Florida Appellate Rules, 1962 Revision.”

      . In re Florida Rules of Criminal Procedure, 272 So.2d at 66.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Claude Anthony PEREZ, Respondent.
    No. 53603.
    Supreme Court of Florida.
    March 22, 1979.
    Rehearing Denied July 24, 1979.

      Jim Smith, Atty. Gen. and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for petitioner.
    No appearance for respondent.
   OVERTON, Justice.

The State of Florida seeks by a petition for writ of certiorari a review of a per curiam affirmed decision of the Second District Court of Appeal reported at 355 So.2d 526 (Fla. 2d DCA 1978). That decision affirmed a written opinion and order of the trial court which reduced to thirty years a life sentence imposed upon the respondent in 1973 for a conviction of first degree murder. The order of the trial court explaining its reasons for granting the reduction of sentence is properly considered record proper in this cause to determine conflict jurisdiction. We find conflict with Adams v. State, 310 So.2d 782 (Fla. 2d DCA 1975), modified on other grounds, 335 So.2d 801 (Fla.1976), and therefore we have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

We find the trial court was without authority or jurisdiction to reduce the life sentence imposed for a valid conviction of first degree murder. The affirmance of the trial court by the district court of appeal is quashed, and this cause is remanded with directions for the original sentence to be reinstated.

It is so ordered.

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


author: OVERTON, Justice. ALDERMAN, Justice,

text:
    Lee W. SMITH, Rose Ogden, Joe Kear, John Richardson, Susan Schulman, and Stuart Rogers, Petitioners, v. Bruce A. SMATHERS, as Secretary of State of the State of Florida, and Mary L. Singleton, Director, Department of Elections, Respondents.
    No. 54600.
    Supreme Court of Florida.
    April 19, 1979.
    Rehearing Denied July 17, 1979.

      Ira J. Kurzban of Kurzban & Kurzban, Miami, The National Emergency Civil Liberties Committee, New York City, and Bruce S. Rogow, Fort Lauderdale, for petitioners.
    David E. Cardwell, Director, and Ronald A. Labasky, Legal Counsel, Div. of Elections, Tallahassee, for respondents.
   OVERTON, Justice.

The petitioner, Lee W. Smith, by an original proceeding in mandamus, sought an opportunity to be a write-in candidate for Congress in the Thirteenth Congressional District. He was joined by five persons who wanted to vote for him in the general election on November 7, 1978. We issued an alternative writ, received a return, and heard oral argument. On October 30, 1978, we denied relief but reserved jurisdiction to enter a full opinion on the issue presented.

In the congressional race in issue in these proceedings, only one candidate, William Lehman, qualified, and his name was not on the ballot because he was unopposed. See § 101.151(6), Fla.Stat. (1977). The right asserted by petitioner Smith to be a write-in candidate is necessarily intertwined with the election procedure which eliminates an unopposed candidate’s name from the ballot.

Considering the limited time available before the election, it was not feasible to require the reinsertion of Mr. Lehman’s name on the ballot and devise a procedure for petitioner Smith to qualify as a write-in candidate. To have granted the relief would have caused an unwarranted disruption of the election process. This fact, coupled with the petitioners’ failure to join as parties to the action Mr. Lehman and the local supervisors of elections who are required by Section 101.251, Florida Statutes (1977), to prepare the ballots, resulted in our denial of the requested relief for this election.

Despite our denial of relief in this instance, we have considered the constitutional issues involved in this controversy and hold that the complete abolition of write-in candidacies by the revised Florida Election Code is unconstitutional.

Prior to January 1, 1978, the Florida Election Code provided a procedure for write-in candidacies. It required write-in candidates to notify election officials within forty-five days of the election of their desire to be a candidate. If the candidate was qualified, a blank space would appear on the ballot underneath the names of any other candidates for the office. This procedure was described in Sections 99.023, 101.-011(2), and 101.151(5)(a), (b), Florida Statutes (1975), and was approved by this Court in Pasco v. Heggen, 314 So.2d 1 (Fla.1975). When the Code was revised, these sections were eliminated. Ch. 77-175, §§ 13, 66, Laws of Fla.

There is no doubt that the election process may be reasonably regulated in order to guarantee “orderly and effective elections.” Danciu v. Glisson, 302 So.2d 131, 133 (Fla.1974). In this case, however, we are confronted not with the procedural regulation of the right to write in the name of a candidate but with its complete abolition. In our view, this is impermissible and constitutes a denial of the right to vote for a candidate of one’s choice embodied in Article VI, Section 1, Florida Constitution (1968). This Court in State ex rel. Lamar v. Dillon, 32 Fla. 545, 14 So. 383 (1893), said:

“The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted . . [State ex rel. Smith v. Anderson, 26 Fla. 240, 259, 8 So. 1, 5 (1890).] There is no doubt in our minds about the right of the legislature to prescribe an official ballot, and to prohibit the use of any other . . But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the constitution has guaranteed to him this right. If the legislature can restrict the voter to some candidate whose name is printed on the official ballot, then it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice.” 32 Fla. at 579, 14 So. at 393-94 (construing Article VI, Section 6, Florida Constitution (1885)). [Emphasis supplied.]

While we realize that computers and electronic voting equipment have substantially changed the methods by which electors cast their ballots, we believe the right of each elector to vote for a write-in candidate is as important now as it was in 1893. Further, the change by the 1968 Constitution of the section of the 1885 Constitution which was interpreted in Dillon, supra, in no way affects the intent and meaning of the provision and, in fact, strengthens our conclusion in this case.

For the foregoing reasons, although the petition for writ of mandamus in the instant case has been denied, we hold that the complete elimination of the opportunity to be a write-in candidate violates Article VI, Section 1, of the Florida Constitution. We also hold that Sections 13 and 66 of Chapter 77-175, Laws of Florida, are invalid only to the extent they repeal the write-in voting procedure contained in Sections 99.023, 101.011(2), and 101.151(5)(a), (b), Florida Statutes (1975). These repealed sections of the statute are hereby revived and shall remain in force and effect to provide a procedure for write-in candidacies in future elections until properly changed by the legislature. Henderson v. Antonacci, 62 So.2d 5 (Fla.1952).

It is so ordered.

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

ALDERMAN, J., dissents with an opinion, with which ADKINS, J., concurs.

ALDERMAN, Justice,

dissenting.

