author: ADKINS, Justice. ENGLAND, Justice

text:
    FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. BURLEIGH HOUSE, INC., Respondent.
    No. 46797.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Sept. 30, 1976.
    Robert Orseck of Podhurst, Orseck & Parks and Sam Daniels, Miami, for petitioner.
    Richard L. Lapidus of Lapidus & Hollander, Miami, for respondent.
   ADKINS, Justice.

Certiorari was granted in this cause to review the decision of the District Court of Appeal, Third District (305 So.2d 59) on grounds of direct conflict with a prior decision of this Court. It now appears that the writ was improvidently issued.

Relying upon Pinkerton-Hays Lumber Company v. Pope, 127 So.2d 441 (Fla.1961), petitioner contends that the District Court of Appeal attributed to Spinney v. Winter Park Bldg. & Loan Ass’n, 120 Fla. 453, 162 So. 899 (1935) a patently erroneous and unfounded principle of law. This is petitioner’s strongest ground for jurisdiction.

Pinkerton-Hays Lumber Company v. Pope, supra, does not suggest that we take jurisdiction because we disagree with the result of the District Court of Appeal’s decision. In this case we said:

“For a District Court of Appeal to accept a decision of this court as controling [sic] precedent, and then to attribute to that decision a patently erroneous and unfounded principal [sic] of law, is to create a ‘real and embarrassing conflict of opinion and authority’ as that phrase was used in the case of Ansin v. Thurston, Fla., 101 So.2d 808, 811. It was to resolve conflicts in cases such as this that Article V, Section 4 of the Constitution granted to this court jurisdiction to review by certiorari decisions of the district courts of appeal.” 127 So.2d at 443.

Spinney v. Winter Park Bldg. & Loan Ass’n, supra, held that the exemptions prescribed in Section 6192, C.G.L. (1927), later Fla.Stat. § 665.161, F.S.A. (1967), is applicable to a state building and loan association, saying:

“The reason behind this legislative enactment is sound.
“A building and loan association is a sort of mutual benefit association. Each of the stockholders are assumed also to be borrowers.
“[T]he association may either make loans to its members who shall bid the highest premiums for priority or the association may enter into an agreement in writing for the given premiums to be paid by the borrower, in addition to the interest, which premium may be payable all at one time or in installments. .
“And so it is that one subscribes for stock for the very purpose of being eligible to become a borrower from the fund which he helps to create by the payment of his stock subscription. The stockholder of the building and loan association is recipient pro tanto of such benefits as may accrue from the contract which he executes with the association as well as from the contracts which all other stockholders execute with the association. This being true, the Legislature has lifted the ban of usury to such an extent as to allow the stockholders to contract more liberally between themselves and within the organization than could lawfully be accomplished otherwise.” (Emphasis supplied.) 162 So. at 903.

In considering jurisdiction under the principles enunciated in Pinkerton-Hays Lumber Company v. Pope, supra, we should first determine whether the District Court of Appeal in the instant case (Financial Fed. Sav. & Loan Ass’n v. Burleigh House, Inc., 305 So.2d 59 (Fla.App.3d 1974)) accepted the Spinney case as controlling precedent. The District Court of Appeal in its opinion made the following reference to Spinney:

“Financial Federal further argues hereinunder that if it cannot rely on the legislative changes effective June 2,1969, then it is exempt from the usury penalties by .virtue of Fla.Stat. §§ 665.161 and 665.40. We cannot agree.
“In Spinney v. Winter Park Building and Loan Association, 120 Fla. 453, 162 So. 899 (1935) the Florida Supreme Court flatly held that the usury exemption provided for by Fla.Stat. § 665.161 applies only to domestic associations and not to foreign associations such as the defendant Financial Federal. Fla.Stat. § 665.40 entitles Federal savings and loan associations to the same exemptions from taxation as provided by law for domestic associations, not from the usury statutes. Therefore, we conclude that the defendant in the case sub judice is not exempt from the usury statutes.” 305 So.2d at 62.

The court plainly said Spinney was not a controlling precedent for petitioner herein because the opinions related solely to domestic associations. Considering the reasoning of the court in Spinney as quoted above, it is apparent that petitioner herein could not have used the prior case as precedent for its position on appeal. This was all the appellate court held. The District Court of Appeal in- the instant case reasoned that Fla.Stat. § 665.40 F.S.A., specifically included federal savings and loan associations in the exemption from taxation provided for domestic associations. Having drawn this distinction on tax exemptions, the District Court of Appeal held that petitioner herein was not exempt from the usury statute. This was a matter of statutory construction and a case of first impression.

The District Court of Appeal in the instant case did not attribute to Spinney “a patently erroneous and unfounded principle of law.” Nor was there any “real and embarrassing conflict of opinion and authority.” In the absence of “real and embarrassing conflict,” we will not extend our jurisdiction to the point of substituting our judgment on a question of law for the judgment of a District Court of Appeal having final appellate jurisdiction.

The writ of certiorari is discharged.

It is so ordered.

ROBERTS, BOYD and HATCHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., and SUNDBERG, J., dissent and concur with ENGLAND, J.

ENGLAND, Justice

(dissenting).

I respectfully dissent. Under the doctrine announced in Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441 (Fla.1961), there is a real and embarrassing direct conflict between the decision below and our decision in Spinney v. Winter Park Bldg. & Loan Ass’n, 120 Fla. 453, 162 So. 899 (1935). As a result, we have jurisdiction for review under Article V, Section 3(b)(3) of the Florida Constitution.

The point of law in this case is whether a federal savings and loan association is exempt from Florida’s usury statutes. In Spinney we held that a statutory exemption applies to domestic associations, but we did not discuss the status of foreign (including federal) associations. Nonetheless, the district court below attributed to that decision a determination that the exemption is not available to non-domestic associations. Building on the lack of exemption ascribed to Spinney, and brushing aside a tax exemption statute as inapplicable to usury law questions, the district court “therefore” concluded that Financial Federal was not exempt from the usury laws. If the district court did not rely on Spinney as a controlling precedent (as the majority suggests), I fail to discern from its opinion any rational basis on which it resolved the usury exemption issue against Financial Federal.

In my opinion, the district court erroneously attributed a legal conclusion to Spinney which was not at issue there or discussed in the opinion, and then the district court relied on that principle of law as controlling for the precise issue before it. Under these circumstances, I believe that Pinkerton-Hays Lumber demands that we exercise our jurisdiction to set matters straight.

As I would reach the merits of this case, I take this occasion to express my views on them. The essential facts concerning financial arrangements between Burleigh House and Financial Federal, as set out in the district court’s opinion, are not important to the legal issue. The question we have for determination is whether non-domestic associations were exempt from Florida’s usury statute in early 1969. The specific statutes which command our attention are Sections 665.01, 665.161, and 665.18, Florida Statutes (1967).

Section 665.01 defines the term “building and loan association” to include both domestic and foreign savings and loan associations. Sections 665.161 and 665.18 appear to create exemptions from the usury laws for all such associations, the former broadly and the latter more restrictively for nonpayment penalties provided for in an association’s by-laws. We are asked to determine whether the exemptions are as broad as they appear to be, and why the Legislature created two exemptions in the same regulatory code.

Burleigh House essentially argues from the evolution of the statutory exemptions that the first exemption applies only to foreign associations, and as to those it is available only for associations which limit their loans to members. Since federal associations are not so restricted, Burleigh House says that the usury laws apply. This argument traces the Legislature’s original intention of exempting only thrift institutions whose internal structures served as a, check on the interest rates which could be charged to members, and shows that this intent has not been altered by subsequent statutory amendments.

Financial Federal contends that the resolution of this dispute can be ascertained from the plain language of the statutes involved, which purport to exempt all savings and loan associations, and from the logic of the proposition that the complicated provisions of Chapter 665 were not enacted to regulate the few existing financial institutions which in recent times have operated on the pure building society plan as it was known at the turn of the century. Since we are most apt to ascertain a correct understanding of the 1967 statutes by a reconciliation of logic, language and history, I would begin my analysis with the pertinent legislative history.

From 1893 to 1963, foreign “building and loan associations” were governed by a statutory scheme separate from that which regulated domestic associations. Domestic associations were then exempt from usury laws under a provision in the usury statute available to loans made in compliance with all provisions of the domestic code. Foreign associations were then exempt under a provision in the foreign association regulatory code. The term “building and loan association” as applied to foreign institutions, however, was limited to those doing “business on the building society plan, viz., loaning its funds to its members only.” The general usury exemption for domestic associations was repealed in 1909, but reappeared in 1915 as a provision of the domestic association code. This was the provision which was considered in Spinney, and which in 1967 appeared as Section 665.18.

In 1963 the chapter regulating foreign associations was repealed, except for two provisions which were merged into the domestic association code, Chapter 665. One of these was the usury exemption, which was transferred to Chapter 665 and renumbered as Section 665.161. The definition of foreign associations which had limited their loans to members, former Section 668.05, was not one of the two transferred.

It seems to me apparent that in 1963 the Legislature intended to eliminate an outdated system of dual regulation and endeavored to erect a single, integrated regulatory structure for both domestic and foreign thrift institutions. This would lead me to conclude that the reference to “any” association in the code’s general usury exemption, Section 665.161, means precisely that, despite its origin as a limited exemption for foreign associations loaning funds to their members.

