author: PER CURIAM. ADKINS, Justice,

text:
    Clyde FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 50393.
    Supreme Court of Florida.
    June 19, 1980.
    Rehearing Denied Sept. 26, 1980.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Third Judicial Circuit, in and for Columbia County, in which that court imposed a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The appellant and Betty Jean Strouder were both indicted for the felony-murder and premeditated murder of two persons. Attorney Thomas K. McKee, Jr., was appointed by the court to represent both defendants.

The trial court imposed the sentence of death on the appellant on December 13, 1974. The notice of appeal was not filed with this Court until October 11,1976. The delay by trial counsel in effecting the appeal was apparently due to a fee dispute. On August 11, 1978, we granted appellant’s counsel leave to withdraw and appointed the Public Defender of the Second Judicial Circuit as counsel for the appellant. On February 13,1979, the public defender filed a brief on appellant’s behalf, and oral argument was heard on September 14, 1979.

The appellant has presented several points for our review. We conclude that a new trial is required and will discuss only the dispositive issue.

In response to the appellant’s demand for discovery, the state provided a witness list showing Betty Jean Strouder as one of its intended witnesses at trial. At trial, the state called Betty Jean Strouder as a witness. Her testimony was damaging to the appellant, both directly and by damaging his credibility. It was contradictory to his testimony.

In cross-examining Betty Jean Strouder, attorney McKee brought out that she had been charged with the crimes in question, that the charges against her were still pending, and that he was her lawyer. At the end of cross-examination, the following exchange was had among the court, prosecutor and defense counsel:

By the Court: You may stand down.
By Mr. Willis: This witness, your Honor, this witness is charged with the offense of murder in the first degree, and at this time the State would nolle prosequi any and all cases that are pending against this defendant. She is free to go.
By the Court: Very well.
By Mr. McKee: Is she granted immunity as far as any other charges?
By Mr. Willis: I believe that’s statutory.
By the Court: In other words, you are dismissing the case against this defendant, arising out of this incident?
By Mr. Willis: Yes, your Honor.
By the Court: Very well. You are free to go.

The sixth amendment right to the assistance of counsel contemplates legal representation that is effective and unimpaired by the existence of conflicting interests being represented by a single attorney. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Baker v. State, 202 So.2d 563 (Fla.1967). Since Betty Jean Strouder and the appellant were ooth charged with these crimes, there was a strong probability of a conflict between their interests at the time the court appointed McKee to represent them. This conflict became more substantial and apparent to McKee at the time he learned that the state might use Strouder’s testimony. The conflict was again revealed to the court when Strouder gave her damaging testimony and stated on cross-examination that McKee was her attorney.

The state argues that reversal cannot be ordered on this ground since there was no defense objection to representation or motion for separate representation. To deny a motion for separate representation, where a risk of conflicting interests exists, is reversible error. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Even in the absence of an objection or motion below, however, where actual conflict of interest or prejudice to the appellant is shown, the court’s action in making the joint appointment and allowing the joint representation to continue is reversible error. See Belton v. State, 217 So.2d 97 (Fla.1968). As the United States Supreme Court said in Glasser, “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . The trial court should protect the right of an accused to have the assistance of counsel.” 315 U.S. at 71, 62 S.Ct. at 465.

We hold that the appellant was denied his right to the effective assistance of counsel by the joint representation of the appellant and a state witness by the same court-appointed attorney. The judgment and sentences are vacated and the case is remanded for a new trial.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

The question of whether joint representation of appellant and Strouder by trial counsel in any way prevented effective assistance of counsel to the appellant was not ruled upon by the trial court. In the past, we have held that the issue of adequacy of representation by counsel cannot be properly raised for the first time on a direct appeal. State v. Barber, 301 So.2d 7 (Fla. 1974).

I would relinquish jurisdiction for the purpose of allowing the trial judge to conduct post-conviction proceedings and allow the state and appellant to present facts upon which the trial court could make an adequate determination of whether a conflict of interest between appellant and Strouder existed which would preclude effective representation of appellant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Petitioner, v. Robert A. ZINZELL, Respondent.
    No. 57885.
    Supreme Court of Florida.
    July 3, 1980.
    Rehearing Denied Sept. 17, 1980.
    R. Stuart Huff, Bar Counsel, and Paul A. Gross, Branch Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Robert A. Zinzell, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Robert A. Zinzell, a member of The Florida Bar, is before us on complaint of The Florida Bar and report of the referee. An appeal earlier filed in this cause was dismissed. We have received respondent’s “motion to dismiss referee’s report” but note that it was untimely filed. Other papers filed subsequently by Mr. Zin-zell in this Court are also untimely and without merit. See FLorida Bar Integration Rule, article XI, Rule 11.09(3)(a). Jurisdiction vests in this Court pursuant to article V, section 15, Florida Constitution.

The referee’s findings and recommendations are as follows:

Findings of Fact as to each item of misconduct of which the Respondent is charged:

After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:

The Florida Bar framed its Complaint in paragraphs instead of Counts. Therefore, the Referee will address each paragraph of the Bar’s Complaint. The Referee finds as to each paragraph as follows:

1. The Respondent, ROBERT A. ZIN-ZELL, was, at all times pertaining to the charges against him, a member of The FLorida Bar and subject to the jurisdiction and discipline of The Supreme Court of Florida.

2. The Complaint was filed at the direction of The Florida Bar.

a) An answer to the Bar’s Complaint was filed called Statement and Evidence submitted by Respondent.

b) Respondent was given due notice of Final Hearing to be held before the Referee on January 20, 1979. Notice of Hearing was served on the Respondent by a process server.

c) Respondent did not appear at the hearing nor was Respondent represented by counsel. The transcript of the Grievance Committee hearing shows that Respondent did not appear, nor was Respondent represented at the grievance level.

d) Respondent did not file any response to the Bar’s Request for Admissions.

e) Respondent had béen noticed for hearings on other occasions as reflected in the record, each time filing various delaying motions, which were denied by The Supreme Court.

3. During February of 1974, the Respondent was attorney for Mrs. Juliet V. Peacock.

4. 5, 6 & 7. ROBERT A. ZINZELL, Esq. prepared an “Agreement for Conveyance” and “Revocable Inter-Vivos Trust Agreement” which was executed by his client, Juliet V. Peacock on February 5,1974, naming him as Trustee.

The “Agreement” states: “The Trustee, Robert A. Zinzell ... is authorized to take and hold the properties for the purposes set forth herein”.

