author: PER CURIAM. BOYD, Justice, ALDERMAN, Justice,

text:
    FLORIDA BOARD OF BAR EXAMINERS Re N.R.S.
    No. 59238.
    Supreme Court of Florida.
    June 18, 1981.

      Robert F. Eimers, American Civil Liberties Union Foundation of Florida, Inc., of Eimers & Jerome, Miami, for petitioner.
    Paul B. Anton, Chairman, Florida Board of Bar Examiners, Hollywood, and C. Graham Carothers, Tallahassee, for respondent.
   PER CURIAM.

We are asked to determine to what extent the Florida Board of Bar Examiners, in furtherance of its effort to determine the fitness of applicants for admission to the Florida Bar, may inquire into an applicant’s sexual conduct. This issue arises from the application of an attorney admitted to practice in New York, who has successfully passed all parts of the Florida Bar examination. The board concedes that, except for the issue of sexual conduct, it has no adverse information concerning petitioner’s fitness.

In his application for admission, petitioner disclosed that the Selective Service classified him 4-F, either because of a physical problem or because of his homosexuality. At an informal hearing the board inquired into petitioner’s sexual conduct. Petitioner admitted a continuing sexual preference for men but refused to answer questions about his past sexual conduct and indicated that he had no present intention regarding future homosexual acts. He did state that he would obey all the laws of Florida. After reviewing his testimony, the board requested that petitioner return to answer additional questions. He declined and petitioned this Court to order the board to certify him for admission to practice.

Petitioner presents a delicate issue. A lawyer

should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.

Fla.Bar Code Prof.Resp., E.C. 1-5. The board suggests that an applicant’s past homosexual acts are relevant to determine whether past conduct will prevent him from achieving the social acceptance necessary to enable him to discharge his professional responsibilities and whether the applicant intends to disobey the laws of Florida which he seeks to be sworn to uphold.

The investigation performed by the Florida Board of Bar Examiners should be limited to inquiries which bear a rational relationship to an applicant’s fitness to practice law. Accord, In re Florida Board of Bar Examiners, 358 So.2d 7 (Fla.1978). Private noncommercial sex acts between consenting adults are not relevant to prove fitness to practice law. This might not be true of commercial or nonconsensual sex or sex involving minors.

In the instant case the board may ask the petitioner to respond to further questioning if, in good faith, it finds a need to assure itself that the petitioner’s sexual conduct is other than noncommercial, private, and between consenting adults. Otherwise, the board shall certify his admission.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

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

BOYD, Justice,

dissenting.

Article IV, section 19, of the Supreme Court Rules Relating to Admissions to the Bar provides:

No person shall be recommended by the Florida Board of Bar Examiners to the Supreme Court of Florida for admission to The Florida Bar unless he first produces satisfactory evidence to the Board that he is of good moral character, that he has an adequate knowledge of the standards and ideals of the profession and is otherwise a fit person to take the oath and perform the obligations and responsibilities of an attorney.

In furtherance of this rule, the board sought to have the applicant answer questions concerning the effects of his admitted homosexual “orientation.” I believe we should uphold the board.

A state may not exclude a person from the practice of law for reasons that violate fundamental constitutional rights. A qualification imposed by a state must have a rational connection with the applicant’s fitness to practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).

An admitted “homosexual orientation” in essence means a proclivity to engage in homosexual acts. Homosexual acts are prohibited by the criminal law. § 800.02, Fla. Stat. (1979). The question whether they should be prohibited is a legislative and not a judicial question. Under its sovereign police power, the state may outlaw acts which are inimical to public morals. The state is not prevented from prohibiting homosexual acts by any constitutional principle of due process, equal protection, or privacy. See Annot., 58 A.L.R.3d 636. The state’s interest in prohibiting such conduct is grounded in its power to protect the public health, welfare, safety, and morals.

Because the legislature has chosen, on proper moral grounds, to prohibit homosexual activities, such activities involve moral turpitude as a matter of law. A proclivity to commit criminal acts involving moral turpitude is clearly a proper basis for questioning whether an applicant has the moral qualifications for admission.

In re Fla. Board of Bar Examiners, 358 So.2d 7 (Fla.1978), held that an admitted homosexual orientation is not sufficient to disqualify an applicant in the absence of evidence showing that the applicant had actually engaged in homosexual acts. I dissented on the ground that the applicant’s admitted “orientation” indicated a lifestyle that contemplated routine violation of a criminal statute. The narrow issue in the present case arises out of the applicant’s refusal to answer questions about possible illegal activity toward which the applicant has indicated he has an “orientation.”

In the previous case, the Court noted that there was no evidence that the applicant had engaged or would engage in any homosexual acts. Thus the majority there was able to limit the legal question to whether there was a rational connection between a mere homosexual “orientation” and the board’s refusal to find good moral character. The board could present a different factual situation and legal question to the Court if it could obtain information concerning the present applicant’s actual conduct, and its attempt to do so is what is at issue. I would uphold the board’s decision not to recommend the applicant.

Even without evidence of actual conduct, I am opposed to the admission of any person whose admitted “orientation” indicates a lifestyle likely to involve routine violation of a criminal statute.

My view expressed here is not grounded on the fact that the illicit activity toward which the applicant has an “orientation” is homosexual activity. I would apply the same principle to any applicant with an admitted orientation that indicates a lifestyle involving routine violation of any of those laws which constitute legislative standards of morality in personal conduct. Licentious sexual activity between consenting adults of opposite sex, for example, is also prohibited by the criminal law, and this Court has upheld such prohibition. Tatzel v. State, 356 So.2d 787 (Fla.1978).

The majority opinion states: “Private noncommercial sex acts between consenting adults are not relevant to prove fitness to practice law.” This statement represents an invasion of the province of the legislature since it is the legislature’s function to establish standards of morality in personal conduct.

ALDERMAN, Justice,

dissenting.

I agree that the Florida Board of Bar Examiners may ask the petitioner additional questions concerning his past, present, and intended homosexual activities. I would not, however, limit the Board’s inquiry to a determination that petitioner’s homosexual activities are other than noncommercial, private, and between consenting adults. The Board should inquire into any homosexual activities of the petitioner just as it should inquire into any other illegal and morally reprehensible conduct of the petitioner.

The people of Florida have granted to this Court the exclusive jurisdiction to regulate the admission of persons to the practice of law. Art. V, § 15, Fla.Const. To assist us in the exercise of this jurisdiction, we created the Florida Board of Bar Examiners and directed that it recommend no person for admission to The Florida Bar unless that person first produces satisfactory evidence to the Board of his good moral character. Fla.Sup.Ct. Bar Admiss. Rule, art. IV, § 19.

Proof of good moral character is required because lawyers play such a vital role in our legal system. Lawyers are officers of the court, and, in the eyes of the public, they are a part of the machinery of the law. Even minor violations of law by lawyers tend to lessen public confidence in the legal profession, which in turn lessens public confidence in our judicial system and ultimately the law itself. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. Fla.Bar Code Prof.Resp., E.C. 1-5.

Admission to the practice of law is not a matter of right. It is instead a privilege granted only to those who can meet the high educational and moral standards of the profession. Just as the public rightly expects that this Court will reject any applicant who fails to meet the educational requirements of the profession, it likewise expects that we will reject any applicant who fails to meet the moral standards of the profession.

What is our responsibility in this case? How deep should we look into the petitioner’s life in order to determine if he is of good moral character? The fact that petitioner, in the past, may have committed homosexual acts would not necessarily exclude him from the practice of law. The same would be true, for example, if petitioner, while in high school, had been convicted of shoplifting. If he were otherwise qualified, if he acknowledges that his past conduct was improper, and if he establishes that he has no intention of repeating his past misconduct, he would not be denied admission because of his past mistake. On the other hand, if petitioner has a recent history of shoplifting and indicates that he plans to continue shoplifting because he sees nothing wrong with what he is doing, most certainly he would be denied admission. We should likewise deny admission to any applicant with a recent history of homosexual activity who indicates that he plans to continue this activity because he sees nothing wrong with what he is doing. The great majority of Floridians, I believe, agree that such conduct, even between consenting adults, is morally reprehensible. Also, in Florida, the law is clear that such unnatural and licentious sexual intercourse is unlawful. See sections 796.07 and 800.02, Florida Statutes (1979).

In the present ease, the Board’s investigation, although not conclusive, indicates that petitioner may be engaging in homosexual activity and that he has no intention of changing his ways. These facts may be determined only by further investigation. Until such investigation has been concluded and until we have received a complete report on petitioner’s fitness and character, we should reserve judgment on this application for admission.

BOYD, J., concurs.

       Petitioner alleges that § 800.02, Fla.Stat. (1979), which proscribes unnatural and lascivious acts, cannot be constitutionally applied to private consensual conduct between adults. We have upheld § 800.02. See Witherspoon v. State, 278 So.2d 611 (Fla.1973). In view of our holding in this case we do not respond to this contention.