The question Burleigh House poses is why anyone should ascribe a different meaning to this exemption as of 1963 than the same language had before that time, considering that the domestic exemption was retained in its same form as well. My answer is that there is no purpose to be served by ascribing to the present regulatory scheme a set of historical connotations which, while once significant, have virtually disappeared, and that an explanation for the dual exemptions is readily apparent. Given the variant history of the foreign and domestic usury exemptions, the Legislature may well have concluded that a repeal of the foreign exemption (Section 668.09) would be viewed as an elimination of the foreign association exemption instead of a matter of regulatory simplification. The Legislature may also have viewed the limited exemption in Section 665.18 for by-law penalties as too restrictive for modern domestic savings institutions.

I conclude, therefore, that under the 1967 statutes, the usury exemptions contained in Sections 665.161 and 665.18 applied with equal force to domestic and foreign savings and loan institutions. This conclusion is consistent with the obligation of courts to view apparent legislative inconsistencies in a manner which will avoid questions of constitutionality. The district court’s decision that domestic associations were exempt from the usury laws while foreign institutions with virtually identical powers were not, raises a serious question of whether the statutes creating the distinction are constitutional under the supremacy clause of the Federal constitution.

For these reasons, I would reverse the decision of the district court.

OVERTON, C. J., and SUNDBERG, J., concur.

      . The district court states that “the Florida Supreme Court flatly held that the usury exemption provided for by Fla.Stat. § 665.161 applies only to domestic associations and not to foreign associations . . . .” 305 So.2d at 62.

      . Chapter 69-39, Laws of Florida, substantially revised the statutes involved in this proceeding. Under Section 665.53, Fla.Stat. (1969), none of the changes were given retroactive effect. The district court held, and both parties now concede for purposes of review, that this controversy is governed by prior law rather than any statutes which became effective on June 2, 1969.

      . 12 U.S.C. § 1464(b)(2), (c) (1969).

      . Chapter 4022, § 2, Laws of Florida (1891), providing that “loans made by building and loan and other mutual benefit associations, to its members, when made and conducted under the provisions of Chapter 3709, Laws of Florida, approved May 31, 1887, and acts amendato-ry thereof and such other acts as may hereafter be passed . . shall not be considered usurious. ...” See Section 687.031, Fla. Stat. (1961).

      . Chapter 4158, § 8, Laws of Florida (1893), carried forward as Section 668.09, Fla.Stat. (1961).

      . Chapter 4158, § 4, Laws of Florida (1893), carried forward as Section 668.05, Fla.Stat. (1961). In Skinner v. Southern Home Bldg. & Loan Ass’n, 46 Fla. 547, 35 So. 67 (1903), we held that foreign associations were subject to the further restriction, which then pertained to domestic associations, that loans be made on the basis of competitive bidding for no more than the value of a member’s share.

      . Chapter 5960, § 2, Laws of Florida (1909).

      . Chapter 6971, § 8, Laws of Florida (1915). This exemption was retained during the general revisions of the domestic building and loan association code in 1925 and 1927. '

      . Chapter 63-318, Laws of Florida.

      . I note that federal savings and loan associations did not come into existence until 1933.

      . See Michigan National Bank v. Michigan, 365 U.S. 467, 81 S.Ct. 659, 5 L.Ed.2d 710 (1961); United States v. Massachusetts Tax Comm’n, 481 F.2d 963 (1st Cir. 1973).


source: Caselaw Access Project

author: ROBERTS, Justice. ENGLAND, Justice

license: Public Domain

text:
    SCOTTIE-CRAFT BOAT CORPORATION and Federal Insurance Company, Petitioners, Cross-Respondents, v. Thomas SMITH and the Industrial Relations Commission, Respondents, Cross-Petitioners.
    No. 47938.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Sept. 29, 1976.
    H. Jack Miller and H. George liagan of Miller & Hodges, Coral Gables, for petitioners, cross-respondents.
    L. Barry Keyfetz of Ser & Keyfetz, Miami, for respondents, cross-petitioners.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for amicus curiae.
    W. L. Adams of Pyszka, Kessler, Adams & Solomon, Miami, for amicus curiae.
    Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Miami, for amicus curiae.
   ROBERTS, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing the order of the Judge of Industrial Claims on the sole basis that it was not entered within the thirty-day period specified in Section 440.25(3)(b), Florida Statutes.

Claimant was injured on January 26, 1971; hearings were held before the Judge of Industrial Claims November 29, 1973, April 10, 1974, and May 2, 1974; the Judge of Industrial Claims resigned his office to become involved in a campaign for elective office, which resignation was accepted; thereafter, various administrative orders were entered appointing said Judge of Industrial Claims as judge pro hac vice (each appointment ran for a period of 60 days), and a final appointment as judge pro hac vice was made by the Governor.

On review of the order of the Judge of Industrial Claims which was entered January 7, 1975, some 250 days after the final hearing in the cause, the Industrial Relations Commission found it unnecessary to review the contents of the Judge of Industrial Claims’ order in light of the reversible procedural error it determined to exist. Confronted with the issue — “Where no order is entered for a period in excess of eight months from the conclusion of taking the testimony during which time the judge’s efforts are directed toward campaigning or other non-case decision related matters should a new trial ensue in the interest of fairness, impartiality, appropriate decision making and the applicable statute,” the Industrial Relations Commission held that Section 440.25(3)(b), Florida Statutes, means that the order of the Judge Of Industrial Claims shall be entered before the expiration of thirty days from the date of the last hearing and, accordingly, the Industrial Relations Commission reversed the order of the Judge of Industrial Claims, and remanded for further proceedings including such trial de novo as required. The Industrial Relations Commission determined that its disposition of the above question made it unnecessary to answer the other issue raised as to whether there was a lawful adjudication of the workmen’s compensation claim in this matter by the Judge of Industrial Claims pro hac vice Capua pursuant to his January 7, 1975, order.

We cannot agree with the Industrial Relations Commission that the subject statutory provision, which provides:

“. . . The hearing shall be conducted by a judge of industrial claims, who shall within thirty days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner.”

is mandatory and divests the Judge of Industrial Claims of jurisdiction.

We find that the language of the statute is directory only. In Jarvis v. Miami Retreat Foundation, 128 So.2d 393 (Fla.1961), wherein petitioner complained that the deputy had made his decision in the cause eight months after testimony was taken, this Court stated, “However, it is presumed that the deputy did render his order on the facts reflected in the transcript. This order specifically states that he did so. We have reviewed the record and found it sufficient to sustain the order. In view of this, we find no merit to the petitioner’s contention on this point.”

Accordingly, certiorari is hereby granted, the decision of the Industrial Relations Commission is quashed and the cause is remanded for prompt disposition of the other questions raised on application for review.

It is so ordered.

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

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and ADKINS, J., concur.

ENGLAND, Justice

(concurring).

I concur in the Court’s conclusion that the time period expressed in Section 440.-25(3)(b) is directory rather than mandatory. I concur specially to clarify my view of our decision.

Nothing in the Court’s decision today precludes the Commission, on remand, from exercising its discretion to order a new hearing on the claim in this case if appropriate grounds are found to exist. That is to say, we have held that the Commission erred in treating the 30 day provision of law as tantamount to being jurisdictional, which it is not, but we have not precluded the agency’s exercise of discretion in the area of “stale” orders. The Commission may, on remand, properly conclude that, in this case, the time delay between the final hearing and the order was so long, and the evidentiary basis for fact findings so dependent upon live testimony, witness demeanor or other hearing-level advantages, that the order cannot adequately be tested from the record alone, so that the interests of justice require a new hearing.

Two other matters in this case also warrant comment. First, I would note that the action of this Court in construing the term “shall” in Section 440.25(3)(b) as only directory would be troublesome to me if we were reviewing the Commission’s first judgment on that issue. We are not, however. In an unbroken line of cases, the Commission has construed the statute as not being mandatory and has refused to require new trial for late orders. Though the Commission has previously warned of its intention to vacate orders entered beyond the statutory time limit, it has never before this case imposed a mandatory construction on the statute. In consequence of this history, we do no violence to statutory language, as authoritatively construed, by now applying the construction this law has always received.

Second, the posture of this case was such that the Commission received no record transcript for its review. On remand, if it first determines that the Judge possessed legal authority to sit in judgment on this case, I assume the Commission will direct the parties to cure the record defect before attempting a review of the Judge’s order. When that is done the Commission will be in the same position as this Court was in Jarvis, and the Commission will be in a position to provide the same type of review of the merits of the proceeding.

OVERTON, C. J., and ADKINS, J., concur.

      . At which time, F.S. 440.25(3)(b) read in pertinent part: “. . . The hearing shall be conducted by a deputy commissioner, who shall within twenty days after such hearing determine the dispute in a summary manner.”

      . The statute allows the parties to agree to an extension beyond the 30 day limit. Jurisdiction is not a matter which is within the control of the parties. Butler v. Allied Dairy Products, Inc., 151 So.2d 279 (Fla.1963); Zamora v. Modem Metal Craftsmen, 3 Fla.Comp.Rep. 172, cert. denied, 106 So.2d 923 (Fla.3d DCA 1958).