The Referee finds that the purposes set forth are “to make distribution of the net proceeds derived from this Trust Agreement to my beloved children ... as soon as it is feasible . . . after my demise”, ... to pay all my medical bills and costs of my estate . . . ”

The testimony shows and the Referee finds that Mrs. Peacock believed she was signing a will and that it was not her intent to convey her property to Mr. Zinzell.

However, the Agreement did convey certain real • properties to Mr. Zinzell, among which were Lots 27, 28 and 29 of Block 7, Coral Gables Craft Section as recorded in Plat Book 10 at Page 40, of the Public Records of Dade County, Florida.

On February 8, 1974, Robert A. Zinzell, Trustee of Juliet V. Peacock Trust Agreement executed a Warranty Deed conveying the said Lots 27, 28 and 29 to E-Z Rider, Inc., a Florida corporation. E-Z Rider, Inc. was owned by Robert A. Zinzell and Robert A. Zinzell was the President.

The Referee finds that Mrs. Peacock did not authorize this conveyance.

On March 21, 1974, a Quit Claim Deed was executed by Juliet V. Peacock to Robert A. Zinzell, Trustee, conveying the same above described property. However, no explanation of this deed was made by the Respondent nor the Bar.

8, 9 & 10. E-Z Rider, Inc., through its owner and President, Robert A. Zinzell, mortgaged Lot 27 of the above to Coral Gables Federal Savings & Loan Association for $26,250.00.

E-Z Rider, Inc., through its owner and President, Robert A. Zinzell, mortgaged Lots 28 and 29 of the above to A. G. Gresham for $27,975.00.

11 thru 17 inclusive.

The testimony showed that Mrs. Peacock never knew of nor authorized her property being mortgaged by Mr. Zinzell or his company.

Mr. Zinzell, as President and owner of the E-Z Rider, Inc. allowed the said two mortgages to go into foreclosure. E-Z Rider, Inc. went bankrupt.

The Gresham mortgage was paid off by the Peacock family. The Coral Gables mortgage is being paid off by the Peacock family.

Mr. Zinzell never made any restitution nor any payment towards the reinstatement of these mortgages. Mr. Zinzell had also failed to pay the taxes on the mortgaged property.

The Referee finds that Mrs. Peacock did not have an interest in the E-Z Rider, Inc. corporation.

The Referee also finds that Mrs. Peacock is under a voluntary guardianship of her property with the Florida National Bank.

At the time she executed the Agreement in 1974, Mrs. Peacock was 77 years of age, showing her to be “approximately 80 years old” in 1977.

As a result of the foreclosure action and the Peacock family dealings with Mr. Zin-zell, the Peacock’s lost “in round figures, $75,000.00 to $80,000.00”.

[Citations to record omitted.]

CONCLUSION

Respondent Robert A. Zinzell, prepared a document for Mrs. Violet (sic) V. Peacock which he allowed Mrs. Peacock to believe was a will but which, in fact, was a trust which conveyed Mrs. Peacock’s property to Mr. Zinzell.

The only purpose of the trust was to pay expenses of Mrs. Peacock’s estate after her death and distribute the estate to her children.

Without Mrs. Peacock’s knowledge or consent, Mr. Zinzell used his trust power to convert and convey certain of her properties to a corporation owned and controlled by him, for his own use and purposes and not for the benefit of Mrs. Peacock or her children. He then mortgaged the properties. Neither Mrs. Peacock nor the beneficiaries of the trust received any of the proceeds of the mortgages. Mr. Zinzell and his company let the mortgages go into foreclosure.

Mrs. Peacock and her family paid or made arrangements for the redemption of said mortgages costing them $70,000.00.

Mr. Zinzell has never made explanation of nor made restitution whatsoever of those losses to the Peacock family.

Having been given ample notice on several occasions, Mr. Zinzell did not appear in person or by representation to defend the charges against him before the Grievance Committee or the Referee.

RECOMMENDATION AS TO FINDING OF GUILT

I recommend that the Respondent be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rule of the Code of Professional Responsibility, to wit:

IR 11.03(a) . . . the commission by a lawyer of any act contrary to honesty . whether the act is committed in the course of his relations as an attorney or otherwise ... is a violation of the moral conduct portion of the disciplinary rules governing the practice of law in the State of Florida.”

DR 1-102(A)(4) & (6). A lawyer shall not . engage in any conduct involving fraud, deceit or misrepresentation . engage in any other conduct that adversely reflects on his fitness to practice law.

DR 7-101(A)(3). A lawyer shall not . prejudice or damage his client during the course of the professional relationship .

RECOMMENDATION AS TO DISCIPLINARY MEASURE

I recommend that the Respondent be disbarred from the practice of law in the State of Florida.

Respondent, upon due notice, failed to appear before the Grievance Committee and subsequently failed to appear before the Referee. No mitigating circumstances have been shown. The Respondent’s conversion of a client’s property to his own use and failure to make any restitution calls for the extreme penalty under the Integration Rules.

Having carefully reviewed the record, we find the allegations of the complaint and each count thereof to be proved by clear and convincing evidence, and we therefore approve the findings and recommendations of the referee.

Accordingly, respondent Robert A. Zinzell is hereby disbarred from the practice of law in the State of Florida. The disbarment shall become effective on August 4, 1980, thereby giving respondent time to close out his practice and take the steps necessary to protect his clients.

Costs in the amount of $397.00 are hereby assessed against the respondent.

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    Giovanni Armando PAGANO, etc., Appellant, v. STATE of Florida, Appellee.
    No. 58190.
    Supreme Court of Florida.
    July 3, 1980.
    Rehearing Denied Sept. 26, 1980.
    Howard M. Zeidwig, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Justice.

This cause is before us on direct appeal from an order of the trial court upholding the constitutionality of Florida’s corruption by threat against public servant statute and affirming defendant’s conviction for the “attempted” violation of this statute. We have jurisdiction even though it is unnecessary to the determination of this cause for us to pass upon the constitutional question. P.C. Lissenden Co. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla. 1959).

Defendant was charged by information with corruption by threat under section 838.021, Florida Statutes (1977), for allegedly threatening harm to a police officer and his family for the purpose of avoiding arrest. After trial by jury, he was found guilty of attempted corruption by threat, as a lesser included offense of the crime charged.

The determinative issue is whether attempted corruption by threat is a lesser included criminal offense under section 838.021. We find that it is not and that defendant’s conviction must be reversed.