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    Freddie Lee HALL, Appellant, v. STATE of Florida, Appellee.
    No. 54423.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Oct. 15, 1981.
    Morton D. Aulls and H. D. Robuck, Jr., Tavares, for appellant.

      Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Freddie Lee Hall, along with Mack Ruf-fin, was indicted for the murder of Deputy Sheriff Lonnie Coburn. Hall was convicted and sentenced to death, and he appeals both the conviction and sentence. We have jurisdiction.

Hall contends that the conviction cannot stand because the evidence of guilt is circumstantial and does not preclude every reasonable hypothesis of innocence. He also contends- that there is no evidence, other than conjecture, of premeditation. Although we disagree with his first contention, we agree with the second and direct the trial judge to reduce the conviction to second-degree murder.

On the evening of February 21, 1978, Hall and Ruffin walked into a Shop & Go store in Ridge Manor, Hernando County. Rather than using the usual parking area in front of the store, they had parked their car in a field at the side of the store. Once in the store, their conduct aroused the suspicions of the clerk, who called the sheriff’s substation located across the street. After spending some time in the store and buying several items, Hall and Ruffin left the store. In the meantime Deputy Sheriff Coburn had driven into the parking lot behind the store.

A woman and her daughter provided the only direct evidence of what occurred next. All either could say, however, was that she saw Hall and Ruffin approach the deputy, who carried a shotgun, and that, as they approached, one of the defendants put a bag on the ground. No one saw the deputy shot. When he was found, his service revolver was missing, but a pistol of then-unknown significance lay beneath his body.

The two men fled the scene in the car they had driven to the store. They were spotted by a deputy sheriff a short time later, and shots were exchanged during the ensuing chase. Hall and Ruffin abandoned the car and later that night were apprehended some distance from it. Deputy Coburn’s pistol was found in the car.

At trial the state did not prove who did the actual shooting, but instead based its case on the theory that either Hall or Ruf-fin shot Coburn and the other helped. To substantiate this theory the prosecution presented evidence of the abduction, rape, and shooting of Karol Hurst which occurred shortly prior to Coburn’s death. The weapon used in the Hurst murder was the one found under Coburn’s body, while Coburn’s gun was found in the car in which Hall and Ruffin fled from the scene of the Coburn slaying. That car was owned by Hurst. Groceries purchased by Mrs. Hurst just before her abduction were found in both the getaway car and near Ruffin’s ear.

These facts are sufficient to demonstrate beyond a reasonable doubt that the two men engaged in a common criminal scheme. As such each was a principal to the death, and the fact that the state did not prove which of the two fired on Coburn does not necessitate either’s acquittal. By actively operating together each was guilty of the acts of the other. Foxworth v. State, 267 So.2d 647 (Fla. 1972), cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973); Pope v. State, 84 Fla. 428, 94 So. 865 (1922). The evidence clearly demonstrates the guilt of each for Coburn’s death.

Although it is clear that one of the men shot Coburn, the evidence presented is not sufficient to prove premeditation beyond a reasonable doubt. Coburn was wearing a bulletproof vest, but the sides of the vest were open. He was shot through the opening in the vest with his own gun from a distance, as opined by one expert, of two to five feet. The evidence of the defendants’ homicidal intent is subject to conflicting interpretations. One is that Hall or Ruffin seized Coburn’s gun intending to kill him, took aim, and fired. If this were true, then this killing was premeditated. There are other interpretations, one of which is that Coburn struggled with one or both of the defendants until either Hall or Ruffin pulled the trigger without intending to kill. If this were true, then the killing was not premeditated.

To prove a fact by circumstantial evidence, the circumstances must be inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla. 1977); Davis v. State, 90 So.2d 629 (Fla. 1956). While the circumstantial evidence in this case is inconsistent with any reasonable hypothesis of innocence as to the homicide of Deputy Coburn, it is not inconsistent with any reasonable exculpatory hypothesis as to the existence of premeditation. Therefore, the evidence is insufficient to prove premeditation, and the conviction for first-degree murder is reversed. We do find, however, sufficient evidence to sustain a conviction of second-degree murder.

In accordance with section 924.34, Florida Statutes (1979), this case is remanded to the trial court with instructions to enter a judgment and sentence for second-degree murder.

It is so ordered.

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

BOYD, J., dissents with an opinion in which ADKINS, J., concurs.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority opinion. My review of the record reveals that there was competent, substantial evidence upon which the jury could have based the conclusion that both Hall and Ruffin were equally guilty, as joint perpetrators, of premeditated murder, regardless of which one actually fired the bullet that killed Officer Coburn.

Hall and Ruffin, as joint perpetrators, kidnapped, raped, robbed, and murdered Karol Hurst. They also stole her car- and intended to use it in their planned convenience store robbery. When they decided to abandon their robbery plan and were leaving the store, they were confronted by Officer Coburn. This confrontation took place on the side of the store where they had parked Karol Hurst’s car. Hall and Ruffin at this point shared a mutual interest in avoiding arrest and conviction for the crimes they had perpetrated against Karol Hurst.

Deputy Coburn was wearing a bulletproof vest which, because of gaps under the arms, left those areas unprotected. He was armed with a shotgun and a .357 Magnum revolver. Hall and Ruffin were armed with the pistol they had used to kill Karol Hurst.

Deputy Coburn died from a bullet wound inflicted with his own revolver. The bullet entered through one of the gaps in the underarm area, left unprotected by the bullet-proof jacket. The jury could infer from the evidence that Hall and Ruffin together physically overpowered the officer, took his revolver, and shot him to death at close range. The circumstantial evidence is not consistent with any reasonable hypothesis of a lack of premeditation on the part of the appellant, so McArthur v. State, 351 So.2d 972 (Fla. 1977), and Davis v. State, 90 So.2d 629 (Fla. 1956), are inapplicable.

ADKINS, J., concurs.

      . Ruffin was also convicted but was sentenced to life imprisonment.

      . Art. V. § 3(b)(1). Fla.Const.

      . We have considered the other points raised on appeal and find no reversible error.


author: PER CURIAM.

text:
    Freddie Lee HALL, Appellant, v. STATE of Florida, Appellee.
    No. 54561.
    Supreme Court of Florida.
    July 16, 1981.

      Morton D. Aulls and H. D. Robuck, Jr., Tavares, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Hall was convicted of first-degree murder and sentenced to death. We find no reversible error and affirm.

Hall and Mack Ruffin were indicted for the murders of Karol Hurst and Deputy Sheriff Lonnie Coburn. Hall was tried alone for the Hurst murder, which is the subject of this appeal.

On February 21, 1978, Mrs. Hurst, a 21-year-old housewife who was seven months pregnant, left a Pantry Pride checkout counter in Leesburg, Florida, at 3:00 p.m. Her body was found at 3:00 p.m. on February 22, 1978, in Sumter County. She had been shot and sexually assaulted. In custody on the morning of February 22 for Deputy Coburn’s death, Hall told a deputy sheriff how, on the previous day, he and Ruffin had sat in that Pantry Pride parking lot looking for a car to use in committing a robbery when he, Hall, accosted Mrs. Hurst and forced her into her car. Hall slid in behind the steering wheel and drove while Ruffin followed in his own car. They stopped in a wooded area where, according to Hall, Ruffin beat, sexually assaulted, and shot Mrs. Hurst.

At trial the evidence established that, after leaving the wooded area, the pair was seen at a convenience store in Hernando County. Their conduct in the store aroused suspicions and the clerk called the sheriff’s office. Before a deputy arrived, Hall and Ruffin left the store. Shortly after their departure the clerk heard a shot and found Deputy Coburn dead on the ground behind the store. Coburn’s weapon was missing, but under his body lay the weapon later shown to have killed Mrs. Hurst. Hall and Ruffin fled in the Hurst vehicle, which they had driven to the store, but, after a chase, they abandoned the car and fled on foot. Both men were caught shortly thereafter. They left Coburn’s pistol, Mrs. Hurst’s handbag, and groceries which she had bought that afternoon in the car.

Hall contends that the state has failed to prove him guilty of first-degree murder. The state presented the case to the jury on the theory that Hall and Ruffin did everything together. They planned the robbery together and drove together to the Pantry Pride parking lot to obtain a car. Hall drove the Hurst car to the wooded area while Ruffin followed in his own car. The two were together at the site of Mrs. Hurst’s assault and death, at the convenience store where their actions drew suspicions, and when they fled in the stolen car. These circumstances were sufficient to convince the jury that the criminal acts were the result of a common scheme.

These facts support the jury’s conclusion that, even if Hall did not pull the trigger, he was a principal to the crime of murder. Section 777.011, Florida Statutes (1977), states that

[wjhoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

An aider and abettor is responsible for all acts committed by his accomplice in furtherance of the criminal scheme. Foxworth v. State, 267 So.2d 647 (Fla.1972), cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973); Pope v. State, 84 Fla. 428, 94 So. 865 (1922). The evidence in this case shows that either Hall or Ruffin killed Mrs. Hurst. It also demonstrates that the other was an aider and abettor. There is sufficient evidence to sustain Hall’s conviction.