I respectfully dissent. The present election process prohibits write-in ballots, but it allows minor party candidates or independent candidates to register at will and merely requires that they obtain signatures of three percent of the registered electors in the district or area affected by the election. The election code provides for the avoidance of costs associated with the petitioning process if the candidate is unable to pay them, and the petition forms are supplied by the state. It also provides for waiver of the filing fee if it causes an undue burden on the candidate or resources are not otherwise available. In my opinion, this is a reasonable exercise of the legislature’s right to impose restrictions on the election process to assure orderly and effective elections.

The elimination of write-in ballots, while at the same time providing a reasonable method of access to the ballot for minor party and independent candidates, does not constitute an unconstitutional restriction on the election process. I reach this conclusion based upon the extremely strong presumption in favor of the constitutionality of statutes that regulate the conduct of elections and because, under our present constitution, write-in ballots are not mandated. Article VI, section 1, Florida Constitution, provides:

All elections by the people shall be by direct and secret vote. General elections shall be determined by a plurality of votes cast. Registration and elections shall, and political party functions may, be regulated by law.

This was a change from the Florida Constitution of 1885, article VI, that provided:

SECTION 6. Elections; method of voting. — In all elections by the Legislature, the vote shall be viva voce, and in all elections by the people, the vote shall be by ballot.
SECTION 9. Legislature to enact laws to preserve purity of ballot. — The Legislature shall enact such laws as will preserve the purity of the ballot given under this Constitution.

I believe the majority opinion is wrong when it holds that the change of language in the 1968 Florida Constitution in no way affects the intent and meaning of the Florida Constitution of 1885, article VI, section 6, as it was construed by this Court in State ex rel. Lamar v. Dillon, 32 Fla. 545, 14 So. 383 (1893). In Dillon, the Court explained:

The right to vote is not an inherent or absolute right, found among those generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant. Subject to the limitations contained in the federal constitution, the elective franchise is under the control of the sovereign power of the states, expressed in constitutions or statutes properly enacted. Where a constitution has conferred the right, and prescribed the qualifications of electors, it, of course, is paramount until amended, and the legislature cannot change or add to them in any way; but where the constitution does not fix the right of suffrage, or prescribe the qualifications of voters, it is competent for the legislature, as the representative of the lawmaking power of the state, to do so.

32 Fla. at 559-60, 14 So. at 387. In Dillon, through quo warranto proceedings challenging the right of several councilmen of the City of Jacksonville to hold office, an act of the legislature, chapter 4301, Laws of Florida (1893), which dealt with the method of election for the offices of councilmen of the City of Jacksonville, was attacked as unconstitutional on several grounds. One alleged basis for the invalidity of this law was that, by the terms of the act, qualified electors of the City of Jacksonville were not permitted to vote for whom they pleased but were restricted to vote for those persons whose names were placed upon an “official ballot” by the election commissioners named by the act. The Court, emphasizing that the 1885 constitution provided that in all elections the people shall vote by ballot, said:

But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the constitution has guarantied to him this right. If the legislature can restrict the voter to some candidate whose name is printed on the official ballot, then it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice.

32 Fla. at 579, 14 So. at 393-94. The Court concluded that the portion of the act restricting the voter to checking some name on the official ballot conflicts with the 1885 constitutional provision in reference to voting by ballot.

Our present constitution no longer utilizes the language that the vote shall be by ballot as did the 1885 constitutional provision relied on by this Court in Dillon. Contrary to the majority’s view, I believe that this was a material change and that Dillon is not controlling precedent for interpretation of article VI, section 1, Florida Constitution. This Court, in a recent case, held that reasonable controls by the state (through the legislature) must be provided in order to assure orderly and effective elections, and a requirement that “independent” candidates submit and have certified upon petition the signatures of a percentage of the total registered electors is not unreasonable and does not deny the candidates due process or equal protection of the law. Danciu v. Glisson, 302 So.2d 131 (Fla.1974). And in another recent case, we held that the restrictions on write-in ballots set forth in sections 99.023 and 101.251(3), Florida Statutes (1973), are not unconstitutional, rejecting the argument that any limitation on the right to cast a vote and have it counted is improper. Pasco v. Heggen, 314 So.2d 1 (Fla.1975).

Accordingly, I conclude that the elimination of the statute providing for write-in candidates does not violate article VI, section 1, Florida Constitution, and that sections 13 and 66 of chapter 77-175, Laws of Florida, are valid.

ADKINS, J., concurs.

      . Cf. Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (in considering the timing of relief in an apportionment case, a court should consider the proximity of an election and the election procedures provided by state law).

      . Article VI, Section 1, Florida Constitution (1968), provides, inter alia: “All elections by the people shall be by direct and secret vote.” Article VI, Section 6, Florida Constitution (1885), provided, inter alia: “[A]nd in all elections by the people, the vote shall be by ballot.”


author: ADKINS, Justice.

text:
    Charley F. ISON, Appellant, v. Rollin W. ZIMMERMAN, as Sheriff of Brevard County, State of Florida, Appellee.
    No. 51950.
    Supreme Court of Florida.
    May 3, 1979.
    Rehearing Denied July 24, 1979.

      John M. Starling of Crofton, Holland, Starling, Harris & Severs, Titusville, for appellant.
    Joseph R. Moss, Cocoa, for appellee.
   ADKINS, Justice.

This is an appeal from the circuit court of Brevard County which held that chapter 67-1149, Laws of Florida, is unconstitutional in that it contains a title defect and purports to restrict the duties of the office of sheriff. Art. Ill, §§ 6, 11, Fla.Const. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The appellee, Rollin W. Zimmerman, was elected sheriff of Brevard County to assume office January 1, 1977. The appellant, Charles F. Ison, had become a member of the incumbent sheriff’s force in 1963 as a uniformed deputy and had continuously occupied various positions through December 1976, On December 19,1976, newly-elected Sheriff Zimmerman sent Ison a letter terminating his employment effective December 31, 1976, as deputy inspector and assistant commanding officer of the fourth division of the sheriff’s department. Zimmerman explained in the letter that he had reorganized the sheriff’s department. As a result, in the interest of efficiency but expressly not because of any personal lack of competency or qualifications, Ison would not be retained since he had been one of the former sheriff’s commanders and “managerial-policymaking officers.”

Prior to Ison’s termination in November 1976, the “lame-duck” sheriff, L. S. Wilson, had revived a civil service board under chapter 67-1149, Laws of Florida, entitled “An act creating civil service for employees of the office of sheriff” of Brevard County. (Hereinafter referred to as chapter 67-1149). Although required by this special act, the civil service board had not functioned since 1969. After meeting as the newly-revived board in December 1976, the three members of the board appointed by Sheriff Wilson resigned so that Ison and other terminated deputies of Wilson could sue the incoming sheriff in federal court. Sheriff Zimmerman held an administrative hearing on December 29, 1976, after this federal litigation had begun, to give Ison and the others an opportunity to be heard concerning their termination. On advice of counsel, Ison and the others failed to appear at the appointed time and place.