If a crime is itself an attempt to do an act or accomplish a result, there can be no lesser included offense of attempting to commit that crime. Milazzo v. State, 377 So.2d 1161 (Fla. 1979). In Brown v. State, 206 So.2d 377, 381 (Fla. 1968), this court said:

[T]he trial judge must determine as a matter of law whether an attempt to commit the crime charged would itself constitute an offense under Florida law. If he determines that it does . then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. In this situation it is immaterial whether the accusatory pleading specifically charges an attempt ....

See also Milazzo v. State.

A reading of section 838.021, Florida Statutes (1977), reveals that the attempt to carry out the criminal act of corruption by threat is included within the definition of the act itself. It provides:

(1)Whoever unlawfully harms or threatens unlawful harm to any public servant, to his immediate family, or to any other person with whose welfare he is interested, with the intent or purpose:
(a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
(b) To cause or induce him to use or exert, or procure the use or exertion of, any influence upon or with any other public servant regarding any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
(2) Prosecution under this section shall not require any allegation or proof that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that he had assumed office, that the matter was properly pending before him or might by law properly be brought before him, that he possessed jurisdiction over the matter, or that his official action was necessary to achieve the person’s purpose.
(3)(a) Whoever unlawfully harms any public servant or any other person with whose welfare he is interested shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare he is interested shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

This statute does not require that the intent or purpose of the threat be accomplished in order for the act to be considered corruption by threat. All that it requires is that there be a threat of unlawful harm. The attempt to corrupt is itself a violation of section 838.021; therefore, there can be no lesser included offense of attempted corruption by threat.

Accordingly, we reverse and remand with directions to discharge the appellant.

It is so ordered.

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


author: OVERTON, Justice.

text:
    Martha J. JAMESON and George Ronald Jameson, Appellants, v. Edward Lee JAMESON, II, Appellee.
    No. 56793.
    Supreme Court of Florida.
    July 17, 1980.
    Peter S. Schwedock of Pelzner, Schwe-dock & Finkelstein, Miami, for appellants.
    Ray Strauss of Berkell & Strauss, North Miami Beach, for appellee.
   OVERTON, Justice.

This case is before us on direct appeal from a decision of the Third District Court of Appeal, reported at 369 So.2d 436 (Fla.3d DCA 1979), which held that the Florida Constitution requires the spouse of a homestead owner to join in an interspousal conveyance of the homestead to the husband and wife as tenants by the entirety. In its opinion, the district court directly construed article X, section 4(c), of the Florida Constitution, to require spouse joinder and declared section 689.11(1), Florida Statutes, unconstitutional to the extent it would allow interspousal conveyance of the homestead without joinder. We have jurisdiction, article V, section 3(b)(1), and reverse.

We hold that article X, section 4(c), does not require joinder in an interspousal conveyance of solely owned homestead property to the husband and wife as tenants by the entirety, and find that section 689.11(1) is consistent with the constitutional provision as we construe it.

The relevant facts reflect that in 1974 Louis Jameson conveyed homestead property owned in his sole name to his wife, Martha Jameson, and himself as tenants by the entirety. Martha Jameson, the appellant, did not join in the conveyance. After Louis Jameson’s death, his son, Edward, the appellee, filed a declaratory action seeking to have the conveyance declared null and void on grounds that there is a constitutional requirement of joinder in such a conveyance by the spouse. The circuit court agreed with this contention and entered a summary judgment voiding the deed. The district court affirmed and held that article X, section 4(c), “clearly requires joinder of the wife where there is an attempt to alienate homestead property.” 369 So.2d at 437. Referring to the facts in the instant case, the district court stated:

Here, the husband (by a deed not joined in by the wife) attempted to alienate his solely-owned homestead by creating in the parties a .tenancy by the entireties. . [S]uch attempt collides with the homestead provisions of the Constitution by depriving the heirs of the husband of their constitutional right to take upon his demise. . . . [T]he provisions of the Constitution requiring joinder by the spouse should be required where there is an inter-spousal alienation of solely-owned homestead property.

Id. In reaching this conclusion, the district court determined such a holding was required by the “implied rationale” of our opinion in Williams v. Foerster, 335 So.2d 810 (Fla.1976).

The predecessor language to the present article X, section 4(c), was contained in the 1885 amendment to the constitution of the State of Florida in sections 1 and 4 of article X, which read as follows:

SECTION 1. Exemption of homestead; extent. — A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.
SECTION 4. Homestead may be alienated by husband and wife. — Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists. .

These constitutional provisions were so construed as to prohibit the instant conveyance. Byrd v. Byrd, 73 Fla. 322, 74 So. 313 (1917); see Crosby and Miller, Our Legal Chameleon, The Florida Homestead Exemption, 2 U.Fla.L.Rev. 12, 64-67 (1949). Article X was changed in the constitutional revision of 1968, and section 4(c) was amended to read as follows:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. [Emphasis supplied.]

In 1972, this section was again amended, although the applicable sentence to the issue before us for decision remains the same as it was in the 1968 revision. The present section 4(c), as amended in 1972, reads as follows:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. [Emphasis supplied.]

The critical language is the emphasized sentence, which we have not expressly construed in any prior case. The issue is whether this provision allows a husband who is the sole owner of the homestead to convey that homestead property to his wife and himself as a tenancy by the entireties without joinder by the wife as a grantor in the conveyance.

In its July 20, 1968, analysis of the instant provision, the Legislative Reference Bureau wrote that under the revision “the right of a married owner to directly transfer by deed the title of the homestead to himself and his spouse as an estate by the entirety would be given constitutional status.” Similarly, two articles have expressed the view that the new provision no longer requires spousal joinder as a grantor in interspousal transfers of solely owned homestead property. One author has stated:

The new constitution allows a gratuitous transfer of the homestead regardless of the grantee’s status. Presumably, since no reference is made to the existence of children, this factor was not intended to impose a limitation on the provision. This conclusion is supported by: (1) the Florida supreme court’s indication that under the 1885 constitution the existence of children was immaterial as to whether the requirement of consideration should be imposed in an intra-family conveyance, and (2) the court’s rejection of the idea that the homesteader’s children obtained a vested interest in the homestead.
The new constitution contains substantial changes regarding the joinder of husband and wife in transferring their homestead. The 1885 constitution’s requirements of “joint consent of husband and wife” and that the “deed or mortgage [be] duly executed by himself or herself, and by husband and wife” do not appear in the new constitution. The 1968 constitution simply requires that the owner of the homestead be “joined by the spouse if married.” While it is clear that both must join in a conveyance of a homestead owned by one spouse to a third party, the difficult question remains whether the grantee-spouse must join in an inter-spousal conveyance.
Interspousal transfers commonly take two forms. The husband conveys his fee simple title either to the wife in fee simple or to himself and his wife as tenants by the entirety. The 1968 constitution provides:
The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.
The section’s meaning is unclear, but it seems to convey two separate thoughts: (1) the owner of homestead real estate, joined by the spouse if married, may alienate and (2) the owner of homestead real estate, if married, may by deed transfer the title to an estate by the entirety with the spouse.
This interpretation appears to eliminate the requirement of joinder in a transfer by the owner of the homestead to himself and his wife as tenants by the entirety. [Footnotes omitted.]