Hall next contends that the trial judge should have granted a mistrial because the prosecutor made inflammatory remarks to the jury and commented on Hall’s refusal to testify. It is reversible error for the state to comment on the defendant’s failure to testify, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Clark v. State, 363 So.2d 331 (Fla.1978), but the prosecutor did not do so in the instant case. The state did comment (referring to the defendant), “and he’s asleep.” This was not a comment on Hall’s failure to testify. While this remark may have improperly implied a lack of interest on the part of the defendant in his own trial proceedings, it was not so prejudicial that a mistrial was required. We have reviewed the other remarks complained of and find no reversible error.

Hall also complains that a state witness improperly testified that Hall exercised his right to remain silent after being given his Miranda warning. We interpret that witness’s testimony differently and find that he made no improper comment. While a prosecutor may not elicit from a witness the fact that the accused chose not to make a statement, it is not improper to elicit testimony that Miranda warnings were given to the accused. See Holland v. State, 340 So.2d 931 (Fla. 4th DCA 1976). Such testimony is relevant to prove that a subsequent statement was made voluntarily-

Hall’s last attack on his conviction is that evidence of the Coburn murder should not have been admitted. He contends that the testimony about Coburn’s death was not necessary to the state’s case and that the Coburn murder became the feature of the trial. As we did in the case of his cohort, Mack Ruffin, we find that the collateral crime evidence did not become a feature of this trial and that to be admissible the collateral crime evidence need not be necessary to the state’s case. See Ruffin v. State, 397 So.2d 277 (Fla.1980). As in Ruf-fin, the instant collateral crime evidence was admissible to prove identity (the Hurst murder weapon was found under Coburn’s body) and to show the general context in which the criminal action occurred. See Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Hall challenges his death sentence by claiming that the trial court failed to consider that he was under the influence of drugs at the time of the murder, that the prosecutor made improper remarks during the sentencing argument, and that the evidence against Hall was not conclusive. As to the first point, Hall refers to his own testimony:

A [Hall] I was high when this taken place, I wasn’t drunk, I was high, and I’m sorry to say I really didn’t want no one to get killed in this case, but it happened this way. I’m sorry it happened that way.
A That’s right. All right, also, if I had been ... I was high, like I said, they had it in the paper, we had been smoking some dope and drunk some beer and bought a pint of brandy.
Q So you had been smoking dope?
A Right, that night.
Q What kind of dope were you smoking?
A Some kind of pot, grass.
Q And some pills, what kind of pills were you taking?

A I got some the pills from Ruffin. Hall says that this testimony shows mitigating factors of diminished capacity to appreciate the criminality of his conduct and influence of extreme emotional disturbance. See § 921.141(6)(b) and (f), Fla.Stat. (1977). Hall, however, never argued those mitigating factors to the trial court. Even if he had, the trial court could have reasonably found that this testimony did not establish those mitigating factors.

The trial court properly found three aggravating factors beyond a reasonable doubt: the defendant previously had been convicted of another capital crime or of a felony involving the threat of violence to some person; the murder was committed during the commission of kidnapping and robbery; and the murder was especially heinous, atrocious, or cruel. These findings, coupled with the lack of mitigating circumstances, warranted the trial judge’s imposition of the death penalty.

We affirm Hall’s conviction and death sentence.

It is so ordered.

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

      . Ruffin, tried separately for the Hurst murder, was convicted and received a death sentence. This Court affirmed. Ruffin v. State, 397 So.2d 277 (Fla.1980). Tried together, Hall and Ruffin were convicted of murdering Deputy Coburn. Ruffin received a sentence of life imprisonment while Hall received another death sentence. Hall v. State, 403 So.2d 1319 (Fla.1980). Of course, our review of the present case is limited to the record presented in the instant case.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The state’s witness, Detective White, testified as follows:
      Q What did you do then?
      A Okay, Trooper Peters handed me his handcuffs and while [Hall] was on the ground I approached him from the rear and cuffed his hands behind his back. And at that time I bent him over, he was still on his knees with his feet on the ground, and I bent him over at the waist, and stood over him and advised him of his rights.
      Q When you advised him of his rights, will you tell the ladies and gentlemen of the jury, please, what you told him at that time?
      A I told him that he had the right to remain silent, that anything he said could and would be used against him in a court of law. I told him he had the right to an attorney if he wished one, and that if he could not afford one, the court would appoint one for him.
      Q All right. Did he do anything to indicate whether or not he understood what you were saying to him?
      A He said he did, or he indicated that he did.
      Q In what way did he indicate he understood?
      A I don’t recall; he said, “Yeah,” or something like that.
      Q All right. Will you describe, please, the lighting and weather conditions at the time?
      A It was fairly chilly. It was pretty cold. It was clear, it wasn’t raining. The only light that I recall having at the time was the light from the Lykes-Pasco Packing Company.
      Q How was the person dressed?
      A He had on a pair of dark checked slacks, and no shirt and no shoes.

      . None of the prosecutor’s remarks were objected to at the time.


author: BOYD, Justice. ALDERMAN, J., ENGLAND, Justice,

text:
    John M. PURDY and his wife, Appellants, v. GULF BREEZE ENTERPRISES, INC., et al., Appellees.
    No. 58325.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 19, 1981.

      Dennis J. Plews, Law Offices of Robert H. Schultz, Bradenton, for appellants.
    Andrew D. Owens, Jr., of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   BOYD, Justice.

This is an appeal from a judgment rendered by the circuit court in Manatee County awarding the appellants $7,937.20 for damages incurred as a result of an automobile accident. Because the trial judge upheld the constitutionality of sections 627.-736(3) and 627.7372, Florida Statutes (1977), we have jurisdiction pursuant to article Y, section 3(b)(1) of the Florida Constitution (1972).

On November 27, 1977 the appellants were driving on their side of the road when they were struck head-on by a car owned by Gulf Breeze Enterprises, Inc. and driven by Dana Blackwell. Ms. Blackwell was attempting to pass a slower vehicle on a curved portion of the road. Mr. Purdy sustained various physical injuries and the car, owned by Mrs. Purdy, was totally destroyed. Mr. Purdy received $4,102.20 in personal injury protection (PIP) payments from his own insurance company. The appellants then filed suit against Ms. Blackwell, her parents since she was a minor, and Gulf Breeze Enterprises, Inc. for the damages they incurred as a result of Ms. Blackwell’s negligence. During the course of the trial a dispute arose as to the admissibility of evidence relating to Mr. Purdy’s receiving PIP benefits from his insurer. Both sides agreed to postpone arguments concerning the constitutionality of the collateral source statute, section 627.7372, Florida Statutes (1977), and the effect it would have on the amount of damages awarded until after the trial was over. At the end of the trial the jury awarded Mr. Purdy $11,318.00 as compensation for his injuries and Mrs. Purdy $500.00 as compensation for the loss of her car. At a post trial hearing the trial judge upheld the constitutionality of sections 627.736(3) and 627.7372, Florida Statutes (1977). The judge calculated that the amount awarded to Mr. Purdy by the jury should be reduced by the amount Mr. Purdy received in PIP benefits less the amount of premiums he paid to obtain that coverage for that year. In accordance with this calculation, the final judgment was entered on December 10, 1979 awarding Mr. Purdy $7,437.20. The Purdys timely filed a notice of appeal four days later.

Appellants contend the statutes violate the right to access to courts provision of the Florida Constitution. Art. I, § 21, Fla. Const. They rely on our previous holding

that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla.1973). This holding does not apply to these statutes since they do not abolish any previous right of access to courts.

Basically, sections 627.736(3) and 627.7372 reduce the amount of damages injured plaintiffs can recover from tortfeasors by the amount of benefits they have received from collateral sources. Appellants argue these statutes therefore abolish the common law collateral source rule that injured plaintiffs are entitled to recover the full amount of their damages from tortfeasors regardless of the amount of benefits they may have received from collateral sources such as insurance proceeds. See International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972); Tuggle v. Government Employees Insurance Co., 207 So.2d 674 (Fla.1968) (Barns, J., dissenting). This argument assumes that common law plaintiffs were allowed to keep the full amount of money they recovered in a lawsuit, which was not the case. Their right of full recovery was subject to their insurer’s right of subrogation. That is, as a matter of equity it was the insurers who were entitled to bring suit against tortfeasors for reimbursement of any payments made to an insured. See generally Atlantic Coast Line Ry. v. Campbell, 104 Fla. 274, 139 So. 886 (1932); Cappucio, Subrogation in Florida, 21 U.Miami L.Rev. 240, 247-49 (1966).