Ison alleged in his complaint that the procedure used in terminating him did not comply with chapter 67-1149 since Sheriff Zimmerman did not furnish Ison with written charges and a hearing. Ch. 67-1149, § 17, Laws of Fla. In addition, appellant alleged that he was a “public employee” as defined by chapter 447, Florida Statutes (1976), and entitled as such to a fair and equitable grievance procedure under section 447.401, Florida Statutes (1976), to determine whether proper cause existed for his termination.

The circuit court held that chapter 67-1149 was unconstitutionally restrictive of the duties of the Brevard County sheriff to retain his deputies, and also unconstitutionally defective in its title. Specifically, the circuit court held that a deputy sheriff was not an “employee of the office of sheriff” encompassed by the title. The circuit court denied Ison an injunction directing Sheriff Zimmerman to reinstate him under chapter 67-1149, and also dismissed Ison’s prayer for relief under chapter 447.

We find no merit to appellant’s contention that as a “public employee” he is entitled to relief under chapter 447. Confronted with the identical question of whether a deputy sheriff is a “public employee” under the definition of this term in chapter 447, we have already answered this question in the negative in Murphy v. Mack, 358 So.2d 822 (Fla.1978). In recognition of the peculiar status of the deputy sheriff as officer of the sheriff, himself a constitutional officer, we held there that a deputy sheriff was not a “public employee” within the contemplation of chapter 447. A deputy sheriff was therein distinguished from other employees of the sheriff, such as secretaries.

Although chapter 447 affords appellant no basis for relief, we do find merit in his contention that he is entitled to relief under chapter 67-1149. For we find this special act to be constitutionally valid in that it contains neither an unconstitutional réstriction on the duties of the office of sheriff nor an invalid title.

Appellee argues first that two sections of the 1968 constitution must be read in pari materia to render chapter 67-1149 unconstitutional. Appellee urges this court declare that chapter 67-1149 is a special act in violation of article III, section 11(a), Florida Constitution.

The two sections are article III, section 11(a), “Prohibited special laws”:

There shall be no special law or general law of local application pertaining to election, jurisdiction or duties of officers. [Emphasis added.]

and article III, section 14, “Civil service systems”:

By law there shall be created a civil service system for state employees . and there may be created civil service boards for county, district or municipal employees, and for such offices thereof as are not elected or appointed by the governor. [Emphasis added.]

Appellee would have us construe the language in article III, section 14 so that “by law” is restricted to “by general law.” This would render the Act a special act infringing on the duties of the sheriff to retain his deputies.

We reject this construction of the ambiguous phrase “by law.” Appellee’s argument is based on the two constitutional sections’ alleged intrinsic evidence of the meaning of “by law.” It is axiomatic that to clarify the meaning of an ambiguously drafted provision, resort may be had to extrinsic evidence of the drafters’ intent in adopting a particular wording. In this instance strong extrinsic evidence shows us that the drafters intended the meaning of “by law” to encompass both “by general law” and “by special or local law.” Further support for the broader meaning includes:

1) previous history of the provision;
2) contemporaneous commentary on the drafters’ intent; and
3) subsequent legislative action.

First, regarding the history of the provision, article III, section 14 in the revised constitution of 1968 existed in an earlier version in article XVI, section 34 of the constitution of 1885, under which chapter 67-1149 was enacted. The earlier version expressly authorized the legislature to create civil service systems by special law:

Civil service system and boards. Section 34. The Legislature may by general, special or local laws create civil service and civil service boards for municipal, county, and state employees, and for municipal, county and state officers not appointed by the governor or elected by the people . and the Legislature may authorize such civil service boards to provide [further] for the qualifications and method of employing such employees and officers and to prescribe the length of their terms of office or employment.

The 1885 constitution as amended also contained an earlier version of article III, section 11 of the 1968 constitution in the former’s article III, section 20, prohibiting special acts regulating duties of officers.

Special and private laws, when prohibited. Section 20. The Legislature shall not pass special or local laws in any of the enumerated cases: that is to say, regulating the jurisdiction and duties of any class of officers, except municipal officers

These earlier two versions of the 1968 constitutional provisions read in pari mate-ria in the 1885 constitution cannot be considered contradictory to each other, although article XVI, section 34, expressly authorizes special laws relating to civil service for officers. Hence it is illogical to say these two sections’ later versions in the 1968 constitution contradict each other, unless the simplified wording of “by law” is read to prohibit creation of civil service “by special law.”

Secondly, the reporter’s contemporaneous commentary regarding the wording of article III, section 14 in the 1968 constitution explains that the change in language is mere simplification. 25A Fla.Stat.Ann. 786, 787.

Finally, subsequent legislative action supports a construction of article III, section 14 of the 1968 constitution that allows creation of civil service systems by special or local laws for deputies as officers “not elected or appointed by the governor.” Section 30.53, Florida Statutes (1977), reads:

Independence of sheriffs shall be preserved concerning hiring, firing . . provided that nothing herein contained shall restrict the establishment or operation of any civil service system or civil service board created pursuant to section 14, Article III, of the Constitution of Florida, provided further that nothing contained in sections 30.48-30.53 shall be construed to alter, modify, or change in any manner any civil service system or board, state or local now in existence or hereafter established. [Emphasis added.]

In light of the foregoing, we hold that special civil service acts do not unconstitutionally restrict the duties of the office of sheriff. We may dispose summarily of appellee’s related contention that deputy sheriffs should not be protected by civil service. Appellee contends that deputies historically have been considered not employees but officers, imbued with some degree of the sovereign power of the sheriff’s office. Therefore, appellee concludes, a sheriff should have absolute control over his choice of deputies. However, we decline to approve judicially such a sweeping view of the sheriff’s duties to retain his deputies. For this view would obviously contradict both: (1) the spirit of article III, section 14, the constitutional mandate for the establishment of civil service for “employees and officers,” and (2) the clear legislative intent in section 30.53, with its specific exception to the independence of the sheriff’s duties in furtherance of civil service systems.