Note, Our Legal Chameleon is a Sacred Cow: Alienation of Homestead under the 1968 Constitution, 24 U.Fla.L.Rev. 701, 705-07 (1972).

In the Star Project Commentary submitted to the 1978 Constitution Revision Commission, the portion pertaining to section 4(c) of article X states in part as follows:

However, where homestead property is conveyed from a sole owner, not to a third party, but to the owner’s spouse in fee simple, or where the sole owner seeks to transfer to an estate by the entireties with the spouse, the present language may be read so as to eliminate the requirement for the signature of the non-owning spouse. Since the non-owning spouse is a party to the transaction (grantee) the spouse has effectively “joined” in the transfer by acquiescence and participation, although no formal execution was made. Furthermore, the structure of Subsection 4(c) leaves considerable doubt as to whether the phrase “joined by the spouse” is intended to apply to the remainder of the sentence, including transfers to estates by the en-tireties or merely alienations by mortgage sale or gift. The question is whether joinder means due execution in all transfers.

Background Papers of 1978 Constitution Revision Commission, Record Group 5, Series 263, Box 3, Florida State Archives. See Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U.Fla.L.Rev. 227, 265-69 (1978).

The appellee in the instant case contends that joinder is required by the wife both to alienate the homestead by mortgage, sale, or gift, and to transfer the property from sole title in the husband to the husband and wife as tenants by the entirety. The district court of appeal agreed with this contention and interpreted the phrase “joined by the spouse” as applying to both the first and second clauses of the subject constitutional provision. We disagree. In our opinion the provision is more logically and reasonably interpreted if the joinder requirement is applied only to the alienation clause. In our view, a requirement of spousal joinder when that spouse is the grantee was not intended by the constitutional drafters, and is neither rational nor necessary to protect the homestead heirs.

The district court of appeal decision relies upon our decision in Williams v. Foerster, 335 So.2d 810 (Fla.1976). In that case the present constitutional provision was considered only inferentially because (1) the subject property was at the time of the conveyance owned by the husband and wife as tenants by the entireties and (2) the conveyance was made at a time when the 1885 constitutional provision was applicable. We held that the 1885 constitutional provision did not apply to an estate by the entir-eties occupied as a home of the parties, citing Denham v. Sexton, 48 So.2d 416 (Fla. 1950). In so doing, we stated:

The provisions of Article X, Section 4, of the 1885 Constitution, which Justice Sebr-ing was construing, were in effect at the time the deed was made in the instant case. The same basic requirements are in our present constitutional provision. All the cases cited in the District Court opinion concern homestead property owned solely by the head of the household.

335 So.2d at 812. Much reliance was placed by the district court on this portion of our opinion, particularly the sentence stating that the same requirements are in our present constitutional provision. To eliminate any mistaken impression concerning our intent, we explain that this paragraph concluded there was no change between the 1885 constitutional provision and the 1972 constitutional provision concerning the disposal of property which is held as a tenancy by the entirety. By our Williams decision we did not intend to adopt a rationale which would require joinder by the spouse where there is interspousal alienation of solely owned homestead property by conveyance to the spouses as a tenancy by the entirety.

Our construction and interpretation of the constitutional provision is in complete harmony with section 689.11, Florida Statutes. The legislature in its interpretation of the constitutional provision obviously believed that joinder is not constitutionally required in circumstances such as those in the instant case. Our conclusion is also in accordance with the authors of Our Legal Chameleon (1972) and the Star Project Report to the Constitution Revision Commission.

The decision of the district court of appeal is reversed and remanded with directions that the trial court vacate summary judgment and enter a judgment in accordance with the views expressed in this opinion.

It is so ordered.

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


author: BOYD, Justice.

text:
    Wilma PURK and Donald Purk, Appellants, v. FEDERAL PRESS COMPANY and Florida Machinery Corporation, Appellees.
    No. 55214.
    Supreme Court of Florida.
    July 24, 1980.

      Law Offices of Cone, Owen, Wagner, Nu-gent, Johnson & McKeown and Larry Klein, West Palm Beach, for appellants.
    Michael D. Stewart of Fleming, O’Bryan and Fleming, Fort Lauderdale, for Federal Press Co.
    Joseph S. Kashi of Grimmett, Scherer & James, Fort Lauderdale, for Florida Machinery Corp.
   BOYD, Justice.

This is an appeal from a final judgment of the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County in which that court passed upon the constitutionality of section 95.031(2), Florida Statutes (1975). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The trial court found that Federal Press Company manufactured and Florida Machinery Corporation sold and delivered a punch press machine to the plaintiff’s employer, with delivery occurring no later than June 2, 1961. Wilma Purk was injured using the machine on April 24, 1973. On April 13, 1976, Mrs. Purk brought this action alleging that the defectiveness and negligent manufacture of the machine caused her injury. The trial court entered summary judgment for the defendants on the ground that the statute of limitations bars the action.

On January 1,1975, chapter 74-382, Laws of Florida, went into effect. This law was a general revision of the statute of limitations. Section 3 provides that an action for products liability must be begun within twelve years after the date of delivery of the completed product to its original purchaser regardless of the date the defect in the product was or should have been discovered. Section 7 provides that an action based on the design, planning, or construction of an improvement to real property must be begun within four years of the accrual of the cause of action, “but in any event within twelve (12) years after the date of actual possession by the owner or the date of abandonment of construction if not completed, or upon completion or termination of the contract between the professional engineer, registered architect or licensed contractor and his employer.”

Section 36 of the law provides a savings clause by virtue of which an action that would have been barred by the new statute on its effective date was allowed until January 1, 1976 to be commenced. Since the appellants did not bring their action until April 13, 1976, the complaint was not timely-

The appellants contend that section 95.031(2) denies access to courts in violation of article I, section 21, Florida Constitution. In support of this proposition they cite Kluger v. White, 281 So.2d 1 (Fla.1973), where we held

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.