This right of subrogation was statutorily recognized by the Florida Automobile Reparations Reform Act, sections 627.730-627.-741, Florida Statutes (1971), when it was first enacted. Section 627.736(3) was previously a provision concerning an insurer’s right to reimbursement of any payments made to an insured who subsequently recovered against a tortfeasor. § 627.736(3), Fla. Stat. (1975). Its main purpose was to prevent injured plaintiffs from receiving double recovery. Cf. Aetna Casualty & Surety Co. v. Bortz, 271 So.2d 108 (Fla.1972) (this was the purpose behind the Workmen’s Compensation Subrogation Law, § 440.-39(3), Fla.Stat. (1971), after which § 627.-736(3), Fla.Stat. (1975) was patterned). This provision entitled the injured plaintiff to an equitable distribution of the costs of litigation which resulted in a lot of litigation. See, e. g., American Fire & Casualty Co. v. Oller, 313 So.2d 67 (Fla. 4th DCA 1975); White v. Reserve Insurance Co., 299 So.2d 661 (Fla. 1st DCA 1974), cert. denied, 308 So.2d 103 (Fla.1975); Reyes v. Banks, 292 So.2d 39 (Fla. 4th DCA 1974). One district court judge suggested the legislature revisit the statute because it encouraged litigation. State Farm Mutual Automobile Insurance Co. v. Mance, 292 So.2d 52 (Fla. 3d DCA 1974) (Barkdull, J., concurring). We held that paragraphs (a) and (b) were repugnant to each other. Williams v. Gateway Insurance Co., 331 So.2d 301 (Fla.1976).

In 1976 the legislature revamped this subsection to take care of these problems by passing the current provision. Ch. 76-266, § 4, Laws of Fla. Now insurers are no longer entitled to reimbursement of any personal injury payments made to injured persons. To prevent the injured persons from receiving double recovery, the legislature has provided that any PIP benefits they have received from their insurers will be set off from the amount they are entitled to recover from the tortfeasors. Although this provision primarily benefits the tortfeasor, it is in keeping with the “no-fault” concept of the Florida Automobile Reparations Reform Act. The benefits obtained by the tortfeasors will enure to their insurance carriers. Supposedly these benefits will eventually be shared by all carriers without the need of litigation. Lee and Polk, Insurance, 31 U.Miami L.Rev. 1061, 1071-73 (1977). This should result in lower premiums.

In 1977 the legislature extended this concept to all other insurers providing non-PIP benefits by requiring the court to “admit into evidence the total amount of all collateral sources which have been paid to the claimant prior to the commencement of the trial. The court shall also admit into evidence any amount paid by the claimant to secure such collateral sources.” § 627.-7372(1), Fla.Stat. (1977). At the post-trial hearing the appellants’ attorney argued that this last sentence included all the premiums an injured plaintiff paid in his life for every type of disability insurance. The trial judge rejected this argument and held that only those costs necessary for obtaining the PIP insurance for the year of the accident could be considered. This holding fails to take into account that some policies are issued for a period of time, such as semi-annually, other than yearly. We believe the statute refers to the costs incurred by claimants to secure the actual policies from which they received benefits for whatever period of time the policy is in effect.

From this analysis we conclude that sections 627.736(3) and 627.7372, Florida Statutes (1977), do not deprive persons injured in automobile accidents of their right of access to the courts. These sections merely prevent injured plaintiffs from recovering monies which, equitably speaking, belong to their insurers. Furthermore, there is nothing in the law which prevents injured persons from waiving their rights to receive insurance benefits and suing the tortfeasor for the full amount of their damages. Section 627.7372 sets off only those benefits which actually have been paid. Section 627.736(3) sets off benefits which are “paid or payable,” which we interpret to include only those benefits a person is entitled to under his or her contract after he or she files a claim. Thus the right of access to the courts is left completely unimpaired.

We disagree with appellants’ claim that these statutes are unconstitutional in that they violate the equal protection clause, article I, section 2, Florida Constitution, or are procedural and not substantive, article V, section 2(a), Florida Constitution. These statutes do make a distinction between plaintiffs who are injured in automobile accidents and plaintiffs who are injured in other types of accidents. The statutes do not apply to the latter category. But since plaintiffs who are injured in other types of accidents are not assured of receiving double recovery, we do not see how plaintiffs who are injured in automobile accidents are discriminated against. We find that classification bears a reasonable relation to the legislative goal of reducing suits among automobile insurance carriers and therefore does not violate the equal protection clause of the constitution. See Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974).

Appellant’s argument that these statutes violate article V, section 2(a), Florida Constitution in that they are procedural and have not been adopted by this court is without merit. See Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981).

Appellants next claim the trial court erred in limiting their counsel’s questioning of prospective jury members. During voir dire their attorney asked the following question: “Do any of you feel that your civil duty sitting on a jury and then rendering your verdict, if you render a verdict for the plaintiff, would have any influence on your personal life, especially with regard to insurance?” The defense immediately moved for a mistrial. The judge denied the motion for a mistrial but told appellants’ counsel that he could not proceed any further along this line of questioning. After the jury was sworn appellants’ counsel made the following proffer:

I will proffer I would have inquired of the prospective jurors whether they had any feelings toward any influence their decision may have on automobile insurance premiums. Those questions were asked solely for the purpose of determining whether any particular juror felt they had a financial interest in this particular case or whether they felt their verdict would have a financial consequence to them; and further, if they did so feel whether they could put that outside the courtroom and decide the case on its own merits.

Record on Appeal at 118.

This Court has consistently held that plaintiffs are entitled to question prospective jurors about any financial interest they may have in an insurance company to determine whether they would be biased or prejudiced. This right was balanced against a defendant’s right not to have the jury apprised of his status as an insured. E. g., Blanton v. Butler, 81 So.2d 745 (Fla.1955); Springer v. Morris, 74 So.2d 781 (Fla.1954); Lambert v. Higgins, 63 So.2d 631 (Fla.1953); Ryan v. Noble, 95 Fla. 830, 116 So. 766 (1928). However, the defendant’s right not to have the subject of insurance mentioned to the jury was abolished by our landmark case, Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), wherein we stated:

[W]e are cognizant that the primary reason advanced in those jurisdictions which have sustained “no joinder clauses” in the area of liability insurance is that such a clause serves to prevent prejudice to the insurer through the prophylactic effect of isolating from the jury’s consideration any knowledge that coverage for the insured exists. Such a result is deemed desirable because of the notion that a jury is prone to find negligence or to augment damages, if it thinks that an affluent institution such as an insurance company will bear the loss. See Apple-man, 8 Insurance Law and Practice, § 4861. While we will not go so far as to assert that the above proposition has been all but obliterated by the more recent indications to the effect that the injection of insurance does not operate to increase the size of jury verdicts, we do think the stage has now been reached where juries are more mature. Accordingly, a candid admission at trial of the existence of insurance coverage, the policy limits of same, and an otherwise aboveboard revelation of the interest of an insurer in the outcome of the recovery action against insured should be more beneficial to insurers in terms of diminishing their overall policy judgment payments to litigating beneficiaries than the questionable “ostrich head in the sand” approach which may often mislead juries to think insurance coverage is greater than it is.

Id. at 718.

Thus the plaintiff’s interest in receiving a fair trial by an impartial jury is no longer counter balanced by the defendant’s interest in not having the subject of insurance mentioned to the jury. It would not have been an abuse of discretion if the judge had allowed the appellants’ attorney to question the jurors about whether they felt there could be a relationship between the decision they would have to render and the amount of premiums they would have to pay. King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978). “[T]he impact of monetary award in negligence cases upon automobile liability insurance rates may be a proper subject for exploration upon voir dire examination of a jury panel.” Graham v. Waite, 23 App.Div.2d 628, 257 N.Y.S.2d 629, 631 (App.Div.1965). Since there is no longer any reason for not mentioning insurance in front of jurors, an attorney may question prospective jurors about any possible prejudice or bias they may have whether it be for or against insurance companies.

That is not to say that parties have an absolute right to ask any questions they want on voir dire concerning a potential juror’s possible bias for or against insurance companies. Parties only have the right “to conduct a reasonable examination . . . . ” Fla.R.Civ.P. 1.431(b). The extent to which parties may examine prospective jurors on voir dire lies within the trial judge’s discretion. Essix v. State, 347 So.2d 664 (Fla. 3d DCA 1977); Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla. 1st DCA 1976). We do not find that the trial judge clearly abused his discretion in this case. Therefore the appellant’s second contention is without merit.

We affirm the judgment of the circuit court.

It is so ordered.

OVERTON and McDONALD, JJ., concur.

SUNDBERG, C. J., and ADKINS, J., concur as to the voir dire issue, but dissent as to the collateral source issue.

ALDERMAN, J.,

concurs with the portion of the opinion which holds the collateral source statutes constitutional and concurs in result with the remainder of the opinion.

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

ENGLAND, Justice,

dissenting.

I disagree completely with that portion of the majority opinion which holds the collateral source statutes constitutional, but my impending departure from the Court does not afford me the time necessary to respond to the majority in the polished manner I would prefer. In the time available I can only hastily summarize my views.