        . Potter v. Park Ave. Rest., 1 Fla.Comp.Rep. 164 (1955); Sickler v. Maule Ind., Inc., 2 Fla. Comp.Rep. 247, cert. denied, 97 So.2d 303 (Fla.1957); Zamora v. Modern Metal Craftsmen, 3 Fla.Comp.Rep. 172, cert. denied, 106 So.2d 923 (Fla.3d DCA 1958); Jordan v. Food Fair Stores, Inc., 7 Fla.Comp.Rep. 306, cert. denied, 277 So.2d 536 (Fla. 1973). Cf., Highsmith v. Wood-sen, IRC Order in Claim No. [ XXX-XX-XXXX ] (filed 7/9/74), cert. denied, 310 So.2d 741 (Fla.1975).

      . See Jordan, fn. 2 above.

      . See Henderson v. Sol Walker & Co., 138 So.2d 323 (Fla.1962), holding that the Commission’s construction of the workmen’s compensation laws is entitled to great weight.


text:
    Oswald MILLER, Petitioner, Cross-Respondent, v. OOLITE INDUSTRIES, INC., et al., Respondents, Cross-Petitioners.
    No. 47963.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Sept. 29, 1976.

      Kevin R. O’Connell of Spencer & Taylor, Miami, for petitioner, cross-respondent.
    R. E. Hodges and H. George Kagan of Miller & Hodges, Coral Gables, for respondents, cross-petitioners.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, W. L. Adams of Pyszka, Kessler, Adams & Solomon, Miami, Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Miami, for amici curiae.
   ROBERTS, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing the order of the Judge of Industrial Claims on the sole basis that it was not entered within the thirty-day period specified in Section 440.25(3)(b), Florida Statutes.

Petitioner, claimant, fractured the distal phalanx of the left index finger in a com-pensable industrial accident on April 29, 1971, when his finger was caught between a belt and pulley while changing a belt on a stone crushing machine. Timely notice was given, and claim was filed for temporary total disability benefits from February 4, 1972, through December 18, 1972, permanent partial disability of the body as a whole, for a higher disability rating than the 21% disability, to the hand previously accepted by the employer-carrier, for payment of medical bills and attorney’s fees. The employer-carrier defended on the grounds that the claimant was not temporarily disabled as a result of the accident, that disability was restricted solely to the index finger, that there had been an overpayment on permanent partial disability to the hand, that all benefits were timely and voluntarily paid and, therefore, claimant was not entitled to further benefits. The final hearing was concluded on April 3, 1973, with a deposition being received into evidence May 9, 1973. However, the Judge of Industrial Claims did not enter his order in the cause until December 17, 1974, in which order he found claimant to have sustained a 35% permanent partial disability to the left hand and a 10% permanent partial disability to the body as a whole, and awarded .temporary total disability benefits from February 4, 1972, through December 18, 1972, attorney’s fees and costs.

Respondent raised several points on appeal relative to the findings of the Judge of Industrial Claims, but the Industrial Relations Commission concluding that it was unnecessary under the circumstances to deal with these issues in view of the meritorious claim by respondent as to the 'inordinate- delay of the Judge of Industrial Claims in entering the order, reversed and remanded the cause to the Judge of Industrial Claims for trial de novo as required on the basis of its earlier decision — Scottie-Craft v. Smith, Fla., 336 So.2d 1150, here under review as well. Once again the Industrial Relations Commission expressed its understanding that the language of Florida Statute 440.25(3)(b) is mandatory — the Judge of Industrial Claims shall enter his order before expiration of 30 days from the date of last hearing.

We cannot agree with the Industrial Relations Commission that the subject statutory provision, which provides: '

“. . . The hearing shall be,conducted by a judge of industrial claims, who shall within thirty days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner.”

is mandatory and divest the Judge of Industrial Claims of jurisdiction.

We find that the language of the statute is directory only. In Jarvis v. Miami Retreat Foundation, 128 So.2d 393 (Fla.1961), wherein petitioner complained that the deputy had made his decision in the cause eight months after testimony was taken, this Court stated, “However, it is presumed that the deputy did render his order on the facts reflected in the transcript. This order specifically states that he did so. We have reviewed the record and found it sufficient to sustain the order. In view of this, we find no merit to the petitioner’s contention on this point.”

Accordingly, certiorari is hereby granted, the decision of the Industrial Relations Commission is quashed and the cause is remanded for prompt disposition of the other questions raised on application for review.

It is so ordered.

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

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and ADKINS, J., concur.

ENGLAND, Justice

(concurring).

I concur for the reasons I expressed in Scottie-Craft Boat Corp. v. Smith, Fla., 336 So.2d 1150, opinion filed simultaneously with this case. In this case, unlike the other, the parties had filed a record of the proceedings with the Commission, and a review of the parties’ contentions, including the discretionary “staleness” issue arising from the delay between final hearing and order, can be promptly made.

OVERTON, C. J., and ADKINS, J., concur.

      . At which time, F.S. 440.25(3)(b) read in pertinent part: “. . . The hearing shall be conducted by a deputy commissioner, who shall within twenty days after such hearing determine the dispute in a summary manner.”


author: SUNDBERG, Justice.

text:
    Julian CAPLAN, Petitioner, v. STATE of Florida, Respondent.
    No. 48114.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Oct. 6, 1976.

      John R. Newcomer, Jr., Yado, Keel, Nelson, Casper, Bergmann & Newcomer, and Dennis G. Diecidue, Diecidue, Ferlita & Prieto, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for respondent.
   SUNDBERG, Justice.

Petitioner was convicted in the Civil and Criminal Court of Record in and for Pinel-las County of violating Section 847.-011(l)(a), Florida Statutes (1975), which proscribes, inter alia, possession with intent to show, advertising, hiring another to assist in showing, and showing an obscene film. The Second District Court of Appeal, 317 So.2d 855 affirmed one of the convictions (Case No. 71-847), affirmed another as modified (Case No. 71-846), and remanded a third case (Case No. 71-848) with directions to the trial court to determine whether petitioner’s right to á speedy trial under Florida Rule of Criminal Procedure 3.191 had been violated. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

In petitioner’s 1971 trial on the two cases in which the judgments of conviction were affirmed by the District Court of Appeal, the jury was charged on the Roth-Memoirs, rather than the subsequently enunciated Miller, standard:

“[YJou are instructed that under the law obscenity is defined by the following three tests: Number one, that to the average person the dominant theme of the material taken as a whole appeals to a prurient interest in sex; number two, that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; number three, that the material is utterly without redeeming social value.”

Respondent concedes that petitioner must be given the benefit of the Miller test under the principle of limited retrospective application of that decision which was enunciated by the United States Supreme Court in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See Fontana v. State, 316 So.2d 543 (Fla.1975); Law v. State, 316 So.2d 545 (Fla.1975). The State argues that the proper procedural method for petitioner to demonstrate that application of the Miller standard would alter the judgment of the trial court is through filing a motion to vacate under Rule 3.850, Fla.R.Crim.P. However, in this case, where the jury was specifically charged on the now discredited Roth-Memoirs standard, we do not see how petitioner’s guilt or innocence can be ascertained under the correct rule of law without a new trial. Therefore, consistent with our decision in Fontana arid Law, supra, we remand this ease to the Pinellas County Court for a new trial at which the jury will be charged in accordance with the standard for obscenity laid down by the Supreme Court of the United States in Miller v. California, supra.

The writ is granted, and the decision of the District Court of Appeal as it relates to cases numbered 71-847 and 71-846 is quashed with directions to remand this cause to the trial court for further proceedings not inconsistent herewith.

ROBERTS, Acting C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.

      . See A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1959).

      . Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

      .Since the trial of this cause the Civil and Criminal Court of Record in and for Pinellas County has been abolished through adoption of the amendment of Art. V, Fla.Const., in 1972. Jurisdiction of the offenses charged is now vested in the County Court of Pinellas County.


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

text:
    FLORIDA REAL ESTATE COMMISSION, Appellant, v. Mike McGREGOR, et al., Appellees.
    No. 46956.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Oct. 8, 1976.

      Frank A. Wilkinson, Orlando, and John Huskins, Winter Park, for appellant.
    Thomas C. MacDonald, Jr. and D. Frank Winkles of Shackleford, Farrior, Stallings & Evans and James W. Kynes, Tampa, for appellees.
   SUNDBERG, Justice.

This matter is before us on direct appeal from the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. We have jurisdiction of the appeal pursuant to Article Y, Section 3(b)(1), Florida Constitution, and Rule 2.1(a)(5)(a), Florida Appellate Rules, in that the circuit court initially and directly passed upon the validity of Section 475.01(2), Florida Statutes, by holding that such subsection is unconstitutional as applied to the appellees under the particular facts of the instant case.