Id. at 4.

In Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978), we were faced with the question of the validity of section 95.11(3)(c), Florida Statutes (1975). We held that the twelve-year limitation of actions founded on the design, planning, or construction of an improvement to real property, as applied in that case, did not deny access to courts by abolishing a cause of action in violation of article I, section 21, Florida Constitution. In the subsequent case of Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979), we held that section 95.11(3)(c), insofar as it provided an absolute bar to lawsuits brought more than twelve years after events connected with the construction of improvements to real property, did violate article I, section 21.

The majority opinion in Overland explained why the two cases were treated differently.

In Bauld, unlike the present case, the injury occurred prior to the enactment of section 95.11(3)(c), at a time when the applicable statute of limitations provided only that suit must be commenced within four years. When section 95.11(3)(c) took effect in 1975, two and one-half years of that period had elapsed, during which time an action could have been filed. Moreover, the savings clause of section 95.022 extended the deadline for instituting existing causes of action which would otherwise have been terminated by the new twelve year limitation for an additional year. Consequently, the absolute twelve year prohibitory provision did not operate to abolish Pearl Bauld’s cause of action, but merely abbreviated the period within which suit could be commenced from four to three and one-half years. Although shortened, the time for bringing suit was found to be ample and reasonable; it was not forestalled altogether.
By contrast, Sirmons’ cause of action was already barred by the twelve year limitation when it first accrued — that is, when his injuries occurred. No judiciál forum would ever have been available to Sirmons if the twelve year prohibitory portion of the statute were given effect. Obviously, our decision as to the validity of the statute vis-a-vis Pearl Bauld would not operate to bar our declaring the same statute invalid vis-a-vis Jerry Sirmons.

369 So.2d at 574-75 (footnotes omitted).

The present case is like Bauld in that the injury occurred prior to the enactment of section 95.11(3)(c). The time for bringing suit was shortened, but the cause of action was not abolished. We hold that as applied here, section 95.11(3)(c) does not deny the right of access to courts.

The appellants contend that the statute denies equal protection by establishing a classification which has no rational relation to a proper state objective. A statute of limitation does not deny equal protection if it is based on a rational distinction among classes of persons. See, e. g., Gammon v. Cobb, 335 So.2d 261 (Fla.1976). The above discussion of the distinction between Bauld and Overland demonstrates that the statute treats differently persons in different circumstances. We hold that it does not deny equal protection.

The appellants contend finally that the statute violates article III, section 6, Florida Constitution, which requires that laws embrace but one subject and matter properly connected therewith, and that the subject be briefly expressed in the title. As presented by the appellants, this contention is not even colorably meritorious since they call our attention not to the title of the law in question but to the title or subject heading of chapter 95, Florida Statutes (1975). The title to chapter 74-382, Laws of Florida, reads in relevant part:

AN ACT relating to limitations of actions; creating sections . . .; prescribing the periods of time for limitations; the conditions under which the periods of time apply, the times when actions accrue, the applicability of limitations and laches; repealing sections .

Article III, section 6 does not require that the title contain a detailed explanation of every provision, but only that all matters dealt with in the body of the law be fairly related to the subject described in the title. State v. McDonald, 357 So.2d 405 (Fla.1978); Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1946). The title is adequate if it is not misleading and is sufficiently detailed to put interested persons on notice reasonably leading to inquiry as to the contents of the act. King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965); Wright v. Board of Public Instruction, 48 So.2d 912 (1951). The title of chapter 74-382 is sufficient.

The judgment is affirmed.

It is so ordered.

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

      .Section 3 of chapter 74-382 created section 95.031, Florida Statutes (1975), the section at issue in the instant case, which after an amendment not directly pertinent, chapter 75-234, Laws of Florida, provided as follows:
      95.031 Computation of time. — Except as provided in subsection 95.051(2) and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
      (1) A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a [written instrument] payable on demand or after date with no specific maturity date specified in the [instrument], and the last element constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on [a written instrument payable on demand or after date], is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has. executed a separate writing evidencing such liability.
      (2) Actions for products liability and fraud under subsection 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection 95.11(3) but in any event within 12 years after the date of delivery of the completed product to its original purchaser or within 12 years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.

      . Section 7 amended the statute so that section 95.11, Florida Statutes (1975), provides in part as follows:
      95.11 Limitations other than for the recovery of real property. — Actions other than for recovery of real property shall be commenced as follows:
      (3)WITHIN FOUR YEARS.—
      (a) An action founded on negligence.
      (b) An action relating to the determination of paternity.
      (c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or [the date of] completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer; except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event [the action must be commenced] within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or [the date of] completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

      . Section 36 is section 95.022, Florida Statutes (1975);
      95.022 Effective date; saving clause. — This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.


author: ADKINS, Justice.

text:
    ROGER DEAN ENTERPRISES, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 55971.
    Supreme Court of Florida.
    July 24, 1980.
    See also, Fla., 387 So.2d 365.

      David S. Meisel of Rogers & Meisel, Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

By petition for writ of certiorari we are asked to review a decision of the Fourth District Court of Appeal (Roger Dean Enterprises v. The Department of Revenue of the State of Florida, 371 So.2d 101 (Fla.4th DCA 1978)), which involved questions of great public interest. The district court of appeal has certified to us the following two questions:

1. Is the gain from an out-of-state sale of stock held by a foreign corporation doing business in Florida taxable under the Florida corporate income tax code?
2. Is it constitutional for the Florida corporate income tax to be imposed on a gain from properties sold prior to the amendment of the Florida constitution permitting such tax when said gain is reported on the installment basis in tax years subsequent to the passage of the amendment?

We answer both questions in the affirmative.

The petitioner, Roger Dean Enterprises, Inc., is referred to hereinafter as the taxpayer and the Department of Revenue of the State of Florida is referred to hereinafter as the department.

The taxpayer, a West Virginia corporation, operated an automobile dealership in Huntington, West Virginia, until June 1, 1962, when it exchanged the assets of its automobile dealership for fifty percent of the capital stock of Dutch Miller Chevrolet, Inc., a West Virginia corporation organized to succeed to the automobile dealership formerly operated by the taxpayer. Prior to this, in 1961, the taxpayer had acquired 100 percent of the capital stock in Palm Beach Motors (the name of which was changed on August 10, 1961, to Roger Dean Chevrolet, Inc.). Roger Dean Chevrolet, Inc., is a wholly-owned subsidiary of the taxpayer which operates on property owned by the taxpayer.