One statute provides a collateral source rule for all court claims to the extent only of personal injury protection benefits. The second statute is limited to automobile accident cases, but extends the collateral source rule to a broad variety of sources. Both statutes violate the “access to courts” provision of Florida’s constitution, and the second statute surely denies equal protection of the law.

The majority supports these statutes on the basis of a subrogation theory. I cannot see the universal relevance of that theory. Subrogation is certainly not available with respect to non-residents who are injured, since Florida law may or may not control the subrogation of insurers in other states with respect to their insureds. With respect to the second statute, I cannot imagine how subrogation will work for the variety of collateral sources identified in the statute. For example, benefits received from social security or disability policies provided by other public agencies or entities are treated as collateral source benefits. I fail to see how an insurance company can be said to have subrogation rights against governmental agencies as a matter of law. (The best that could happen is a statutory waiver or an express statutory provision granting such a right of recovery.) The second statute also treats contracts providing other benefits as a collateral source, yet those contracts may or may not have been entered into in Florida and they may or may not provide for subrogation. Surely the parties are entitled to contract for or against subrogation privileges. Consequently, I cannot see that a subrogation doctrine in any way validates either statute.

With respect to equal protection, there are obvious difficulties with extending to the variety of collateral sources a prohibition of dual recovery simply for automobile accidents. The majority’s rationale, that non-auto accident victims are not assured of double recovery, is somewhat vague as a justification for passing an equal protection test. Plaintiffs who are injured in automobile accidents are not “assured” of a double recovery. In fact, I would think that their recovery entitlements are quite beside the point.

ADKINS, J., concurs.

      . (3) INSURED’S RIGHTS TO RECOVERY OR SPECIAL DAMAGES IN TORT CLAIMS. — No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit. An injured party who is entitled to bring suit under the provision of s. 627.737, or his legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable.

      . COLLATERAL SOURCES OF INDEMNITY.—
      (1) In any action for personal injury or wrongful death arising out of the ownership, operation, use or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources which have been paid to the claimant prior the commencement of the trial. The court shall also admit into evidence any amount paid by the claimant to secure such collateral source.
      (2) For purposes of this section, “collateral sources” means any payments made to the claimant, or on his behalf, by or pursuant to:
      (a) The United States Social Security Act; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits.
      (b) Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits except life insurance benefits available to the claimant, whether purchased by him or provided by others.
      (c) Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
      (d) Any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.

      . (3) INSURER’S RIGHTS OF REIMBURSEMENT AND INDEMNITY.—
      (a) No subtraction from personal protection insurance benefits will be made because of the value of a claim in tort based on the same bodily injury, but after recovery is realized upon such a tort claim, a subtraction will be made to the extent of the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said benefits from the tort-feasor or his insurer or insurers. If personal protection insurance benefits have already been received, the claimant shall repay to the insurer or insurers, out of the recovery, a sum equal to the benefits received, but not more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said benefits from the tort-feasor or his insurers or insurer. The insurer or insurers shall have a lien on the recovery to this extent. No recovery by an injured person or his estate for loss suffered by him will be subtracted in calculating benefits due a dependent after the death, and no recovery by a dependent for loss suffered by the dependent after the death will be subtracted in calculating benefits due the injured person except as provided in paragraph (l)(c).
      (b) The insurer shall be entitled to reimbursement of any payments made under the provisions of this subsection, based upon such equitable distribution of the amount recovered as the court may determine, less the pro rata share of all court costs expended by the plaintiff in the prosecution of the suit to recover such amount against a third-party tort-feasor, including a reasonable attorney’s fee for the plaintiffs attorney. The proration of the reimbursement shall be made by the judge of a trial court handling the suit to recover damages in the third-party action against the tort-feasor upon application therefor and notice to the carrier.
      (c) A personal protection insurer with a right of reimbursement under this section, if suffering loss from inability to collect such reimbursement out of a payment received by a claimant upon a tort claim, is entitled to indemnity from one who, with notice of the insurer’s interest, made such a payment to the claimant without making the claimant and the insurer joint payees as their interests may appear, or without obtaining the insurer’s consent to a different method of payment.
      (d) In the event an injured party or his legal representative is entitled to bring suit against a third party tort-feasor under the provisions of § 627.737 and fails to bring such suit against such third pay tort-feasor within one year after the last payment of any benefits under subsection (1), the insurer of such injured party, upon giving thirty days’ written notice to such injured party, shall have the right to bring suit against such third party, in its own name or in the name of the injured person or his legal representative, to recover the amount of the benefits paid pursuant to the provisions of this section to or for the benefit of such injured person. However, the prosecution or settlement of such suit without the consent of the injured person or his legal representative shall be without prejudice to such person.


text:
    HEFFERNAN, W. J., Jr., et al., Petitioners, v. COUNTY OF SEMINOLE, Respondent.
    No. 59260.
    Supreme Court of Florida.
    Sept. 10, 1981.
    Andrew A. Graham of Reinman, Harrell, Silberhom, Moule & Boyd, Melbourne, for petitioners.
    Nikki Clayton, County Atty. for Seminole County, and Robert A. McMillan, Asst. County Atty., Sanford, for respondent.
   PER CURIAM.

The conflict of decisions having been dispelled, the petition is denied. See Wakulla County v. Davis, 395 So.2d 540 (1981), and Metropolitan Dade County v. Bridges, 402 So.2d 411 (1981).

ADKINS, Acting C. J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.

BOYD, J., dissents.


author: PER CURIAM. OVERTON, Justice,

text:
    CITIZENS OF the STATE OF FLORIDA, Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. 59034.
    Supreme Court of Florida.
    Sept. 10, 1981.
    Jack Shreve, Public Counsel and J. Roger Howe, Associate Public Counsel, Tallahassee, for appellants.
    Arthur C. Canaday, Gen. Counsel, Patrick K. Wiggins, Legal Director and Joseph A. McGlothlin, Staff Counsel, Tallahassee, for Florida Public Service Commission, appel-lee.
    Lee L. Willis and James Beasley of Aus-ley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Electric Company.
    C. Roger Vinson of Beggs & Lane, Pensacola, for Gulf Power Co.
    William B. Killian, Thos. E. Capps, Matthew M. Childs, Joseph P. Klock, Jr. and Talbot D’Alemberte of Steel, Hector & Davis, Miami, for Florida Power and Light Co.
    Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and S. A. Brandimore, R. W. Neiser and J. A. McGee, St. Petersburg, for Florida Power Corp.
   PER CURIAM.

Public counsel has petitioned this Court to review Public Service Commission Order No. 9306, which changes the fuel adjustment clause procedure for electric utilities. We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution. A review of the record shows the order to be supported by competent, substantial evidence. We therefore approve Order No. 9306 and deny the petition for review.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I dissent. This is a petition to review an order of the Florida Public Service Commission changing the fuel adjustment clause procedure for electric utilities, effective April 1, 1980. The public counsel seeks review of Order No. 9306, questioning not the change in method of computation but the legality of the two-month transition adjustment. This adjustment awarded the affected utilities the amounts that would have been collected in April and May under the former system, and the public counsel asserts that with this adjustment the companies are recovering twice for these two months. From my review of the record, I find the utilities failed to produce sufficient evidence to show they are entitled to this two-month transition adjustment. In fact, the record in its present state indicates the adjustment may result in a double recovery. I would remand Order No. 9306 to the commission for a hearing and determination of that sole issue.

The controversy in this case concerns the nature of the fuel adjustment clause, also known as the fuel cost recovery clause. By either name, it is intended to eliminate the difference between the actual cost of fuel for an electric utility and the amount allocated for fuel in the utility’s current general rate structure. Recent years have seen a steady increase in the amount of the fuel adjustments because of rising fuel costs. The adjustment mechanism, however, is designed also to produce credits for consumers should fuel costs decrease.

The fuel adjustment clause is not new and has been used by Florida utilities since at least 1925, well before the commission acquired jurisdiction in 1951. The record before us does not set forth the full history of the fuel adjustment clause since 1951, but it is clear that the commission has authorized over the years fuel adjustments based upon average cost test periods of six months, then one month, and now six months again. There was no problem, apparently, when the utilities switched from using a six-month average fuel cost period to a one-month test period, but the recent return to six months has produced a claim from the utilities that the adjustments have always been two months behind in collecting for fuel expenses already incurred. They have requested authority to recapture those two months fuel costs — a claim accepted by the commission but opposed by the public counsel.

The issue is really whether, by the application of the previous orders: (1) only a pricing mechanism was established and there has historically always been a fuel cost recovery for every month, or (2) the utilities are two months behind in collecting their fuel costs.