On July 17, 1970, appellant Commission filed a complaint in the Circuit Court of Hillsborough County, seeking an injunction against certain actions of Mid-State Homes, Inc. and of its mortgage representatives which were alleged to violate Chapter 475, Florida Statutes, known as the Real Estate License Law. The complaint alleged that the mortgage representatives were willingly selling certain real property of Mid-State without a Florida real estate license. The complaint was dismissed with prejudice, and the Second District Court of Appeal, without considering the constitutionality of the instant statute, affirmed this dismissal at 254 So.2d 566. This Court, reviewing the case on certiorari, held that the Statute did pertain to Mid-State’s mortgage representatives and quashed the decision of the District Court of Appeal, directing further proceedings in the Circuit Court. 268 So.2d 529. Upon remand the Circuit Court held a final hearing on the constitutional issue. Finding that Mid-State had been unable to hire licensed brokers to sell its property because of the peculiar job requirements involved, that court concluded that the statute was unconstitutional as applied to these defendants because it “imposes a burdensome and discriminatory classification with no countervailing public benefit and without any reasonable relationship to the public welfare.” The facts upon which the Circuit Court predicated its judgment essentially are as follows:

Jim Walter Homes, Inc. sells and builds “shell-type” homes on the buyer’s real estate. The purchase is financed by the defendant-appellee Mid-State, which buys the receivables (note and mortgage) from Jim Walter Homes, Inc. Mid-State operates as a collection or mortgage servicing agency in collecting the receivables it purchases, nearly all of which involve mortgages on small homesteads located in rural areas and valued from $2,500 to $8,500. Currently, Mid-State owns about 3200 such accounts totall-ing approximately $29,000,000.

In the course of its business Mid-State may obtain title to real property by foreclosure or by deed in lieu of foreclosure. At any given time Mid-State has title to only ten to twelve such repossessed homes in the State of Florida. Of these ten to twelve repossessions, usually about half of the houses are sold as personalty after removal from the land while the remainder are sold by representatives of Mid-State. Based on stipulated facts it is established that the company has not utilized registered real estate brokers to sell these remaining repossessions because such brokers have been unwilling to handle this type of property, due to its location and to the small amount of commission available to a broker at standard Florida rates. Mid-State employs two field representatives to find purchasers for the properties. These representatives are not, and never have been, registered real estate brokers in Florida. They are each salaried employees of Mid-State’s Tampa office. Each works for no other company and spends approximately 15% of his salaried time attempting to locate purchasers for the repossessed properties. These individuals do not receive any commission or bonus from any sale of real estate, and their salaries are established without reference to specific property sales. They are not officers or directors of Mid-State but are salaried employees. These representatives generally canvass the countryside in which a home is located to determine if anyone nearby might want to move into' the house or might otherwise have an interest in it. They never advertise in their individual names but utilize only the corporate name in their newspaper advertisements and on signs posted on the subject property. Mid-State alleges that, if it had to rely on the conventional brokerage fee system, the houses would have to be abandoned or substantial losses incurred.

The issue presented on this appeal is whether subsection 475.01(2), Florida Statutes, is unconstitutional as sought to be enforced against appellees. The Circuit Court answered this query in the affirmative and we concur.

Appellant maintains that subsection 475.01(2), Florida Statutes, is neither unconstitutional vel non nor as it is applied to the appellees. Appellant cites State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225 (1929), as dispositive of the issue because in that case this Court upheld the constitutionality of a law enacted in 1927 which was substantially identical to the statutory provision here under consideration. The Rose court viewed the Real Estate License Law as a proper exercise of the police power of this state for the protection of the buying public from incompetent or unethical realtors. We have no quarrel with the holding in Rose, supra, because clearly the Legislature in the exercise of its police power has the authority to regulate those engaged in the real estate profession to protect the public from the consequences of unethical or substandard conduct. As pointed out by appellant, in the public interest this Court exercises the same authority and jurisdiction over members of the legal profession. However, the precise question presented in this appeal was not before the Court in the Rose case, supra, and, therefore, that decision is not dispositive of the issue here presented.

By subsection 475.01(2), Florida Statutes, the Legislature has granted several exceptions from its definition of a “real estate broker” and a “real estate salesman”, each of which by further provisions of Chapter 475, Florida Statutes, are required to be licensed. Chief among these exceptions are (i) “a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or indirectly the result of the service of buying, selling, exchanging or leasing said property” and (ii) “one officer of every corporation engaged in the sale of its own properties who shall be its president unless otherwise provided in its charter or bylaws, if said corporation shall not otherwise be classified as a real estate broker or a salesman.” The threshold question, then, is whether the exception in the case of corporations constitutes a reasonable classification when applied to appellees while they are engaged in the activities of which appellant complains. As pointed out in McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), in order for a statutory classification not to deny equal protection, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. Stated otherwise, there must be a logical connection between the classification involved and the stated purpose to be achieved by the statute, in this case protecting members of the general public who are involved in real estate transactions. As applied to these appellees and their particular activities we discern no such logical connection.

It is necessary ordinarily to regulate a real estate broker or salesman because misrepresentations of misconduct on his part cannot necessarily be visited upon the person or entity he represents. A member of the public who is injured by the acts or representations of a broker or salesman does not necessarily have recourse to the principal whom the broker or salesman represents. See, e. g., Shelton v. Florida Real Estate Comm’n, 120 So.2d 191, 193 (2d D.C.A.Fla.1960). But when one deals with the employee of a corporate owner of property the conduct of such employee is the responsibility of the employer under the doctrine of respondeat superior. While sanctions which can be imposed by the Florida Real Estate Commission upon an errant broker or salesman obviously are necessary to protect the public because of his peculiar legal status and duties, no analogous argument can be maintained successfully where an injured third party has direct recourse to the owner for the actions of the employee.

Even if the foregoing argument were not persuasive, the assertion by the appellant that the statutory scheme of subsection 475.01(2), Florida Statutes, protects the public in real estate transactions with a corporate owner of real estate is not efficacious. As pointed out by the appellees, exceptions to the licensing requirements of Chapter 475 exist in the case of partners and corporate presidents. This is purely arbitrary from the standpoint of any standard of character or fitness applicable to partners or corporate officers. There is no rational basis for a presumption that a president or other officer designated by the corporation has some unique quality which better suits him or her to deal with the public in transactions involving corporate real estate. It is apparent that the Legislature recognized that an individual has the constitutional right to deal with his own real property without the intervention of a licensed real estate broker or salesman and that the exceptions with respect to partnerships and corporations were inserted in the statute to place those business organizations on some sort of parity with the natural person who owns real estate. However, the classification utilized by the Legislature in creating the exception is unreasonable when applied to appellees’ particular situation. Such unreasonableness is demonstrated by hypothetical situations posited by the appellees in their brief. For example, Mid-State could form any number of limited partnerships with the corporation as a general partner and thus have an unlimited number of individuals who could sell land without registering with the Commission. In such circumstances the only partners required to be licensed under Chapter 475 would be members of partnerships selling non-partnership land or partners who are compensated directly for sales that are out of proportion to their general partnership participation. In addition, under the Commission’s construction of the statute, Mid-State submits that it clearly could form subsidiary corporations or limited partnerships, with one officer in each corporation or all partners able to sell land without being registered. The recitation of these legitimate, alternative means of accomplishing acts considered by the Commission to be illegitimate demonstrates the tenuous position in which the appellant is placed in contending that the exception in the statute, as applied to appellees, protects the interests of the public.

By virtue of Section 608.13(8), Florida Statutes, a corporation in Florida is vested with the right, unless otherwise provided by law, to hold and sell real property. Under the facts established in the instant case Mid-State is effectively deprived of the right to dispose of its property because licensed brokers cannot be induced to handle the transactions but appellant would preclude employees of Mid-State from handling the transactions without being licensed. In an analogous situation the practicalities of the matter have induced this Court to adopt a Rule in Summary Procedure which permits a corporation to act without an attorney where the demand or value of property involved does not exceed $1,500. See Fla.R.S.P. 7.050.

In the absence of some compelling public purpose to be served by the burdensome result which flows from application of the statute to the activities of appellees — and no such purpose has been demonstrated— such a result cannot constitutionally obtain. See Ackies v. Purdy, 322 F.Supp. 38 (S.D.Fla.1970). Accordingly, we hold that application of the provisions of Chapter 475, Florida Statutes, to the activities of the appellees under the particular facts of this case violates the provisions of Article I, Section 2 of the Constitution of the State of Florida and Amendment Fourteen of the Constitution of the United States as depriving appellees of equal protection of the laws.

The judgment of the trial court is affirmed.

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

ENGLAND, J., concurs with an opinion.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents with an opinion.

ENGLAND, Justice

(concurring).

I concur in the Court’s conclusion that the “one officer” limitation is invalid as applied to appellee in this case, but I also view the limitation as invalid as applied to any corporate owner of real estate. If the limitation has no rational connection with this corporate litigant, I fail to see how it could withstand constitutional scrutiny in other like contexts.

Corporations, like individuals, possess the absolute right to own and sell real property. Section 608.13(8)(a), Florida Statutes. I would hold, therefore, that the “one officer” limitation of Section 475.01(2), Florida Statutes (1975), denies equal protection of the laws to any corporation which owns and seeks to sell real property in this state.

BOYD, Justice

(dissenting).

I respectfully dissent.