The years involved herein are the fiscal years of the taxpayer ending Decémber 31, 1972, and 1973, during which years the taxpayer’s principal income (except for the gain involved herein), consisted of rents received from Roger Dean Chevrolet, Inc. Taxpayer and its subsidiary filed consolidated returns for the years involved herein. During the fiscal year ending December 31, 1972, taxpayer sold its stock in Dutch Miller Chevrolet, Inc., to an unrelated third party for a gain determined by the department to be in the amount of $349,217.00, which, although the sale took place out of the state of Florida, the department has determined to be taxable under the Florida Income Tax Code (chapter 220, Florida Statutes).

In the fiscal years ending December 31, 1972, and 1973, taxpayer included in Florida taxable income the amounts of $76.00 and $6,245.00, respectively, for the sale of property on April 23, 1971, such gain being reported for federal income tax purposes on the installment method under section 453 of the Internal Revenue Code of 1954.

Roger H. Dean, individually, or by attribution during the years involved herein, was the owner of 100 percent of the stock of taxpayer and 75 percent of the stock of Florida Chrysler Plymouth, Inc. The remaining 25 percent of Florida Chrysler Plymouth, Inc., was owned by another person. The department disallowed the $5,000 exemption to the taxpayer in computing its Florida corporate income tax for each of the years in question on the theory that the two corporations were members of a controlled group of corporations, as defined in section 1563 of the Internal Revenue Code of 1954.

By letter of April 13, 1976, the department advised the taxpayer of its proposed deficiencies for the fiscal years ending December 31,1972, and 1973, in the net respective amounts of $19,086.25 and $1,086.79. Taxpayer duly filed its protest in response thereto and the department rejected taxpayer’s position. Taxpayer timely requested an administrative hearing, which was held. The hearing officer issued a recommended order upholding the assessments of tax. The recommended order was submitted to the department and was approved.

The returns of the taxpayer indicated that the taxpayer had no property, payroll, or sales of tangible personal property, or realty ascribable to any jurisdiction other than the state of Florida. Apparently based on these facts, the hearing officer computed in his recommended order that the taxpayer was commercially domiciled in Florida during the tax years in question.

By petition for writ of certiorari the taxpayer sought review of the final agency action, but was denied all relief. These proceedings resulted.

There is a difference between two concepts which are applied in many states that have corporate income taxes. These concepts are “allocation” and “apportionment.” Allocation is a process whereby certain types of income, often called “non-business” income, generally in the nature of passive or investment income, are assigned in their entirety to a particular jurisdiction for tax purposes, usually the state of commercial domicile, theoretically, to the exclusion of all other jurisdictions. In the second concept, apportionment, the taxpayer’s normal or business income is mathematically divided among the various jurisdictions in which it does business to determine the measure of local tax. Apportionment is generally accomplished by means of a three-factor formula, utilizing property, payroll, and sales in the taxing jurisdiction over property, payroll, and sales in all jurisdictions. Although some case law and other authorities have erroneously used the term allocation when actually referring to apportionment, technically the two are entirely separate, distinct, and different concepts. Of course, the taxpayer concedes that the apportionment concept is applied in Florida.

The legislature has rejected entirely the concept of allocation in favor of “full apportionment,” that is, including all income of the taxpayer in the tax base subject to apportionment regardless of the sources from which that income was derived. Shortly after the adoption of the code this was explained as follows:

First, the legislature considered whether Florida should differ from the majority of states which tax corporate income by requiring for Florida a full apportionment of the taxable income reported for federal income tax purposes. This treatment of multistate taxpayers differs from the more traditional process of “allocating” /. e. assigning in full — to one jurisdiction some types of passive income, and “apportioning” /. e. assigning proportional shares of income among all the states having jurisdiction over the taxpayer only the balance._ Recognizing that Florida is not the “commercial domicile” for a significant number of multistate enterprises, and being aware that the allocation — apportionment format is financially advantageous only to the few commercial domicile states, the Florida Legislature elected to follow the more modern trend to full'apportionment.

England, Corporate Income Taxation in Florida: Background, Scope, and Analysis in Florida Corporate Income Taxation, 4,14 (Fla.St.Univ.L.Rev., April 1972).

It is well settled that a fairly apportioned state tax may be imposed upon the income of a business operating in interstate commerce. In Mobil Oil Corporation v. Commissioner of Taxes of Vermont, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510 (U.S. March 19, 1980), Mobil Oil Corporation was organized under the laws of New York, where it had its principal place of business and its “commercial domicile.” It did business in many states, including Vermont, where it engaged in the wholesale and retail marketing of petroleum products. Vermont imposed a corporate income tax, calculated by means of an apportionment formula upon “foreign source” dividend income received by the corporation from its subsidiaries and affiliates doing business abroad. Mobil challenged the tax on the grounds, inter alia, that it violated the due process clause of the Fourteenth Amendment and commerce clause. In upholding the tax the Court said:

It long has been established that the income of a business operating in interstate commerce is not immune from fairly apportioned state taxation. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458-462, [79 S.Ct. 357, 362-364, 3 L.Ed.2d 421] (1959); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 120, [41 S.Ct. 45, 46, 65 L.Ed. 165] (1920); United States Glue Co. v. Oak Creek, 247 U.S. 321, 328-329, [38 S.Ct. 499, 501, 62 L.Ed. 1135] (1918). “[T]he entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs.” Northwestern States Portland Cement Co. v. Minnesota, 358 U.S., at 460 [79 S.Ct., at 363], For a State to tax income generated in interstate commerce, the Due Process Clause of the Fourteenth Amendment imposes two requirements: a “minimal connection” between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the intrastate values of the enterprise. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 272-273, [98 S.Ct. 2340, 2344, 57 L.Ed.2d 197] (1978); see National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756, [87 S.Ct. 1389, 1391, 18 L.Ed.2d 505] (1967); Norfolk & Western R. Co. v. [Missouri] State Tax Comm’n, 390 U.S. 317, 325 [, 88 S.Ct. 995, 1000, 19 L.Ed.2d 1201] (1968). The requisite “nexus” is supplied if the corporation avails itself of the “substantial privilege of carrying on business” within the State; and “[t]he fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction.” Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444-445, [61 S.Ct. 246, 250, 85 L.Ed. 1143] (1940).