The history of the adjustment clause, as reflected by the record, is inconclusive. In Order No. 5901, the commission approved a 1973 request by Florida Power Corporation “to immediately revise its fuel adjustment clause to provide for calculating the fuel adjustment on the basis of a one-month average as. opposed to the six months now required in order to more quickly reflect changes in its cost of fuel.” (Emphasis added.) The order enunciates the commission position as to the nature of the one-month costing period in unmistakable terms:

The Company’s current fuel adjustment clause was prescribed by this Commission in Docket No. 71370-EU, Order No. 5619, on December 29, 1972, and requires that the fuel adjustment be based on the average fuel costs for the six months’ period ending the second month preceding the billing period. The only change proposed by the Company is that the costing base shall be the second month preceding the billing period. The record herein discloses that in most jurisdictions a large majority of electric utilities are permitted to use a similar costing base as that proposed by the Company in this proceeding.
. . . While it appears very unlikely that there will be any major reductions in the cost of fuel oil in the near future, the Company’s current and proposed fuel adjustment clause do provide for passing any reductions on to the customer. The one-month average costing base would more quickly pass any such reductions on to the customer than the present clause which is based on a six-months average.
NOW, THEREFORE, IN CONSIDERATION THEREOF, it is
ORDERED by the Florida Public Service Commission as follows:
1. The findings herein are approved in all respects.
2. The petition of Florida Power Corporation for authority to revise its fuel adjustment clause to provide for calculating the fuel adjustment on the basis of a one-month average as opposed to the six-months now being used is hereby granted and the Company is hereby authorized to make said revision effective on or after November 1, 1973.

Id. at 1-3 (emphasis added). While companion orders for other utilities have not been called to our attention, I must presume that the commission treated all the utilities consistently.

The record further reflects that the commission in 1974 issued Order No. 6357, which primarily concerned the procedure and legality of the fuel adjustment, already operating on a month-to-month basis for all utilities at the time of the order. The order included the following language: “The clearest example of such an incentive [for efficient and prudent management] in the existing clause is the 2 month lag feature, which operates so that a utility in November, for example, is passing on fuel costs incurred in September.” Order No. 6357 at 7.

The utilities contend that this 1974 order retained and continued a two-month billing lag placed into the fuel adjustment “pipeline” some unspecified number of years ago. Therefore, the utilities argue, they are entitled to a one-time transition adjustment to collect these additional two months of fuel costs.

Public counsel, on the other hand, says that he has no quarrel with the 1974 order and admits that there has always been a lag in data used as a pricing mechanism — but not a lag in fuel cost recovery. He argues that, whether based on fuel cost experience of the most recent month or the most recent six months, the fuel adjustment has always been intended to compensate a utility for the fuel costs incurred in the same month in which the adjustment is imposed.

It is my view that public counsel’s interpretation is consistent with basic rate-making principles. Rates for public utilities are fixed for future service rather than for past service. Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla.1974). Past service costs are used as a pricing mechanism to compute present costs. Although expenses may be based upon historic test periods rather than projected test periods, it has long been settled that the commission lacks the authority to engage in retroactive ratemaking with respect to electric utilities. City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968).

The record reflects that it was also the position of the commission’s staff accounting supervisor for the electric industry that the effect of the 1974 order was to allow the utilities an opportunity to recover their fuel costs for each month in the past and that no transition adjustment was needed. The testimony of the accounting supervisor is consistent with an interpretation of the 1974 order of providing a customary pricing mechanism, as contended by public counsel.

Rather than addressing directly the issue of exactly when and how the contested nature of the adjustment clause was established, the utilities in this proceeding contend that public counsel is now asserting a collateral attack upon Order No. 6357 issued in 1974, which is prohibited by either the doctrine of administrative finality, Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679 (Fla.1979); Peoples Gas System, Inc. v. Mason, 187 So.2d 335 (Fla.1966), or the doctrines of collateral estoppel and res judica-ta, Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla. 3d DCA), cert. denied, 267 So.2d 833 (Fla.1972).

The utilities further contend that the arguments of public counsel are without merit because the findings and determinations of the commission are presumed to be valid and reasonable, absent clear and convincing showing to the contrary, City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968), and that it is not this Court’s responsibility to reweigh or reevaluate conflicting evidence, but only to ascertain whether the commission’s order is supported by competent, substantial evidence. Jacksonville Suburban Utilities Corp. v. Hawkins, 380 So.2d 425 (Fla.1980).

I find there is clearly no substantial competent evidence in this record to allow a two-month transition adjustment recovery for the utilities.

I would not reach the question of whether the commission lacked authority to change the nature of the fuel adjustment. The instant record is wholly inadequate to determine what the commission did between Order No. 5901 and Order No. 6357, let alone its authority to do so. If the commission was attempting in Order No. 6357 to change from a former position of traditional ratemaking which uses a test month or months as a pricing mechanism to a dramatically new position of retroactive recapture of costs under the one-month costing period, one would expect to see at least an admission of such a change in the order. I recognize the quoted portion of the order could be construed to reflect such a change, but it can also be construed as nothing more than a description of the practical nature of the adjustment. In any event, this issue was not the specific focus of the order. The testimony of the commission’s own accounting staff reflects that the staff had not construed the order to mean such a dramatic change. I conclude that this Court should reject the assertions of the presumption of correctness of commission findings and the need for finality of action. In reaching this conclusion, I have reviewed the record in the light most favorable to the utilities and at best it simply establishes unexplained deviations in the commission perspective over the years.

I recognize that substantial sums of money are at issue. While the commission has the duty under section 366.06(2), Florida Statutes (1979), to “determine the actual legitimate costs of the property of each utility company,” the commission may not authorize the reimbursement for expenses already charged to, and paid by, consumers. I am unable to determine from this record whether the transition computation results in a double recovery or in a recovery of costs not previously recouped. The burden before the commission was on the utilities to establish by competent substantial evidence the need to recapture these two months of fuel adjustments. I find the evidence to be insufficient upon that issue, principally because the utilities presumed rather than proved there would be no double recovery.

I would remand this cause under section 120.68(12), Florida Statutes (1979), to the commission for further proceedings to ensure that consumers are not subjected to double payments.


text:
    THE FLORIDA BAR, Complainant, v. James L. LEE, Jr., Respondent.
    No. 59847.
    Supreme Court of Florida.
    Sept. 10, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee and Roberta J. Fox, Bar Counsel, and Ann L. Kerr, Chairman, Thirteenth Judicial Circuit Grievance Committee “A”, Tampa, for complainant.
    James L. Lee, Jr., in pro. per.
   PER CURIAM.

The respondent, James L. Lee, Jr., filed an unconditional plea of guilty to charges of failing to complete the representation of a client in a dissolution of marriage action. After receiving a fee from his client Mr. Lee initially attended several hearings and filed pleadings for his client, but, before the action was concluded, respondent ceased representation of his client. He failed to communicate that fact to his client, could not be contacted, and failed to advise the court that he was no longer representing his client.

The referee has recommended that the respondent be found guilty of the following violations: Florida Bar Code of Professional Responsibility, Disciplinary Rules 2-110(A)(1), (2), and (3), 6-101(A)(3), and 7-101(A)(2).

As punishment the referee recommended that Mr. Lee be suspended from the practice of law for a period of three months and one day, make restitution in this matter to Richard W. Ramsire of two hundred fifty dollars ($250), and make restitution in another matter which is now known to The Florida Bar.

No request for review of those findings or recommendations has been sought. We adopt them as the finding and order of this Court. The suspension shall be effective October 12, 1981, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Respondent is also ordered to pay costs in the amount of $462.70.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.

ADKINS and BOYD, JJ., concur as to the finding of misconduct, but would require briefs on issue of discipline pursuant to Fla.Bar Integr. Rule, art. XI, Rule 11.-09(3)(f).


author: BOYD, Justice. McDONALD, Justice;

text:
    STATE of Florida, Petitioner, v. Tyrone GOODSON, Respondent.
    No. 59864.
    Supreme Court of Florida.
    Sept. 10, 1981.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for petitioner.
    Theodore E. Mack, Asst. Public Defender, Tallahassee, for respondent.
   BOYD, Justice.

This cause is before us to review the decision of the district court of appeal in Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), which passed upon three questions certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. (1980).

On May 17, 1979, Tyrone Goodson, age seventeen, pleaded guilty to two counts of armed robbery charged by indictment and moved to be sentenced under the Florida Youthful Offender Act, chapter 958, Florida Statutes (Supp.1978). In denying the motion, the trial judge construed section 958.-04(2) of the act as being directory rather than mandatory in the classification of a defendant as a youthful offender. He then sentenced Goodson as an adult to two fifteen-year concurrent terms.

On appeal, the district court affirmed the judgment of the trial court, but for a different reason. The district court disagreed with the trial court’s reasoning and held that section 958.04(2) is mandatory if the statutory prerequisites are met. However, it agreed with the trial judge’s result by finding that one of the prerequisites had not been met. Specifically, the district court found that Goodson had previously been convicted of a felony under subsection (2)(a) by virtue of the contemporaneous convictions of two counts of armed robbery. The district court denied both parties’ motions for rehearing, but certified to this Court three questions.