Furthermore, the legislature already has enunciated in chapter 67 — 1149 its policy as to which deputies are as a matter of fact so much the sheriff’s “officers,” and are as a matter of degree invested with so much of the sovereign power of his office, that the sheriff may have absolute control over their retention. Specifically, chapter 67-1149 already refuses to extend civil service protection to the “position of the office of sheriff, chief deputy, chief criminal deputy, and chief civil deputy”, and exempts them accordingly from the Act’s classified service. Ch. 67-1149, § 2, Laws of Fla.

This legislative determination to distinguish among various sheriff’s officers and employees for purposes of chapter 67-1149 comports with the provision relating to civil service establishment in article III, section 14 of the 1968 constitution. For this section does not require “all” officers and employees be extended protection, merely “such” officers and employees enumerated or not expressly exempted. Since this Court does not function as a fact-finder or policy-maker for the legislature, it is not our role to refine further on a presumptively constitutional legislative determination. Here the legislature indisputably has determined which deputies should be denied civil service protection because of the degree of sovereign power exercised.

There remains the question of whether chapter 67-1149 is unconstitutional on the formal ground of a title defect. The title of chapter 67-1149 is “An Act creating civil service for employees of the office of sheriff.” Appellee alleges a title defect because the title excludes deputy sheriffs as officers, and refers only to “employees” of the office of sheriff, whereas the Act’s contents refer to both employees and deputy sheriff officers.

It is fundamental that courts will uphold the constitutionality of an act wherever possible. Scavella v. School Board of Dade County, 363 So.2d 1095 (Fla.1978). The constitutional requirement for an act’s title is that it give notice as to the act’s contents, and, moreover, not mislead the public or the legislature as to the scope of the act. The test of whether a title misleads is whether it would deceive the mind of an ordinary person used to the common meaning of language, not the mind of a precisionist used to technical refinements of terms. Finally, the burden of proof is upon the party asserting the title defect to show the title fails to meet the constitutional standard. King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965); 30 Fla.Jur. Statutes § 49 (1974).

The narrow question here is whether the title of chapter 47-1149 would mislead the public and not put on notice an ordinary mind used to the common meaning of “employees of the office.” In light of the strictly applied constitutional test, ap-pellee clearly has failed to meet the ¿urden of showing a title defect. For in the common meaning of the word “employee”, a deputy sheriff is an employee of the sheriff, or a person whose services are engaged and recompensed by the sheriff. It is true that the deputy also is technically an officer of the sheriff as distinguished from an employee in the legalistic sense of the historic distinction between officers and employees. But this precisionist refinement upon the common meaning of “employee” will not suffice to defeat the constitutionality of the Act’s title.

Even beyond the basic principle that a title’s validity is to be measured by the common meaning of its wording, we interpret this title’s wording as a generalized but sufficient reference to both employees and officers. For we construe the phrase “employees of the office” as an appropriately brief wording designed not to deceive the public but rather to avoid the redundancy of “employees of the office and officers of the office.” Deputy sheriffs as officers are repeatedly mentioned within the body of the Act. That deputy officers also are obviously intended to be embraced by the Act’s title is clear from the title’s phrasing “employees of the office of sheriff.” [Emphasis added.] The title is not merely “employees of the sheriff” but “employees of the office of sheriff;” as a result, the phrase “office of sheriff” must surely evince the sheriff’s office’s “officers,” or deputies, to even the technically minded. Plainly, deputies as officers are those persons with or “of the office” of sheriff in the most literal sense, in that they partake to a limited degree of the sheriff’s sovereign powers as constitutional officer.

Indeed, to encourage such implicitly complete but literally abbreviated titles, we already have held that a title need not be an index to its contents. King Kole, Inc. v. Bryant, supra. As a corollary, it is generally accepted that the principle that expression of one thing is the exclusion of all others does not apply to titles. Mayo v. Polk Company, 124 Fla. 534, 169 So. 41 appeal dismissed, 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376 (1936), J. Sutherland, 1A Statutes and Statutory Construction § 18.04 (4th ed. C. Sands 1972).

Since we have determined chapter 67-1149 to be a constitutional act despite both the substantive and formal challenges raised, it is clear that appellant as a member of the classified service under section 2 of the Act had its rights of civil service protection. Specifically, appellant had the right to written charges and a hearing for cause before the incoming sheriff unilaterally notified him of his termination. Furthermore, the irrelevant fact that the civil service board mandated by the Act was not in active operation throughout 1976 cannot be used to defeat the appellant’s rights under the Act.

The judgment appealed from is reversed. The case is remanded for proceedings consistent with this opinion. It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM ENGLAND, Chief Justice, and SUND-BERG and HATCHETT, Justices,

text:
    Willie Jasper DARDEN, etc., Appellant, v. Bob GRAHAM et al., Appellees.
    No. 56877.
    Supreme Court of Florida.
    May 21, 1979.
    Rehearing Denied May 30, 1979.
    Robert Augustus Harper, Jr., Gainesville, for appellant.

      Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM

The appeal is without merit. The issue presented by the appellant concerns the validity of the Executive Department’s clemency process. The contentions made by the appellant were rejected by this Court in Sullivan v. Askew, 348 So.2d 312 (Fla.1977). See also Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

The motion for stay of execution is hereby denied, and the order of the trial court is affirmed.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG and HATCHETT, JJ., dissent with an opinion.

ENGLAND, Chief Justice, and SUND-BERG and HATCHETT, Justices,

dissenting.

We dissent from the Court’s affirmance of the trial court’s order, its denial of a stay pending appeal, and its denial of Darden’s motion for oral argument. We would grant a stay of execution for forty-eight hours, allow the parties oral argument and thereafter render a decision on an expedited basis.

Darden challenged the state’s clemency proceeding in circuit court before a warrant was signed for his execution. The court had subject matter jurisdiction of the lawsuit and the trial judge entered an order dismissing Darden’s complaint with prejudice. Darden is entitled to appellate review • of that order. We disagree with our colleagues on the form which that review should take under the special circumstances of this case. That is, we would not decide the merits of the appeal without according Darden’s counsel oral argument.

        Sullivan v. Askew, 348 So.2d 312 (Fla.1977).


author:
PER CURIAM.
      ENGLAND, Chief Justice, and HATCH-ETT, Justice,

text:
    Willie Jasper DARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 56910.
    Supreme Court of Florida.
    May 22, 1979.
    Rehearing Denied July 24, 1979.
    Robert Augustus Harper, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We have for consideration an appeal of a Florida Criminal Rule 3.850 proceeding commenced by the appellant on Friday, May 18,1979. The appellant contends he is entitled to a new trial because of newly discovered evidence and ineffective assistance of counsel during the course of his trial. On Monday, May 21, 1979 the original trial judge in this cause heard testimony on these contentions and denied relief.