100 S.Ct. at 1231.

The taxpayer sub judice argues that to tax income from an out-of-state transaction by a foreign-chartered corporation amounts to a taking of its property without due process of law in violation of the Federal Constitution, because there is no nexus between the transaction and the state of Florida. The requisite nexus is supplied when the corporation and some of its income producing activities are connected with the taxing jurisdiction. If this is the case, all of that corporation’s income may be included in a fairly apportioned tax base for state income tax purposes. There is no requirement that each increment of income have a relationship to the taxing jurisdiction. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978); Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959). Under the concept of nexus currently employed by the United States Supreme Court, the taxpayer’s rental income from Florida property provides sufficient nexus to allow apportioned taxation of all its federal net income.

In the case sub judice it appears that all of the taxpayer’s payroll is within the state of Florida. Also, all its real and tangible personal property is located in Florida. The trier of fact deduced that the commercial domicile of the taxpayer was also in Florida. The taxpayer does not argue that Florida utilizes the concept of “allocation” nor does the taxpayer urge any issues relating to the “commercial domicile.” Primarily the taxpayer argues that the Florida formulary method of apportionment was unconstitutionally applied in the context of the facts presented and further that the taxpayer was entitled to the benefit of the relief provisions of section 214.73, Florida Statutes (1973). This section reads as follows:

Apportionment; other methods. — If the apportionment methods of §§ 214.71 and 214.72 do not fairly represent the extent of a taxpayer’s tax base attributable to this state, the taxpayer may petition for, or the department may require, in respect to all or any part of the taxpayer’s tax base, if reasonable:
(1) Separate accounting;
(2) The exclusion of any one or more factors;
(3) The inclusion of one or more additional factors which will fairly represent the taxpayer's tax base attributable to this state; or
(4) The employment of any other method which will produce an equitable apportionment. (Emphasis supplied.)

The taxpayer also relies upon a regulation of the department which states that where the activities carried on within the state are separate from the activities outside the state, the income subject to tax may be determined upon a separate accounting of the Florida business. Fla.Admin. Code Rule 12 C-1.15. These regulations are directed primarily at determining whether a multistate taxpayer operates a “unitary” business entirely subject to tax in Florida, or separate businesses in several states including Florida, as to which Florida may tax only the Florida business.

The relief provision quoted above tracks the language appearing in section 18 of the Uniform Division of Income for Tax Purposes Act (UDITPA). The Act deals with the allocation and apportionment of income of multistate businesses for tax purposes. There is a very strong presumption in favor of normal three-factor apportionment and against the applicability of the relief provisions. See Donald M. Drake Co. v. Department of Revenue, 263 Or. 26, 500 P.2d 1041 (1972). The relief provision should be used where the statute reaches arbitrary or unreasonable results so that its application could be attacked successfully on constitutional grounds. Departures from the basic formula should be avoided except where reasonableness requires. Deseret Pharmaceutical Co., Inc. v. State Tax Commissioner, 579 P.2d 1322 (Utah 1978); see Pierce, The Uniform Division of Income for State Tax Purposes, 35 Taxes 747, 782 (1957). The relief provisions applicable to apportionment should not be used to remove an out-of-state stock sale made by a foreign-chartered corporation subject to its income tax from the tax base. See F. W. Woolworth v. Commissioner of Taxes, 133 Vt. 93, 328 A.2d 402 (1974); Hoosier Engineering Co. v. Shea, 124 Vt. 341, 205 A.2d 821 (1964).

Section 214.73, Florida Statutes (1973), gives the-Department of Revenue discretion to alter the apportionment formula in very rare instances, but does not vest any discretion in the department to modify federal taxable income. Cf. GTE Automatic Electric, Inc. v. Allphin, 68 Ill.2d 326,12 Ill.Dec. 134, 369 N.E.2d 841 (Ill.1977) (relief provision should not be interpreted to allow administrator to use it as a vehicle for tampering with the terms of specific apportionment provisions). See also Hellerstein, Construing the Uniform Division of Income for Tax Purposes Act: Reflections on the Illinois Supreme Court’s Reading of the “Throwback Rule”, 45 U.Chi.L.Rev. 768, 790-91 (1978).

The second question certified to us reads as follows:.

Is it constitutional for the Florida corporate income tax to be imposed on a gain from property sold prior to the amendment of the Florida constitution permitting such tax when said gain is reported on the installment basis in tax years subsequent to the passage of the amendment?

371 So.2d at 106.

We approve the following quote from the opinion of the district court of appeal:

Next, it is argued that, since the sale of property referred to in Petitioner’s Point II pre-dated the amendment to the Florida Constitution authorizing corporate income tax, it should not be subject to such tax even though certain installment payments of the sales price were paid during a tax year to which the corporate income tax was applicable. The Legislature specifically provided that the taxpayer has the option to report a gain on the installment basis just as he could do for Federal income tax purposes. It was not Legislative oversight that this method of reporting would cause installments paid after January 1,1972, oh sales which took place prior to January 1, 1972, to be taxed under the new Corporate Income Tax Code. Sensing the inequities involved in such taxation, the Legislature provided that the tax on older transactions would be imposed at a reduced percentage.
We conclude that the Legislature intended the new Corporate Income Tax to apply to installment payments received by the taxpayer after January 1, 1972, but produced as a result of a transaction prior to January 1, 1972; otherwise, the Legislature would not have enacted Section 220.13(l)(c). We do not believe the explanation of legislative intent contained in Section 220.02(4) conflicts with Section 220.13(l)(c), but if it does, the latter section being located later in the statutory scheme and being more specific, would control.
Petitioner contends it is unconstitutional to tax said installments under the circumstances of this case. This is certainly an arguable position; however, we have considered the authorities cited by petitioner and find them inapposite. On the contrary, we believe the option afforded petitioner of reporting under the accrual method of accounting or reporting on the installment basis enables the taxation of these installments to pass constitutional muster. (Footnotes omitted).

371 So.2d at 104, as modified at 106.

The manner in which the taxpayer exercised its choice distinguishes this case from S. R. G. Corporation v. Department of Revenue, 365 So.2d 687 (Fla.1978), and Clearwater Federal Savings & Loan Association v. Department of Revenue, 350 So.2d 1134 (Fla.2d DCA 1977) aff’d 366 So.2d 1164 (Fla. 1979). Under the position which the department was advocating in both of those cases, the taxpayers could have had no option by which the income realized prior to November 2,1971 (the effective date of the Florida corporate income tax law) could have escaped inclusion in the Florida tax base since it was included in federal taxable income under the statutory formula for years ending after January 1, 1972. The taxpayer sub judice did have a choice. If it had chosen not to use the installment method for Florida, the statute would have subjected none of the gain from its 1971 installment sale to taxation. The taxpayer describes this as a harsh alternative since it would require future sales to be taxed completely in the year of realization. However, in the long run, the taxpayer would pay no additional tax to the state by making this choice. Moreover, the Florida rate of five percent is considerably below federal rate, presenting an additional reason why the full accrual approach is, in fact, a reasonable alternative to give a taxpayer who desires to free income from a 1971 installment sale from any taxation at all.