1. Does section 958.04(2), Florida Statutes (Supp.1978) provide for mandatory classification if certain statutory prerequisites are satisfied?
2. Is a child charged by indictment considered “transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39” so as to qualify for youthful offender classification under section 958.04(l)(a), Florida Statutes (Supp.1978)?
3.If question 1 is answered in the affirmative, is a person excluded from mandatory classification under section 958.04(2)(a), Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

392 So.2d at 1338 (emphasis in original).

In deciding whether the word “shall” should be construed as being mandatory or directory, we should look to the context in which it is found and the intent of the legislature as expressed in the statute. S. R. v. State, 346 So.2d 1018 (Fla.1977). Within section 958.04, there are two types of statutory prerequisites: the eligibility requirements in subsection (1) and the disqualification requirements in subsection (2). If a person meets the eligibility requirements in subsection (1), the trial court “may” classify that person as a youthful offender. In comparison, if a person meets those requirements and is not disqualified by the requirements in subsection (2), the statute states that the trial court “shall” classify that person as a youthful offender. To interpret subsection (2) as being directory would render those requirements meaningless since the trial judge already has the discretion to classify a defendant as a youthful offender under subsection (1). Thus in this context the word “shall” is clearly meant to be mandatory. Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980); Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

With respect to the second question, the state argues that Goodson could not have been “transferred” to the criminal division of the circuit court as required by section 958.04(l)(a), since he was brought before the criminal division pursuant to an indictment and was never subject to the circuit court’s juvenile division. To accept this argument would create the anomalous situation in which a person between the ages of eighteen and twenty-one who is indicted may be classified as a youthful offender, whereas a person under eighteen who is indicted may not be. Goodson v. State, 392 So.2d at 1336-37. We do not believe the legislature intended such a result. We find the district court’s decision on this point to be very persuasive and therefore adopt it as our own.

The final question certified to this Court concerns the construction of that portion of section 958.04(2)(a) which states that a person shall be classified as a youthful offender if such person has not “previously been found guilty of a felony . . . . ” This phrase is susceptible to two interpretations. The first possibility is that the person must not have been convicted of another felony previous to sentencing. The second possible interpretation is that the person must not have been convicted of another felony previous to committing the current crime.

Both possible interpretations have been resorted to in construing similar phrases found in other statutes. One such statute is the capital felony sentencing law which lists as one of the aggravating circumstances that the defendant was “previously convicted ... of a felony involving the use or threat of violence to the person.” § 921.-141(5)(b), Fla.Stat. (1977). We held that this aggravating circumstance applied to a defendant whose convictions for attempted murder were entered contemporaneously with his conviction for first degree murder since such convictions were previous to sentencing. Lucas v. State, 376 So.2d 1149 (Fla.1979). A second statute containing comparable phraseology is the habitual felony offender law which may apply to a defendant who has “[pjreviously been convicted of a felony in this state.” § 775.-084(l)(a), Fla.Stat. (1977). This statute was held not to apply to a defendant contemporaneously convicted of two felonies since neither conviction was previous to the commission of the other felony. Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979).

Appellee Goodson argues that the reasoning in Shead is applicable to this case. In Shead the district court reasoned that the purpose of the habitual offender statute is to impose harsher penalties on previous offenders who again commit crimes after being given the opportunity to reform. Similarly, Goodson argues, the purpose of the Youthful Offender Act is to deal with “offenders who have demonstrated that they can no longer be handled safely as juveniles . . . . ” § 958.021, Fla.Stat. (Supp.1978).

As attractive as this argument initially sounds, it has one basic flaw which arises when a defendant is simultaneously convicted of several different felonies. In such a case the habitual offender statute allows the trial judge to impose separate sentences for each of the crimes committed and in his discretion to have those sentences run consecutively. Conversely, the Youthful Offender Act mandates that a trial judge not commit a youthful offender to the custody of the Department of Corrections for more than six years. § 958.05(2), Fla.Stat. (Supp. 1978). Thus a person convicted of more than one felony would go unpunished for the other felonies if he received the maximum penalty for the first felony. Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980).

We also note that the existence of two or more contemporaneous felony convictions does not preclude a defendant from being classified as a youthful offender, it merely excludes him from mandatory classification as such. See § 958.04(3), Fla.Stat. (Supp. 1978). We answer the third question in the affirmative.

In summary, we hold that the word “shall” as used in section 958.04(2) is mandatory rather than directory; that a minor initially proceeded against by indictment is to be considered “transferred for prosecution to the criminal division” for purposes of section 958.04(l)(a); and, that respondent’s two simultaneous convictions for armed robbery excluded him from mandatory classification as a youthful offender by virtue of section 958.04(2)(a).

The decision of the district court of appeal is approved.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON and ALDERMAN, JJ., concur.

McDONALD, Justice;

“I concur with the first two points but partially dissent on the last. Goodson committed two distinct crimes on different days. I would hold that the adult sentence is proper for the second offense but that he should have been sentenced as a juvenile for the first offense.”

      . 958.04 Eligibility for youthful offender; classification.—
      (1) The court may classify as a youthful offender any person:
      (a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
      (b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
      (c)Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
      (2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
      (a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
      (b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.
      (3) A person excluded from classification as a youthful offender under subsection (2) by virtue of having been previously found guilty of a crime which if committed in Florida would be a felony of the first, second, or third degree under the laws of this state may be classified a youthful offender after consideration of the following criteria:
      (a) The seriousness of the offense to the community and the protection of the community;
      (b) Whether the offense was committed in an aggressive, violent, premeditated, or willful manner;
      (c) Whether the offense was against persons or against property;
      (d) The sophistication and maturity of the defendant, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living;
      (e) The record and previous history of the defendant, including:
      1. Previous contacts with the department, the Department of Health and Rehabilitative Services, other law enforcement agencies, and courts;
      2. Prior periods in a community control program;
      3. Prior violations of law; and
      4. Prior commitments to institutions;
      (f) The likelihood of reasonable rehabilitation of the defendant if he is assigned to youthful offender services and facilities; and
      (g) Whether classification would:
      1. Reflect the seriousness of the offense, promote respect for law, and provide just punishment for the offense; and
      2. Provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

      . The district court was mistaken when it stated that the two fifteen-year sentences were to be served consecutively. Record on Appeal at 20-21.


text:
    THE FLORIDA BAR, Complainant, v. Morgan F. JONES, Respondent.
    No. 60170.
    Supreme Court of Florida.
    Sept. 10, 1981.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, John A. Weiss and Dale E. Krout, Jr., Bar Counsels, Tallahassee, and C. Wayne Alford, Chairman, Fourth Judicial Circuit Grievance Committee “B”, Jacksonville, for complainant.
    Morgan F. Jones, in pro. per.
   PER CURIAM.

In this disciplinary proceeding, The Florida Bar petitions for review of that portion of the referee’s report which recommends that respondent pay costs as a condition of reinstatement following a six-month suspension. The Bar contends that article VIII, paragraph 6 of the Integration Rule mandates the payment of costs within thirty days after a disciplinary decision becomes final, unless the time is extended by the Board of Governors.

Respondent was found guilty of violating Disciplinary Rules 1-102(A)(5) and (6) of the Code of Professional Responsibility, in that he engaged in conduct prejudicial to the administration of justice which adversely reflected on his fitness to practice law. We approve the referee’s finding of misconduct, and we approve the referee’s recommendation that respondent be suspended from the practice of law for six months, and thereafter until he shall demonstrate rehabilitation. We also accept the referee’s recommendation that respondent bear the costs of this proceeding. The suspension shall be effective October 12, 1981, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Respondent is also ordered to pay costs in the amount of $466.65.

The Bar’s suggested modification of the referee’s recommendation is appropriate. Costs should not be paid as a condition of reinstatement. Rule 11.06(9)(a)(5) of the Integration Rule, which states that a referee’s report shall include “recommendations as to the manner in which costs should be taxed,” must be read in conjunction with the thirty day limitation of article VIII, paragraph 6. The prompt payment of costs is an integral part of the grievance process. It is not a matter related to rehabilitation. We direct respondent to pay the costs of this proceeding within the time limitation of article VIII, paragraph 6.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: BASKIN, Judge.

text:
    The MIAMI HERALD PUBLISHING COMPANY, a Division of Knight-Ridder Newspapers, Inc., and Robert Rivas, Petitioners, v. The Honorable Bill G. CHAPPELL and Edward Diaz, Respondents.
    No. 81-613.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 1981.
    Rehearing Denied Oct. 16, 1981.
    Paul & Thomson and Sanford L. Bohrer and Franklin G. Burt and Richard J. Ovel-men, James D. Spaniolo, Miami, for petitioners.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Tallahassee, Gerald R. Herms, Tampa, for respondents.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In a petition for appellate review brought pursuant to Florida Rule of Appellate Procedure 9.100(d), the Miami Herald asks us to rule that the trial court erred when it closed the courtroom and then denied the press and public access to tapes of testimony presented during a criminal pretrial competency hearing conducted by the court. We agree that the trial court committed error when it decided that the classification of doctors’ reports as confidential contained in section 394.459(9), Florida Statutes (1979), the “Florida Mental Health Act”, also known as the “Baker Act”, applies in criminal proceedings to review a defendant’s ability to stand trial. Holding that a criminal defendant involved in a pretrial competency hearing is not a “patient” entitled to the confidentiality provisions of chapter 394, we reverse the Order of Closure entered by the trial court.