The appellant now appeals to this Court and requests a stay of execution. We have received the record and the transcript of the trial court proceeding held on May 21, 1979. Upon a full consideration of this record we find the contentions of the appellant are without merit. The application for a stay of execution of sentence is denied and the order of the trial judge is affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., and HATCHETT, J., dissent with an opinion.

ENGLAND, Chief Justice, and HATCH-ETT, Justice,

dissenting.

We dissent from the Court’s affirmance of the trial court’s order entered on May 21, 1979, and the Court’s denial of a stay pending appeal. We would grant a stay of execution for a short period of time, allow the parties to file briefs, and thereafter render a decision on an expedited basis.


text:
    Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent.
    No. 51807.
    Supreme Court of Florida.
    June 14, 1979.
    Rehearing Denied July 24, 1979.

      M. Stephen Turner, of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for petitioner.
    E. Douglas Spangler, Jr., Asst. Division Atty., Division of Retirement, Tallahassee, for respondent.
    Richard A. Sicking and Joseph C. Segor, of Kaplan, Dorsey, Sicking & Hessen, Miami, for the International Association of Firefighters, AFL-CIO, amicus curiae.
    Stephen H. Cypen, of Cypen & Nevins, Miami Beach, for Board of Trustees of The City of Boca Raton Police and Firefighters Retirement System, Board of Trustees of The Hollywood Firemen’s Pension Fund, Board of Trustees of The City of Hollywood Police Officers Retirement System, Board of Trustees of The City Pension Fund for Firemen and Policemen in The City of Miami Beach and Board of Trustees of The Pompano Beach Police and Firefighters’ Retirement System, amicus curiae.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the First District Court of Appeal, Caldwell v. Division of Retirement, Department of Administration, 344 So.2d 923 (Fla. 1st DCA 1977), which allegedly conflicts with a decision of the Third District Court of Appeal in City of Coral Gables.v. Brasher, 132 So.2d 442 (Fla. 3d DCA 1961), on the same point of law. Art. V, § 3(b)(3), Fla.Const.

The State Retirement Commission (Commission) denied Caldwell’s claim for “disability in line of duty” benefits, costs, and attorney’s fee. Caldwell, a fireman, suffered a heart attack. The district court of appeal held that the Commission erred in refusing to apply section 112.18(1), Florida Statutes (1975), which provided that any impairment of health of a fireman caused by heart disease resulting in total disability is presumed to have been suffered in the line of duty unless the contrary is shown by competent evidence. By statute, “disability in line of duty” means an injury or illness arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular working hours as required by the employer. § 121.021(13), Fla.Stat. (1975).

The district court of appeal in its opinion correctly held that section 112.18(1), Florida Statutes (1975), was applicable. The court then found that there was a conflict in the testimony, saying:

There was evidence that it was caused by arteriosclerosis unrelated to his employment, and there was evidence that recent employment stress or employment stress over a period of time caused the attack in whole or in part.
The medical testimony crucial to this case was conflicting. The Commission found that the heart attack suffered by Caldwell resulted from arteriosclerosis which was unrelated to his duties as a fireman. There was competent substantial evidence in the record to support this finding. The causation standard applied by the Commission to the facts of this case was correct and Caldwell is not entitled to in line of duty disability as a matter of law.

The Commission says that its determination was supported by substantial and competent evidence, and this was sufficient even though the testimony was conflicting. Caldwell says that the presumption is one that affects the burden of persuasion and can be overcome only by clear and convincing evidence. If the evidence is conflicting, he says, the presumption prevails.

In City of Coral Gables v. Brasher, supra, the City appealed from a judgment which held that Brasher’s heart disease arose from and out of the discharge of his duties as a police captain. Section 185.34, Florida Statutes (1961), provided that any impairment of health of police officers caused by heart disease is presumed to have been suffered in line of duty unless the contrary be shown by competent evidence. The expert for the City (appellant) rejected the concept that strain of employment could be the cause of plaintiff’s heart trouble. Relying upon the presumption, the court held that the officer was entitled to a pension for disability suffered in line of duty, saying:

For us to accept the appellant’s view that following its expert’s testimony, the presumption vanished and the burden of proof shifted to the plaintiff to “positively” prove the disability was service-connected (notwithstanding the testimony of plaintiff’s expert) would be contrary to Florida law and would also have the effect of negating the presumption granted by section 185.34, supra. Permitting the testimony of the defendant’s expert to have the effect of rebutting the presumption created by the statute in view of the contradictory and conflicting testimony of plaintiff’s expert, would be contrary to the rule expressed by the Supreme Court of Florida in Kuehmsted v. Turnwall, 115 Fla. 692, 155 So. 847, wherein it was stated that where testimony of two medical experts is hopelessly conflicting, the evidence will be considered balanced as if it has not been offered. 132 So.2d at 444-445.

In the case sub judice, the district court of appeal found that the heart attack suffered by Caldwell “resulted from arteriosclerosis . . . .” This finding required the application of the statutory presumption that the arteriosclerosis (heart disease) was suffered in the line of duty. The district court failed to apply the presumption when it further found that the arteriosclerosis was “unrelated to his duties as a fireman.” The presumption supplies the element of service-connection, and the failure to apply the presumption constitutes conflict with City of Coral Gables v. Brasher, supra. We have jurisdiction.

A presumption has been defined as an inference required by a rule of law to be drawn as to the existence of one fact from the existence of some other established basic fact or combination of facts. 3 B. Jones, Jones on Evidence § 3.1 (6th ed. 1972). The Florida courts recognize one type of rebut-table presumption as a “bursting bubble” presumption or vanishing presumption. The Court in Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754, 756 (Fla. 4th DCA 1969), discussed the vanishing presumption as follows:

A presumption is a rule of law which attaches to certain evidentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value. Florida follows generally [albeit not always] what is sometimes called the Thayerian rule to the effect that when credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter for the jury to consider.

Another type of rebuttable presumption is one which affects the burden of proof. These are expressions of social policy. See 5 C. Ehrhardt, West’s Florida Practice, Florida Evidence § 303.1 (1977); 1 K. Hughes, Florida Evidence Manual § 57 (1975).

When evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. This may be by a preponderance of the evidence or by clear and convincing evidence, as the case may be.

The presumption contained in section 112.18(1), Florida Statutes (1975), affects the burden of persuasion. It embodies the social policy of the state which recognizes that firemen are subjected during their career to the hazards of smoke, heat, and nauseous fumes from all kinds of toxic chemicals as well as extreme anxiety derived from the necessity of being constantly faced with the possibility of extreme danger. The legislature recognized that this exposure could cause a fireman to become the victim of tuberculosis, hypertension, or heart disease.