Whether it is proper for the State to require those engaging in real estate activities stated in Section 475.01(2), Florida Statutes, to demonstrate their qualifications should be a matter of public policy determined by the Legislature and not by the courts.

The hardship mentioned in the majority opinion is not, in my opinion, sufficient to justify exemption of appellees from the law. The requirements placed upon appel-lees are the same as those imposed by the State in regulating other businesses and professions. The purpose is to protect the public against reliance upon persons whose knowledge and ethical standards are not sufficient to protect society.

In this case appellees could easily comply with the law by requiring the present salesmen to pass the real estate examination, employ licensed brokers and salesmen, or by having a corporate officer do the selling, as authorized by the above statute.

HATCHETT, Justice

(dissenting).

The question the Court today decides in favor of Mid-State Homes, Inc., and its employees, was decided adversely to Mid-State Homes, Inc., and its employees, the last time this case was here. Florida Real Estate Comm’n v. McGregor, 268 So.2d 529 (Fla.1972). The Court’s decision in the earlier Florida Real Estate Comm’n v. McGregor, supra established the law of the case, and the law of the case should be followed. See Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976), and cases collected there.

By “law of the case” is meant the principle that the questions of law decided on an appeal to a court of ultimate resort must govern the case in the same court and the trial court through all subsequent stages of the proceeding. Or, as otherwise stated, whatever is once established between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case. .
2 FlaJur. Appeals § 398 (1963) (footnote omitted)

When this case was first before the Court, the Court necessarily ruled the statute constitutional as applied to appellees, even though the constitutionality of Section 475.-01(2), Florida Statutes (1975) was not discussed. Evidently the Court as it was then constituted perceived no equal protection problem worthy of comment.

Initially, the Florida Real Estate Commission filed a complaint in the Circuit Court, Hillsborough County, seeking to enjoin Mid-State Homes, Inc., from selling its real estate through its own employees, rather than through registered real estate salespersons. The trial court concluded that no statute required Mid-State Homes, Inc. to deal through registered real estate salespersons, and entered judgment accordingly. The Commission appealed, contending that Section 475.01(2), Florida Statutes (1975) should not be construed to exempt employees of Mid-State Homes, Inc. from real estate salesperson licensing laws. Rejecting the Commission’s contention, the District

Court of Appeal, Second District, affirmed. Florida Beal Estate Comm’n v. McGregor, 254 So.2d 566 (Fla.2d DCA 1971).

This Court granted certiorari, quashed the District Court’s decision, and said:

We conclude that the decision of the District Court in purporting to construe the intent and meaning of the statute ignores the quoted plain language of the regulation and judicially legislates an exception favoring the two employees of Mid-State Homes, Inc. by permitting them to serve in the role of real estate salesmen for their employer without being licensed. .
Courts are supposed to exercise restraint and not be concerned with the wisdom or policy of statutory regulations — at least not to the point of rewriting a statute to eliminate language with which the court disagrees. Relief in this case, if advisable, should be a matter of legislative, not judicial concern. The Legislature, rather than the courts, has the constitutional latitude to consider after careful hearings the entire subject and resulting effects involved in amending and making exceptions to regulatory statutes.

268 So.2d at 530-531 (emphasis supplied) If this Court had deemed the statute unconstitutional as applied to respondents in the first proceeding here (now appellees), it would hardly have left the problem of relief to the legislature, which enacted the statute in the first place.

In keeping with established rules of decision, moreover, this Court could not have quashed the District Court’s affirmance of the trial court’s judgment, without first concluding that the statute was constitutional as applied to Mid-State Homes, Inc., and its employees. The Court necessarily determined that the result reached in the lower courts was not supportable on any theory, including any theory that the statute was unconstitutional. “[A] trial court’s judgment . . . should be affirmed if the record as a whole discloses any reasonable basis, reason or ground on which the judgment can be supported.” Firestone v. Firestone, 263 So.2d 223, 225 (Fla.1972); In re Estate of Yohn, 238 So.2d 290 (Fla.1970) (“It is elementary that the theories . assigned by the lower court as its basis for the . . . judgment appealed from . are not . . . controlling on appeal and the Appellate Court will make its own determination . . . ” At 295). Accord, e. g., State v. Clyde, 299 So.2d 136 (Fla.2d DCA 1974); Goodman v. Goodman, 204 So.2d 21 (Fla.4th DCA 1967); Oper v. Air Control Products, Inc., 174 So.2d 561 (Fla.3d DCA 1965); Bambrick v. Bambrick, 165 So.2d 449, 455 (Fla.2d DCA 1964). The Court’s first decision on this matter ineluctably established the constitutionality of the statute as applied to Mid-State Homes, Inc., and its employees. 268 So.2d 529.

On remand, the trial court was not free to disregard the determination, inherent in this Court’s original decision, that the statute passed constitutional muster. Cf. United States Fidelity & Guaranty Co. v. Sellers, 197 So.2d 832 (Fla.1st DCA 1967) cert. den. 204 So.2d 211 (Fla.1967). “Even though a point is not discussed in the appellate court’s opinion, the doctrine [of law of the case] is applicable if the point was of necessity determined by the court.” 2 Fla. Jur. Appeals § 400 (1963). In reviving the constitutional question, the trial court ignored the law of the case. In affirming the trial court’s judgment, the majority flies in the teeth of settled principles of appellate procedure and invites evasion of the mandates of all Florida appellate courts.

I respectfully dissent.

      . For our purposes the pertinent portions of Section 475.01, Florida Statutes, are as follows:
      “(2) Every person who shall, in this state, for another, and for a compensation . directly or indirectly paid . . . sell, . . or negotiate the sale, ... of any real property, ... or who shall advertise . . . that such person is engaged in the business of . . . selling, ... or renting real estate, . . . and every person who shall take any part in the procuring of . purchasers, ... of the real property, . . . of another; . . . and all persons who are members of partnerships or officers or directors of corporations engaged in performing any of the aforesaid acts or services; each and every such person shall be deemed and held to be a ‘real estate broker’ or a ‘real estate salesman,’ . . . nor shall the term broker or salesman be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or indirectly the result of the service of buying, selling, exchanging or leasing said property; nor shall said terms be applied to one officer of every corporation engaged in the sale of its own properties who shall be its president unless otherwise provided in its charter or by-laws, if said corporation shall not otherwise be classed as a real estate broker or a salesman.” (Emphasis supplied)

      . Mike McGregor, a mortgage representative of Mid-State, was named as a party defendant, but he was subsequently dismissed because his employment ceased after this suit commenced.

      . State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), vacated, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), on remand 159 So.2d 229 (Fla.1963); Florida Bar v. Drury, Case No. 36,959, Sup.Ct. of Fla., Opinion filed June 5, 1968 (Unreported Order).

      . See generally Zichlin v. Dill, 157 Fla. 96, 25 So.2d 4 (1946); Chisman v. Moylan, 105 So.2d 186 (2d D.C.A.Fla.1958); 5 Fla.Jur., Brokers, § 27.

      . Of course, only the individual appellees can rely on the equal protection provision of Art. I, § 2, Fla.Const., which is limited in terms to “natural persons.” Both the individual appel-lees and the corporate appellee, Mid-State Homes, Inc., are guaranteed equal protection of the law by Amend. XIV, U.S.Const.

       Subsection two reads today just as it did when this litigation began.


text:
    The DELTONA CORPORATION, Appellant, v. James BAILEY, Tax Assessor and Director of Tax Assessments, et al., Appellees.
    No. 49053.
    Supreme Court of Florida.
    Aug. 25, 1976.
    Rehearing Denied Oct. 7, 1976.

      William L. Earl, of Peeples, Earl & Blank, Miami, for appellant.
    William M. Barr, of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for appellees.
   SUNDBERG, Justice.

This is an appeal from the dismissal for failure to state a cause of action of an amended complaint seeking ad valorem real property tax relief and, also, from earlier orders relating to discovery. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida, in that the trial court initially and directly passed upon the validity of Section 195.062, Florida Statutes (1973) (the “Rose law”). The trial court found the designated statute to be violative of both the 1968 Florida Constitution and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.

Appellant Deltona filed its original complaint on December 5, 1974. Deltona alleged that the tax assessor failed to apply the Rose law and thereby violated its rights under that law, and that the company was denied due process and equal protection in its 1974 tax assessments and subsequent administrative reviews. The circuit court dismissed all counts of the original complaint with leave to amend.

Count I of the amended complaint was predicated on the Rose law. The lower court dismissed Count I because the Rose law violated the 1968 Florida Constitution and both the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. The trial court held that the language in Interlachen Lake Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973), which stated that the decision would be applied prospectively meant that past transactions in justified reliance on the law would not be disturbed if the result would be an unreasonable hardship on a party acting in good faith. The lower-court held that no such justified reliance exists in the instant case.

Count II of the amended complaint was dismissed with further leave to amend; absent such amendment, dismissal was to be with prejudice. The lower court noted that a cause of action for denial of equal protection could be alleged pursuant to Dade County v. Salter, 194 So.2d 587 (Fla.1957), and Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So.2d 4 (Fla.1973), but held that Deltona had failed to frame its pleadings in conformity with those cases.