When Herald reporter Robert Rivas was excluded from the courtroom, he objected to the closure of defendant Diaz’s pretrial competency proceedings. He complained that the trial court had failed to notify the press that it intended to close the hearing; the court, upon agreement of the defendant and of the state, had excluded the press and public from the courtroom. The court’s action prevented appellants from listening to and reporting counsel’s interrogation of court-appointed doctors who presented medical testimony to aid the court in deciding whether defendant Diaz was competent to assist his counsel at trial. His sanity at the time of the offense was not in issue. The purpose of the doctors’ testimony was to explain conclusions contained in their written reports to the court. The court maintained that medical reports and related testimony were confidential under section 394.459(9), Florida Statutes (1979).

Petitioners contend that criminal proceedings involving a defendant’s ability to stand trial are not governed by the confidentiality provisions afforded hospitalized patients by the Baker Act. The State counters that as a result of the hearing the court ruled that defendant Diaz was incompetent to stand trial and committed him to a state hospital until he regained his competence. Thus, respondent argues, defendant is a patient entitled to the confidentiality afforded every other patient.

Florida Rule of Appellate Procedure 9.100(d) permits this court to review orders which exclude the press or the public from access to proceedings or records which are not required by law to be confidential. Committee notes indicate that the rule establishes a new and independent means of review in the district courts. We accept jurisdiction of this appeal because we find no imposition of confidentiality under the law.

Should pretrial competency hearings be closed? We believe not. Criminal competency proceedings are governed by Florida Rules of Criminal Procedure 3.210-3.214. Under Rule 3.211, a defendant is incompetent to stand trial if he does not have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he has no rational as well as factual understanding of the proceedings against him.” The rules of criminal procedure contain no provision for closing a competency hearing. Section 394, the Florida Mental Health Act or Baker Act, generally applies to civil competency proceedings. “Mentally Deficient and Mentally Ill Defendants”, under section 916.18, Florida Statutes (Supp.1980) involuntarily hospitalized under the rules of criminal procedure, are furnished the protections contained in Part I of chapter 394.

Section 394.459, Florida Statutes (1979) provides:

(9) CLINICAL RECORD; CONFIDENTIALITY. — A clinical record for each patient shall be maintained. The record shall include data pertaining to admission and such other information as may be required under rules of the department. Unless waived by express and informed consent by the patient or his guardian or attorney, the privileged and confidential status of the clinical record shall not be lost by either authorized or unauthorized disclosure to any person, organization, or agency. The clinical record shall not be a public record and no part of it shall be released, except:
(a) The record may be released to mental health professionals, attorneys, and government agencies as designated by the patient, his guardian, or his attorney. A medical discharge summary of the clinical record of any patient committed to, or to be returned to, the Department of Corrections from the Department of Health and Rehabilitative Services shall be released to the Department of Corrections without charge upon its request. The Department of Corrections shall treat such information as confidential and shall not release such information except as provided in this section.

The cited statute affords involuntarily hospitalized patients the protection of confidentiality. “Patient” is defined as “any mentally ill person who seeks hospitalization under this part, or any person for whom such hospitalization is sought.” § 394.455(13), Fla.Stat. (1979). Clinical records include “all parts of the record required to be maintained and includes all medical records, progress notes, charts, admission and discharge data, and all other information recorded by a facility which pertains to the patient’s hospitalization and treatment.” § 394.455(21), Fla.Stat. (1979).

Although section 394.459 declares as state policy that “the individual dignity of the patient shall be respected . . . including any occasion when the patient is taken into custody, detained, or transported ....”, it too contains no provision for courtroom closure in criminal proceedings. In our opinion, a defendant in a criminal competency proceeding is not a “patient” as defined in section 394.455 and is therefore not entitled to confidentiality during that proceeding. He maintains his right to assert an appropriate doctor-patient privilege, however. Finding no statute or rule requiring that competency hearings be closed, we now examine case law.

The First Amendment to the United States Constitution preserves for the public and the press access to criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Inherent in our system of justice is a presumption of openness.

Florida courts are also committed to open judicial proceedings. In State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla.1977), the Florida Supreme Court expressly rejected suppression of news in a criminal trial unless national security or a defendant’s right to a fair trial were jeopardized. See Sentinel Star Company v. Booth, 372 So.2d 100 (Fla. 2d DCA 1979); Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978); News-Press Publishing Company v. State, 345 So.2d 865 (Fla. 2d DCA 1977); Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla. 3d DCA), cert. denied, 342 So.2d 1100 (Fla.1976); State ex rel. Gore Newspapers Company v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975), overruled on procedural grounds in English v. McCrary, 348 So.2d 293 (Fla. 4th DCA 1977). Courts recognize, however, that a defendant’s right to a fair trial may compete with the public’s right to information reported by a free press. State ex rel. Miami Herald Publishing Company v. McIntosh, supra.

In our view, the same reasoning that requires open trials mandates open competency proceedings. In a competency proceeding, only a defendant’s ability to assist counsel is questioned. Statements concerning his guilt, innocence or sanity at the time of the offense are not material because they relate to different issues. It is therefore unlikely that testimony jeopardizing a defendant’s right to a fair trial would be elicited. Furthermore, in many criminal cases, pretrial proceedings eliminate the need for a trial, either as a result of dismissal of the charges or by rulings made at the hearing which destroy a party’s chances of success at trial. Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 399 N.E.2d 518, 423 N.Y.S.2d 630 (1979). In Westchester, the court noted: “At the present time, in fact in most criminal cases, there are only pretrial proceedings. Thus if the public is routinely excluded from all proceedings prior to trial, most of the work of the criminal courts will be done behind closed doors.” 423 N.Y.S.2d at 636, 399 N.E.2d at 523. Competency proceedings may also postpone or terminate the need for trial.

Petitioner urges us to adopt the three-pronged test utilized by other appellate courts in Florida in reviewing a trial court’s closure order. Under this test, the public may be denied access to court proceedings and records only if the movant proves that: (1) closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) no less restrictive alternative measure is available, and (3) closure will in fact achieve the court’s purpose. Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. 5th DCA 1980); State ex rel. Pensacola News-Journal, Inc. v. Fleet, 388 So.2d 1106 (Fla. 1st DCA 1980); Miami Herald Publishing Company v. Lewis, 383 So.2d 236 (Fla. 4th DCA 1980); Sentinel Star Co. v. Booth, supra; Miami Herald Publishing Company v. State, supra. Compare Sentinel Star Company v. Edwards, 387 So.2d 367 (Fla. 5th DCA 1980) (limiting the three-pronged test to prior restraint cases). The first prong of the test protects a defendant’s right to a fair trial; the second prong employs traditional First Amendment techniques, and the third prong employs practical considerations. Because the test protects competing societal interests in providing fair trials while permitting free access to courts, we adopt its criteria.

Applying the test to the case before us, we observe that the trial court predicated its closure order solely upon its opinion that the Baker Act mandated closure. The court did not consider whether closure was necessary to the administration of justice, whether a less restrictive alternative was available, and whether closure achieved the court’s purpose, factors we now adopt as the standards for excluding the public. The competency hearing was conducted in advance of the trial. The court did not, by closing the courtroom insure the fairness of a subsequent trial. Instead its order served only to deter the press and public from exercising basic First Amendment freedoms.

In light of our decision, we find it unnecessary to discuss appellant’s remaining points on appeal.

For these reasons, we reverse the trial court’s Order of Closure and remand for further proceedings consistent with our holding that pretrial criminal competency proceedings must be open to the press and public unless open proceedings will violate the test criteria.

      . Fla.R.App.P. 9.100(d)(1):
      (d) Exception; Orders Excluding Press or Public.
      (1) A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential, shall be filed in the court as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral. A copy shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, and the parties to the proceeding.

      . Fla.R.Crim.P. 3.210.

      . The Supreme Court of the United States has held that the United States Constitution does not afford affirmative right of access to a pretrial suppression proceeding in which all participants have agreed that closure is appropriate to protect a defendant’s fair trial rights. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The New York appellate court that decided Gannett distinguished its decision by ruling that a pretrial competency hearing, unlike a suppression hearing, may not be closed on fair trial grounds. Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 399 N.E.2d 518, 423 N.Y. S.2d 630 (1979). We find that a competency hearing, unlike a suppression hearing, may be a complete trial decided on the basis of compe-fence to assist counsel and is therefore subject to different treatment.