The legislature disposed of the need to introduce proof that the enumerated diseases were occupational hazards of the particular fireman involved by assuming that they are hazards faced by all firemen. This statutory presumption can be rebutted by showing some other specific hazard or non-occupational factor was the cause of the disease. Just as this Court developed a general formula for dealing with the difficult problem of proving the occupational causation of heart attacks in workmen’s compensation cases (Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla.1971)), so did the legislature establish a general rule for firemen in section 112.18, Florida Statutes (1975). The statutory presumption relieved Caldwell from the necessity of proving an occupational causation of heart disease. The statute cast on the employer the burden of persuading the trier of fact that the disease was caused by a non-occupationally related agent. The presumption would be meaningless if the only evidence necessary to overcome it is evidence that there has been no specific occupationally related event that caused the disease.

To rebut the statutory presumption, it is necessary that the Commission show that the disease causing disability or death was caused by a specific, non-work related event or exposure.

The statutory presumption is the expression of a strong public policy which does not vanish when the opposing party submits evidence. Where the evidence is conflicting, the quantum of proof is balanced and the presumption should prevail. This does not foreclose the employer from overcoming the presumption. However, if there is evidence supporting the presumption the employer can overcome the presumption only by clear and convincing evidence. In the absence of cogent proof to the contrary the public policy in favor of job relatedness must be given effect. The holding of the First District Court of Appeal in the case sub judice that the presumption was overcome where there was conflicting evidence of causation is in error and should be quashed.

The portion of the opinion of the district court of appeal holding that section 112.-18(1), Florida Statutes (1975), should be applied in these proceedings and the holding that Caldwell is not entitled to attorney’s fee and costs are approved. The decision to deny the petition for review is quashed. This cause is remanded to the district court of appeal with instruction to quash the order of the Commission and further remand the cause to the Commission for the purpose of allowing Caldwell in line of duty disability benefits.

It is so ordered.

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

BOYD, J., dissents.


author: BOYD, Justice.

text:
    STATE of Florida ex rel. DADE COUNTY, Petitioner, v. Charles A. NUZUM, etc., Respondents.
    No. 52555.
    Supreme Court of Florida.
    June 14, 1979.

      Stuart Simon, Dade County Atty.; and Charles A. Citrin, Sp. Asst. County Atty. of Fine, Jacobson, Block, Klein and Colan, P. A., Miami, for relator.
    Dennis E. LaRosa and William A. Hatch, Staff Attys. and James J. Cooney, Gen. Counsel, Dept, of Business Regulation, and William L. Lyman, Asst. Gen. Counsel, Tallahassee, for respondents.
   BOYD, Justice.

Dade County has petitioned the court for a writ of mandamus, to be directed to specified officials of the state, requiring them to perform the acts necessary to effect payment to the county of a municipal share of the revenue derived from collection of beverage license taxes in the unincorporated areas of the county. The petition invokes our jurisdiction under article V, section 3(b)(5) Florida Constitution, pursuant to Florida Appellate Rule 4.5 b.

Section 561.342, Florida Statutes (1975), provides that counties are to receive twenty-four percent of the revenue from beverage license taxes imposed within their borders. “Incorporated municipalities” are to receive thirty-eight percent of the revenue collected within their corporate limits. Dade County, like other counties, is receiving the twenty-four percent share provided for counties. It contends that it also has a right to receive thirty-eight percent of the revenue raised in its unincorporated areas on the theory that the government of Dade County constitutes a “municipal” government for the unincorporated areas of the county.

Article VIII, section 11 of the Constitution of 1885 authorized the creation of a metropolitan government for Dade County and granted to the electors of Dade County the power to adopt a home rule charter of local government. Subsection (l)(b) of section 11 provided that the charter to be adopted:

May grant full power and authority to the Board of County Commissioners of Dade County ... to levy and collect such taxes as may be authorized by general law and no other taxes, and to do everything necessary to carry on a central metropolitan government in Dade County.

Pursuant to the authority thus conferred, the voters of Dade County adopted a home rule charter for the metropolitan government of the county. Article VIII, section 6(e) of the Florida Constitution of 1968, provides that section 11 of the 1885 Constitution is to remain in full force and effect and provides further:

All provisions of the Metropolitan Dade County Home Rule Charter, heretofore or hereafter adopted by the electors of Dade County pursuant to Article VIII, Section 11, of the Constitution of 1885, as amended, shall be valid, and any amendments to such charter shall be valid; provided that the said provisions of such charter and the said amendments thereto are authorized under said Article VIII, Section 11, of the Constitution of 1885, as amended.

Article VIII, section 6(f), Florida Constitution (1968), provides:

To the extent not inconsistent with the powers of existing municipalities or general law, the Metropolitan Government of Dade County may exercise all the powers conferred now or hereafter by general law upon municipalities.

Thus the authorizing amendment to the former constitution has been incorporated by reference into the new constitution; the charter itself has been given constitutional approval, to the extent that its provisions are authorized by the authorizing amendment; and the county has been declared to have the same powers as conferred upon municipalities by general law.

The obvious purpose of Article VIII, section 6(f) of the 1968 Constitution was to lay to rest the question of whether the taxing power of Dade County should be the same as any other county. In State ex rel Dade County v. Brautigam, 224 So.2d 688 (Fla.1969), this court held that Dade County was entitled to receive from the state treasury amounts collected pursuant to the county’s exercise of a taxing power conferred upon municipalities by general law. We said that in view of the fact that the county was performing municipal services in its unincorporated areas, the purpose of section 6(f) was to assure that these services could be adequately financed. See also Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla.1972); Bearden v. Metropolitan Dade County, 258 So.2d 344 (Fla. 3d DCA), cert. denied, 263 So.2d 234 (Fla.1972).

The respondents contend that the issue of Dade County’s right to distribution of the revenue is governed not by the county’s powers, which are in many ways equivalent to those of a municipality, but rather by its status. Under section 561.342, the thirty-eight percent share is granted to “incorporated municipalities.” By its very nature, respondents argue, the unincorporated area of Dade County is not an incorporated municipality.

Under Dade County’s two tiered plan of local government, a number of municipalities co-exist with the county-wide, chartered metropolitan government. The areas lying outside the boundaries of these municipalities have been referred to as “unincorporated.” But these areas are also “incorporated” by virtue of the home rule charter. The Dade County government is “the municipal government of the unincorporated areas.” Belcher Oil Co. v. Dade County, 271 So.2d 118, 120 (Fla.1972). We hold that, with regard to the so called unincorporated areas of Dade County, the metropolitan government is an “incorporated municipality” for the purposes of section 561.342.