Count III of the amended complaint was dismissed in the same manner as Count II. The court held that the pleadings were insufficient in that Deltona failed to allege ultimate facts showing the manner in which it notices from the Assessor were “faulty, incomplete and inaccurate.” The court noted that although Deltona alleged that it was “unable to present evidence, confront witnesses or be heard,” Deltona did not allege that those rights were actually denied by the Board and, in fact, from the allegations of the amended complaint it appears that not only did Deltona petition the Board of Tax Adjustment for an administrative review and hearing on its assessment, but that such a hearing and review took place, after which the Board denied relief.

Concerning the discovery issue, Deltona propounded twenty interrogatories to the appellee Tax Assessor in January, 1975. On March 24, 1975, the trial court granted the Tax Assessor’s motion for a protective order against answering such interrogatories on the premise that it would be oppressive and burdensome for the Tax Assessor to respond prior to determination of pending motions to dismiss the complaint. After the original complaint was dismissed in an order dated June 18, 1975, Deltona moved on July 30, 1975, to compel answers to its initial interrogatories. This motion was denied by the trial court’s order dated October 30, 1975.

Deltona declined to further amend Counts II and III of its complaint within the time limited by the trial court and filed a notice of appeal to the First District Court of Appeal. On appellees’ motion the appeal was transferred to this Court pursuant to Rule 2.1a(5)(d), Florida Appellate Rules.

On this appeal Deltona raises five issues, which are: (i) whether the Rose law is applicable for the 1974 tax year; (ii) whether the amended complaint stated a cause of action under the Rose law; (iii) whether the amended complaint stated a cause of action for denial of equal protection; (iv) whether the amended complaint stated a cause of action for denial of due process; and (v) whether the lower court improperly prohibited discovery against the defendants/ap-pellees.

Determination of the first issue turns on an interpretation of the last paragraph of this Court’s original decision in Interlachen Lake Estates, Inc. v. Snyder, supra, which reads:

“This decision operates prospectively from the date the opinion becomes final because persons relying on the state statute did so assuming it to be valid despite the new provisions of the 1968 State Constitution. Compare Gulesian v. Dade County School Board, Fla., 281 So.2d 325, opinion filed July 31, 1973, and City of Naples v. Conboy [Fla.], 182 So.2d 412 at 417 et seq.” (emphasis supplied)

In its decision filed September 12, 1973, the Court, in responding to questions certified from the circuit court, held that Section 195.062(1), Florida Statutes (1971), violated the constitutional provision requiring just valuation of all property for ad valorem taxation. After considering a petition for rehearing filed by plaintiffs and hearing oral argument on the petition, this Court adhered to the opinion filed on September 12,1973. In the instant case the trial court concluded that this Court was without power to give its decision in Interlachen prospective effect, for to do so would be an unauthorized attempt to breathe retroactive life into an organically dead law. The court bottomed its ruling upon the decision of this Court in State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739 (Fla.1924), wherein it was stated at page 745:

“The courts have no power to make a statute inoperative only from the date of an adjudicated invalidity, because the courts merely adjudge that a statute conflicts with organic law, and the Constitution then operates to make the statute void from its enactment, the courts having no power to control the operation of the Constitution.”

The trial court dismissed as distinguishable the authorities asserted by Deltona to authorize prospective invalidity by concluding that they dealt with equitable considerations of hardship where the parties had relied to their detriment on putatively valid legislation. The trial court reached its conclusion by reference to the two cases cited by Justice Ervin to support the prospective application of invalidity of the Rose law. It construed the implication of the prospective language of the Interlachen Lake Estates decision to mean only that past transactions were not to be disturbed when to do so would create an unreasonable hardship on a party acting in good faith. The court further found no such reliance on the part of Deltona in the instant case. Appellees in this Court similarly maintain that the Gule-sian and Conboy cases cited by Justice Er-vin make clear that the prospective language in Interlachen Lake Estates precludes only the necessity of undoing past completed transactions and was only to be applicable to instances of extreme hardship. They assert that these cases are bottomed on a doctrine in the nature of equitable estoppel.

There are two problems with the trial court’s ruling and the position asserted by the appellees. First, an act of the Legislature is presumed constitutional until invalidated by a final appellate decision. In re Estate of Caldwell, 247 So.2d 1 (Fla.1971); State ex rel. Atlantic Coast Line R.R. v. Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). Likewise, courts have on various occasions, contrary to the doctrine expressed in Nuveen, supra, applied the principle of prospective constitutional invalidity. See, e. g., City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970) (state statutory and constitutional provisions restricting franchise in general obligation bond elections to property holders); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (state statute limiting franchise to “property taxpayers” in elections called to approve issuance of revenue bonds by municipal utility); State v. Barquet, 262 So.2d 431 (Fla.1972) (abortion statute); Franklin v. State, 257 So.2d 21 (Fla.1971) (“abominable and detestable crime against nature” statute). Second, the Interlachen Lake Estates decision stated in unequivocal language that it was to operate prospectively “from the date the opinion becomes final.” Clearly the opinion was not final until the order on petition for rehearing was filed on December 9, 1974. See Kippy Corp. v. Colburn, 177 So.2d 193, 195 (Fla.1965); State ex rel. Owens v. Pearson, 156 So.2d 4, 7 (Fla.1963). To the argument, based on Gulesian and Conboy, supra, that the Inter-lachen Lake Estates decision was limited to the facts and particular hardship involved in that case only, we respond that such an argument is refuted by a plain reading of the decision. The case came to the Court on certified questions pursuant to Florida Appellate Rule 4.6 without any discussion in the opinion of any peculiar factual situations. In addition, Justice Ervin stated that the decision was to operate prospectively “because persons relying on the state statute did so assuming it to be valid despite the new provisions of the 1968 State Constitution.” (emphasis supplied) Use of the word “persons” makes clear that the decision was not limited to the taxpayers involved in that particular case. Accordingly, we conclude that the trial court erred in holding that taxpayers were not entitled to the benefit of Section 195.062, Florida Statutes (1973), for the tax year 1974. Ad valorem real property taxes for that year became a lien on January 1, 1974. The Interlachen Lake Estates case did not become final and operative, by its express terms, until December 9, 1974.

The adequacy of the amended complaint to state a cause of action under Section 195.062, Florida Statutes (1973), must be assessed in light of that portion of the statute which reads:

“. . . [the tax assessor’s manual of instructions] shall provide that platted lands unsold as lots shall be valued for tax assessment purposes on the same basis as any unplatted acreage of similar character until 60 percent of such lands Included in one plat shall have been sold as individual lots.” (emphasis supplied)

Although we do not accept appellees’ assertion that the plats in question were not sufficiently identified in the amended complaint and Exhibit A attached thereto, we concur that the allegations of Count I were defective in alleging only that Deltona owns record title and “had not sold as lots, or otherwise conveyed more than 60% of the platted lots within each of the plat units at issue.” From the amended complaint it appears that each of the units referred to is an individual plat; however, Deltona must plead and prove that 60% of the lands included in each plat have not been sold as individual lots, not 60% of the lots. Accordingly, the trial court properly ordered Count I of the amended complaint dismissed for failure to state a cause of action under the Rose law. However, due to its (erroneous) substantive ruling upon the applicability of the statute for the year 1974, we conclude that the first count of the amended complaint should not have been dismissed with prejudice, and Deltona should be granted leave to amend Count I further so as to properly plead a cause of action under the Rose law if the facts permit.

As to the equal protection issue raised by Count II of the amended complaint, we agree with the appellees that the allegations were insufficient to state a cause of action. It is fundamental that property in Florida is legally required to be assessed at 100% of its actual fair market value and a court may not reduce a taxpayer’s assessment below 100% on a mere showing that parcels of some other taxpayers are assessed at a lesser amount. See Walter v. Schuler, 176 So.2d 81 (Fla.1965); Cosen Investment Co. v. Overstreet, 154 Fla. 416, 17 So.2d 788 (1944); Sproul v. Royal Palm Yacht & Country Club, Inc., 143 So.2d 900 (2d D.C.A.Fla.1962). It is only in very limited circumstances in which an exception to the general rule can be successfully maintained. Normally one whose property is not assessed at greater than 100% of its fair market value may not be permitted to complain even though other and even similar properties are assessed at less than 100%. The exception to this rule is represented by the cases of Dade County v. Salter, 194 So.2d 587 (Fla.1967), and Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So.2d 4 (Fla.1973). In Salter, the court had under consideration a complaint that alleged that the tax assessor had failed to follow the provision of Section 193.11, Florida Statutes (1961), calling for assessment at full cash value, in that he had arbitrarily and discriminatorily assessed plaintiffs’ property at a higher cash value than similar property in Dade County, Florida, and at a higher cash value relatively and comparatively to all other property in Dade County, Florida, so that the resultant assessment to the plaintiffs constituted an unfair tax burden. On rehearing the Court observed the distinction between the case before it and Cosen, supra:

“. . .In Cosen Investment Company, Inc. v. Overstreet, 154 Fla. 416, 17 So.2d 788 (relied upon so heavily in the opinion), there was no allegation that all of the property of the county was assessed at less than its full cash value. The allegation there was that similar property was assessed at less value than plaintiff’s property.” (emphasis supplied)

The allegations of the complaint asserted that the assessor had systematically assessed on a basis aimed at valuing all property in Dade County at 47.27% of its full cash value, whereas the plaintiffs’ assessment was at a sum in excess of 87% of its full cash value for the year in question. The Southern Bell case, supra, applied the rationale of Salter to a factual situation in which it was admitted that the plaintiff’s tangible personal property was assessed at 100% of full cash value, whereas studies introduced by the plaintiff reflected that all real properties in the same county were assessed at a median ratio ranging from a low of 81.37% to a high of 83.2%. The Court then recognized, as in Salter, that the constitutional rights of a taxpayer are infringed if his property is assessed at a percentage of value substantially higher than the percentage at which all other property in the county is generally assessed even though his assessment is not above fair market value.