The inclusion of installments in later years from sales made prior to the effective date of the statute cannot be successfully challenged on due process grounds. Although not pressed by the taxpayer, this issue may be implicit in the certification of the district court of appeal since no specific constitutional provision was mentioned. Other states have been almost unanimous in holding there is no unconstitutional denial of due process. Welch v. Henry, 305 U.S. 134, 59 S.Ct. 121, 83 L.Ed. 87 (1938); Estate of Kennett v. State, 115 N.H. 50, 333 A.2d 452 (1975); Tiedemann v. Johnson, 316 A.2d 359 (Me.1974); Altsuler v. Peters, 206 N.W.2d 570 (Neb.1973); Kapzenberg v. Comptroller of the Treasury, 282 A.2d 465 (Md.1971). The taxpayer finds some relief in Thorpe v. Mahin, 43 Ill.2d 36, 250 N.E.2d 633 (1969). This case seemed to turn on an ambiguity in the statute necessitating a construction in favor of the taxpayer. Nevertheless, we do not follow its line of reasoning.

The result reached by applying section 220.13(l)(c), Florida Statutes (1973), to the taxpayer’s 1972 and 1973 installment receipts from its 1971 sale in no way infringes upon the federal due process of law requirement.

Under the provisions of section 220.14(1), Florida Statutes (1973), corporate taxpayers are generally allowed an exemption of $5,000 of net income in computing their tax liability. However, under subsection (4) of section 220.14, only one exemption is allowed to the Florida member of a “controlled group of corporations” filing separate returns. The term “controlled group of corporations” under that section is as defined in section 1563 of the Internal Revenue Code of 1954:

(a) CONTROLLED GROUP OF CORPORATIONS. — For purposes of this part, the term “controlled group of corporations” means any group of—
******
(2) BROTHER-SISTER CONTROLLED GROUP. — Two or more corporations if 5 or fewer persons who are individuals, estates, or trusts own (within the meaning of subsection (d)(2)) stock possessing—
(A) at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of the stock of each corporation, and
(B) more than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the total value of shares of all classes of stock of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation.

Roger H. Dean, individually, or by attribution during the years, was the owner of 100 percent of the stock of Roger Dean Enterprises, Inc., and 75 percent of Florida Chrysler Plymouth, Inc. The remaining 25 percent of Florida Chrysler Plymouth, Inc., was owned by Robert S. Cuillo, an unrelated person. The question involved here is whether Roger Dean Enterprises, Inc., and Florida Chrysler Plymouth, Inc., were members of a controlled group of corporations. Roger H. Dean and Robert S. Cuillo are fewer than five persons who own at least 80 percent of the total value of shares of all classes of the stock of each corporation. Section 1563(a)(2)(A), Internal Revenue Code (1954); Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner of Internal Revenue, 548 F.2d 501 (4th Cir.1977); T. L. Hunt, Inc. v. Commissioner, 562 F.2d 532 (8th Cir.1977).

We adopt the reasoning of these decisions in construing the Florida corporate income tax provisions.

In summary, we hold as follows:

Answering the first question in the affirmative, we hold that the gain from an out-of-state sale of stock held by a foreign corporation doing business in Florida may be taxable under the Florida corporate income tax code.

Answering the second question in the affirmative, we hold that it is constitutional for the Florida corporate income tax to be imposed on a gain from property sold prior to the amendment of the Florida Constitution permitting such tax when said gain is reported on the installment basis in tax years subsequent to the passage of the amendment.

We approve the decision of the district court of appeal and, having answered the questions certified to us, we discharge the writ of certiorari.

It is so ordered.

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

OVERTON, J., concurs with the opinion with regard to the first question, but dissents to the second question and would apply S. R. G. Corp. v. Dept. of Revenue, 365 So.2d 687 (Fla.1978).


text:
    DEPARTMENT OF REVENUE of the State of Florida, Petitioner, v. STAN MUSIAL & BIGGIES, INC., Respondent.
    No. 55711.
    Supreme Court of Florida.
    July 25, 1980.

      Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for petitioner.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, and Anthony J. Sestric of Fordyce & Mayne, St. Louis, Mo., for respondent.
   ADKINS, Justice.

This cause is before us on petition for writ of certiorari to the First District Court of Appeal on the ground that its decision in Stan Musial & Biggies, Inc. v. Department of Revenue, 363 So.2d 375 (Fla. 1st DCA 1978) conflicts with Roger Dean Enterprises, Inc. v. The Department of Revenue of the State of Florida, 371 So.2d 101 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

This Court has recently rendered a decision in Roger Dean. Roger Dean Enterprises, Inc. v. State of Florida, Department of Revenue, 387 So.2d 358 no. 55,971 (Fla. July 24, 1980). We therefore remand the case sub judice to the district court for reconsideration in light of that opinion.

It is so ordered.

SUNDBURG, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.


author: OVERTON, Judge.

text:
    Carolyn M. CORNELIUS, Petitioner, v. Edward H. CORNELIUS, Respondent.
    No. 58121.
    Supreme Court of Florida.
    Aug. 28, 1980.
    Keith J. Kinderman, Tallahassee, for petitioner.
    Jackson G. Beatty, Tallahassee, for respondent.
   OVERTON, Judge.

The First District Court of Appeal, in Cornelius v. Cornelius, 382 So.2d 710 (Fla. 1st DCA 1979), certified the following question to be of great public interest:

May a trial court, pursuant to Section 61.08(2), Florida Statutes (1977), base an award of lump sum alimony on factors (such as those discussed in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974)) not relating to one spouse’s needs and the ability of the other spouse to provide for those needs?

We previously answered the question and approved Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Since certifying this question, the first district has receded from Cornelius in Collinsworth v. Collinsworth, 386 S.2d 570 (Fla. 1st DCA 1980, rehearing denied April 10, 1980). We quash the decision in Cornelius and remand for further consideration in light of our decisions in Canakaris v. Canakaris and Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

It is so ordered.

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