The petition seeks payment of the municipal share of the tax imposed for licenses issued beginning in 1973. Because of the disruption of state finances that would be caused by granting in full the requested relief, we decline to give retrospective effect to today’s decision. The relief sought will be granted prospectively from the time of relator’s petition.

Respondents director of the Division of Alcoholic Beverages and Tobacco and secretary of the Department of Business Regulation are commanded to certify to the State Comptroller the amounts due Dade County as its municipal share of the alcoholic beverage license taxes imposed in the unincorporated areas of the county for the 1977-1978 fiscal year and for each successive fiscal year. The respondent comptroller is commanded to pay the amounts so certified to Dade County.

It is so ordered.

ENGLAND, C. J., and ADKINS, HATCHETT and ALDERMAN, JJ., concur.

      . The respondents are the director of the Division of Alcoholic Beverages and Tobacco, the secretary of the Department of Business Regulation, and the Comptroller of the State of Florida.

      . 561.342 County and municipal license tax; caterers, clubs, manufacturers, distributors, exporters, and vendors.
      (1)Twenty-four percent of the taxes imposed under §§ 563.02, 564.02, 565.02(1), (4), and (5), and 565.03 collected within the county shall be returned to the appropriate county tax collector.
      (2) Thirty-eight percent of the license taxes imposed under §§ 563.02, 564.02, 565.02(1), (4), and (5), and 565.03 collected within an incorporated municipality shall be returned to the appropriate municipal officer.
      (3) No tax on the manufacture, distribution, exportation, transportation, importation, or sale of such beverages shall be imposed by way of license, excise, or otherwise by any municipality, anything in any municipal charter or special or general law to the contrary notwithstanding.


author: PER CURIAM.

text:
    Richard HAYDEN, Appellant, v. STATE of Florida, Appellee.
    No. 53353.
    Supreme Court of Florida.
    June 14, 1979.
    Joseph Beeler, Miami, for appellant.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon consideration of the briefs and record in this cause, we conclude that appellant’s attack on the constitutional validity of Section 893.13(l)(a) 2 and (l)(d), Florida Statutes (1977), is without merit, and that this case should be transferred to the District Court of Appeal, Second District, for the resolution of all remaining points on appeal properly raised and preserved below.

It is so ordered.

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


text:
    K & S, INC., et al., Appellants, v. William J. McELROY, et ux., Appellees.
    No. 53357.
    Supreme Court of Florida.
    June 14, 1979.

      George H. Brown, III, and Peter H. Dub-beld of Brown, Watson, Goldstein & Douglass, St. Petersburg, for appellants.
    I. W. Williams of Williams & Milton, St. Petersburg, for appellees.
   PER CURIAM.

Affirmed. Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

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


author: ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Edward BELL, Respondent.
    No. 54745.
    Supreme Court of Florida.
    June 14, 1979.
    C. Marie King, Asst. Atty. Gen., Tampa, for petitioner.
    W. C. McLain, Asst. Public Defender, Bartow, for respondent.
   Appeal from District Court of Appeal, Second District; 360 So.2d 6.

The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

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

ALDERMAN, J., dissents with an opinion, with which ADKINS and BOYD, JJ., concur.

ALDERMAN, Justice,

dissenting.

Relying upon State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974), Lowe v. Stack, 326 So.2d 1 (Fla.1974), and Miller v. State, 332 So.2d 65 (Fla.1976), the District Court of Appeal, Second District, reversed the denial of the defendant’s motion to vacate his judgment and sentence on the basis that the trial court did not have jurisdiction to try him. Manuey, Lowe, and Miller, however, are factually distinguishable and do not reach the question posed by the defendant’s motion to vacate, /. e., whether a conviction for first-degree murder on a properly filed information is void because the trial commenced after the death penalty was reinstated. I conclude that this Court has jurisdiction because the district court’s reliance on these decisions constitutes a misapplication of the law.

On the merits, the issue before us is whether the defendant’s conviction and sentence should be vacated and the cause remanded so that he may be tried on a validly returned indictment for the offense of first-degree murder. I disagree with the district court that the judgment and sentence should be vacated; instead, I would quash the decision of the district court and affirm the trial court’s denial of the motion to vacate.

The defendant was arrested on June 10, 1972, and charged by information on July 27, 1972, with first-degree murder. Because he was found to be mentally incompetent to stand trial at that time, he was committed to the Florida State Hospital, Division of Mental Health. He subsequently was tried on the information by a six-person jury on January 17, 1974, was convicted, and was sentenced to life imprisonment.

At the time the information was filed, Florida’s statutory procedure for imposing the death penalty had been declared unconstitutional by the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Subsequently, this Court, in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), which was rendered before the information against the defendant was filed, held that, in light of Furman, capital offenses no longer existed in Florida; that those portions of rules, which are based on “capital offenses” such as Florida Criminal Procedure Rule 3.270, requiring twelve persons to constitute a jury to try all capital cases, are no longer viable; that the portion of this rule providing for a six-person jury to try all criminal cases includes those formerly designated as capital; and that the invalidation of capital punishment does not mean that offenses formerly designated as capital may not be prosecuted by information. Therein, we expressly said:

The constitutional requirement for indictment for “capital crime” only by a grand jury does not mean that a person cannot now be indicted or informed against and thereupon tried for what has heretofore been delineated as a “capital crime”. It simply is no longer a “capital crime” and therefore it proceeds as any other felony under the same Fla.Const. art. I, § 15(a), in its 2nd clause: “or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court . ..”

265 So.2d at 504.

At the time the defendant in the present case was charged, there were no capital crimes in Florida, the information charging him with first-degree murder was valid, and the circuit court had jurisdiction of this case.

A different situation was presented in State ex rel. Manucy v. Wadsworth, where the defendant was charged by information with first-degree murder after the effective date of the statute reinstating the death penalty, and this Court held that, since Ma-nucy was charged after the revitalization of capital crimes, the constitution required that he be charged by indictment.

The defendant in Lowe v. Stack was informed against on November 20, 1972, for murder in the first degree committed November 13, 1972, after the new death penalty procedure became effective on October 1, 1972. In that case, we held that the defendant should have been indicted as required by article I, section 15(a), Florida Constitution.