It is against the foregoing principles that Deltona’s allegation concerning equal protection must be measured. The gravamen of its action is found in paragraph 21 of the amended complaint:

“Defendant Tax Assessor’s reassessment of Plaintiff’s property and systematic underassessment of other property on a county-wide basis resulted in Plaintiff’s property being assessed in a manner contrary to law at a value higher than its lawful value and at a level higher than the general level of assessment for similar properties in Volusia County, Flprida, thereby requiring Plaintiff to bear 'a disproportionate and unequal share of the Volusia County tax burden and thereby violating Plaintiff’s right to equal protection under the United States Constitution.” (emphasis supplied)

Although the quoted allegations appear to contain the elements required by Salter and Southern Bell Tel. & Tel. Co., supra, a reading of Count II in its entirety indicates that an essential element is missing. Deltona fails to allege that all (or even substantially all) other property in the county is systematically assessed at a value less than the assessment of Deltona’s property. When speaking of the general level of assessments in the county the amended complaint avers that Deltona’s property is assessed at a level higher than the general level of assessment for similar properties in Volusia County, Florida. Since Deltona failed to plead that it is being “singled out” and specifically discriminated against vis-a-vis the other taxpayers generally in Volusia County, it has no standing to challenge its assessment on equal protection grounds, for that is the essential ingredient in Salter and Southern Bell.

Count III of the amended complaint, alleging denial of due process because of insufficient notice, is self-destructive. It affirmatively appears from the allegations of the amended complaint that:

1. In June, 1974, Deltona received notices of increased assessments on more than 8,000 tax parcels.
2. Deltona thereafter filed a timely petition for administrative review of its increased assessments.
3. Deltona received a notice of hearing on its petition.
4. In late July, Deltona received a computer printout showing its 1974 assessments.
5. Deltona’s petition was heard and denied by the Board of Tax Adjustment.

The conclusion to be drawn from the allegations is that the notice the company received was sufficient to permit it to file a “timely written petition for administrative review” and that it in fact had that review before the Board of Tax Adjustment. See State ex rel. Munch v. Davis, 143 Fla. 236, 196 So. 491 (1940). There is no assertion by Deltona that the notices received and hearing date established before the Board of Tax Adjustment failed to comply with the statutory requirements for such notice and review. The statutory time periods have withstood due process challenge on a number of occasions. See Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942); Dade County v. Dupont Plaza, Inc., 117 So.2d 849 (3d D.C.A.Fla.), rev’d on other grounds, 125 So.2d 564 (Fla.1960). Delto-na’s complaint actually seems to be grounded on the fact that the quantity of real estate owned by the company made it difficult to gain a proper review within the time frame established by the statute. The proper functioning of the tax collection system throughout the state requires that certain deadlines be observed. The fact that such deadlines work a hardship in situations where numerous parcels of property are concerned is not a basis for successfully asserting a denial of due process. As pointed out by the trial court in its order dismissing the amended complaint, the allegation respecting the quality of the hearing before the Board of Tax Adjustment was that “plaintiff was unable to present evidence, confront witnesses or be heard.” It was not alleged that Deltona was actually denied these rights by the Board. The trial court was not in error in dismissing Count III.

We are left then with the issue of whether the trial court improperly prohibited discovery requested by Deltona. In view of the fact that this cause will be remanded to the trial court to permit further pleading by Deltona, this question is of importance for guidance of counsel and the court in this proceeding. After previously granting the Tax Assessor’s motion for protective order, the trial court in denying Deltona’s motion to compel answer relied upon the holding of this Court in Hollywood, Inc. v. Broward County, 90 So.2d 47 (Fla.1956). In that case it was stated:

“[T]he order preventing the depositions was within the discretion of the Court .. The depositions were noticed while motions to dismiss were pending. The granting of those motions and dismissal of the cause, within a few days after the ruling on the depositions, rendered that question unsubstantial if not moot.” (emphasis supplied) Id. at 47-48.

In the case at bar Deltona was effectively precluded from pursuing its discovery for substantially twelve months. In his initial motion for a protective order, the Tax Assessor raised a number of grounds which were, essentially, that the interrogatories were burdensome and oppressive, that they were not designed to limit the issues in the suit, that they would require the appellee to compile information, that they inquired into the applicability of the Rose law before a proper complaint for relief had been framed, and that the operations and functions of the Tax Assessor’s office would be substantially prejudiced and damaged if he were required to respond to the interrogatories prior to disposition of the motions addressed to the complaint. In response to the motion, the court entered its order temporarily granting relief, pending determination of the motions addressed to Deltona’s complaint. There was apparently no attempt to consider the interrogatories individually to determine whether some, if not all, should have been answered. Rule 1.280(c), Florida Rules of Civil Procedure, provides in part:

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires . . . ” (emphasis supplied)

While postponing discovery for a short period of time pending determination of material, outstanding motions may be within the discretion of the trial court under the rationale of Hollywood, supra, the pendency of such unresolved motions is not sufficient “good cause shown” within the purview of Rule 1.280(c) to justify postponing discovery for the protracted period of time which elapsed in the case at bar. We believe an accurate construction of this rule is contained in the following quotation from Or lando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610 (4th D.C.A.Fla.1975):

“This court has in the past stated that the trial court has the authority to regulate as well as to prevent the taking of depositions, but when this authority is exercised it should be only upon a showing of good cause. The only Florida reference we find to the trial court’s discretion in preventing the taking of depositions which were noticed while a motion to dismiss was pending- is in Hollywood, Inc. v. Broward County (Fla.1956), 90 So.2d 47 which we deem inconclusive. Since our Rules of Civil Procedure are patterned very closely after the Federal rules, and it has been the practice of the Florida courts closely to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting ours we tufn, in the absence of a Federal decision on point, to Moore’s Federal Practice, 2nd Edition, pgs. 493-495 and cite the test therein:
“ ‘In view of the general philosophy of full discovery of relevant facts and the broad statement of scope in Rule 26, and in view of the power of the court under Rule 26(c) and 30(d) to control the details of time, place, scope and financing for the protection of the deponents and parties, it is fairly rare that it will be ordered that a deposition not be taken at all. All motions under these subparagraphs of the rule must be supported by “good cause” and a strong showing is required before a party will be denied entirely the right to take a deposition.’ ”

(footnotes omitted)

Consequently, upon remand the trial court should consider individually each of the interrogatories propounded to the ap-pellees and make such order only as is necessary to protect the appellees from oppression, undue burden, or expense, where good cause is shown.

The order here under review is affirmed in part and reversed in part and the cause is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.

OVERTON, C. J., and ROBERTS and HATCHETT, JJ., concur.

BOYD, J., dissents.

       In the 1973 Florida Statutes, the “Rose law” appears simply as section 195.062, the second subsection having been excised from the statute by intervening legislative action.


author: ADKINS, Justice.

text:
    Archie CREEL, Petitioner, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation doing business in Florida, Respondent.
    No. 47676.
    Supreme Court of Florida.
    June 9, 1976.
    Rehearing Denied Oct. 12, 1976.
    Arthur M. Garel, Miami, and Bruce A. Saylor of Ezzo & Garel, P.A., Miami, for petitioner.
    Thomas E. Scott, Jr., John W. Wylie and Bruce M. Stanley of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for respondent.
   ADKINS, Justice.

We have before us a petition for conflict certiorari which correctly alleges that the decision of the District Court of Appeal, Third District, in Creel v. Government Employees Insurance Company, 313 So.2d 772, conflicts with various decisions of the District Courts of Appeal. The jurisdictional question and the question of law in this case are determined in Williams v. Gateway Insurance Company, 331 So.2d 301 (opin. filed April 21, 1976), which is dispositive of all of the issues in this case.

Under authority of Williams, supra, the decision of the District Court of Appeal is quashed and this cause is remanded to the District Court of Appeal, Third District, for further proceedings consistent with the views expressed in this opinion.

It is so ordered.

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

ENGLAND, J., dissents.


author: PER CURIAM. SUNDBERG, Justice

text:
    Anne Lee BURNS, formerly Anne Lee Carricarte, Petitioner, v. Michael Anthony CARRICARTE, Respondent.
    No. 47922.
    Supreme Court of Florida.
    April 14, 1976.
    Rehearing Denied Sept. 28, 1976.
    Paul A. Louis and Neil A. Shanzer, Sinclair, Louis & Siegel, Miami, for petitioner.
    Julius H. Erstling, South Miami, for respondent.
   PER CURIAM.

Certiorari was granted in this cause on apparent conflict between the instant decision of the District Court of Appeal, Third District, reported at 314 So.2d 820 (Fla.App.3d 1975), and McGuire v. McGuire, 140 So.2d 354 (Fla.App.2d 1962); In re Brown, 246 So.2d 166 (Fla.App.3d 1971); Keller v. Keller, 308 So.2d 106 (Fla.1974), and Hosking v. Hosking, 318 So.2d 559 (Fla.App.2d 1975).

The trial court rendered an extensive custody order subsequent to a marriage dissolution of the parties. The District Court affirmed per curiam without opinion. We issued the writ and have heard argument of the parties. After hearing argument, and upon further consideration of the cause, we find that the factual situation is unique and distinguishable from the cases cited for conflict and there is no reported opinion that requires harmonization with existing law. Accordingly, the writ heretofore issued is discharged.

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

SUNDBERG, J., concurs with an opinion, with which ADKINS, BOYD and HATCHETT, JJ., concur.

SUNDBERG, Justice

(concurring).

I believe that there is conflict in decision between this case based on record proper and McGuire v. McGuire, 140 So.2d 354 (2d D.C.A.Fla.1962). It is clear to me from the trial court’s Order Determining Permanent Custody that it reviewed and considered confidential school records of the Good Shepherd Day Care Center without permitting counsel for the respective parties to examine the records. Counsel were thereby effectively prevented from either cross-examining the contents or presenting testimony to rebut the contents. This was error. However, the trial court made clear that other evidence confirmed the contents of the reports and it is apparent that the judge’s decision was amply supported by additional competent evidence. Accordingly, the error was harmless under the peculiar facts of this case and the manner in which the issue of disclosure of the records was presented to the trial court. I, therefore, concur with discharging the writ.

ADKINS, BOYD and HATCHETT, JJ., concur.


author: OVERTON, Chief Justice.

text:
    Michael Anthony JONES, Appellant, v. STATE of Florida, Appellee.
    No. 47914.
    Supreme Court of Florida.
    Aug. 25, 1976.
    1.Constitutional Law @=>55 Infants @=68
    Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for appel-lee.
   OVERTON, Chief Justice.

This is an appeal from a judgment of a circuit court, which directly passed on the constitutionality of Section 959.115, Florida Statutes. We have jurisdiction.

Appellant Michael Jones at age sixteen was charged with two counts of robbery. The juvenile court certified him to be tried as an adult in the criminal division of the circuit court where he pleaded nolo conten-dere to one count of robbery. There was no prior hearing in the juvenile court. Upon a finding of guilt the adult trial court had a broad spectrum of sentence alternatives available to it ranging from life imprisonment, to any term of years in the state prison, to probation. The trial judge, in considering the sentence alternatives, selected a less restrictive measure authorized by Section 959.115, Florida Statutes, for youthful offenders. Under the provisions of this section, the trial judge withheld the adjudication of guilt, adjudged the appellant delinquent, and requested the Department of Health and Rehabilitative Services to assume supervision of the appellant. The order required the Division of Youth Services to supervise the appellant until he reached the age of twenty-one, unless sooner discharged.

The applicable authorizing provisions of Section 959.115, Florida Statutes, are as follows:

“(1) A minor found guilty of an offense in a court not exercising juvenile jurisdiction may, as an alternative to other dispositions, be committed to the department for treatment in a youth program outside the correctional system as defined in section 944.02, Florida Statutes, or be placed on probation to the department, if the department is willing and if the offense is a felony or a misdemeanor of the first degree as defined in chapter 775.
“(2) Upon a plea of guilty or a finding of guilt, the court may refer the case to the department for investigation and recommendation as to the amenability of the minor to treatment in its programs.
“(3) In order to utilize this section, the court shall stay and withhold adjudication of guilt and instead shall adjudge the defendant to be delinquent. Such adjudication shall not be deemed a conviction, nor shall it operate to impose any of the civil disabilities ordinarily resulting from a conviction.
“(4) The court shall have the power by order to:
“(a) Place the minor on probation to the department of health and rehabilitative services for an indeterminate period of time until the minor is twenty-one or until sooner discharged by order of the court.
“(b) Commit the minor to the department of health and rehabilitative services for treatment in a youth program for an indeterminate period of time until the minor is twenty-one or until sooner discharged by the department.
“(5)(a) If a minor proves not to be amenable to treatment under the provisions of subsection (4)(a), the court shall have the power to commit the minor to the department as described in subsection (4)(b).
“(b) If a minor proves not to be amenable to treatment under the provisions of subsection (4)(b), the court shall have the power to revoke the adjudication of delinquency, impose the withheld adjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for all time in the department.” [Explanatory note omitted.]

Appellant was sent to the Okeechobee School for Boys. After two escapes and an arrest for auto theft, appellant was returned to the trial court by the Division of Youth Services. The Division, in accordance with Section 959.115(4)(b), Florida Statutes, certified that appellant was not amenable to rehabilitation. After an evi-dentiary hearing on this issue, the court revoked the judgment of delinquency, adjudicated appellant guilty of robbery, and sentenced him to six years at hard labor at the state prison with credit for 480 days served.

First, appellant contends his juvenile commitment was a legal sentence for a maximum of five years (from age sixteen to age twenty-one) and could not be changed. He asserts that his six-year sentence to the state prison is an improper increase, contrary to the provisions of Rule of Criminal Procedure 3.800, contending the statutory authorization to revoke the treatment of appellant as a juvenile is an unconstitutional infringement of this Court’s rule-making power. We disagree. There is no constitutional conflict with our rules in the circumstances of this case, and the contention is without merit.

The appellant next contends that the sentence to six years imprisonment constitutes double jeopardy. He argues that his sentencing under the provisions of Section 959.115(4)(b), Florida Statutes, constituted an irrevocable adjudication of delinquency and treatment as a juvenile, and therefore jeopardy for his criminal conduct attached. He contends that the United States Supreme Court in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), requires a finding of double jeopardy. In Breed v. Jones, supra, a seventeen year old was charged with armed robbery. The issue of his guilt was tried on the merits in a juvenile adjudicatory proceeding, and he was found delinquent. Thereafter, he was certified for prosecution in the adult court where he was convicted of armed robbery and committed to the California youth authority as provided by statute.

The United States Supreme Court in Breed found the adjudicatory juvenile proceeding to be a trial on the merits, and held that a subsequent prosecution in an adult court constituted a second trial for the same offense. The double jeopardy clause was therefore held to be applicable. We recognized this decision in our recent case of Smith v. State, 316 So.2d 552 (Fla.1975).

We distinguish Breed v. Jones, supra, and Smith v. State, supra, from the case now before the Court. In the instant case the appellant was certified to be tried as an adult prior to any adjudicatory proceeding in the juvenile court. This is the procedure approved and suggested in Breed v. Jones, supra. There was no second trial to which appellant was subjected.

Although not argued, we recognize that an increase of a lawful sentence after the sentence has been partially served may constitute double jeopardy. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Troupe v. Rowe, 283 So.2d 857 (Fla.1973). This aspect of the double jeopardy clause is, however, no more applicable to the facts of this case than it is to a revocation of probation.

The adjudication of delinquency and commitment of the appellant were conditional measures pending satisfactory completion of the rehabilitative program and conditions. This less restrictive sentence alternative for treatment as a youthful offender under Section 959.115, Florida Statutes, is analogous to probation as a sentence alternative under Chapter 948, Florida Statutes. Another analogous situation exists with reference to the “split sentence” alternative, which is the imposition of a short period of incarceration as a condition of probation, authorized by Section 948.06, Florida Statutes. See State v. Jones, 327 So.2d 18 (Fla.1976). The “split sentence” and “straight probation” alternatives may be revoked for cause, and revocation results in the imposition of any sentence which the trial judge might have originally imposed. State v. Jones, supra.

Appellant takes the position that the adult criminal judge should have the authority to treat him as a juvenile and impose this less restrictive punishment but should not have the authority to revoke it for cause. We disagree.

We conclude that a juvenile offender, who is properly certified to be tried as an adult without a prior juvenile adjudicatory hearing, may be sentenced either as an adult or as a juvenile under Section 959.115, Florida Statutes. When he fails to comply with or adapt to the rehabilitative treatment authorized by the statute, he may be returned to the trial court for an evidentia-ry determination that he is not amenable to such a rehabilitative program. The trial court, upon so finding, may impose any sentence it could have originally imposed. The situation is identical to a revocation of probation. To hold otherwise would eliminate any incentive the youthful offender might have to successfully complete this less restrictive rehabilitative program, and would cause trial judges to rarely use this sentencing alternative.

The order of the circuit court is affirmed.

It is so ordered.

ROBERTS, ENGLAND, and SUND-BERG, JJ., and RUDD, Circuit Judge, concur.

ADKINS and BOYD, JJ., dissent.

      . Art. V, § 3(b)(1), Fla.Const.

      . See also, State v. Baker, 327 So.2d 27 (Fla.1976); State v. Lopez, 327 So.2d 27 (Fla.1976); state v. Cummings, 327 So.2d 28 (Fla.1976); State v. Green, 327 So.2d 28 (Fla.1976).