In Miller v. State, the first-degree murder was committed in December 1970, and the indictment was returned before Fur-man. The defendant in that case thereafter was committed to the Florida State Hospital upon the trial court’s finding that he was incompetent to stand trial. He was tried in 1974, found guilty, and sentenced to death. Although he argued that he could not be sentenced to death for a capital crime committed before December 8, 1972, this Court held that imposition of the death sentence did not violate article I, section 10, Florida Constitution, prohibiting ex post facto laws, because the sentence did not expose him to a greater penalty then could have been imposed at the time he committed the murder.

The district court in the present case was led into error by its assumption that the defendant had been tried for a capital offense. In fact, he was not tried for a capital offense because the state had elected to proceed against the defendant by information for the noncapital crime of murder. As we held in Reino v. State, 352 So.2d 853 (Fla.1977), for an offense to be a “capital offense,” the death penalty must be a possible punishment. In Reino, Justice Sundberg, speaking for the Court, said: “The authorities cited in Donaldson uniformly hold that the death penalty must be a possible punishment in order for the offense to be a ‘capital offense.’ ” 352 So.2d at 857. By proceeding to trial under the validly filed information rather than electing to withdraw the information and indict the defendant, the state precluded the possibility of imposing the death penalty. The death penalty was not a possible punishment, and therefore defendant was not being prosecuted for a capital crime. Cf. Reino v. State. The defendant received a life sentence, and the trial court never treated this case as anything but a noncapital case. He raised no objection and proceeded to trial, secure in the knowledge that his life was not in jeopardy. The defendant was fairly tried, convicted, and sentenced. On appeal, the district court determined on the merits that the judgment and sentence should be affirmed. Bell v. State, 318 So.2d 498 (Fla. 2d DCA 1975). There is no question but that he is guilty of murder.

Article I, section 15(a) provides in pertinent part that no person shall be tried for a capital crime without presentment of indictment by a grand jury. Since defendant’s trial proceeded under a validly filed information, he could not receive the death penalty, and he was, therefore, not tried for a capital felony. I would affirm his judgment and conviction.

ADKINS and BOYD, JJ., concur.

      . The majority’s discharge of the writ of certio-rari without having ruled on the merits of the cause results in the district court’s decision becoming the law of this case. The district court has held that the defendant’s trial, conviction, and sentence are void. This means that the state may now indict and try him for a capital offense. When asked at the bar of the Court whether his client is willing to risk the possibility that the death penalty be imposed, defense counsel responded that the defendant knew that he could now be subject to the death penalty, and he was willing to run this risk. The defendant, after having led the district court into holding that his trial under the information was a nullity, should not be allowed to later complain if the state elects to seek an indictment against him for first-degree murder and to ask for the imposition of the death sentence. The defendant has made his bed, and he must now be prepared to lie in it.


author: PER CURIAM. ENGLAND, Chief Justice,

text:
    FLORIDA ROCK AND TANK LINES, INC., Petitioner, v. Paula F. HAWKINS, William T. Mayo, and Robert T. Mann, as and constituting the Florida Public Service Commission, Respondents.
    No. 54873.
    Supreme Court of Florida.
    June 14, 1979.
    Martin Sack, Jr., Jacksonville, for petitioner.
    Prentice P. Pruitt, Legal Director and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for respondents.
   PER CURIAM.

By petition for certiorari, we have for review Order No. 13885 of the Public Service Commission, which authorized Silco Petroleum Carrier, Inc., to transport certain petroleum products within Duval County including the suburban territory of that county. We find that the record in this cause does not demonstrate such a departure from the essential requirements of law that we should set aside the subject order entered in these proceedings. The petition for certiorari is denied.

It is so ordered.

ADKINS, BOYD, OVERTON, HATCH-ETT and ALDERMAN, JJ., concur.

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

ENGLAND, Chief Justice,

dissenting.

Contrary to my colleagues, I find the order here under review to be the result of an unwarranted expansion of the declaratory statement procedure prescribed by section 120.565, Florida Statutes (1977), and, consequently, a departure from the essential requirements of law.

Under protest from Florida Rock & Tank Lines, Inc. and others, a Public Service Commission hearing examiner granted Silco Petroleum Carriers, Inc. the authority to transport bulk petroleum products within a particular territory in and around Duval County. The protestants petitioned for reconsideration of the order and, subsequently, the Commission issued a modified order — Order 13509. This order granted Silco the authority to transport only “gasoline, diesel, kerosene, No. 2 fuel oil and home heating oil between all points in Duval County.” Neither Silco nor the protestants sought review of Order 13509 by this Court.

In a subsequent proceeding allegedly under section 120.565, Silco petitioned the Commission for a declaratory statement regarding two aspects of Order 13509: (1) whether “No. 2 fuel oil” included heavier oils, such as Bunker C oil, and (2) whether “Duval County” included the suburban territory of Duval County. Silco further requested that if the Commission construed Silco’s authority to exclude the transport of Bunker C oil to and from Duval County’s suburban areas, Order 13509 be modified to include authority for that product and to and from that expanded territory. The Commission responded to Silco’s petition with Order 13885, which stated “that the authority issued to Silco Petroleum Carriers, Inc. be . modified and clarified so as to authorize the transportation of gasoline, diesel, gasoline [sic], fuel oil, No. 2 fuel oil and home heating oil between all points within Duval County and its suburban territory.” (Emphasis supplied.)

The Commission now asserts that Order 13885 was merely a “clarification” of Order 13509. It is abundantly clear to me, however, that Silco emerged from the declaratory statement proceeding with the right to transport more commodities within a larger territory than had been authorized under Order 13509.

Both the transportation of heavier oils and the scope of territorial boundaries had been the subject of express concern by the protestants in the original proceedings. In effect, the Commission has utilized the declaratory statement procedure to redetermine rights once fully resolved and, in so doing, has denied protestants’ procedural due process rights guaranteed in Florida’s Administrative Procedure Act. I would hold that the Commission’s modification of its final agency order in this case is wholly inconsistent with the purposes of section 120.565, Florida Statutes (1977), and that it represents an egregious departure from the essential requirements of law.

SUNDBERG, J., concurs.

      . Section 120.565, Florida Statutes (1977), requires agencies to provide procedures for the “prompt disposition of petitions for declaratory statements as to the applicability of any statutory provision or of any rule or order of the agency.”

      . The parties seem to agree that, while No. 2 fuel oil and Bunker C oil both fall within the category of fuel oils, they are different grades of oil and have different uses.

      .The suburban territory of Duval County includes areas five miles outside the boundaries of Duval County. § 323.01(1 l)(d), Fla.Stat. (1977).